<PAGE>
SCHEDULE 14A
(Rule 14a-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities Exchange Act of
1934
Filed by the Registrant [X]
Filed by a Party other than the Registrant [_]
Check the appropriate box:
[_]Preliminary Proxy Statement
[_]Confidential, for Use of the Commission Only (as permitted by Rule 14a-
6(e)(2))
[X]Definitive Proxy Statement
[_]Definitive Additional Materials
[_]Soliciting Material Pursuant to (S)240.14a-11(c) or (S)240.14a-12
CDnow, Inc.
--------------------------------------
(Name of Registrant as Specified in its Charter)
CDnow, Inc.
--------------------------------------
(Name of Person(s) Filing Proxy Statement)
Payment of Filing Fee (Check the appropriate box):
[_]No fee required.
[_]Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
1)Title of each class of securities to which transaction applies:
common stock, no par value of CDnow, Inc.
------------------------------------------------------------------------
2)Aggregate number of securities to which transaction applies:
17,842,979 shares of CDnow common stock
------------------------------------------------------------------------
3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (Set forth the amount on which the
filing fee is calculated and state how it was determined):
The filing fee of $45,887 has been calculated on the basis of Exchange
Act Rule 0-11(c)(1) as one-fiftieth of one percent of $229,434,848, the
underlying value of the transaction. The underlying value of the
transaction has been calculated pursuant to Exchange Act Rule
0-11(a)(4) by adding (a) the product of (i) $8.390 (the average of the
bid and asked prices of CDnow common stock on the Nasdaq National
Market System on November 9, 1998) times (ii) 17,674,405 (the number of
CDnow shares outstanding as of October 22, 1998) plus (b) (i) $5.703
(the average of the bid and asked prices of N2K common stock on the
Nasdaq National Market System on November 9, 1998) times (ii)
14,228,755 (the number of N2K shares outstanding as of October 31,
1998).
------------------------------------------------------------------------
4) Proposed maximum aggregate value of transaction:
$229,494,848
5) Total fee paid:
$45,887*
------------------------------------------------------------------------
*CDnow, Inc. and N2K Inc. each paid one-half of this fee.
[X]Fee paid previously with preliminary materials.
[_]Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number,
or the Form or Schedule and the date of its filing.
1)Amount Previously Paid: __________________________________________________
2)Form, Schedule or Registration Statement No.: ____________________________
3)Filing Party: ____________________________________________________________
4)Date filed: ______________________________________________________________
<PAGE>
MERGER PROPOSED--YOUR VOTE IS IMPORTANT
The boards of directors of CDnow, Inc. and N2K Inc. agreed on a merger designed
to create one of the leading electronic commerce companies and a leading online
music retailer. The parties will create a new publicly-traded company to be
owned by the shareholders of CDnow and N2K.
We expect to select a single corporate name and an online music store brand
following the closing of the merger. In the interim, the combined company will
be named CDnow/N2K, Inc.
CDnow and N2K common stock are both listed on the Nasdaq National Market. We
will list the shares of CDnow/N2K, Inc. on the Nasdaq National Market. CDnow's
Nasdaq symbol is CDNW. N2K's Nasdaq symbol is NTKI.
If we complete the merger, N2K shareholders will receive 0.83 shares of common
stock of the new company for each share of N2K common stock that they own.
CDnow shareholders will receive one share of common stock of the new company
for each share of CDnow common stock that they own. Based on the number of
shares of CDnow and N2K outstanding on December 31, 1998, we expect that
approximately 29,810,799 shares of CDnow/N2K common stock will be issued in
connection with the merger.
CDnow/N2K, Inc. would like to provide employees, consultants, advisors and non-
employee directors the opportunity to receive stock options and restricted
stock. The CDnow/N2K, Inc. 1999 Equity Compensation Plan relates to such
grants. You will vote on the adoption of this equity compensation plan.
The merger cannot be completed unless approved by the shareholders of both
companies. We scheduled special meetings for you to vote on the merger.
YOUR VOTE IS VERY IMPORTANT.
This joint proxy statement/prospectus provides you with detailed information
about the proposed merger and the equity compensation plan. In addition, you
may obtain information about our companies from documents that we have filed
with the Securities and Exchange Commission. We encourage you to read this
entire document carefully.
PLEASE SEE "RISK FACTORS" BEGINNING ON PAGE 10 OF THE JOINT PROXY
STATEMENT/PROSPECTUS FOR A DESCRIPTION OF CERTAIN RISKS ASSOCIATED WITH
APPROVAL OF THE MERGER PROPOSAL AND THE EQUITY PLAN PROPOSAL.
The dates, times and places of the meetings are as follows:
FOR CDNOW SHAREHOLDERS:
9:00 a.m., March 17, 1999
CDnow Corporate Headquarters
1005 Virginia Drive
Fort Washington, PA 19034
FOR N2K SHAREHOLDERS:
9:00 a.m., March 17, 1999
N2K Inc.
55 Broad Street
New York, NY 10004
Whether or not you plan to attend your meeting, please take the time to vote by
completing the enclosed proxy card and mailing it to us as soon as possible. If
you sign, date and mail your proxy card without indicating how you want to
vote, your proxy will be counted as a vote in favor of the merger. If you are a
N2K shareholder and you fail to return your card, the effect will be a vote
against the merger, but a failure to return your card will have no effect on
the vote relating to the adoption of the 1999 Equity Compensation Plan. If you
are a CDnow shareholder, failure to return your card will have no effect on the
vote for the merger or for the 1999 Equity Compensation Plan.
/s/ Jason Olim /s/ Lawrence Rosen
____________________________________ ______________________________________
Jason Olim Lawrence Rosen
Chairman and Chief Executive Officer Chairman and Chief Executive Officer
CDnow, Inc. N2K Inc.
Neither the SEC nor any state securities regulators have approved the
common stock to be issued in the merger or determined if this joint proxy
statement/prospectus is accurate or adequate. Any representation to the
contrary is a criminal offense.
Joint proxy statement/prospectus dated February 16, 1999. This joint proxy
statement/prospectus is first being mailed to shareholders of CDnow and N2K on
February 17, 1999.
<PAGE>
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
TO BE HELD ON WEDNESDAY, MARCH 17, 1999
February 17, 1999
CDnow, Inc. will hold a special meeting of its shareholders on Wednesday, March
17, 1999 at 9:00 a.m. at CDnow Corporate Headquarters, 1005 Virginia Drive,
Fort Washington, PA 19034, for the following purposes:
1. To consider and vote on a proposal to approve an Agreement and Plan of
Merger, dated as of October 22, 1998, among CDnow, Inc., N2K Inc. and
CDnow/N2K, Inc., as amended. The merger agreement provides for the issuance
of shares of CDnow/N2K common stock to the shareholders of CDnow and N2K in
consideration for the shares of CDnow and N2K now held by these
shareholders. After the merger the shareholders of CDnow and N2K will be
shareholders of CDnow/N2K. CDnow and N2K will be subsidiaries of CDnow/N2K.
2. To approve and adopt the CDnow/N2K, Inc. 1999 Equity Compensation Plan.
3. To transact such other business as may properly come before the CDnow
special meeting.
CDnow fixed the close of business on January 26, 1999 for shareholders entitled
to vote at the CDnow special meeting or at any adjournment of the CDnow special
meeting. A list of such shareholders will be available for inspection by
shareholders of record during business hours at 1005 Virginia Drive, Fort
Washington, PA 19034 for ten days prior to the date of the CDnow special
meeting. This list will also be available at the CDnow special meeting.
Approval of the merger proposal and the equity compensation plan proposal
requires the affirmative vote of a majority of the shares of CDnow common stock
cast at the CDnow special meeting.
THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT SHAREHOLDERS VOTE TO APPROVE
THE MERGER PROPOSAL AND THE EQUITY COMPENSATION PLAN PROPOSAL, WHICH ARE
DESCRIBED IN DETAIL IN THE ACCOMPANYING JOINT PROXY STATEMENT/PROSPECTUS.
Please sign and promptly return the proxy card in the enclosed envelope,
whether or not you expect to attend the CDnow special meeting. Shareholders
will be admitted to the meeting upon presentation of proof of ownership. For
shareholders who own stock held by banks, brokers, or investment plans,
examples of proof of ownership would include a 1998 brokerage statement or a
letter from the bank or broker.
BY ORDER OF THE BOARD OF DIRECTORS,
Matthew Olim
Secretary
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
Summary..................................................................... 1
Risk Factors................................................................ 10
The Merger.................................................................. 19
Background of the Merger................................................... 20
CDnow Reasons for the Merger; Recommendation of the CDnow Board............ 23
N2K Reasons for the Merger; Recommendation of the N2K Board................ 24
Cautionary Statement Concerning Forward-Looking Statements................. 25
Accounting Treatment....................................................... 26
Material Federal Income Tax Consequences................................... 26
Dissenters' Rights......................................................... 29
Comparative Per Share Market Price and Dividend Information................. 33
The Special Meetings........................................................ 34
Times and Places; Purposes................................................. 34
Voting Rights; Votes Required for Approval................................. 34
Proxies.................................................................... 35
Directors and Management of CDnow/N2K Following the Merger.................. 37
Directors.................................................................. 37
Committees of the Board of Directors....................................... 38
Compensation of Directors.................................................. 39
Management and Executive Officers of CDnow/N2K............................. 39
Executive Compensation..................................................... 40
Interests of CDnow and N2K Executive Officers in the Merger................. 41
Employment Agreements with CDnow/N2K....................................... 41
Interests of N2K Directors and Executive Officers.......................... 42
Interests of CDnow Executive Officer....................................... 44
Indemnification and Insurance.............................................. 44
The Merger Agreement........................................................ 45
The Merger................................................................. 45
Conversion of Shares....................................................... 45
Exchange of Stock Certificates............................................. 45
Representations and Warranties............................................. 46
Material Covenants......................................................... 47
Conditions to Obligations to Effect the Merger............................. 52
Termination; Termination Fees and Expenses................................. 54
</TABLE>
<TABLE>
<S> <C>
Amendment and Waiver...................................................... 56
Other Agreements........................................................... 57
N2K Stock Option Agreement................................................ 57
CDnow Stock Option Agreement.............................................. 58
N2K Shareholder Support Agreement......................................... 59
CDnow Shareholder Support Agreement....................................... 60
Opinions of Financial Advisors............................................. 61
Opinion of CDnow's Financial Advisor...................................... 61
Opinion of N2K's Financial Advisor........................................ 67
Ownership of CDnow, N2K and CDnow/N2K...................................... 73
Compliance with Section 16(a) of the Securities Exchange Act of 1934....... 74
Comparison of Shareholders' Rights......................................... 75
Comparison of Rights of Current CDnow Shareholders with CDnow/N2K
Shareholders Following the Merger........................................ 75
Comparison of Rights of Current N2K Shareholders with CDnow/N2K
Shareholders Following the Merger........................................ 77
Description of CDnow/N2K Capital Stock Following the Merger................ 86
Authorized Capital Stock.................................................. 86
Common Stock.............................................................. 86
Preferred Stock........................................................... 86
Pennsylvania Anti-Takeover Laws........................................... 87
Transfer Agent and Registrar.............................................. 88
Nasdaq National Market Listing; Delisting and Deregistration of CDnow and
N2K Common Stock......................................................... 88
Federal Securities Laws Consequences; Stock Transfer Restriction
Agreements............................................................... 88
Industry Overview.......................................................... 89
Description of CDnow....................................................... 90
Business.................................................................. 90
The CDnow Online Retail Store............................................. 90
Marketing and Promoting................................................... 92
Customer Service.......................................................... 95
Distribution and Fulfillment.............................................. 95
Technology................................................................ 95
Competition............................................................... 96
Intellectual Property..................................................... 97
Employees................................................................. 97
Facilities................................................................ 97
Legal Proceedings......................................................... 98
</TABLE>
i Table of Contents
<PAGE>
<TABLE>
<S> <C>
Selected Historical Financial Information of CDnow......................... 99
CDnow Management's Discussion and Analysis of Financial Condition and
Results of Operations.................................................... 101
Overview.................................................................. 101
Results of Operations..................................................... 102
Liquidity and Capital Resources........................................... 106
Seasonality............................................................... 106
Factors Affecting CDnow's Business and Prospects.......................... 107
Recently Issued Accounting Pronouncements................................. 108
Description of N2K......................................................... 109
Business.................................................................. 109
N2K Web sites............................................................. 110
Encoded Music............................................................. 113
Advertising Sales and Sponsorships........................................ 113
Marketing and Promotion................................................... 114
Sales and Marketing....................................................... 115
Technology................................................................ 118
Competition............................................................... 120
Employees................................................................. 120
Trademarks and Patents.................................................... 121
Facilities................................................................ 121
Litigation................................................................ 121
Selected Historical Financial Information of N2K........................... 123
N2K Management's Discussion and Analysis of Financial Conditions and
Results of Operations..................................................... 125
Overview.................................................................. 125
</TABLE>
<TABLE>
<S> <C>
Recent Events.............................................................. 126
Results of Operations...................................................... 126
Liquidity and Capital Resources............................................ 129
Discontinued Operations.................................................... 131
Recent Accounting Pronouncements........................................... 132
Risks Associated with the Year 2000........................................ 132
Adoption of the CDnow/N2K, Inc. 1999 Equity Compensation Plan............... 134
Proposal................................................................... 134
Purposes and Effects....................................................... 134
Vote Required for Approval................................................. 137
Legal Matters............................................................... 138
Experts..................................................................... 139
Future Shareholder Proposals................................................ 140
Where You Can Find More Information......................................... 141
</TABLE>
Appendix I: Agreement and Plan of Merger, as amended
Appendix II: Amended and Restated Articles of Incorporation of CDnow/N2K
Appendix III: Amended and Restated Bylaws of CDnow/N2K
Appendix IV: PBCL Subchapter D--Dissenters' Rights
Appendix V: Opinion of BT Alex. Brown Incorporated
Appendix VI: Opinion of Allen & Company Incorporated
Appendix VII: CDnow/N2K, Inc. 1999 Equity Compensation Plan
Table of Contents ii
<PAGE>
SUMMARY
SUMMARY
This summary highlights selected information from this document and may not
contain all of the information that is important to you. To understand the
merger and the equity compensation plan fully and for a more complete
description of the legal terms of the merger and the equity compensation plan,
you should carefully read this entire document and the documents to which we
have referred you. See "Where You Can Find More Information." (See page 141)
THE COMPANIES
CDNOW, INC.
1005 Virginia Drive
Fort Washington, Pennsylvania 19034
(215) 619-9900
CDnow, Inc., through its internet site "cdnow.com," is one of the leading
online music retail stores. CDnow offers more than 390,000 items and over
345,000 sound samples--ten times the size of the average music store. Founded
in 1994 by twin brothers Jason and Matthew Olim, CDnow is building a better
music store through a large catalogue of products, software that makes purchase
recommendations to the customer based on the customer's preferences and
purchasing history, custom compilation CDs, music samples, and a vast library
of reviews, editorials, and features from top music writers from Rolling Stone
Network, MTV/VH1 and CMJ News Music Monthly. CDnow is the premier music store
for Yahoo!, and the exclusive music store for Lycos, Lycos-Bertelsmann,
Webcrawler, Tripod, GeoCities, MTV/VH1 and Rolling Stone Network.
N2K INC.
55 Broad Street
New York, New York 10004
(212) 378-5555
N2K's Music Boulevard through its internet site "musicblvd.com," is one of the
leading online music retail stores. N2K's Music Boulevard Network combines
Music Boulevard and the award-winning music channels: Rocktropolis, Jazz
Central Station, Classical Insites and the Star Sites, including official sites
for Leonard Bernstein and Miles Davis. Music Boulevard offers a choice of more
than 470,000 items and over 350,000 music samples. The Music Boulevard Network
is the exclusive music store for America Online's Music Space, AOL Japan, AOL
Europe, Netscape, Excite, Disney.com, ABC.com, ABC Radio Networks, Infoseek,
iVillage, AT&T WorldNet, StarMedia, CBS Cable's TNN, CMT and country.com and
MTV International sites in Europe, Japan, Asia and Brazil.
OUR REASONS FOR THE MERGER
We believe that the merger presents an opportunity to create one of the leading
electronic commerce companies and a leading online music retailer.
By combining, we believe that we will be able to increase our revenues, reduce
our costs, and improve our service. We expect that the combined company will
operate under a single brand, build on our common strengths and provide our
shareholders and customers with added value.
In reaching their recommendations in favor of the merger, each of our boards of
directors considered a number of factors, including:
. the rapidly changing competitive environment in the online retail music
industry;
. the challenge of combining the businesses of two dynamic corporations and
the risk of diverting management resources from other strategic
opportunities and operational matters for an extended period of time;
. the significant operating losses incurred by each company since inception
and the anticipation that significant losses would continue for the
combined company for the foreseeable future; and
. the possibility that the combined company might require additional
financing.
To review our reasons for the merger in greater detail see pages 23 through 25.
-1-
<PAGE>
SUMMARY
THE MERGER
WHAT YOU WILL RECEIVE IN THE MERGER (SEE PAGE 19)
As a result of the merger, if you are an N2K shareholder, you will receive 0.83
of a share of CDnow/N2K common stock for each share of N2K common stock that
you own. No fractional shares will be issued. Instead, N2K shareholders will
receive a check in payment for any fractional shares based on the market value
of the CDnow/N2K stock.
If you are a CDnow shareholder, you will receive one share of CDnow/N2K common
stock for each share of CDnow common stock that you own.
You should not send in your stock certificates until we instruct you to do so
after we complete the merger.
DISSENTERS' RIGHTS (SEE PAGE 29)
Under Delaware law, N2K shareholders are not entitled to an appraisal of the
value of their shares.
The Pennsylvania corporation law grants CDnow shareholders dissenters' rights.
CDnow shareholders may object to the merger proposal and demand the fair value
of their CDnow common stock if they follow the procedures set forth under the
Pennsylvania corporate law. These procedures require that a dissenter
. file with CDnow a written notice of intention to dissent prior to the
vote on the merger proposal,
. make no change in the beneficial ownership of CDnow shares from the date
of filing until the effective time of the merger and
. refrain from voting for the approval and adoption of the merger
proposal. Dissenters' rights will be forfeited if these requirements are
not fully and precisely satisfied. See "The Merger--Dissenters' Rights" and
a copy of the text of Subchapter 15D attached as Appendix IV to this joint
proxy statement/prospectus.
TAX CONSEQUENCES (SEE PAGE 26)
The exchange of your shares for shares in CDnow/N2K generally will be tax-free
to you for federal income tax purposes, except for tax payable because of cash
received instead of fractional shares by N2K shareholders.
A holder's aggregate tax basis in the CDnow/N2K common stock received in the
merger generally will be the same as that holder's aggregate federal income tax
basis in the stock surrendered in the merger, reduced in the case of holders of
N2K common stock by any federal income tax basis allocable to fractional shares
for which cash is received. Tax matters are very complicated, and the tax
consequences of the merger to you will depend on the facts of your own
situation. You should consult your tax advisor for a full understanding of the
tax consequences of the merger to you.
VOTE REQUIRED TO APPROVE THE MERGER PROPOSAL (SEE PAGE 34)
CDnow--the CDnow merger must be approved by a majority of the votes cast at the
special meeting.
N2K--the N2K merger must be approved by a majority of the shares issued and
outstanding.
AGREEMENTS THAT REQUIRE JASON OLIM AND N2K EXECUTIVE OFFICERS TO VOTE THEIR
SHARES IN FAVOR OF THE MERGER--(SEE PAGES 59 AND 60)
Jason Olim agreed to vote his shares in favor of the merger. Mr. Olim owns
16.7% of the outstanding shares of CDnow common stock. N2K executive officers
controlling 16.7% of the outstanding shares of N2K agreed to vote their shares
in favor of the merger. You should realize that these arrangements make it more
likely that we will receive the necessary shareholder approval of the merger.
LITIGATION RELATED TO THE MERGER (SEE PAGE 121)
Plaintiffs filed a complaint against N2K, its directors and CDnow in connection
with the merger. This action alleges that the consideration to be received by
N2K shareholders in the merger is unfair and grossly inadequate. We believe
these claims are without merit and intend to defend the action vigorously. N2K
and its directors moved to dismiss the complaint for failure to state a claim.
RECOMMENDATIONS TO SHAREHOLDERS
TO CDNOW SHAREHOLDERS:
The CDnow board believes that the merger is in your best interest and
unanimously recommends that you vote FOR the proposal to approve and adopt the
merger proposal.
TO N2K SHAREHOLDERS:
The N2K board believes that the merger is in your best interest and unanimously
recommends that you
-2-
<PAGE>
SUMMARY
vote FOR the proposal to approve and adopt the merger proposal.
INTERESTS OF OFFICERS AND DIRECTORS IN THE MERGER (SEE PAGE 41)
You should be aware that a number of executive officers and directors of CDnow
and N2K who recommend you vote in favor of the merger proposal have employment
or severance agreements or benefit plans that provide them with interests in
the merger that are different from, or in addition to, yours. Each of these
persons could receive compensation or other rights if the merger is completed.
Severance and Employment Agreements
CDnow entered into a severance agreement with David A. Capozzi. If, as a result
of the merger, Mr. Capozzi is no longer employed by CDnow/N2K he will be
entitled to approximately $140,000. We describe the severance agreement on page
44.
The following persons entered into employment agreements with N2K:
James Coane
Jonathan Diamond
Robert David Grusin
Bruce Johnson
David Pakman
Jerold J. Rosen
Lawrence Rosen and
Artuhr S. Weiner
Under their employment agreements, they will receive severance payments and
contribution of benefits if we terminate their employment because of the
merger. The aggregate amounts payable would be approximately $1,579,167. We
describe these agreements on pages 42 and 43.
Stock Options
N2K granted stock options and warrants to its executive officers under plans
and employment agreements. The stock options granted to Messrs. L. Rosen,
Diamond, Grusin, Coane, Johnson and Weiner will become fully vested and
exercisable upon consummation of the merger. We estimate the aggregate value of
such options as of December 1, 1998 to be approximately $2,776,146.70.
Please see pages 41 through 44 for additional information about employment
agreements, incentive agreements and option holdings of executive officers and
directors of CDnow and N2K.
OPINIONS OF FINANCIAL ADVISORS (SEE PAGE 61)
BT Alex. Brown Incorporated has delivered to the CDnow board of directors a
written opinion stating that, as of the date of the opinion and based upon and
limited by the assumptions made, matters considered and limitations stated in
the opinion, the CDnow exchange ratio was fair, from a financial point of view,
to the holders of CDnow common stock. The full text of the written opinion of
BT Alex. Brown, which states the assumptions made, matters considered and
limitations on the review undertaken, is attached as Appendix V to this joint
proxy statement/prospectus. We urge CDnow shareholders to read the opinion
carefully and in its entirety. BT ALEX. BROWN'S OPINION IS DIRECTED TO THE
CDNOW BOARD, ADDRESSES ONLY THE FAIRNESS OF THE CDNOW EXCHANGE RATIO FROM A
FINANCIAL POINT OF VIEW AND DOES NOT CONSTITUTE A RECOMMENDATION TO ANY
SHAREHOLDER AS TO HOW THAT SHAREHOLDER SHOULD VOTE AT THE CDNOW SPECIAL
MEETING. See "--Opinion of CDnow's Financial Advisor."
Allen & Company Incorporated has delivered to the N2K board of directors its
written opinion stating that, as of the date of the opinion and based upon and
limited by matters stated in the opinion, the terms of the merger were fair to
the holders of N2K common stock from a financial point of view. The full text
of the written opinion of Allen & Company which states the assumptions made,
matters considered and limits on the review undertaken, is attached as Appendix
VI to this joint proxy statement/prospectus. We urge N2K shareholders to read
the opinion carefully and in its entirety. ALLEN & COMPANY'S OPINION IS WRITTEN
AND DIRECTED ONLY TO THE FAIRNESS, FROM A FINANCIAL POINT OF VIEW, OF THE TERMS
OF THE MERGER TO THE HOLDERS OF N2K COMMON STOCK AND DOES NOT CONSTITUTE A
RECOMMENDATION OF THE MERGER OVER OTHER COURSES OF ACTION THAT MAY BE AVAILABLE
TO N2K OR CONSTITUTE A RECOMMENDATION TO ANY HOLDER OF N2K COMMON STOCK
CONCERNING HOW THAT SHAREHOLDER SHOULD VOTE WITH RESPECT TO THE MERGER. See "--
Opinion of N2K's Financial Advisor."
-3-
<PAGE>
Agreements Which May Deter Third Parties from Making Bids to Acquire CDnow or
N2K (see pages 57 through 59)
CDnow and N2K each granted to the other an option to acquire up to 19.9% of its
outstanding common stock. CDnow or N2K may only exercise the option if the
merger agreement terminates. The existence of these options may make it more
difficult for a third party to acquire either company, because that party would
also need to acquire the shares underlying these option grants. Upon the
closing of the merger, the 19.9% options automatically terminate.
The Combined Company
Board of Directors and Management of CDnow/N2K Following the Merger
(see pages 37 through 40)
We expect that after the merger, Jonathan V. Diamond, the Vice Chairman of N2K,
will be CDnow/N2K's Chairman of the Board. We also expect that Jason Olim, the
Chairman and Chief Executive Officer of CDnow, will be the President and Chief
Executive Officer of CDnow/N2K. Messrs. Diamond and Olim will enter into
employment agreements with CDnow/N2K at the close of the merger. Descriptions
of these and other executive officers appear on pages 39 and 40.
The board of directors of CDnow/N2K will consist of nine members, four chosen
by CDnow and three chosen by N2K. CDnow and N2K will jointly select two
directors who will not be employees of or affiliated with either company.
Ownership of CDnow/N2K Following the Merger (see pages 73 and 74)
The shares of CDnow/N2K common stock issued to CDnow shareholders in the merger
will be approximately 60% of the outstanding CDnow/N2K common stock after the
merger. The shares of CDnow/N2K common stock issued to N2K shareholders in the
merger will be approximately 40% of the outstanding common stock of CDnow/N2K
after the merger. Based on the shares of CDnow and N2K outstanding on December
31, 1998, we anticipate that CDnow/N2K will have approximately 29,810,799
shares of common stock outstanding after the merger.
The Equity Compensation Plan
The CDnow/N2K, Inc. 1999 Equity Compensation Plan (see page 134)
The CDnow board, the N2K board and the CDnow/N2K board of directors approved
the CDnow/N2K, Inc. 1999 Equity Compensation Plan. The purpose of the equity
plan is to encourage our employees, consultants, advisors and non-employee
directors to contribute to the growth of CDnow/N2K by giving them the
opportunity to receive grants of incentive stock options, nonqualified stock
options and restricted stock. To comply with the requirements of the tax code,
the public shareholders of CDnow/N2K must adopt and approve the equity plan.
Because the current shareholders of CDnow and N2K will be the public
shareholders of CDnow/N2K, we need your approval of the equity plan.
The CDnow and N2K boards of directors recommend that you vote FOR the approval
and adoption of the equity plan.
Comparative Per Share Market Price Information (see page 33)
CDnow's and N2K's common stock are listed on the Nasdaq National Market. On
October 22, 1998, the last full trading day on the Nasdaq National Market prior
to the public announcement of the proposed merger, N2K stock closed at $5.50
per share and CDnow stock closed at $9.4375 per share. On February 8, 1999, N2K
stock closed at $14.81 per share and CDnow stock closed at $19.56 per share.
Summary -4-
<PAGE>
Summary Selected Historical Financial Information of CDnow
CDnow provides the following financial information to aid you in your analysis
of the financial aspects of the merger. Read the following summary selected
historical financial information of CDnow in conjunction with the Consolidated
Financial Statements of CDnow and the notes, "Selected Historical Financial
Information of CDnow" and "CDnow Management's Discussion and Analysis of
Financial Condition and Results of Operations" included elsewhere in this
joint proxy statement/prospectus. In addition, see Note 2 to Notes to CDnow's
Consolidated Financial Statements for an explanation of the computation of the
net loss per common share amounts. See Note 7 to Notes to CDnow's Consolidated
Financial Statements for an explanation of the dispute settlement.
<TABLE>
<CAPTION>
Period from
Inception
(February 12, Nine Months Ended
1994) to Year Ended December 31, September 30,
December 31, ------------------------------------- -------------------------
1994 1995 1996 1997 1997 1998
------------- ---------- ----------- ------------ ----------- ------------
<S> <C> <C> <C> <C> <C> <C>
Statement of Operations
Data:
Net sales............... $ 103,116 $2,176,474 $ 6,300,294 $ 17,372,795 $ 9,452,864 $ 35,503,805
Cost of sales........... 92,962 1,815,672 5,074,087 13,847,773 7,333,069 28,549,562
--------- ---------- ----------- ------------ ----------- ------------
Gross profit............ 10,154 360,802 1,226,207 3,525,022 2,119,795 6,954,243
Operating expenses:
Operating and
development............ 26,946 149,982 669,280 2,541,434 1,444,011 5,155,718
Sales and marketing..... 12,945 229,912 765,156 9,607,603 3,603,238 31,293,668
General and
administrative......... 28,712 180,573 563,593 1,953,078 1,266,296 2,781,334
Dispute settlement...... -- -- 1,024,030 -- -- --
--------- ---------- ----------- ------------ ----------- ------------
Total operating
expenses............... 68,603 560,467 3,022,059 14,102,115 6,313,545 39,230,720
--------- ---------- ----------- ------------ ----------- ------------
Operating loss.......... (58,449) (199,665) (1,795,852) (10,577,093) (4,193,750) (32,276,477)
Interest income
(expense), net......... -- (1,248) (14,556) (170,312) 64,084 1,452,160
--------- ---------- ----------- ------------ ----------- ------------
Net loss................ (58,449) (200,913) (1,810,408) (10,747,405) (4,129,666) (30,824,317)
Accretion of preferred
stock to redemption
value.................. -- -- -- (410,103) (263,748) (115,542)
--------- ---------- ----------- ------------ ----------- ------------
Net loss applicable to
common shareholders.... $ (58,449) $ (200,913) $(1,810,408) $(11,157,508) $(4,393,414) $(30,939,859)
========= ========== =========== ============ =========== ============
Net loss per common
share.................. $ (0.01) $ (0.03) $ (0.29) $ (1.42) $ (0.56) $ (2.10)
========= ========== =========== ============ =========== ============
Weighted average number
of common shares
outstanding............ 6,000,000 6,000,000 6,139,072 7,845,684 7,845,684 14,764,870
========= ========== =========== ============ =========== ============
</TABLE>
<TABLE>
<CAPTION>
December 31,
----------------------------------------- September 30,
1994 1995 1996 1997 1998
------- -------- --------- ------------ -------------
<S> <C> <C> <C> <C> <C>
Balance Sheet Data:
Cash and cash
equivalents............ $ 2,008 $ 43,812 $ 775,865 $ 10,686,001 $59,563,026
Working capital
(deficit).............. (42,206) (235,478) 231,455 (1,218,005) 56,663,989
Total assets............ 25,765 268,468 1,575,459 16,448,425 77,571,386
Long-term debt,
excluding current
portion................ -- 9,519 91,133 962,144 1,130,484
Redeemable convertible
preferred stock........ -- -- -- 9,492,594 --
Total shareholders'
equity (deficit)....... (18,449) (99,362) 514,017 (9,752,450) 63,398,975
</TABLE>
Summary Selected Historical
Financial Information of CDnow
-5-
<PAGE>
Summary Selected Historical Financial Information of N2K
N2K provides the following financial information to aid you in your analysis of
the financial aspects of the merger. Read the following summary selected
historical financial information of N2K in conjunction with the Consolidated
Financial Statements of N2K and the notes, "Selected Historical Financial
Information of N2K" and "N2K Management's Discussion and Analysis of Financial
Condition and Results of Operations" included elsewhere in this joint proxy
statement/prospectus. N2K previously maintained a record label referred to as
the "Encoded Music Division." The Encoded Music Division created, produced and
licensed recorded music. In December 1998, N2K management approved a plan for
the disposal of the Encoded Music Division. Accordingly, the operating results
and assets and liabilities of these businesses as discontinued operations and
reflected them separately from continuing operations. N2K incurred an
extraordinary charge to its statement of operations equal to the unamortized
portion of the discount associated with the fair value of the warrants that N2K
issued in connection with the management and senior notes. N2K incurred the
extraordinary charge when noteholders repaid the outstanding balance on the
management and senior notes prior to maturity at N2K's initial public offering
in October 1997.
<TABLE>
<CAPTION>
Nine Months Ended
Year Ended December 31, September 30,
---------------------------------------------------- --------------------------
1994 1995 1996 1997 1997 1998
----------- ----------- ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C> <C>
Statement of Operations
Data:
Net revenues............ $ -- $ 96,505 $ 1,655,704 $ 8,108,449 $ 4,115,458 $ 24,890,121
Cost of revenues........ -- 85,176 1,447,888 6,212,741 3,284,672 19,888,878
----------- ----------- ------------ ------------ ------------ ------------
Gross profit........... -- 11,329 207,816 1,895,708 830,786 5,001,243
Operating expenses...... 1,327,436 2,983,933 17,500,614 21,924,135 12,820,320 49,268,153
----------- ----------- ------------ ------------ ------------ ------------
Operating loss.......... (1,327,436) (2,972,604) (17,292,798) (20,028,427) (11,989,534) (44,266,910)
Income (loss):
Continuing operations.. (1,302,475) (2,884,471) (16,992,548) (19,988,001) (12,307,708) (41,875,727)
Discontinued
operations............ 1,444,885 1,289,671 (1,915,361) (8,108,973) (3,232,186) (12,307,531)
Extraordinary item...... -- -- -- (639,262) -- --
Net income (loss)....... 142,410 (1,594,800) (18,907,909) (28,736,236) (15,539,894) (54,183,258)
Basic and diluted income
(loss) per common
share:
Continuing operations.. $ (0.83) $ (1.84) $ (6.15) $ (4.09) $ (4.11) (3.12)
Discontinued
operations............ 0.92 0.82 (0.70) (1.66) (1.08) (0.91)
Extraordinary item..... -- -- -- (0.13) -- --
----------- ----------- ------------ ------------ ------------ ------------
Basic and diluted net
income (loss) per
common share........... $ 0.09 $ (1.02) $ (6.85) $ (5.88) $ (5.19) $ (4.03)
=========== =========== ============ ============ ============ ============
Shares used in computing
basic and diluted net
income (loss) per
common share........... 1,566,936 1,566,955 2,760,948 4,885,556 2,994,770 13,434,772
=========== =========== ============ ============ ============ ============
</TABLE>
<TABLE>
<CAPTION>
Year Ended December 31,
------------------------------------------------------- September 30,
1993 1994 1995 1996 1997 1998
---------- ---------- ---------- ---------- ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
Balance Sheet Data:
Cash and cash
equivalents............ $ 858,272 $1,469,764 $ 547,624 $4,483,450 $36,831,748 $54,277,085
Working capital......... 543,947 1,756,815 3,960 1,910,864 50,859,351 57,722,701
Total assets............ 1,645,275 2,685,317 1,973,332 9,329,922 64,021,556 80,802,343
Stockholders' equity.... 542,130 2,243,704 648,984 4,908,379 53,147,935 61,125,543
</TABLE>
Summary Selected Historical
Financial Information of N2K
-6-
<PAGE>
SUMMARY SELECTED PRO FORMA COMBINED FINANCIAL INFORMATION
SUMMARY SELECTED PRO FORMA COMBINED FINANCIAL INFORMATION
The following table contains selected pro forma combined data for CDnow and
N2K. The pro forma amounts included in the table below assume the merger will
be accounted for as a purchase where CDnow is considered the accounting
acquiror. Please read the following table in conjunction with the historical
consolidated financial statements of CDnow and N2K and the unaudited pro forma
combined financial information included elsewhere in this joint proxy
statement/prospectus.
These pro forma amounts are not necessarily indicative of the results of
operations of the combined company that would have actually occurred had we
completed the merger as of January 1, 1997 or of the financial condition of the
combined company had we completed the merger as of September 30, 1998 or of the
future results of operations or financial condition of the combined company.
The unaudited pro forma statements of operations and the unaudited pro forma
combined balance sheet do not reflect:
. the operating results of N2K and CDnow from October 1, 1998 through
the consummation date of the merger or
. any cost savings we expect to achieve as a result of the merger, in
particular the elimination of costs associated with duplicative
operating and administrative activities. We cannot assure that we
will realize any cost savings from the merger.
In addition, we expect that the operating results of N2K from October 1, 1998
through the consummation date of the merger will materially increase the excess
of purchase price over the fair value of net assets acquired and, therefore,
will increase the amount of pro forma amortization in each of the periods
presented.
<TABLE>
<CAPTION>
FOR THE
NINE MONTHS
FOR THE ENDED
YEAR ENDED SEPTEMBER
DECEMBER 31, 30,
1997 1998
------------ ------------
<S> <C> <C>
PRO FORMA STATEMENT OF OPERATIONS DATA:
Net sales......................................... $ 25,481,244 $ 60,393,926
Loss from continuing operations................... (40,429,255) (79,720,430)
Net loss per share from continuing operations
applicable to common shareholders................ $ (3.43) $ (3.08)
============ ============
Weighted average number of common shares
outstanding...................................... 11,900,695 25,915,731
============ ============
</TABLE>
<TABLE>
<CAPTION>
SEPTEMBER
30, 1998
------------
<S> <C>
PRO FORMA BALANCE SHEET DATA:
Cash and cash equivalents......................................... $113,840,111
Working capital................................................... 104,386,690
Total assets...................................................... 219,112,214
Long-term debt, excluding current portion......................... 1,441,944
Total shareholders' equity........................................ 175,263,003
</TABLE>
-7-
<PAGE>
RECENT DEVELOPMENTS
RECENT DEVELOPMENTS
N2K
On February 3, 1999, N2K announced its financial results for the fourth quarter
and year ended December 31, 1998. N2K's net revenues for the fourth quarter
ended December 31, 1998 was $17,190,000, a 331% increase from net revenues of
$3,993,000 reported for the fourth quarter of 1997. N2K reported a loss for the
fourth quarter of 1998, from continuing operations of $17,698,000, or $1.24 per
share, compared to a loss from continuing operations of $7,681,000, or $0.73
per share, for the fourth quarter of 1997. The loss from continuing operations
for the fourth quarter of 1998 excludes transaction fees of $2,378,000 related
to the merger. The fourth quarter 1998 net loss was $1.59 per share, compared
to a net loss of $1.26 per share for the fourth quarter of 1997.
For the year ended December 31, 1998, N2K reported net revenues of $42,080,000,
a 419% increase from net revenues of $8,108,000 reported for the year ended
December 31, 1997. The loss for the year from continuing operations was
$59,574,000, or $4.37 per share, compared to a loss from continuing operations
of $19,988,000, or $4.09 per share, reported for the prior year. The 1998 loss
from continuing operations excludes transaction fees of $2,378,000 related to
the merger. The net loss for 1998 was $5.64 per share, compared to a net loss
of $5.88 per share for 1997.
At December 31, 1998, N2K's Music Boulevard had approximately 720,000 customers
who have ordered and received products, of which 275,000 were first time
customers added in the fourth quarter. This represents an increase in customer
acquisition of over 60%. Approximately 51% of net revenue, in the fourth
quarter of 1998 came from existing customers. For 1998, N2K has added
approximately 603,000 new customers.
CDNOW
On February 3, 1999, CDnow announced its financial results for the fourth
quarter and year ended December 31, 1998. Net sales for the fourth quarter
ended December 31, 1998 was $20,891,000, a 164% increase from net sales of
$7,920,000 for the fourth quarter of 1997. On a quarter to quarter basis, net
sales in the fourth quarter of 1998 increased by 51% over net sales of
$13,880,000 for the third quarter of 1998. Approximately 56% of net sales in
the fourth quarter came from existing customers.
CDnow's net loss for the fourth quarter of 1998 was $12,945,000 or $0.73
compared to a net loss of $6,618,000, or $0.86 per share, for the fourth
quarter of 1997. Included in general and administrative expenses in the fourth
quarter of 1998 was a charge to expense of approximately $500,000, or $0.03 per
share, related to moving CDnow's headquarters to Fort Washington, Pennsylvania,
of which approximately $400,000 was an accrual for the expected loss on the
lease of CDnow's former headquarters. CDnow's net loss for the fourth quarter
compares to a loss in the third quarter of 1998 of $0.74 per share.
Net sales for the year ended December 31, 1998 increased 225% to $56,395,000
from $17,373,000 million for the year ended December 31, 1997. CDnow's net loss
for the twelve months ended December 31, 1998 was $43,769,000, or $2.79 per
share, compared to a net loss of $10,747,000 or $1.42 per share, for the twelve
months ended December 31, 1997.
As of December 31, 1998, a total of 983,000 customers had purchased from CDnow
since inception, of which 245,000 new customers were added in the fourth
quarter. CDnow added a total of 686,000 new customers during 1998.
-8-
<PAGE>
SUMMARY
COMPARATIVE PER SHARE INFORMATION
The following summarizes the per share information for our companies on a
historical, pro forma combined and equivalent basis. We calculated the N2K Per
Share Equivalents by multiplying the Unaudited Pro Forma Combined per share
amounts by .83 because the N2K shareholders will receive .83 shares of
CDnow/N2K common stock in exchange for each share of N2K common stock.
The calculations exclude common stock equivalents. You should refer to the pro
forma unaudited combined financial statements, the Consolidated Financial
Statements of CDnow, and the Consolidated Financial Statements of N2K for
information about common stock equivalents and information about the number of
shares used in computing net loss from continuing operations per common share.
<TABLE>
<CAPTION>
AT OR FOR THE AT OR FOR THE
YEAR ENDED NINE MONTHS ENDED
DECEMBER 31, 1997 SEPTEMBER 30, 1998
----------------- ------------------
<S> <C> <C>
UNAUDITED PRO FORMA COMBINED
Loss from continuing operations per
common share........................... $ (3.43) $(3.08)
Dividends............................... -- --
Book value per common share............. Not computed 5.94
N2K PER SHARE EQUIVALENTS
Loss from continuing operations per
common share........................... $ (2.85) $(2.56)
Dividends............................... -- --
Book value per common share............. Not computed 4.93
N2K - HISTORICAL
Loss from continuing operations per
common share........................... $ (4.09) $(3.12)
Dividends............................... -- --
Book value per common share............. 4.39 4.30
CDNOW - HISTORICAL
Net loss per common share............... $ (1.42) $(2.10)
Dividends............................... -- --
Book value (deficit) per common share... (1.24) 3.59
</TABLE>
-9-
<PAGE>
RISK FACTORS
RISK FACTORS
Risks Relating to the Merger
OUR INABILITY TO SUCCESSFULLY INTEGRATE OUR OPERATIONS MAY EFFECT OUR ABILITY
TO REALIZE THE ANTICIPATED BENEFITS OF THE MERGER.
The success of the merger will depend on our ability to unite our business
strategies and technologies. We cannot assure that we will realize the
anticipated benefits of our merger. If we are unable to successfully unite our
operations, we will be materially adversely affected. The joining of our
operations will present significant challenges. The combining of management
from our companies will result in changes affecting all employees and the
operations of both companies. Differences in management approach and corporate
culture may strain employee relations.
THE SHARES OF CDNOW/N2K COMMON STOCK YOU ACTUALLY RECEIVE IN THE MERGER MAY BE
LESS VALUABLE THAN THE SHARES ON THE DAY YOU MAKE YOUR DECISION ABOUT THE
MERGER.
The value of the CDnow/N2K shares you receive will vary based on fluctuations
in the price of the common stock of the two companies prior to the merger. This
is because it is unlikely that the value of the CDnow/N2K shares will be the
same on the date of the effective time of the merger as the prices of either
CDnow stock or N2K stock on the date of this joint proxy statement/prospectus.
In the merger, each share of N2K will convert into .83 of a share of CDnow/N2K,
and each share of CDnow common stock will convert into one share of CDnow/N2K.
Both of these exchange ratios are fixed. We will not adjust the exchange ratios
in the event of any increase or decrease in the price of CDnow or N2K common
stock.
OUR STOCK OPTION AGREEMENTS AND TERMINATION FEES MAY DETER THIRD PARTIES FROM
MAKING BIDS TO ACQUIRE CDNOW OR N2K WHICH MAY BE MORE BENEFICIAL TO YOU.
The existence of options and the termination fee between CDnow and N2K may make
it more difficult for a third party to acquire either company and therefore may
deter third parties from making competing bids for either company. CDnow and
N2K each granted to the other an option to acquire up to 19.9% of its
outstanding common stock. CDnow and N2K may only exercise their respective
options upon termination of the merger agreement in connection with specified
types of transactions or proposed transactions with third parties. In addition,
under these circumstances, the merger agreement requires CDnow or N2K to pay to
the other a termination fee. Together, the maximum amount that CDnow or N2K may
receive in cash or stock of the other company is $3.75 million.
EXECUTIVE OFFICERS AND DIRECTORS WHO ARE ASKING YOU TO APPROVE THE MERGER HAVE
POTENTIAL CONFLICTS OF INTEREST BECAUSE THEY WILL RECEIVE ADDITIONAL BENEFITS
IN THE MERGER.
Shareholders should be aware of a potential conflict of interest and the
benefits available to executive officers and directors when considering the
CDnow and N2K board of directors determinations to approve the merger. As
discussed below under "Interests of CDnow and N2K Executive Officers and
Directors in the Merger," a number of executive officers and directors of CDnow
and N2K have employment or severance agreements or benefit plans that provide
them with interests in the merger that are different from, or in addition to,
your interests as shareholders. Each of these persons could receive significant
compensation if the merger is completed.
Risks Relating to CDnow/N2K
WE HAVE A HISTORY OF LOSSES AND WE EXPECT FUTURE LOSSES WHICH COULD DECREASE
THE VALUE OF YOUR SHARES.
Both CDnow and N2K have incurred significant losses since inception. We cannot
assure that we will ever be profitable. CDnow had net losses of $10.7 million
for the year ended December 31, 1997 and $30.8
-10-
<PAGE>
RISK FACTORS
million for the nine months ended September 30, 1998. N2K had net losses from
continuing operations of $20.0 million for the year ended December 31, 1997 and
$41.9 million for the nine months ended September 30, 1998. As of September 30,
1998, CDnow had accumulated losses of $43.6 million and N2K had accumulated
losses of $110.2 million. We anticipate that we will continue to incur
substantial expenses for the following purposes:
. marketing and promotion, including agreements with internet
content and service providers;
. web site development and enhancement; and
. reorganization and development of our combined administrative
organization.
We hope that the combination of our businesses will enable us to reduce our
combined expenses so that they are significantly less than the sum of the
expenses we would incur if we continue as separate entities. However, we cannot
assure that we will be successful in our effort to reduce our combined
expenses. Even if we are able to realize these cost savings as a result of the
merger, we expect to incur substantial operating losses for the foreseeable
future. Moreover, because our products have low gross margins, we must generate
substantially increased net sales to achieve profitability.
IF CUSTOMERS DO NOT ACCEPT ELECTRONIC COMMERCE, WE WILL BE MATERIALLY ADVERSELY
AFFECTED.
Customers may not accept the use of electronic commerce. If electronic commerce
does not continue to grow or grows more slowly than expected, we will be
materially adversely affected. Our long term success is dependent on widespread
consumer acceptance of electronic commerce. There are a number of factors that
could prevent or delay consumer acceptance, including the following:
.electronic commerce is at an early stage of acceptance;
. the necessary network infrastructure for substantially increased
purchase volumes may not be adequately developed;
. increased government regulation may adversely impact the viability
of electronic commerce;
. insufficient availability of telecommunications services or
changes in telecommunication services could result in slower
response times, which could adversely impact electronic commerce;
and
. adverse publicity and consumer concern about the security of
electronic commerce transactions could discourage its acceptance
and growth.
WE COMPETE WITH AMAZON.COM AND OTHER ONLINE RETAILERS AND TRADITIONAL MUSIC
RETAILERS WHO MAY BE MORE SUCCESSFUL THAN WE ARE IN ATTRACTING AND RETAINING
CUSTOMERS.
Competition in our business is intense. We will be materially adversely
affected if we cannot compete successfully.
Barriers to entry in our business are minimal and a competitor can launch a new
site at relatively low cost. We have always confronted a large number of online
competitors. In June 1998, Amazon.com launched an online music business and,
based on its announced third quarter 1998 revenue, became the largest online
retailer of music and music related products although our combined revenues
would have made us larger for this period. Other large entities, including
Tower Records, Columbia House and Best Buy, have launched online music
retailing efforts. Moreover, competition in the broader retail music industry
also affects our business. Among our competitors are the following:
. online vendors of music, music videos and other related products;
. online service providers that offer music directly or in
cooperation with other retailers;
. traditional retailers of music products, including specialty music
retailers;
. other retailers that offer music products, including mass
merchandisers, superstores, discount stores and consumer
electronic stores;
. non-store retailers such as music clubs; and
. record companies and other entities who may make available
digitally downloaded music.
-11-
<PAGE>
RISK FACTORS
Many of our competitors have much greater financial, marketing and other
resources than ours. This may place us at a disadvantage in responding to our
competitors' pricing strategies, technological advances, advertising campaigns
and other initiatives. In addition, recently developed technologies have
increased competitive pressures on CDnow and N2K. For example, applications
that can indicate which online site has the lowest price for a particular title
could direct customers to our competitors' sites. We cannot assure that we will
compete successfully in this environment.
WE RELY ON MARKETING AGREEMENTS AND ONLINE AND TRADITIONAL ADVERTISING WHICH
MAY NOT GENERATE THE ANTICIPATED NUMBER OF NEW CUSTOMERS EVEN THOUGH WE MUST
MAKE SUBSTANTIAL PAYMENTS UNDER THESE AGREEMENTS.
If we are unable to further develop and successfully administer our marketing
agreements and advertising campaigns, we will be materially adversely affected.
To attract customers, we entered into agreements with online search and other
internet service providers. We also utilize online advertising and traditional
advertising. If these alliances and advertising campaigns, in which we make
significant investments, do not generate the expected number of new customers
or if we are unable to renew on successful terms marketing agreements, we will
be materially adversely affected.
As of September 30, 1998, our combined minimum obligations under marketing
agreements and advertising arrangements are approximately $18.2 million in the
remaining three months of 1998, $41.8 million in 1999, $36.7 million in 2000
and $10.1 million in 2001. We may enter into additional marketing agreements in
the future. The success of these relationships depends on the amount of
increased traffic we receive from the internet sites of these online search and
other internet service providers. We cannot assure that these arrangements will
generate the expected number of new customers. Moreover, we may not be able to
renew on successful terms marketing agreements or enter into new agreements
with others. In addition, we cannot assure that our advertising campaigns will
be successful.
WE MAY NEED ADDITIONAL FUNDS WHICH, IF AVAILABLE, COULD SUBSTANTIALLY INCREASE
OUR INTEREST EXPENSE OR DILUTE YOUR SHAREHOLDINGS. IF THESE ADDITIONAL FUNDS
ARE UNAVAILABLE, WE WILL BE MATERIALLY ADVERSELY AFFECTED.
We may need additional funding which may not be available. Both of our
companies have been spending and expect for the foreseeable future to spend
more cash than we generate from continuing operations. Although we hope to
realize some cost savings as a result of the combination of the CDnow and N2K
businesses, we will continue to have substantial capital requirements. As a
result, we expect to continue to utilize our cash reserves to fund operations.
We may need to raise additional funding to provide sufficient cash reserves
which may not be available. If we issue equity securities in connection with a
financing, your shareholdings will be diluted. If we raise additional funds
through a debt financing, we will incur interest charges and will likely become
subject to restrictions on our operations and finances.
We believe that the resources available to us following the merger will be
sufficient to fund operations for at least the next 12 months. However, various
factors, including an unanticipated decline in revenues or increased expenses,
could cause us to require financing at an earlier time. For additional details,
please see "CDnow Management's Discussion and Analysis of Financial Condition--
Liquidity and Capital Resources" and "N2K Management's Discussion and Analysis
of Financial Condition--Liquidity and Capital Resources."
WE BOTH RELY ON VALLEY MEDIA, INC. TO FILL OUR CUSTOMERS' ORDERS. IF WE ARE
UNABLE TO MAINTAIN THIS RELATIONSHIP OR FIND A REPLACEMENT ON THE SAME OR
BETTER TERMS, THEN OUR ABILITY TO DISTRIBUTE TO OUR CUSTOMERS IN A COST
EFFICIENT MANNER WILL BE IMPEDED.
If our relationship with Valley Media, Inc. is unexpectedly terminated, we
could be materially adversely affected, particularly if the termination occurs
during the fourth quarter of the calendar year, a period when a high percentage
of music sales are made. Orders for recorded music items for both CDnow and N2K
are primarily filled by Valley Media. We cannot fill customers' orders on our
own. Therefore, our business is dependent on maintaining the relationship with
Valley Media or on establishing new relationships with companies who provide
similar services. We cannot assure that we will maintain the relationship with
Valley Media or find a replacement vendor capable of filling our customers'
orders on satisfactory terms.
-12-
<PAGE>
RISK FACTORS
CDnow's agreement with Valley Media terminates in June 1999 and N2K's agreement
with Valley Media terminates in February 2000. Also, if Valley Media decides to
stop providing services to all of its online customers, Valley Media may
terminate its agreements with us on 30 days' written notice. To date, Valley
Media has satisfied our requirements on a timely basis. However, if Valley
Media is unable to satisfy our increasing requirements on a timely basis, or
terminates or chooses not to renew its current agreements with us, we will be
materially adversely affected.
We also rely on single vendors to fill orders with respect to internationally
manufactured recorded music items and other product lines that we carry. If we
lose any one vendor, our sales of the product line serviced by the vendor could
be materially adversely affected. While we attempt to negotiate multi-year
contracts with vendors to ensure the availability of merchandise, we cannot
assure that our vendors will continue to sell merchandise to us on acceptable
terms. Moreover, we cannot assure that, if necessary, we could establish
relationships with suitable vendors on a timely basis and on acceptable
commercial terms. If we are unable to maintain suitable relationships with
vendors, we will be materially adversely affected.
WE COULD EXPERIENCE SYSTEM FAILURES AND CAPACITY CONSTRAINTS WHICH WOULD
INTERFERE WITH ACCESS TO OUR ONLINE STORE.
Any system interruptions that cause our online stores to be unavailable or that
reduce our ability to process transactions could materially adversely affect
us. Further, if we do not appropriately expand and upgrade our systems and
infrastructure, we will suffer a material adverse affect. Our business depends
on the efficient and uninterrupted operation of our computer and communications
hardware systems. Interruptions could result from natural disasters as well as
power loss, telecommunications failure and similar events. We have had system
interruptions in the past and expect further interruptions in the future. We do
not have fully redundant systems or a formal disaster recovery plan.
Additionally, we may not carry sufficient business interruption insurance to
compensate us for losses that may occur.
As traffic in our online stores continues to increase, we must expand and
upgrade our technology, transaction processing systems, network infrastructure
and customer service capabilities. We may not be able to accurately project the
rate of increase in our online stores. In addition, we may not be able to
expand and upgrade our systems and infrastructure and customer service
capabilities to accommodate increased use of our online stores.
WE MAY BE NEGATIVELY AFFECTED BY SECURITY BREACHES WHICH COULD AFFECT OUR
ABILITY TO MAINTAIN SECURITY OF OUR CUSTOMERS' INFORMATION AND OUR ABILITY TO
ATTRACT AND RETAIN CUSTOMERS.
If security breaches of our customer information or other information occurs,
we may be materially adversely affected. The security of proprietary
information is a concern in our business. If we are unable to protect our
customer or other information, concern regarding the security of confidential
information may deter consumers from shopping with us or engaging in online
commerce, and we could be materially adversely affected. We believe that
concern regarding the security of confidential information transmitted over the
internet, such as credit card numbers, prevents many potential customers from
engaging in online transactions.
To protect confidential information, we rely on encryption technology, which
transforms information into a "code" designed to be unreadable by third parties
and authentication technology which utilizes passwords and other information to
prevent unauthorized persons from accessing a customer's information. These
measures cannot guarantee that physical or electronic break-ins, viruses or
similar problems will not occur. If a person circumvents our security measures,
he or she could misappropriate proprietary information or cause interruptions
in our operations. Security breaches that result in access to confidential
information could damage our reputation and expose us to a risk of loss or
liability. We may be required to make significant expenditures and expend
considerable personnel effort to protect against security breaches or remedy
problems caused by these breaches. We cannot assure that our security measures
will prevent such breaches.
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<PAGE>
RISK FACTORS
WE RELY ON INTERNALLY AND EXTERNALLY DEVELOPED SOFTWARE, WHICH IF NOT
CONTINUALLY UPDATED WILL MATERIALLY ADVERSELY AFFECT OUR ABILITY TO RETAIN AND
ATTRACT CUSTOMERS.
If we do not continually improve our internally and externally developed
software, we will be materially adversely affected because our competitors may
provide superior services to our current and potential customers. We use
internally and externally developed software for our online stores, search
engines and almost all aspects of our transaction processing and order
management systems. As our business grows, we will have to modify internally
developed software and upgrade or acquire externally developed software to
accommodate increased traffic in our online stores or increased volume in our
transaction processing order management systems. If we fail to make
modifications when needed, we may experience any one or more of the following
undesirable effects:
. unanticipated system disruptions;
. slower response time;
. impaired quality and speed of filling orders;
. degradation in customer service; or
. delays in reporting accurate financial information.
Any of these events could have a material adverse effect on us.
FLUCTUATIONS IN OUR QUARTERLY OPERATING RESULTS MAY RESULT IN A FAILURE TO MEET
ANALYSTS' AND INVESTORS' EXPECTATIONS, CAUSING OUR SHARE PRICE TO DECLINE OR
FLUCTUATE WIDELY.
We expect that our quarterly operating results will fluctuate significantly due
to many factors, a number of which are beyond our control. We believe that
period-to-period comparisons of our historical results are not necessarily
meaningful. You should not rely on these historical results as an indication of
future results. Our results of operations in future periods may not meet the
expectations of analysts and investors, in which case the price of our common
stock would likely be materially adversely affected. Factors which may also
have a longer term impact on our operating results may include one or more of
the following:
. our ability to retain existing customers and attract new
customers;
. the introduction of new or enhanced online features, services and
products by us and our competitors;
. price competition or higher wholesale prices;
. the level of use of online commerce for the purchase of recorded
music;
. seasonality of recorded music sales;
. our ability to upgrade and develop our systems and infrastructure
and attract qualified personnel;
. technical difficulties, system downtime or internet brownouts;
. operating costs and capital expenditures needed for expansion of
our business, operations and infrastructure;
. timing of our promotions and sales programs;
. the level of merchandise returns that we experience;
. government regulation; and
. general economic conditions or economic conditions specific to
online commerce and the music industry.
We expect to experience seasonality in our business resulting from fluctuations
in online usage as well as traditional retail seasonality in the sale of
recorded music. Sales in the traditional music retail business are much greater
in the fourth quarter of each year than in the preceding three quarters.
However, we have had difficulty in ascertaining the effect of seasonality on
our business because of our limited operating history and the rapid growth of
our businesses.
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<PAGE>
RISK FACTORS
OUR STOCK PRICE MAY FLUCTUATE WHICH MAY MAKE IT DIFFICULT TO RESELL YOUR SHARES
WHEN YOU WANT TO AT PRICES YOU FIND ATTRACTIVE.
The market prices of our common stock have been highly volatile. This
volatility may adversely effect the price of our common stock in the future.
You may not be able to resell your shares of common stock following periods of
volatility because of the market's adverse reaction to this volatility. We
anticipate that this volatility, which frequently affects the stock of online
commerce companies, will continue. Factors that could cause such volatility
include:
. our quarterly operating results;
. deviations in results of operations from estimates of securities
analysts;
. general economic conditions or economic conditions specific to
online commerce and the music retailing industry; and
. other developments affecting us or our competitors.
On occasion, the equity markets and in particular the markets for internet
stocks, have experienced significant price and volume fluctuations. These
fluctuations have affected the market price for many companies' securities even
though the fluctuations are often unrelated to the companies' operating
performance.
WE MAY BE MATERIALLY ADVERSELY AFFECTED BY RAPID TECHNOLOGICAL CHANGE IF WE ARE
UNABLE TO RESPOND TIMELY AND EFFECTIVELY.
If we are not able to successfully respond to online commerce's rapid
technological change, we will be materially adversely affected. Our success
will depend upon our ability to respond to such developments in a timely and
cost-effective manner. For example, new technology which could be used for the
illegal electronic distribution of recordings and other material could have a
detrimental effect on our business by reducing the market for our products.
Although the Recording Industry Association of America, in concert with various
recording and technology companies, has launched an initiative to develop a
technology for the digital distribution of music, this initiative may not
succeed in reducing the risk of illegal distribution of recordings in digital
form or in any form. Similarly, technological developments could provoke
significant changes to the way in which recorded music is produced and
distributed, thereby requiring us to acquire, implement and adopt new
technology and distribution systems.
WE MAY NOT BE ABLE TO PROTECT OUR PROPRIETARY RIGHTS AND MAY INFRINGE ON THE
PROPRIETARY RIGHTS OF OTHERS, BOTH OF WHICH WOULD HAVE A MATERIAL ADVERSE
EFFECT ON OUR BUSINESS.
Our efforts to establish and protect our proprietary rights may be inadequate
to prevent misappropriation or infringement of our proprietary property. Some
of our proprietary rights are licensed to third parties. There is a risk that
these licensees will take actions that materially adversely affect the value of
our proprietary rights or reputation.
It is possible that we may be the subject of infringement claims because of our
relationship with the CDnow Cosmic Credit sites and use of unlicensed
information. CDnow established a network of links with numerous small online
sites through its Cosmic Credit program. These online sites, which typically
are fan sites devoted to popular musical artists, permit customers to connect
to CDnow's site through an embedded hyperlink. CDnow gives Cosmic Credit
participants commissions in store credit or cash based upon the dollar amount
of purchases made by persons using the link. Many of the Cosmic Credit sites
are not officially sanctioned by the artists on whom the sites are focused.
Moreover, many of the sites do not have licenses for the use of any proprietary
intellectual property which they display on their sites. In addition, CDnow's
primary provider of artist and music-related information, including
photographs, articles and reviews advised CDnow that it may not have a license
to distribute some of this information.
From time to time, we have been subject to claims alleging infringement of
intellectual property of others. To date, we have not suffered material harm
from these claims. However, such claims could have a material adverse effect on
us in the future, particularly if we are unsuccessful in defending against
them.
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<PAGE>
RISK FACTORS
Various organizations such as Broadcast Music, Inc., the American Society of
Composers, Authors and Publishers and the Harry Fox Agency, representing
composers and owners of the copyrights in music compositions, have asserted
that N2K is required to obtain licenses from them with respect to N2K's use of
music on its various web sites. Though N2K believes that statutory exemptions
to the rights asserted by these organizations apply to the types of uses made
of the music by N2K, there are few, if any, legal precedents applicable to such
internet uses. In the meantime, N2K is continuing to have discussions with
these organizations to establish whether there might be a license acceptable to
N2K, what the form and scope of such a license would be and what rates would
apply. If the licences are required and the terms for licenses for the use of
music are onerous, or if we were unsuccessful in defending against claims that
we used such music without appropriate licenses and we were ordered to pay
damages, we could suffer a material adverse effect.
WE ARE SUBJECT TO GOVERNMENT REGULATION AND LEGAL LIABILITIES WHICH MAY BE
COSTLY AND MAY INTERFERE WITH OUR ABILITY TO CONDUCT BUSINESS.
If we become subject to claims that we have violated U.S. or foreign laws, we
could be materially adversely affected even if we successfully defend against
these claims. Moreover, new laws that impose restrictions on our ability to
follow current business practices or increase our costs of doing business could
also materially adversely affect us. Laws and regulations directly applicable
to online commerce or internet communications are becoming more prevalent.
These laws and regulations could expose us to substantial liability.
The most recent session of Congress and the European Union have recently
enacted laws and regulations concerning the internet, and there is uncertainty
regarding their marketplace impact. In addition, various jurisdictions already
have enacted laws covering intellectual property, privacy, libel and taxation
that are not specifically directed to online commerce but that could impact our
business.
Legal rights to use some content on the internet are not clearly settled. Our
ability to rely on exemptions or defenses under copyright law is uncertain. We
believe that our use of third party material in our online stores is permitted
under current provisions of copyright law. It is possible that the law could
develop in a fashion that would prohibit us from having rights to downloadable
music samples as well as artist, record and other information. We could be
materially adversely affected if we are no longer able to use this information.
In addition, the growth of the internet, coupled with publicity regarding
internet fraud, may lead to the enactment of more stringent consumer protection
laws. These laws may impose additional burdens on our business.
WE MAY BE NEGATIVELY AFFECTED BY THE PENDING N2K LITIGATION.
If one or more of the lawsuits pending against N2K result in a large judgment,
we could be materially adversely affected. N2K is a party to several pending
lawsuits, which we describe in the section entitled "Description of N2K--
Litigation." While N2K does not believe that any of these lawsuits are likely
to have a materially adverse effect on it, litigation presents inherent risks
and uncertainties.
WE MAY BE SUBJECT TO LEGAL LIABILITY FOR PUBLISHING OR DISTRIBUTING CONTENT
OVER THE INTERNET WHICH MAY BE COSTLY FOR US TO DEFEND.
We may be subject to legal claims relating to the content in our online stores,
or the downloading and distribution of the content. For example, persons may
bring claims against us if material deemed inappropriate for viewing by young
children can be accessed from our online stores. Claims could also involve
matters such as defamation, invasion of privacy and copyright infringement.
Online services have been sued in the past (sometimes successfully) based on
the content of material on the internet. Our insurance may not cover claims of
this type, or may not provide sufficient coverage. We could suffer a material
adverse effect if costs resulting from these claims are not covered or
significantly exceed our coverage.
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<PAGE>
RISK FACTORS
WE MAY BE SUBJECT TO LIABILITY FOR SALES AND OTHER TAXES.
We could suffer a material adverse effect if sales and similar taxes are
imposed on our business, or if penalties are assessed on us for past nonpayment
of these taxes. We do not collect sales or other similar taxes in most states.
Recently adopted legislation provides that, prior to October 2001, a state
cannot impose sales taxes on products sold on the internet unless such taxes
could be charged on non-internet transactions involving these products. During
this moratorium, it is possible that taxing mechanisms may be developed that
would, following the moratorium, impose increasing sales and similar tax
burdens on us. If these burdens are placed on us, we could suffer a material
adverse effect. In addition, foreign jurisdictions may claim that we are
subject to taxation because we conduct transactions with their citizens.
OUR SUCCESS IS DEPENDENT ON OUR KEY PERSONNEL, WHO MAY DECIDE NOT TO CONTINUE
TO WORK FOR CDNOW/N2K, AND WE MAY NOT BE ABLE TO HIRE ENOUGH QUALIFIED
PERSONNEL TO MEET OUR HIRING NEEDS.
We will be materially adversely affected if we cannot hire and retain suitable
executive management team members and personnel. We believe that our success
will depend on continued employment of the executive management team designated
to serve following the merger. If one or more members of our management team
become unable or unwilling to continue in their present positions, we could be
materially adversely affected. In addition, our success also depends upon
continued service by key sales, marketing and support personnel and our ability
to hire additional personnel as our business grows.
MANAGEMENT WILL CONTROL 37% OF CDNOW/N2K AND THEIR INTERESTS MAY BE DIFFERENT
FROM AND CONFLICT WITH YOURS.
The interests of management could conflict with the interests of our other
shareholders. Following the merger, CDnow/N2K executive officers and directors
will beneficially own a total of approximately 37% of the outstanding CDnow/N2K
common stock. Accordingly, if they act together, they will have the power to
significantly influence the election of directors and the approval of actions
for which the approval of our shareholders is required.
OUR COMPUTER SYSTEMS AND THOSE OF OUR KEY SUPPLIERS AND SERVICE PROVIDERS MAY
NOT BE YEAR 2000 COMPLIANT WHICH MAY CAUSE SYSTEM FAILURES AND DISRUPTIONS OF
OPERATIONS.
The Year 2000 issue could result in system failures or miscalculations causing
disruptions of operations, including, among others, a temporary inability to
process transactions, send invoices or engage in similar normal business
activities which may materially adversely affect us. To date, we have
experienced very few problems related to Year 2000 problems and we do not
believe that we have material exposure to the Year 2000 issue with respect to
our information systems as these systems correctly define the Year 2000.
We are currently conducting an analysis to determine the extent to which the
systems of third parties raise Year 2000 issues may affect us. However, we
cannot assure that the primary provider we use to fill our orders for direct-
to-consumer music products, Valley Media, will, in fact be year 2000 compliant
on a timely basis. Generally, we are unable to predict the extent to which the
Year 2000 issue will effect our suppliers, or the extent to which we would be
vulnerable to our suppliers' failure to remediate any Year 2000 issues on a
timely basis. The failure of a major supplier subject to the Year 2000 issue to
convert its systems on a timely basis or a conversion that is incompatible with
our systems could have a material adverse effect on us, which is not currently
quantifiable. In addition, most of the purchases from our online stores are
made with credit cards, and our operations may be materially adversely affected
to the extent our customers are unable to use their credit cards due to Year
2000 issues that are not rectified by credit card providers.
ANTI-TAKEOVER PROVISIONS AND OUR RIGHT TO ISSUE PREFERRED STOCK COULD MAKE IT
DIFFICULT FOR A THIRD-PARTY TO ACQUIRE US EVEN IF THE CHANGE IN CONTROL IS MORE
BENEFICIAL TO YOU.
Pennsylvania corporate law under which CDnow/N2K is incorporated could make it
difficult for a third party to acquire control of us, even if the change in
control would be beneficial to shareholders. The
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<PAGE>
RISK FACTORS
articles of incorporation provide that our board of directors may issue
preferred stock without shareholder approval. In addition, our bylaws provide
for a classified board, with each board member serving a staggered three year
term. The issuance of preferred stock and the existence of a classified board
could make it difficult for a third party to acquire us, discourage bids for
our common stock at a premium, and adversely affect the market price of our
common stock.
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<PAGE>
THE MERGER
THE MERGER
We are furnishing this joint proxy statement/prospectus to holders of common
stock of CDnow, Inc., a Pennsylvania corporation, and holders of common stock
of N2K Inc., a Delaware corporation. The CDnow and N2K boards of directors are
soliciting proxies for use at the special meetings of their shareholders, and
at any adjournment or postponement of the meetings.
At the CDnow special meeting, the CDnow shareholders will be asked to:
. approve and adopt the Agreement and Plan of Merger dated as of
October 22, 1998 and amended as of January 29, 1999, among CDnow,
N2K and CDnow/N2K, Inc., a Pennsylvania corporation, and the
transactions contemplated by the merger agreement; and
. approve and adopt the CDnow/N2K 1999 Equity Compensation Plan.
At the N2K special meeting, the N2K shareholders will be asked to:
. approve and adopt the merger agreement and the transactions
contemplated by the merger agreement; and
. approve and adopt the equity plan.
We attached the merger agreement as Appendix I.
The merger agreement provides for two separate mergers.
The CDnow Merger The N2K Merger
. A wholly-owned subsidiary . A wholly-owned subsidiary
of CDnow/N2K will merge of CDnow/N2K will merge
with and into CDnow. CDnow with and into N2K. N2K
will be the surviving will be the surviving
company in the CDnow company in the N2K merger.
merger.
. Each issued and
. Each issued and outstanding share of N2K
outstanding share of CDnow common stock converts into
common stock converts into the right to receive .83
the right to receive one of a share of CDnow/N2K
share of CDnow/N2K common common stock.
stock.
On February 8, 1999 the closing price of CDnow common stock was $19.56 and the
closing price of N2K common stock was $14.81. If we closed the merger on
February 8, 1999, and CDnow/N2K common stock traded at the same value as the
CDnow common stock, a CDnow shareholder would receive CDnow/N2K common stock
with a value of $19.56 per share of CDnow common stock and an N2K shareholder
would receive CDnow/N2K common stock with a value of $16.23 per share of N2K
common stock.
Upon completion of these mergers, CDnow and N2K will be wholly-owned
subsidiaries of CDnow/N2K. You will no longer own shares of CDnow or N2K,
instead you will own shares of CDnow/N2K. We anticipate that the CDnow merger
and the N2K merger will become effective at the same time. We expect the
mergers will become effective the day of our shareholder meetings.
On December 31, 1998, there were approximately 17,842,979 shares of CDnow
common stock issued and outstanding and approximately 14,419,060 shares of N2K
common stock outstanding. Based on the number of shares of CDnow and N2K
outstanding on December 31, 1998, we expect that after the merger there will be
approximately 29,810,799 shares of CDnow/N2K common stock outstanding. The
following table sets forth the CDnow and N2K options and warrants outstanding
as of December 31, 1998 and the number of CDnow/N2K options and warrants we
expect will be outstanding after the merger.
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<PAGE>
THE MERGER
OPTIONS AND WARRANTS OUTSTANDING AS OF DECEMBER 31, 1998
<TABLE>
<CAPTION>
POST-MERGER
(AFTER APPLICATION OF COMBINED
PRE-MERGER EXCHANGE RATIO) POST-MERGER
---------------------- ------------------------- -----------
N2K CDNOW N2K CDNOW
--------- --------- ---------- -----------
<S> <C> <C> <C> <C> <C>
Stock options 2,210,613 1,043,730 1,834,809 1,043,730 2,878,539
Warrants 599,554 294,562 497,630 294,562 792,192
--------- --------- ---------- ---------- ---------
Total 2,810,167 1,338,292 2,332,439 1,338,292 3,670,731
========= ========= ========== ========== =========
</TABLE>
BACKGROUND OF THE MERGER
On several occasions between early 1996 and March 1997, Jason Olim, the
President and Chief Executive Officer of CDnow, and Larry Rosen, the Chairman
and Chief Executive Officer of N2K, discussed a possible merger of the
companies. On each occasion, the parties determined not to pursue such
discussions.
In March 1998, Mr. Olim and Mr. Rosen met again while attending an industry
conference in San Francisco. At that time, Messrs. Olim and Rosen discussed a
possible merger of the companies. The parties did not pursue these discussions
any further.
At about the same time, N2K, with the assistance of its financial advisor,
Allen & Company, was having discussions with three major music/entertainment
companies who were interested in an alliance with an online music retailer to
aid in the distribution of their products. The discussions focused on a
potential significant joint investment in N2K by the three companies. These
discussions did not result in any definitive proposals. In addition, at about
that time, N2K and two other large media and communications companies discussed
a possible acquisition of N2K that also did not lead to any definitive
proposals.
Messrs. Olim and Rosen met on June 24 and 25, 1998 while attending an industry
conference in London. The parties again discussed the possibility of a merger
between the companies. Messrs. Olim and Rosen agreed to meet at a future date.
On July 16, 1998, Messrs. Olim and Rosen met in New York. At this meeting,
Messrs. Olim and Rosen discussed some general features that would accompany a
merger of the companies' businesses. However, they reached no agreement or
understanding on any proposed terms or structure, and Messrs. Olim and Rosen
decided that they would not continue their discussions at this time. They
acknowledged that there might be an opportunity to resume talks at a future
date.
Over the course of the summer of 1998, the members of N2K's board of directors
continued to evaluate different corporate strategies for N2K with a view to
strengthening N2K's business and growth and ensuring N2K's position in the
online commerce sector. The possible strategies they considered included
merging with another online retailer, selling N2K to a traditional retailer or
another entity that would be interested in developing or strengthening a
presence in the sector and continuing to operate N2K on an independent basis.
N2K did not pursue the sale alternative because the N2K board considered it to
be less attractive than remaining independent or pursuing a merger with CDnow.
Consequently, during this period, N2K's board of directors authorized its
management to continue discussions with CDnow's management regarding a possible
transaction.
On August 6, 1998, the CDnow board first decided to pursue a merger transaction
with N2K. Mr. Olim briefed the CDnow board of directors concerning his
discussions with Mr. Rosen about a possible transaction with N2K. The CDnow
board requested Mr. Olim continue his discussions with Mr. Rosen.
To maintain CDnow's presence as a leading internet music retailer and to
capitalize on the growth of electronic commerce, the CDnow board considered a
merger transaction with N2K or remaining independent.
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<PAGE>
THE MERGER
Because of numerous factors, including N2K's business alliances, the CDnow
board pursued a merger with N2K. The CDnow board did not consider potential
transactions with companies other than N2K.
In early August 1998, Messrs. Olim and Rosen discussed possible transaction
structures and potential merits of a combination, as well as other details of
such a transaction. Over the course of the discussions, the respective boards
of directors of N2K and CDnow met from time to time and were briefed on
developments regarding the discussions. Each board authorized its respective
management to continue their discussions.
N2K formally engaged Allen & Company to act as its exclusive financial advisor
with respect to the merger under an engagement letter dated August 6, 1998.
Prior to its engagement in connection with the merger, Allen & Company had been
engaged by N2K beginning in 1996 in connection with several private financings
and had acted as a managing underwriter for N2K's secondary public offering
completed in April 1998. Because of its ongoing relationship and familiarity
with N2K, Allen & Company also provided general financial advisory services
from time to time during the preceding periods with respect to various matters
affecting N2K.
On August 16, 1998, CDnow invited BT Alex. Brown to act as its financial
advisor with respect to a potential transaction with N2K. CDnow formally
engaged BT Alex. Brown to act as its exclusive financial advisor.
On August 17, 1998, after executing a mutual confidentiality and standstill
agreement, senior management of both companies, along with their financial
advisers and legal representatives, met in New York. The parties discussed
possible transaction and organizational structures, as well as other facets of
a "merger of equals" type transaction. These discussions also included
preliminary negotiations regarding a range of possible exchange rates and a
board of the new company that would contain equal representation from N2K and
CDnow.
During the following several weeks, CDnow held numerous discussions with BT
Alex. Brown, its financial advisor, Morgan, Lewis & Bockius LLP, its outside
legal counsel, and Arthur Andersen LLP, its accounting firm, and N2K met with
Allen & Company, its financial advisor, Dewey Ballantine LLP, its outside legal
counsel, and Arthur Andersen LLP, its accounting firm, regarding various
matters relating to the proposed transaction.
On September 17, 1998, Messrs. Olim and Rosen met to discuss the status of the
proposed transaction. At that meeting, Messrs. Olim and Rosen reached an
understanding that they would each recommend to their board that Mr. Olim serve
as President and Chief Executive Officer and Mr. Rosen serve as Chairman of the
combined company.
On September 29, 1998, members of the senior management of each company and
representatives of their respective financial advisors and outside legal
counsel met to discuss a proposed transaction schedule. The parties also
exchanged confidential documents at this meeting.
On October 7, 1998, The Wall Street Journal and The New York Times published
articles that the companies were engaged in merger discussions. In response to
these reports, on that date N2K and CDnow issued a joint press release in which
they acknowledged these discussions but stated no assurance that an agreement
between the two companies would be reached.
On October 9, 1998, the CDnow board held a special meeting that was also
attended by representatives of its financial advisor and outside legal counsel.
At this meeting, representatives of BT Alex. Brown made a presentation
regarding the financial terms of the proposed transaction. The board considered
a transaction in which CDnow shareholders would receive 60% of the outstanding
stock of a new entity and N2K shareholders would receive 40% of the outstanding
stock of the new entity. In addition, the board considered
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<PAGE>
THE MERGER
that CDnow would have greater board representation. Representatives of Morgan,
Lewis & Bockius made presentations regarding various aspects of the proposed
transaction. The CDnow board expressed concern over the need for assurance
relating to the status of N2K's material agreements and N2K's cash balance upon
closing the proposed transaction. After extensive discussion, the board
authorized management to continue negotiations.
During the next week, each company continued discussions. In addition,
management of the companies and their respective advisors met several times and
the parties negotiated definitive agreements.
Between October 5 and October 22, 1998, N2K's stock price declined on a
disproportionate basis compared to CDnow's stock price. As a result, during
this period the aggregate market value of N2K would have represented between
31% and 36% of the combined company and the aggregate market value of CDnow
would have represented between 69% and 64% of the combined company. On or about
October 13, 1998, N2K advised CDnow that it would not accept a combination on
the basis of these market valuations.
Despite the decline in the N2K stock price, following further discussions
between the parties' advisers, it was proposed that N2K shareholders would
receive approximately 40% of the combined company while CDnow shareholders
would receive approximately 60%. Under such proposal, CDnow would have a
greater board representation in the new entity. The board of the new company
would be comprised of four persons designated by CDnow, three persons
designated by N2K and two independent directors. Finally, N2K proposed that Mr.
Diamond, the acting Chief Executive Officer of N2K following Mr. Rosen's recent
heart surgery, would become chairman of the new entity as N2K's senior
representative in the combined company.
On October 16, 1998, the N2K board met to discuss developments regarding, and
consider approval of, the proposed transaction with CDnow. At this meeting,
Allen & Company summarized the financial analyses performed with respect to the
proposed transaction. Management also presented the results of their due
diligence review and described the proposed terms of the transaction. In
addition, representatives of N2K's outside legal counsel, Dewey Ballantine,
discussed various aspects of the proposed transaction. After extensive
discussion, the board expressed concern over certain elements of the
transaction and a number of provisions in the proposed merger agreement and
instructed management to continue negotiating with CDnow over such matters.
On October 16, 1998, the CDnow board met to discuss the status of the proposed
transaction. At this meeting, management briefed the board on the status of the
negotiations and representatives of Morgan, Lewis & Bockius apprised the board
on numerous items. The board authorized management to continue negotiations.
Over the next week, the parties continued discussions and negotiations on these
and other issues. The N2K board met two additional times. The CDnow board met
on one occasion. Various compromise proposals were considered at these
meetings.
On October 22, 1998, the N2K board met again to consider the approval of the
merger agreement and the related transactions. At that meeting, Allen & Company
reviewed the financial terms of the merger and recent stock trading levels, and
rendered its oral opinion that, the terms of the merger were fair, from a
financial point of view, to the shareholders of N2K. The N2K board discussed a
number of issues, including the previously expressed concerns relating to the
level of participation of N2K management in the combined company and the need
for certainty of closure of the transaction. Following this discussion and upon
consideration of the factors described under "--N2K Reasons for the Merger;
Recommendation of the N2K Board" the N2K board concluded that the merger was
fair to, and in the best interest of, N2K and its shareholders and unanimously
approved and adopted the merger agreement, the N2K stock option agreement
granting CDnow an option to purchase shares of N2K, and the transactions
contemplated by these agreements. Allen & Company subsequently delivered a
written opinion to the effect that the terms of the merger were fair, from a
financial point of view, to the shareholders of N2K.
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<PAGE>
THE MERGER
Following each company's respective board meetings, representatives of N2K and
CDnow executed and delivered the merger agreement and the stock option
agreement. In addition, shareholders holding 16.6% of the outstanding shares of
N2K and a shareholder who owns 16.6% of the outstanding shares of CDnow
executed and delivered the shareholder support agreements pursuant to which
they agreed to vote their shares in favor of the merger. On the morning of
October 23, 1998, we issued a joint press release announcing the transaction.
In addition to Allen & Company, which N2K retained for purposes of serving as
its principal financial advisor and to issue a fairness opinion in connection
with the merger, N2K retained the services of PaineWebber Incorporated during
this period to identify and facilitate possible transactions, including the
transaction with CDnow.
CDNOW REASONS FOR THE MERGER; RECOMMENDATION OF THE CDNOW BOARD
THE CDNOW BOARD UNANIMOUSLY DETERMINED THAT THE TERMS OF THE MERGER ARE FAIR
TO, AND IN THE INTEREST OF, CDNOW AND ITS SHAREHOLDERS. THE CDNOW BOARD
RECOMMENDS THAT THE SHAREHOLDERS OF CDNOW VOTE FOR APPROVAL AND ADOPTION OF THE
MERGER PROPOSAL.
In reaching its determination to recommend approval of the merger, the CDnow
board considered the following material factors:
. the strength and depth of the combined management teams;
. a common vision of operating a premier online music store;
. that the combined company would be nearly double that of CDnow in
terms of revenues and will have served a total of 1.6 million
customers;
. N2K's relationship with America Online and other business
partners;
. the opportunity to obtain cost and operating efficiencies;
. the opportunity that a larger combined company may have to
establish better relationships with record labels, artists and
distributors;
. the opportunity to achieve more efficient utilization of assets,
management and personnel; and
. N2K's experience in sales of online advertising, development of
proprietary content and relationships with record labels.
The CDnow board also evaluated the following positive and negative factors:
. presentations from, and discussions with, senior management,
representatives of its outside legal counsel and its independent
accounting firm, and representatives of BT Alex. Brown regarding
the business, financial, accounting and legal due diligence,
including existing N2K litigation;
. current industry, economic and market conditions, including the
increased competition in the online retail music industry;
. the competitive importance of market position, size and adequacy
of financial resources;
. the significant operating losses incurred by CDnow and the
anticipation that the losses of the combined company might be
greater and of a longer duration than on a stand alone basis,
which the board considered a negative factor;
. the challenges of combining the businesses of two dynamic
corporations and the risk of diverting management resources from
other opportunities and operational matters for an extended period
of time, which the board considered negative factors;
. the ability of CDnow to achieve meaningful cost savings and
efficiencies on its own;
. the possibility that the combined company might require additional
financing, which the board considered a negative factor;
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<PAGE>
THE MERGER
. the terms of the merger agreement;
. current and historical market valuations of the two companies;
. the financial opinion of BT Alex. Brown.
As a result of the foregoing considerations, CDnow's board determined that the
potential advantages of the merger outweighed the benefits of remaining alone.
The CDnow board believes that the combined company would have a far greater
opportunity than CDnow alone to compete in the online music retailing industry.
In view of the variety of factors considered in connection with its evaluation
of the merger, the CDnow board did not find it practicable to and did not
quantify or otherwise assign relative weights to the specific factors
considered in reaching its determination.
In addition, many of the factors contain elements which may affect the fairness
of the merger in both a positive and negative way. Except as described above,
the CDnow board, as a whole, did not attempt to analyze each individual factor
separately to determine how it impacted the fairness of the merger.
Consequently, individual members of the CDnow board may have given different
weights to different factors and may have viewed different factors as affecting
the determination of fairness differently.
N2K REASONS FOR THE MERGER; RECOMMENDATION OF THE N2K BOARD
THE N2K BOARD UNANIMOUSLY DETERMINED THAT THE TERMS OF THE MERGER ARE FAIR TO,
AND IN THE BEST INTEREST OF, N2K AND ITS SHAREHOLDERS. THE N2K BOARD RECOMMENDS
THAT THE N2K SHAREHOLDERS VOTE FOR APPROVAL AND ADOPTION OF THE MERGER
PROPOSAL.
The N2K board believes that the merger represents the best business opportunity
for N2K. The N2K board also believes the merger will create a powerful new
online music retailer by combining N2K's greater access to content with CDnow's
longer retailing history. The N2K board further believes that the combined
entity presents opportunities to build shareholder value.
In reaching its determination to recommend approval of the merger, the N2K
board considered the following material positive and negative factors:
. the N2K board's review of presentations from, and discussions
with, senior executives of N2K, representatives of Allen &
Company, and representatives of its outside legal counsel
regarding the business, financial, accounting and legal due
diligence;
. a general review of information concerning the financial
condition, results of operations, prospects, businesses and stock
price performance of N2K, including their then current cash
reserves and prospects for raising additional amounts;
. an analysis of and consideration of different transactions
involving N2K, including the possibility of remaining an
independent company, selling itself or entering into a business
combination, such as the merger;
. the belief that the two companies share the same vision of the
growth and the internet retailing industry, specifically the role,
attitude and strategy of an online music retailer within those
industries;
. the view that the combined company would be better positioned in
the online music retail industry;
. the belief that the combined company's consolidated online store
with a single brand name will strengthen its brand presence;
. the belief that the merger would allow the combined company to
improve operating efficiencies and reduce costs;
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<PAGE>
THE MERGER
On October 22, 1998, the CDnow board met again to consider the approval of the
merger agreement and the related transactions. At this meeting, BT Alex. Brown
reviewed the financial terms of the merger and recent stock trading levels, and
rendered its oral opinion that the transaction was fair, from a financial point
of view, to the shareholders of CDnow. After further discussion and upon
consideration of the factors described under "--CDnow Reasons for the Merger;
Recommendation of the CDnow Board," the CDnow board concluded that the merger
was fair to, and in the best interest of, the CDnow shareholders and
unanimously approved and adopted the merger agreement, the CDnow stock option
agreement granting N2K an option to purchase shares of CDnow, and the
transactions contemplated by these agreements.
. the belief that the management team of the combined company would
be stronger than that of either company alone;
. the fact that the fixed exchange ratio provided the shareholders
of N2K with a premium which varied from 25.4% to 56.8%, depending
upon the then current market price of CDnow and N2K common stock,
which the N2K board determined was fair to, and in the best
interest of, the shareholders of N2K;
. the transaction structure and the fact that the exchange ratio is
fixed and will not be adjusted in the event there are increases or
decreases in the price of either the N2K common stock or the CDnow
common stock;
. the agreed upon composition of the board of directors of the new
company;
. the financial opinion of Allen & Company;
. the terms and conditions of the merger agreement, including the
termination fee, as well as the stock option agreements and the
shareholder support agreements;
. that the merger will be structured so that no gain or loss
generally will be recognized for federal income tax purposes on
the shares of N2K and CDnow common stock exchanged for CDnow/N2K
common stock in the merger except for tax payable because of cash
received in lieu of fractional shares by N2K shareholders; and
. the possibility that the combined company will not be able to
integrate the operations of CDnow and N2K without encountering
difficulties, the likelihood of staff reductions and the
possibility that the benefits expected from integration will not
be realized, which the N2K board considered as negative factors.
The discussion above of the information and factors considered and given weight
by the N2K board is believed to include all material factors considered by the
N2K board. In view of the variety of factors considered in connection with its
evaluation of the merger, the N2K board did not find it practicable to and did
not quantify or otherwise assign relative weights to the specific factors
considered in reaching its determination. In addition, as many of the factors
contain elements which may affect the fairness of the merger in both a positive
and negative way, except as described above, the N2K board, as a whole, did not
attempt to analyze each individual factor separately to determine how it
affected the fairness of the merger. Consequently, individual members of the
N2K board may have given different weights to different factors and may have
viewed different factors as affecting the determination of fairness
differently.
CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS
This document contains forward-looking statements including the information
concerning possible or assumed future results of operations of our companies
and CDnow/N2K that appear in this joint proxy statement/prospectus and those
preceded by, followed by or that include the words "believes," "expects,"
"hopes," "estimates," "anticipates" or similar expressions. For those
statements, we claim the protection of the safe harbor for forward-looking
statements contained in the Private Securities Litigation Reform Act of 1995.
You should understand that the following important factors, in addition to
those discussed elsewhere in
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<PAGE>
The Merger
this document particularly under "Risk Factors" could affect the future results
of CDnow/N2K, CDnow and N2K, and could cause those results to differ materially
from those expressed in our forward-looking statements:
. changes in internet usage and online commerce;
. future online music retailing environment on the internet;
. CDnow/N2K's business strategies, including sales and marketing
plans;
. expectation of continuing losses;
. competitive factors;
. reliance on online and traditional advertising and business
alliances;
. reliance on vendors;
. liquidity needs;
. changes in business relationships with other online service
providers;
. possible effects of changes in government regulation;
. dependence on key personnel;
. exposure to Year 2000 issues; and
. changes in pricing policies.
Accounting Treatment
We expect that we will account for the merger under the purchase method of
accounting. For accounting purposes only, we will treat CDnow as the acquiror
of N2K. On the closing date, we will allocate the purchase price, based on the
value of stock, options and cash issued to N2K shareholders, to the assets and
liabilities of N2K based on their fair market values. We will assign the excess
of purchase price over net assets acquired to identifiable intangibles. See
"Unaudited Pro Forma Financial Information" for a more detailed description of
the purchase accounting method. We will include N2K's results of operations in
the combined company's financial statements from the date of closing.
Material Federal Income Tax Consequences
The following discussion describes the material federal income tax consequences
of the CDnow and N2K mergers, assuming the mergers are completed as
contemplated in this joint proxy statement/prospectus and in the merger
agreement. The discussion below, and the opinions of Dewey Ballantine LLP and
Morgan, Lewis & Bockius LLP referred to below, are based upon current
provisions of the tax code, currently applicable Treasury regulations, and
judicial and administrative decisions and rulings. Future legislative, judicial
or administrative changes or interpretations, which changes or alterations
could be retroactive, could alter or modify the statements and conclusions
below and could affect the tax consequences to N2K, CDnow and the shareholders
of N2K and CDnow.
Tax Opinions. The obligation of CDnow to consummate the CDnow merger is
conditioned upon the receipt of confirmation by Morgan, Lewis & Bockius LLP and
the obligation of N2K to consummate the N2K merger is conditioned upon the
receipt of confirmation by Dewey Ballantine LLP, each dated the closing date of
the tax opinions described below. No ruling from the IRS with respect to the
mergers has been or will be sought, however, and the tax opinions do not
prevent the IRS from adopting a contrary position. An opinion of counsel
represents counsel's legal judgment as to a particular matter, but has no
binding effect or official status of any kind. The IRS may assert contrary
positions. Moreover, contrary positions may be adopted by a court, if the
positions are litigated.
The tax opinions described below assume the absence of changes in existing
facts and rely on assumptions, representations and covenants, including those
contained in certificates of officers of CDnow, N2K and CDnow/N2K. N2K and
CDnow may waive the condition that they receive the confirmation of the tax
opinions prior to the consummation of the mergers. N2K and CDnow do not
anticipate waiving the condition that they receive these confirmations. If
these confirmations can not be issued, however, and the material
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<PAGE>
THE MERGER
federal income tax consequences of the mergers are materially different than
those described in this joint proxy statement/prospectus, N2K and CDnow will
resolicit their shareholders before proceeding with the mergers.
Tax Implications to CDnow Shareholders. Based in part on representations
contained in certificates of officers of N2K, CDnow and CDnow/N2K, which
representations will be confirmed prior to the closing of the mergers, Morgan,
Lewis & Bockius LLP, counsel to CDnow, has provided an opinion to CDnow that,
except as limited by the matters discussed below under "--Assumption and
Limitations" and assuming the mergers are completed in the manner contemplated
in the joint proxy statement/prospectus and in accordance with the merger
agreement:
. The CDnow merger will be treated for federal income tax purposes
as a reorganization within the meaning of Section 368(a) of the
tax code and/or, taken together with the N2K merger, as a transfer
of property to CDnow/N2K by holders of CDnow common stock
described in Section 351 of the tax code;
. Holders of CDnow common stock who exchange their CDnow common
stock solely for CDnow/N2K common stock in the CDnow merger will
not recognize gain or loss for federal income tax purposes with
respect to the exchange;
. The aggregate tax basis of CDnow/N2K common stock received by a
CDnow shareholder as a result of the CDnow merger will be the same
as the shareholder's aggregate tax basis in the CDnow common stock
surrendered in the exchange;
. The holding period of the CDnow/N2K common stock held by a former
CDnow shareholder as a result of the exchange will include the
period during which the shareholder held the CDnow common stock
exchanged; and
. A CDnow shareholder who exercises dissenters' rights of appraisal
with respect to CDnow common stock and who receives payment for
that stock in cash should generally recognize capital gain or loss
measured by the difference between the amount of cash received and
the shareholder's tax basis in the share.
Tax Implications to N2K Shareholders. Based in part on representations
contained in certificates of officers of N2K, CDnow and CDnow/N2K, which
representations will be confirmed prior to the closing of the mergers, Dewey
Ballantine LLP, counsel to N2K, has provided an opinion to N2K that, except as
limited by the matters discussed below under "--Assumption and Limitations" and
assuming the mergers are completed in the manner contemplated in the joint
proxy statement/prospectus and in accordance with the merger agreement:
. The N2K merger will be treated for federal income tax purposes as
a reorganization within the meaning of Section 368(a) of the tax
code and/or, taken together with the CDnow merger, as a transfer
of property to CDnow/N2K by holders of N2K common stock described
in Section 351 of the tax code;
. Holders of N2K common stock who exchange their N2K common stock
solely for CDnow/N2K common stock in the N2K merger will not
recognize gain or loss for federal income tax purposes with
respect to the exchange, except with respect to cash received in
lieu of fractional shares;
. The aggregate tax basis of CDnow/N2K common stock received by an
N2K shareholder as a result of the N2K merger will be the same as
the shareholder's aggregate tax basis in the N2K common stock
surrendered in the exchange, reduced by any tax basis allocable to
fractional shares for which cash is received;
. The holding period of the CDnow/N2K common stock held by a former
N2K shareholder as a result of the exchange will include the
period during which the shareholder held the N2K common stock
exchanged; and
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<PAGE>
THE MERGER
. A holder of N2K common stock who receives cash in lieu of a
fractional share interest in CDnow/N2K common stock should be
treated as having received the fractional share in the N2K merger
and then as having exchanged such fractional share for cash in a
redemption by CDnow/N2K. The cash payment should be treated as a
distribution in payment for the fractional interest deemed
redeemed under Section 302 of the tax code, with the result that
the holder should generally recognize gain or loss for federal
income tax purposes on the deemed redemption in an amount equal to
the difference between the amount of cash received and the portion
of the tax basis of the share of N2K common stock allocable to the
fractional share interest. This gain or loss generally will be
capital gain or loss and will be long-term capital gain or loss if
the N2K common stock exchanged has been held for more than one
year at the closing of the merger.
Tax Implications to CDnow and N2K. Neither CDnow nor N2K will recognize any
gain or loss for federal income tax purposes on the mergers.
Reporting Requirements and Backup Withholding. Each shareholder receiving
CDnow/N2K common stock as a result of the mergers will be required to retain
records and file with the shareholder's federal income tax return a statement
containing facts relating to the mergers.
Backup withholding at the rate of 31% may apply with respect to payments unless
the recipient (a) is a corporation or comes within certain other exempt
categories and, when required, demonstrates this fact or (b) provides a correct
taxpayer identification number, certifies as to no loss of exemption from
backup withholding and otherwise complies with applicable requirements of the
backup withholding rules. A shareholder who does not provide CDnow/N2K with its
correct taxpayer identification number may have to pay penalties imposed by the
IRS. Any amounts withheld under the backup withholding rules may be allowed as
a refund or a credit against the shareholder's federal income tax liability
provided that any required information is furnished to the IRS. CDnow/N2K will
report to shareholders of CDnow/N2K and to the IRS the amount of "reportable
payments" and any amount withheld with respect to CDnow/N2K common stock during
each calendar year.
Assumptions and Limitations. The above discussion and the tax opinions of
Morgan, Lewis and Bockius LLP and Dewey Ballantine LLP assume that you hold
your shares of CDnow or N2K stock as capital assets and do not address all
aspects of federal income taxation that may be important to you in light of
your particular circumstances. Further, the discussion and the tax opinions do
not address all aspects of federal income taxation that may be applicable to
holders covered by special rules, such as:
. holders who are not United States persons;
. financial institutions;
. tax-exempt organizations;
. insurance companies;
. dealers or brokers in securities;
. holders who hold their stock as part of a hedge, appreciated
financial position, straddle or conversion transaction; or
. holders who acquired their CDnow or N2K shares upon the exercise
of employee stock options or otherwise as compensation.
Further, the discussion and the tax opinions do not address the federal income
tax consequences of the mergers to holders of N2K common stock that also hold a
contractual right to require N2K to repurchase their stock.
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<PAGE>
THE MERGER
THE DISCUSSION ABOVE AND THE TAX OPINIONS ADDRESS THE MATERIAL FEDERAL INCOME
TAX CONSEQUENCES OF THE MERGERS TO HOLDERS NOT COVERED BY SPECIAL RULES, BUT DO
NOT PURPORT TO BE A COMPLETE ANALYSIS OR DESCRIPTION OF ALL POTENTIAL FEDERAL
INCOME TAX CONSEQUENCES OF THE MERGERS. IN ADDITION, THE DISCUSSION ABOVE AND
THE TAX OPINIONS DO NOT ADDRESS TAX CONSEQUENCES WHICH MAY VARY WITH, OR ARE
CONTINGENT ON, INDIVIDUAL CIRCUMSTANCES. MOREOVER, THIS DISCUSSION AND THE TAX
OPINIONS DO NOT ADDRESS ANY NON-INCOME TAX OR ANY FOREIGN, STATE OR LOCAL TAX
CONSEQUENCES OF THE MERGERS. THIS DISCUSSION AND THE TAX OPINIONS DO NOT
ADDRESS THE TAX CONSEQUENCES OF ANY TRANSACTION OTHER THAN THE MERGERS. WE
STRONGLY URGE YOU TO CONSULT WITH YOUR TAX ADVISOR TO DETERMINE THE PARTICULAR
UNITED STATES FEDERAL, STATE, LOCAL OR FOREIGN INCOME OR OTHER TAX CONSEQUENCE
OF THE MERGERS TO YOU.
DISSENTERS' RIGHTS
N2K Shareholders
The holders of N2K common stock are not entitled to appraisal rights in
connection with the approval and adoption of the N2K merger proposal.
CDnow Shareholders
The Pennsylvania corporate law grants CDnow shareholders dissenters' rights in
the CDnow merger. A CDnow shareholder may object to the CDnow merger proposal
and demand in writing that CDnow pay the fair value of their shares. We
attached a copy of Subchapter 15D of the Pennsylvania corporate law as Appendix
IV to the joint proxy statement/prospectus.
SUBCHAPTER 15D DESCRIBES THE REQUIRED PROCEDURE A CDNOW SHAREHOLDER WISHING TO
DISSENT MUST FOLLOW. FAILURE TO COMPLY WITH THE PROCEDURE MAY CAUSE A
TERMINATION OF YOUR DISSENTERS' RIGHTS. WE ARE PROVIDING YOU ONLY A SUMMARY OF
YOUR RIGHTS AND THE PROCEDURE. PLEASE REVIEW SUBCHAPTER 15D FOR THE COMPLETE
PROCEDURE. CDNOW WILL NOT GIVE YOU ANY NOTICE OTHER THAN AS DESCRIBED IN THIS
JOINT PROXY STATEMENT/PROSPECTUS AND AS REQUIRED BY THE PENNSYLVANIA CORPORATE
LAW. NOTE THAT THE PENNSYLVANIA CORPORATE LAW GRANTS THESE DISSENTERS' RIGHTS.
THEREFORE, N2K SHAREHOLDERS ARE NOT ENTITLED TO SUCH RIGHTS.
What Are Dissenters' Rights? CDnow shareholders who follow the procedures of
Subchapter 15D will be entitled to receive from CDnow the fair value of their
shares, immediately before the effective time of the CDnow merger. Fair value
takes into account all relevant factors but excludes any appreciation or
depreciation in anticipation of the merger. CDnow shareholders who elect to
exercise their dissenters' rights must comply with all of the procedures to
preserve those rights.
Shares Eligible for Dissenters' Rights. Generally, if you chose to assert your
dissenters' rights, you must dissent as to all of the shares you own. The
Pennsylvania corporate law distinguishes between record holders and beneficial
owners. You may assert dissenters' rights as to fewer than all the shares
registered in your name only if you are not the beneficial owner of all shares
according to the following instructions:
. Record Holder Who is Not the Beneficial Owner. A record holder may
assert dissenters' rights on behalf of the beneficial owner. If
you are a registered owner and you wish to exercise dissenters'
rights on behalf of the beneficial owner, you must disclose the
name and address of the person or persons on whose behalf you
dissent. In that event, your rights shall be determined as if the
dissenting shares and the other shares were registered in the
names of different holders.
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<PAGE>
THE MERGER
. Beneficial Owner Who is Not the Record Holder. A beneficial owner
of CDnow common stock who is not also the record holder, may
assert dissenters' rights. If you are a beneficial owner who is
not the record holder and you wish to assert your dissenters'
rights you must submit a written consent of the record holder to
the Secretary of CDnow prior to the vote, but in no event later
than the CDnow special meeting. You may not dissent with respect
to some but less than all shares you own.
Dissenters' Rights Procedures:
Notice of Intention to Dissent. If you wish to exercise your dissenters'
rights, you must follow procedures and refrain from taking actions, including:
. file a written notice of intention to demand the fair value of
your shares;
. file your notice of intention to dissent with the Secretary of
CDnow prior to the vote, but in no event later than the CDnow
special meeting;
. not make any change in your beneficial ownership of CDnow shares
from the date you file the notice until the effective time of the
merger; and
. refrain from voting your shares for the adoption of the merger
proposal.
NEITHER A PROXY NOR A VOTE AGAINST THE MERGER PROPOSAL WILL CONSTITUTE THE
GIVING OF THE NOTICE OF INTENTION TO DISSENT. SHAREHOLDERS WHO RETURN SIGNED,
UNVOTED PROXY CARDS WILL BE DEEMED TO HAVE VOTED FOR THE CDNOW PROPOSAL AND
WILL NOT BE ENTITLED TO DISSENTERS' RIGHTS. EVEN IF YOU FILE A NOTICE OF
INTENTION TO DISSENT, THE RETURN OF A PROXY THAT DOES NOT INDICATE A VOTE
AGAINST THE MERGER PROPOSAL WILL INVALIDATE YOUR NOTICE.
Notice of Approval. If the CDnow shareholders approve the merger proposal,
CDnow will mail a notice to all dissenters' who filed a notice of intention to
dissent prior to the vote on the merger proposal and who refrained from voting
for the adoption of the merger proposal. CDnow expects to mail the notice of
approval promptly after the merger. The notice of approval will:
. state where and when a demand for payment must be sent and
certificates for eligible shares must be deposited in order to
obtain payment; and
. supply a form for demanding payment which includes a request for
certification of the date on which the holder, or the person on
whose behalf the holder dissents, acquired beneficial ownership of
the shares. The demand form will be accompanied by a copy of
Subchapter 15D.
If you assert your dissenters' rights, you must ensure that CDnow receives your
demand form and your certificates on or before the demand deadline. All
mailings to CDnow are at your risk. Accordingly, CDnow recommends that your
notice of intention to dissent, demand form and stock certificates be sent by
certified mail.
If you fail to file a notice of intention to dissent, fail to complete and
return the demand form, or fail to deposit stock certificates with CDnow, each
within the time periods provided above, you will lose your dissenters' rights
under Subchapter 15D. You will retain all rights of a shareholder, or
beneficial owner, until those rights are modified by effectuation of the
merger.
Payment of Fair Value by CDnow. Upon timely receipt of the completed demand
form, the Pennsylvania corporate law requires CDnow to either:
. remit to dissenters who complied with the procedures, the amount
CDnow estimates to be the fair value for such dissenting shares;
or
. give written notice that no such remittance will be made.
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<PAGE>
THE MERGER
CDnow will determine whether to make such a remittance or to defer payment for
such shares until completion of the necessary appraisal proceedings. CDnow may
consider the number of shares, if any, with respect to which shareholders
dissented and any objections that may be raised with respect to the standing of
the dissenting shareholder.
The remittance or notice will be accompanied by:
. the closing balance sheet and statement of income of CDnow for the
fiscal year ended December 31, 1997, together with the latest
available interim financial statements;
. a statement of CDnow's estimate of the fair value of the shares;
and
. notice of the right of the dissenter to demand payment or
supplemental payment, as the case may be, accompanied by a copy of
Subchapter 15D.
Return of Deposited Certificates. If CDnow does not remit the amount of its
estimate of the fair value of the shares, it will return any deposited
certificates with a notation that a demand for payment in accordance with
Subchapter 15D has been made. If shares carrying this notation are transferred
after that, each new certificate issued may bear a similar notation, together
with the name of the original dissenting holder or owner of such shares. A
transferee of such shares will not acquire by this transfer any rights in CDnow
other than those which the original dissenter had after making demand for
payment of their fair value.
Dissenting Shareholders Estimate of Fair Value. If CDnow gives notice of its
estimate of the fair value of your shares, without remitting this amount, or
remits payment of its estimate of the fair value of your shares and you believe
that the amount remitted or stated is less than the fair value of such shares,
you may send to CDnow your own estimate of the fair value of the shares. Such
estimate shall be deemed a demand for payment of the amount of the deficiency.
If you do not file a holder's estimate within 30 days after the mailing by
CDnow of its remittance or notice, you will only be entitled to the amount
stated in the notice or remitted to you by CDnow.
Resort to the Court of Common Pleas. If, after the later of, 60 days after the
effective time of the merger or after the timely receipt of any holder's
estimate, demands remain unpaid, CDnow may file an application for relief in
the Court of Common Pleas of Montgomery County, Pennsylvania, requesting the
court determine the fair value of the shares. We cannot assure you that CDnow
will file this application. In the court proceeding:
. all dissenters, wherever residing, whose demands have not been
settled will be made parties to any such appraisal proceeding;
. the court may appoint an appraiser to receive evidence and
recommend a decision on the issue of fair value; and
. each dissenter made a party will be entitled to recover an amount
equal to the fair value of the dissenter's shares, plus interest,
or if CDnow previously remitted any amount to the dissenter, any
amount by which the fair value of the dissenter's shares is found
to exceed the amount previously remitted, plus interest.
If CDnow fails to file an application for relief, any dissenter who made a
demand and who has not already settled his or her claim against CDnow may do so
in the name of CDnow at any time within 30 days after the expiration of the 60-
day period. If a dissenter does not file an application within the 30-day
period, each dissenter entitled to file an application shall be paid CDnow's
estimate of the fair value of the shares and no more, and may bring an action
to recover any amount not previously remitted.
Costs and Expenses of Court Proceedings. The costs and expenses of the court
proceedings, including the reasonable compensation and expenses of the
appraiser appointed by the court, will be determined by the court and assessed
against CDnow. The court may, however, apportion and assess any part of the
costs and expenses of court proceedings as it deems appropriate against all or
some of the dissenters who are
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<PAGE>
THE MERGER
parties and whose action in demanding supplemental payment the court finds to
be in bad faith. If CDnow fails to comply substantially with the requirements
of Subchapter 15D, the court may assess fees and expenses of counsel and of
experts for the parties as it deems appropriate against CDnow and in favor of
any or all dissenters. The court may assess fees and expenses of counsel and
experts against either CDnow or a dissenter, if the court finds that a party
acted in bad faith. If the court finds that the services of counsel for any
dissenter substantially benefitted other dissenters similarly situated and
should not be assessed against CDnow, it may award counsel reasonable fees to
be paid out of the amounts awarded to the dissenters who benefitted.
No Right to an Injunction. Under Pennsylvania corporate law, a CDnow
shareholder has no right to obtain, in the absence of fraud or fundamental
unfairness, an injunction against the merger proposal, nor any right to
valuation and payment of the fair value of the holder's shares because of the
merger proposal, except to the extent provided by the dissenters' rights
provisions of Subchapter 15D. Pennsylvania corporate law also provides that,
absent fraud or fundamental unfairness, the rights and remedies provided by
Subchapter 15D are exclusive.
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<PAGE>
COMPARATIVE PER SHARE MARKET PRICE AND DIVIDEND INFORMATION
COMPARATIVE PER SHARE MARKET PRICE AND
DIVIDEND INFORMATION
CDnow common stock and N2K common stock are listed for quotation on the Nasdaq
National Market System. The Nasdaq symbol for CDnow is CDNW. The N2K Nasdaq
symbol is NTKI.
The following table reports the high and low sale prices of CDnow common stock
and N2K common stock.
<TABLE>
<CAPTION>
MARKET PRICE OF MARKET PRICE OF
CDNOW COMMON STOCK N2K COMMON STOCK
----------------------------------------------------------------
High Sale Low Sale High Sale Low Sale
<S> <C> <C> <C> <C>
1997
Fourth Quarter(1) N/A N/A $30.75 $13.06
1998
First Quarter(2) $27.25 $18.25 $32.50 $16.00
Second Quarter $39.00 $16.00 $34.63 $14.75
Third Quarter $27.50 $ 7.00 $22.31 $ 7.19
Fourth Quarter $39.25 $ 7.06 $20.06 $ 4.50
1999
First Quarter (through
February 8, 1999) $24.94 $17.75 $17.88 $12.38
</TABLE>
On October 22, 1998, the last full trading day prior to the public
announcement of the merger, the last reported sale price was $9.44 per share
for CDnow common stock and $5.50 per share for N2K common stock. The stock
prices on the above table may reflect the impact of several news articles
published on October 7, 1998 that reported the merger discussions between
CDnow and N2K as well as the subsequent press release issued by CDnow and N2K,
also on October 7, 1998, acknowledging those discussions. See "The Merger--
Background of the Merger" and "Opinions of Financial Advisors--Opinions of
N2K's Financial Advisor." On February 8, 1999, the last reported sale price
was $19.56 per share for CDnow common stock and $14.81 per share for N2K
common stock. We urge shareholders to obtain current market quotations prior
to making any decision with respect to the merger.
Neither CDnow nor N2K has paid any cash dividends on their common stock. We do
not anticipate paying any cash dividends on the CDnow/N2K common stock in the
foreseeable future. Any determination to pay cash dividends will be at the
discretion of our board and will depend upon our financial condition,
operating results, capital requirements and other factors as our board deems
relevant.
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<PAGE>
THE SPECIAL MEETINGS
THE SPECIAL MEETINGS
CDnow and N2K will each hold a special meeting of its shareholders. Our boards
of directors provide you this joint proxy statement/prospectus in order to
solicit your proxy for use at the special meetings. We mailed this joint proxy
statement/prospectus and accompanying form of proxy to you on or about February
16, 1999.
TIMES AND PLACES; PURPOSES
CDnow Special Meeting
CDnow will hold its special meeting at:
CDnow, Inc. corporate headquarters 1005 Virgina Drive Fort Washington,
Pennsylvania March 17, 1999, 9:00 a.m., local time.
At the CDnow special meeting, the shareholders of CDnow will consider and vote
upon
. the CDnow merger proposal;
. the equity plan proposal; and
. such other matters as may properly come before the CDnow special
meeting.
N2K Special Meeting
N2K will hold its special meeting at:
N2K Inc., corporate headquarters 55 Broad Street, New York, New York, March 17,
1999, 9:00 a.m., local time.
At the N2K special meeting, the shareholders of N2K will consider and vote
upon:
. the N2K merger proposal;
. the equity plan proposal; and
. such other matters as may properly come before the N2K special
meeting.
VOTING RIGHTS; VOTES REQUIRED FOR APPROVAL
CDnow. The CDnow board fixed the close of business on January 26, 1999, as the
CDnow record date. Only holders of record of shares of CDnow common stock on
January 26, 1999 are entitled to notice of and to vote at the CDnow special
meeting. On the CDnow record date, there were approximately 17,875,064 shares
of CDnow common stock outstanding and entitled to vote at the CDnow special
meeting held by approximately 167 shareholders of record.
At the CDnow special meeting:
. each record holder is entitled to one vote per share;
. the presence in person or by proxy, of the holders of a majority
of the outstanding shares is necessary to constitute a quorum;
. adoption and approval of the CDnow merger proposal and the equity
plan proposal requires the affirmative vote, in person or by
proxy, of a majority of the shares cast at the meeting; and
. the CDnow shareholder support agreement obligates Jason Olim to
vote his shares in favor of the CDnow merger proposal. Jason Olim
holds 16.7% of the issued and outstanding shares of CDnow.
N2K. The N2K board fixed the close of business on January 26, 1999, as the N2K
record date. Only holders of record of shares of N2K common stock on January
26, 1999 are entitled to notice of and to vote at the N2K special meeting. On
the N2K record date, there were approximately 14,434,653 shares of N2K common
stock outstanding and entitled to vote at the N2K special meeting held by
approximately 232 shareholders of record.
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<PAGE>
THE SPECIAL MEETINGS
At the N2K special meeting:
. each record holder is entitled to one vote per share;
. the presence in person, or by proxy, of the holders of a majority
of the shares entitled to vote is necessary to constitute a
quorum;
. adoption and approval of the N2K merger proposal requires the
affirmative vote, in person or by proxy, of a majority of the
shares outstanding;
. adoption and approval of the equity plan proposal requires the
affirmative vote, in person or by proxy, of a majority of the
shares entitled to vote and present in person or by proxy at the
special meeting; and
. the N2K shareholder support agreement obligates Lawrence L. Rosen,
Jonathan V. Diamond, R. David Grusin, Bruce Johnson and James E.
Coane to vote their shares in favor of the N2K merger proposal.
These shareholders hold 16.6% of the issued and outstanding shares
of N2K.
PROXIES
. Completed Proxies. If you sign, complete and return a proxy and your
company receives the proxy prior to or at your special meeting, your
proxy will be voted as you instructed.
. Proxies with No Instructions. If you sign and return a proxy but you do
not provide instructions as to your vote, a CDnow shareholder's proxy
will be voted FOR the CDnow merger proposal and equity plan proposal, and
an N2K shareholder's proxy will be voted FOR the N2K merger proposal and
the equity plan proposal.
. Proxies Marked Abstain--The Merger Proposals. If you execute and return a
proxy marked ABSTAIN, your proxy will count for purposes of determining
whether there is a quorum and for purposes of determining the voting
power and number of shares entitled to vote at the special meetings but
your proxy will not be voted. Due to differences in the corporate laws of
Pennsylvania and Delaware, proxies marked ABSTAIN will be treated
differently with respect to the CDnow merger proposal and the N2K merger
proposal as follows:
CDnow Shareholder Proxy Marked ABSTAIN: N2K Shareholder Proxy Marked
ABSTAIN:
Under Pennsylvania law, a
proxy marked ABSTAIN is not Under Delaware law, approval of
considered a cast vote. the N2K merger proposal
Approval of the CDnow merger requires the affirmative vote
proposal requires the of a majority of the shares
affirmative vote of a outstanding. Accordingly,
majority of the votes cast proxies marked ABSTAIN will
at the meeting. Accordingly, have the effect of a vote
proxies marked ABSTAIN will against the N2K merger
have no effect on the proposal.
approval of the CDnow merger
proposal.
. Broker Non-Votes--The Merger Proposals. New York Stock Exchange broker-
dealer rules generally preclude brokers and nominees from exercising
their voting discretion. Absent specific instructions from the beneficial
owner of shares, brokers and nominees these rules do not give them the
power to vote on the merger proposal. We will count shares represented by
broker non-votes for purposes of determining whether there is a quorum at
the special meetings. Broker non-votes will have the same effect as a
proxy marked ABSTAIN as follows:
CDnow Broker Non-Votes: N2K Broker Non-Votes:
Broker non-votes will have Broker non-votes will have the
no effect on the approval of effect of a vote against the
the CDnow merger proposal. N2K merger proposal.
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<PAGE>
THE SPECIAL MEETINGS
. Proxies Marked Abstain--The Equity Plan Proposal.
CDnow Shareholder Proxy Marked ABSTAIN: N2K Shareholder Proxy Marked
ABSTAIN:
Under Pennsylvania law, a
proxy marked ABSTAIN is not Under Delaware law, approval of
considered a cast vote. the equity plan proposal
Approval of the equity plan requires the affirmative vote of
proposal requires the a majority of the shares present
affirmative vote of a in person or represented by
majority of the votes cast proxy at the special meeting and
at the meeting. Accordingly, entitled to vote. Accordingly,
proxies marked ABSTAIN will proxies marked ABSTAIN will have
have no effect on the the effect of a vote against the
approval of the equity plan equity plan proposal.
proposal.
. Broker Non-Votes--The Equity Plan Proposal. Shares represented by
"broker non-votes" will have the same effect as a proxy marked ABSTAIN
as follows:
CDnow Broker Non-Votes: N2K Broker Non-Votes:
Broker non-votes will have Broker non-votes will have the
no effect on the approval of effect of a vote against the N2K
the CDnow equity plan equity plan proposal.
proposal.
. Other Business. We are not aware of any business for consideration at
the special meetings other than as described in this joint
proxy/statement prospectus. However, if matters are properly brought
before the special meetings or any adjournments or postponements, then
the person appointed as proxies will have the discretion to vote or act
thereon according to their best judgment.
. Adjournments. We may adjourn our special meetings in order to solicit
additional proxies. Proxies marked AGAINST approval and adoption of the
CDnow merger proposal or the N2K merger proposal will vote against a
proposal to adjourn the meeting(s) for the purpose of soliciting
additional proxies. Neither company intends to seek an adjournment of
its special meeting.
. Revocation. You may revoke your proxy at any time prior to its use. In
order to revoke your proxy, you must deliver to Matthew Olim, Secretary
of CDnow, or Bruce Johnson, Secretary of N2K, a signed notice of
revocation or you must deliver a later dated proxy changing your vote.
In addition, you may choose to attend your special meeting and vote in
person. Please realize that simply attending the meeting will not in
itself constitute the revocation of your proxy.
. Confidentiality of Proxies. It is our policy to keep confidential proxy
cards, ballots and voting tabulations that identify individual
shareholders. Realize that disclosure may be required by law and in
other limited circumstances.
. Costs of Solicitation. Each company will pay the costs associated with
soliciting proxies from its shareholders. In addition to solicitation by
mail, CDnow retained D.F. King & Co. to aid in the solicitation of
proxies for a fee of $4,500 plus expenses. N2K has not retained a proxy
solicitation firm. In order to ensure sufficient representation at our
meetings, we may request by telephone or telegram the return of your
proxy card. Please assist us by promptly returning your proxy card
without delay.
. CDnow Shareholder Proxies and Dissenters' Rights. If you are a CDnow
shareholder and you plan to assert your dissenter's rights please review
"The Merger--Dissenters' Rights" for a review of how your proxy may
affect your rights.
PLEASE DO NOT SEND YOUR STOCK CERTIFICATES WITH YOUR PROXY CARD. WE WILL MAIL
YOU A SEPARATE TRANSMITTAL FORM WITH INSTRUCTIONS FOR THE SURRENDER OF YOUR
CERTIFICATES AS SOON AS PRACTICABLE AFTER THE CONSUMMATION OF THE MERGER.
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<PAGE>
DIRECTORS AND MANAGEMENT OF CDNOW/N2K FOLLOWING THE MERGER
DIRECTORS AND MANAGEMENT OF CDNOW/N2K FOLLOWING THE MERGER
DIRECTORS
The CDnow/N2K bylaws address the number and classification of the CDnow/N2K
board of directors. The CDnow/N2K bylaws provide that:
. the board of directors will consist of nine persons divided among
three classes;
. four members of the board of CDnow/N2K will be CDnow directors,
namely persons serving as a director of CDnow on October 22, 1998
or any person replacing such director who is designated by the
remaining CDnow Directors;
. three members of the board of CDnow/N2K will be N2K directors,
namely persons serving as N2K directors on October 22, 1998 or any
person replacing such director who is designated by the remaining
N2K Directors; and
. initially, two members of the board of CDnow/N2K will be
independent directors jointly selected by the CDnow directors and
the N2K directors. Only persons who did not have on October 22,
1998 or on the date such person is elected as a director of
CDnow/N2K, and have not had within the three year period prior to
the date of his/her election, any material employment, business
affiliation or association, or immediate family relationship with
either CDnow or N2K, or any person or entity controlling,
controlled by or under common control with either N2K or CDnow may
be independent directors.
The classes of the board of directors shall be as follows:
<TABLE>
<CAPTION>
Class I Class II Class III
<S> <C> <C>
. one CDnow
director; . one CDnow director; . two CDnow directors;
. one N2K director;
and . one N2K director; and and
. one independent . one independent . one N2K director.
director. director.
</TABLE>
Until December 31, 2002, the CDnow/N2K bylaws obligate the board of CDnow/N2K,
subject to their fiduciary duties, to nominate for election as directors the
designees of the N2K directors or the CDnow directors as may be necessary to
ensure that there will be four CDnow directors and three N2K directors. The
foregoing provisions of the bylaws of CDnow/N2K will be effective until further
amended by an 80% vote of the entire board of CDnow/N2K.
We expect the CDnow/N2K directors to include:
CDnow Directors
Jason Olim, 29 years old, co-founded CDnow in February 1994 and has been its
President since its inception and its Chief Executive Officer since November
1997. Previously, Mr. Olim was employed in the Professional Services group of
Soft-Switch, Inc. where he designed and built software systems for routing mail
and documents for domestic and international clients. Mr. Olim received a
Bachelor of Arts degree in Computer Science from Brown University. Mr. Olim is
expected to serve as President and Chief Executive Officer of CDnow/N2K. Jason
Olim and Matthew Olim are brothers.
Matthew Olim, 29 years old, co-founded CDnow in February 1994 and has been
responsible for the development of its system architecture and transactions
systems. Mr. Olim received a Bachelor of Arts degree in Astrophysics from
Columbia University. Jason Olim and Matthew Olim are brothers.
Patrick Kerins, 43 years old, has been a director of CDnow since August 1997.
Mr. Kerins has been Managing Director of Grotech Capital Group IV, LLC since
1997. From 1987 to March 1997, he served in the Investment Banking Division of
Alex. Brown & Sons Incorporated, most recently as a Managing Director from
January 1994 until March 1997.
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<PAGE>
DIRECTORS AND MANAGEMENT OF CDNOW/N2K FOLLOWING THE MERGER
John Regan, 39 years old, has been a director of CDnow since July 1997. Since
February 1995, Mr. Regan has been a Vice President of Keystone Venture IV
Management Company, L.P., which is the general partner of Keystone Venture IV,
L.P. From 1989 to February 1995, he was an associate and then general partner
of Apex Management Partnership, a venture capital partnership.
N2K Directors
Lawrence L. Rosen, 58 years old, has served as Chief Executive Officer and
Chairman of the Board of N2K since February 1996. From June 1995 until February
1996, Mr. Rosen was Co-Chairman of New York N2K. (On February 13, 1996 New York
N2K merged into Telebase Systems, Inc. and then changed its name to N2K.) In
1976, Mr. Rosen and Robert David Grusin, also a director of both N2K and
CDnow/N2K, formed Grusin/Rosen Productions to produce artists' recordings for
major record labels. Between 1978 and 1982, Mr. Rosen served as producer,
recording engineer and as President of Arista/GRP Records under a global label
distribution agreement with Arista Records. In 1982, Messrs. Rosen and Grusin
co-founded GRP as an independent record company. In 1990, GRP was acquired by
MCA Inc. and Mr. Rosen served as President and Chief Executive Officer of GRP
which became a division of the MCA Music Entertainment Group until 1995. Mr.
Rosen attended the Manhattan School of Music. In 1997, Mr. Rosen was named
Entrepreneur of the Year by Ernst & Young LLP in the Entertainment and News
Media category.
Jonathan V. Diamond, 39 years old, has served as a Vice Chairman and a director
of N2K since February 1996. From June 1995 to February 1996, Mr. Diamond served
as Co-Chairman of New York N2K. Mr. Diamond was an investor in and director of
Telebase Systems, Inc. from September 1994 to February 1996. Mr. Diamond
founded and was Chairman, from 1991 to 1995, of the J. Diamond Group, a holding
company which acquired and launched six media and entertainment companies in
the U.S. and the U.K. From 1984 to 1990, Mr. Diamond served as a director and
Executive Vice President of GRP, where he was responsible for its business and
financial strategy. Prior to his association with GRP, Mr. Diamond founded
Diamond Investments, which acquired or launched companies in the media,
entertainment and broadcasting areas. Mr. Diamond holds a B.A. in Economics and
Music from the Honors College of the University of Michigan and an M.B.A. from
Columbia University's Graduate School of Business. Mr. Diamond has been serving
as the Acting CEO of N2K since October 1998. Mr. Diamond is expected to serve
as Chairman of the Board of CDnow/N2K.
Robert David Grusin, 64 years old, has served as a Vice Chairman and director
of N2K since February 1996. From June 1995 to February 1996, Mr. Grusin served
as a director of New York N2K. In 1976, Mr. Grusin and Mr. Rosen, also a
director of both CDnow/N2K and N2K, formed Grusin/Rosen Productions to produce
artists' recordings for major record labels. In 1982, Messrs. Grusin and Rosen
co-founded GRP as an independent record company. In 1990, GRP was acquired by
MCA Inc. and Mr. Grusin served as Executive Vice President of GRP, which became
a division of the MCA Music Entertainment Group, until 1995. Mr. Grusin, a
composer, producer and musician, is the recipient of ten Grammy Awards and one
Academy Award. Mr. Grusin serves on the College of Music Advisory Board at the
University of Colorado, and has received honorary doctorates from both Berklee
College of Music and the University of Colorado.
COMMITTEES OF THE BOARD OF DIRECTORS
From the closing of the merger until successors are elected or appointed, we
expect the members of the committees of the board of directors of CDnow/N2K to
be as follows:
Executive Committee
. Jonathan Diamond
. Jason Olim
. two independent directors
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<PAGE>
DIRECTORS AND MANAGEMENT OF CDNOW/N2K FOLLOWING THE MERGER
Audit Committee
. John Regan
. an independent director (or Patrick Kerins, if an independent
director has not been selected by the date we close the merger,
but once an independent director is selected, that person will
replace Mr. Kerins.)
Compensation Committee
. Patrick Kerins
. John Regan
. an independent director
Nominating Committee
. Jonathan Diamond
. Jason Olim
. an independent director (or Patrick Kerins, if an independent
director has not been selected by the date we close the merger,
but once an independent director is selected, that person will
replace Mr. Kerins.)
COMPENSATION OF DIRECTORS
Directors who are employees of CDnow/N2K will not receive any compensation for
service on the CDnow/N2K board. We have not yet determined the specific terms
of the compensation to be paid to non-employee directors of CDnow/N2K.
MANAGEMENT AND EXECUTIVE OFFICERS OF CDNOW/N2K
In addition to Jonathan Diamond and Jason Olim, we expect the senior management
team and executive officers of CDnow/N2K to include the following individuals
from CDnow and N2K:
Rod Parker, age 55, Senior Vice President of Marketing. Mr. Parker has been the
Senior Vice President of Product Management and Marketing for CDnow since June
1997. Mr. Parker served as the Vice President of Interactive Merchandising at
Time Warner Cable Programming, from September 1995 to June 1997; General
Manager of Catalog I, a joint venture between Time Warner and Spiegel, Inc.,
from October 1993 to September 1995; and in various other positions with
Spiegel, Inc. (including Vice President, New Media and Vice President, Creative
Division) from April 1987 to September 1995. Prior to joining CDnow Mr. Parker
spent more than twenty years in the advertising industry, including service as
a Senior Vice President in account management with Ogilvy and Mather.
J.J. Rosen, age 30, Senior Vice President of International. Mr. Rosen has
served as President, Music Boulevard Network, a division of N2K, since January
1998. From February 1996 to January 1998, Mr. Rosen served as Senior Vice
President and General Manager, Music Boulevard Network. From June 1995 to the
merger, Mr. Rosen served as President of New York N2K. From 1988 to 1992, Mr.
Rosen served in various capacities at GRP, including serving as head of its
music licensing department. Mr. Rosen holds a B.A. in Political Economics from
Tulane University and a M.B.A. in Finance from Rutgers University. J.J. Rosen
is the son of Lawrence L. Rosen.
David Capozzi, age 43, Vice President, General Counsel and Secretary. Mr.
Capozzi has been a Vice President and the General Counsel of CDnow since April
1998. From February 1996 to April 1998, Mr. Capozzi was an attorney with the
law firm of Morgan, Lewis & Bockius LLP. Mr Capozzi also has over 14 years of
experience in varying capacities in software design and development, including
seven years with Marriott Corporation. Mr. Capozzi holds a Juris Doctorate from
The American University, Washington College of Law, a Masters in Business
Administration from the Katz Graduate School of Business of the University of
Pittsburgh and a Bachelor of Science in Computer Science from the University of
Pittsburgh.
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<PAGE>
DIRECTORS AND MANAGEMENT OF CDNOW/N2K FOLLOWING THE MERGER
Steve Dong, age 39, Vice President of Operations. Mr. Dong has been the Vice
President of Operations of CDnow since May 1998. Mr. Dong served as the
Director of Operations at Egghead Computer from July 1995 to May 1998. From
January 1994 to July 1995, Mr. Dong was Chief Operating Officer of Mac's Place,
a wholly owned subsidiary of Egghead Computer. From 1987 to 1994, Mr. Dong held
various management positions with Egghead Software including Director of
Distribution and Transportation.
Michael Krupit, age 34, Vice President of Technology. Mr. Krupit has been the
Vice President of Technology of CDnow since October 1997 and was the Director
of Technology from April 1997 to October 1997. From February 1994 to March
1997, Mr. Krupit was the Director of Technology and Product Development at
Infonautics, Inc., a provider of searching, viewing, and retrieval applications
for the internet. Mr. Krupit was Development Manager at Verity, Inc., a
provider of online information and archive services, from October 1989 to
November 1993.
David Pakman, age 30, Vice President of Business and Product Development. Mr.
Pakman has served as Vice President of Business and Product Development for N2K
since October 1998. From December 1997 to October 1998, Mr. Pakman served as
the Vice President of Business Development for N2K. Mr. Pakman joined N2K in
April 1997 as the Senior Director of Business Development. From December 1994
to March 1997, Mr. Pakman served as the Music Evangelist and Interactive Music
Manager of Apple Computer Inc.'s Music Group, which he co-founded. Mr. Pakman
is a graduate of the University of Pennsylvania's School of Engineering and
Applied Science. Some of the significant accomplishments of Mr. Pakman's career
are his co-founding of the Macintosh New York Music Festival, his role as co-
producer of the industry's first music-oriented webcast as well as many later
webcasts, including the then-largest webcast of the 1997 GRAMMY Awards. He
currently manages N2K's relationships with major business partners and artists.
Robert Saltzman, age 46, Vice President of Sales. Mr. Saltzman has been the
Vice President of Strategic Business Development of CDnow since December 1997.
Mr. Saltzman served as the Director of Business Development at Bell Atlantic
Network Integration from November 1995 to December 1997. From 1987 to November
1995, Mr. Saltzman held various sales and marketing positions with Unisys
Corporation.
Joel Sussman, age 50, Vice President and Chief Financial Officer. Mr. Sussman
has been Vice President and Chief Financial Officer of CDnow since September
1997. From June 1995 to September 1997, Mr. Sussman was an independent
financial management consultant and served as Interim Chief Financial Officer
of a number of companies, including CDnow. From July 1994 to June 1995, Mr.
Sussman was Vice President, Finance and Administration, and Chief Financial
Officer of Personnel Data Systems, Inc. From January 1991 to December 1994, Mr.
Sussman was Vice President of Finance and Chief Financial Officer of The
Devereux Foundation. Prior to January 1991, Mr. Sussman served for 10 years as
Treasurer of Decision Data, Inc. and six years in commercial banking and
leasing. Mr. Sussman is a Certified Public Accountant and Certified Management
Accountant and holds a Masters in Business Administration from the Wharton
School of the University of Pennsylvania.
EXECUTIVE COMPENSATION
The CDnow/N2K board will rely on its compensation committee, composed of non-
employee directors, to recommend the form and amount of compensation to be paid
to CDnow/N2K's executive officers. For information regarding employment
agreements with the executive officers that will be in effect following the
merger, see "Interests of CDnow and N2K Executive Officers and Directors in the
Merger."
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<PAGE>
INTERESTS OF CDNOW AND N2K EXECUTIVE OFFICERS AND DIRECTORS IN THE MERGER
INTERESTS OF CDNOW AND N2K EXECUTIVE OFFICERS
AND DIRECTORS IN THE MERGER
In considering the respective recommendations of the CDnow board and the N2K
board with respect to the merger, you should be aware that officers of CDnow
and N2K, including some officers who are also directors, have interests in the
merger that are different from, or in addition to yours. Jason Olim and Matthew
Olim, executive officers of CDnow, were also members of CDnow's board of
directors when the CDnow board approved the CDnow merger. Five executive
officers of N2K, Lawrence Rosen, Jonathan Diamond, Robert David Grusin, James
Coane, and Bruce Johnson, were also members of N2K's board of directors when
the N2K board approved the N2K merger.
EMPLOYMENT AGREEMENTS WITH CDNOW/N2K
Jonathan Diamond Employment Agreement. Jonathan Diamond will serve as the
Chairman of the Board and as a director of CDnow/N2K after the closing of the
merger, under an employment agreement to be dated as of the closing of the
merger. Mr. Diamond's employment will begin, and he will be elected Chairman of
the Board of CDnow/N2K board, as of the closing of the merger. The initial term
of Mr. Diamond's employment is three years. Mr. Diamond's employment term will
automatically renew for consecutive one year terms unless notice is delivered,
by Mr. Diamond or CDnow/N2K, 120 days prior to the expiration of such term.
Mr. Diamond's base compensation during his employment term will be at least
$250,000. The compensation committee of the CDnow/N2K board of directors will
review Mr. Diamond's compensation at least annually. The CDnow/N2K board may
increase but not decrease his compensation. Each year, Mr. Diamond will also
receive an annual bonus in an amount to be determined by the compensation
committee of the CDnow/N2K board. Mr. Diamond will be entitled to participate
in any employee benefit plans of CDnow/N2K and to receive other incentive
compensation, including stock option grants.
The Diamond employment agreement may be terminated by either party.
Mr. Diamond's employment may only be terminated by a vote of 80% of the members
of the CDnow/N2K board of directors at a meeting of the CDnow/N2K board called
and held for that purpose. However, this 80% requirement shall not apply to the
board's decision as to whether to renew the employment agreement at its
expiration date. Mr. Diamond is entitled to severance benefits, including
continued salary, bonus, benefits and the vesting of unvested options, if his
employment is terminated by CDnow/N2K or if he terminates employment by reason
of CDnow/N2K's material breach of the employment agreement. If there is a
change in control of CDnow/N2K, and Mr. Diamond's employment terminates for any
reason, he will receive the severance benefits described above and vesting of
his options.
Mr. Diamond will serve as a member of the CDnow/N2K board of directors and
currently serves as an N2K director. See "Directors and Management of CDnow/N2K
Following the Merger--Directors".
The Diamond employment agreement provides that at the closing of the N2K merger
his existing agreement with N2K, dated February 13, 1996, will terminate,
except that Mr. Diamond's option to purchase 127,726 shares of CDnow/N2K common
stock will be fully vested and exercisable.
Jason Olim Employment Agreement. Jason Olim will serve as the Chief Executive
Officer, President and as a director of CDnow/N2K after the closing of the
merger under an employment agreement to be dated as of the closing of the
merger. Mr. Olim does not currently have an employment agreement with CDnow.
Mr. Olim's employment and director position will begin at the closing of the
merger. The initial term of Mr. Olim's employment is three years. Mr. Olim's
employment term will automatically renew for consecutive one year terms unless
notice is delivered, by Mr. Olim or CDnow/N2K, 120 days prior to the expiration
of such term.
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<PAGE>
INTERESTS OF CDNOW AND N2K EXECUTIVE OFFICERS AND DIRECTORS IN THE MERGER
Mr. Olim's base salary during his employment term will be at least $250,000.
The compensation committee of the CDnow/N2K board of directors will review Mr.
Olim's salary at least annually. The CDnow/N2K board may increase but not
decrease Mr. Olim's base salary. Each year, Mr. Olim will also receive an
annual bonus in an amount to be determined by the compensation committee of the
CDnow/N2K board. Mr. Olim shall be entitled to participate in employee benefit
plans of CDnow/N2K and to receive other incentive compensation, including stock
option grants. Mr. Olim's participation in CDnow/N2K's incentive plans provide
him the opportunity to earn, in the aggregate on a year-to-year basis, short-
term and long-term incentive compensation at least equal to the aggregate
incentive compensation that is earned by any other executive officer of
CDnow/N2K or an affiliated company.
The Olim employment agreement may be terminated by either party. Mr. Olim's
employment may only be terminated by a vote of 80% of the members of the
CDnow/N2K board of directors at a meeting of the CDnow/N2K board called and
held for that purpose. However, this 80% requirement shall not apply to the
board's decision as to whether to renew the employment agreement at its
expiration date. Mr. Olim is entitled to severance benefits including continued
salary, bonus, benefits and the vesting of unvested stock options, if his
employment is terminated by CDnow/N2K or if he terminates employment for good
reason. If there is a change in control of CDnow/N2K, half of Mr. Olim's
unvested stock options will become fully vested.
Mr. Olim will serve as a member of the CDnow/N2K board of directors and
currently serves as a CDnow Director. See "--Directors and Management of
CDnow/N2K Following the Merger--Directors."
INTERESTS OF N2K DIRECTORS AND EXECUTIVE OFFICERS
Under an employment agreement between N2K and Lawrence L. Rosen dated February
13, 1996, the merger will constitute a change in control entitling Mr. Lawrence
Rosen to payments and benefits as described below. If, after the closing of the
merger, Mr. Lawrence Rosen's employment terminates, he will be entitled to:
. a lump sum payment equal to 18 months of salary at the time of the
merger and bonus;
. health care and disability benefits for 18 months; and
. the immediate vesting of all options granted under his employment
agreement.
If the merger closes during the first quarter of 1999, the lump sum payment
that Mr. Lawrence Rosen is entitled to receive is approximately $375,000, and
options to purchase 127,726 shares of CDnow/N2K common stock at a weighted
average exercise price of $9.48 will immediately vest and be exercisable.
We do not expect that Mr. Lawrence Rosen will continue to be employed by
CDnow/N2K after the merger.
Under an employment agreement between N2K and Robert David Grusin dated
February 13, 1996, the merger will constitute a change in control entitling Mr.
Grusin to payments and benefits as described below. If, after the closing Mr.
Grusin's employment terminates, he will be entitled to:
. a lump sum payment equal to 18 months of salary at the time of the
merger and bonus;
. health care and disability benefits for 18 months; and
. the immediate vesting of all options granted under his employment
agreement.
If the merger closes during the first quarter of 1999, the lump sum payment
that Mr. Grusin is entitled to receive is approximately $150,000 and options to
purchase 127,726 shares of CDnow/N2K common stock at a weighted average
exercise price of $9.48 would immediately vest and be exercisable.
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<PAGE>
INTERESTS OF CDNOW AND N2K EXECUTIVE OFFICERS AND DIRECTORS IN THE MERGER
We do not expect that Mr. Grusin will continue to be employed by CDnow/N2K
after the merger.
Under an employment agreement between Telebase Systems, Inc. and James E. Coane
dated May 1, 1987, if Mr. Coane's employment is terminated as a result of the
merger, Mr. Coane will be entitled to:
. continuation of salary payments over an 18 month period; and
. continuation of benefits over an 18 month period.
. Mr. Coane's annual salary is $175,000.
We do not expect that Mr. Coane will continue to be employed by CDnow/N2K after
the merger.
Under an employment agreement between Telebase Systems, Inc. and Bruce Johnson
dated February 8, 1988, if Mr. Johnson's employment is terminated as a result
of the merger, Mr. Johnson will be entitled to:
. continuation of salary payments over a 12 month period; and
. continuation of benefits over a 12 month period.
. Mr. Johnson's annual salary is $150,000.
We do not expect that Mr. Johnson will continue to be employed by CDnow/N2K
after the merger.
Under an employment agreement between N2K and Jerold Rosen dated January 13,
1996, as amended on October 14, 1998, if Mr. Jerold Rosen's employment is
terminated as a result of the merger, he will be entitled to:
. continuation of salary payments over a 12 month period; and
. continuation of benefits over a 12 month period.
. Mr. Jerold Rosen's salary is currently $140,000.
After the merger, we expect that Mr. Jerold Rosen will continue to be employed
by CDnow/N2K and will serve as Senior Vice President of International.
Under an employment agreement between N2K and Arthur S. Weiner dated October 1,
1997, options that were granted Mr. Weiner under his employment agreement will
vest upon a change in control. As a result of the merger, options to purchase
22,134 shares of CDnow/N2K common stock at a weighted average exercise price of
$23.80 per share will vest and be exercisable.
As Mr. Weiner will not serve as general counsel of CDnow/N2K following the
merger, N2K believes that under his employment agreement with N2K, Mr. Weiner
is entitled to terminate his employment and receive the following:
(a) until December 31, 2000, his annual salary and any performance
bonuses; and
(b) continuation of benefits until December 31, 2000. Mr. Weiner's
annual salary is currently $200,000. Beginning January 1, 2000,
Mr. Weiner's annual salary will increase to $225,000.
Under an employment agreement between N2K and David Pakman dated July 10, 1998,
if Mr. Pakman's employment is terminated as a result of the merger, Mr. Pakman
will be entitled to:
. continuation of his salary over a 12 month period; and
. continuation of benefits over a 12 month period.
. Mr. Pakman's annual salary is currently $110,000.
After the merger, we expect that Mr. Pakman will be employed as Vice President
of Business and Product Development.
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<PAGE>
INTERESTS OF CDNOW AND N2K EXECUTIVE OFFICERS AND DIRECTORS IN THE MERGER
Vesting of Options--N2K Executive Officers. The terms of the various stock
option plans of N2K and employment agreements and other arrangements, provide
that the options and warrants to purchase shares which have been granted to
various parties will automatically vest upon the merger. We agreed to a one-
year extension of a portion of Messrs. Grusin's and Rosen's options. The
following table identifies executive officers of N2K and the options that vest
as a result of the merger. The information in the following table assumes that
options for N2K common stock were converted into options for an equivalent
amount of CDnow/N2K common stock at the exchange ratio of one share of N2K
common stock for .83 of a share of CDnow/N2K common stock. Value is based on
the closing price of N2K common stock on the Nasdaq on February 1, 1999 less
the exercise price per share of N2K options.
<TABLE>
<CAPTION>
NUMBER OF VALUE OF
NUMBER OF OPTIONS WHICH VALUE OF OPTIONS ALL OPTIONS
VESTED OPTIONS BECOME VESTED EXERCISABLE AS EXERCISABLE
AS OF AT THE CLOSING A RESULT OF THE AT CLOSING
NAME FEBRUARY 1, 1999 OF THE MERGER MERGER OF THE MERGER
---- ---------------- -------------- ---------------- -------------
<S> <C> <C> <C> <C>
Lawrence Rosen 206,883 127,726 $896,535.52 $3,450,056.20
Jonathan
Diamond 207,920 127,726 $896,636.52 $3,467,431.20
Robert David
Grusin 206,883 127,726 $896,636.52 $3,450,056.20
James E. Coane 60,632 3,890 $52,737.00 $875,755.00
Arthur S.
Weiner 11,067 22,134 $0.00 $0.00
Bruce Johnson 35,765 2,594 $34,500.20 $497,885.00
</TABLE>
INTEREST OF CDNOW EXECUTIVE OFFICER
Under the severance agreement between CDnow and David A. Capozzi dated
September 4, 1998, if as a result of the merger Mr. Capozzi's employment is
terminated or Mr. Capozzi determines to resign because he is not offered a
position that is the equivalent of the General Counsel position he held at
CDnow prior to the merger, then Mr. Capozzi will be entitled, with some
limitations, to:
. receive twelve months severance pay (Mr. Capozzi's current annual
salary is $140,000);
. receive twelve months continuation of health care and disability
benefits;
. have the right to exercise his vested stock options for ninety
days from last date of his employment with CDnow; and
. receive $10,000 in relocation expenses should Mr. Capozzi relocate
outside the Philadelphia metropolitan area while Mr. Capozzi is
receiving payments pursuant to this agreement.
We expect that Mr. Capozzi will serve as CDnow/N2K's General Counsel.
INDEMNIFICATION AND INSURANCE
The merger agreement requires CDnow/N2K to provide indemnification and
liability insurance arrangements for officers and directors of CDnow and N2K.
See "The Merger Agreement--Material Covenants--Director and Officer
Indemnification."
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<PAGE>
THE MERGER AGREEMENT
THE MERGER AGREEMENT
The following summarizes the material terms of the merger agreement, a copy of
which we have attached as Appendix I to this joint proxy statement/prospectus
and is incorporated herein by reference. We urge you to read the merger
agreement in its entirety for a more complete description of the terms and
conditions of the merger.
THE MERGER
Following shareholder approval and the satisfaction of the other conditions to
the merger, N2K and CDnow will become wholly-owned subsidiaries of CDnow/N2K.
Current CDnow and N2K shareholders will become holders of CDnow/N2K common
stock.
On the date the merger closes, CDnow and N2K will file a certificate of merger
and articles of merger with the Secretaries of State of Pennsylvania and
Delaware. See "--Conditions to Obligations to Effect the Merger."
CONVERSION OF SHARES
The N2K Merger
. Each share of N2K common stock will be converted into .83 of a share of
CDnow/N2K common stock.
. Under Delaware law, N2K shareholders are not entitled to appraisal
rights.
The CDnow Merger
. Each share of CDnow common stock will be converted into one share of
CDnow/N2K common stock.
. Under Pennsylvania law, CDnow shareholders are entitled to dissenters'
rights. See "The Merger--Dissenters' Rights."
EXCHANGE OF STOCK CERTIFICATES
After the closing of the merger, an exchange agent will mail you a letter of
transmittal and instructions for exchanging your CDnow or N2K stock
certificates for your shares of CDnow/N2K common stock. N2K shareholders will
also receive cash in lieu of any fractional shares. Upon surrender of a stock
certificate to the exchange agent, together with the executed letter of
transmittal, you will be entitled to receive shares of CDnow/N2K common stock
and any cash payable in lieu of fractional shares. The surrendered CDnow or N2K
stock certificates will promptly be canceled.
The certificates representing shares of CDnow/N2K common stock to be issued in
the exchange will be held by CDnow/N2K's Registrar and Transfer Agent, Stock
Trans, Inc.
No Further Ownership Rights in N2K common stock or CDnow common stock. All
shares of CDnow/N2K common stock and cash in lieu of fractional shares issued
in exchange for certificates of N2K common stock or CDnow common stock will be
considered to have been exchanged in full payment for your shares. After the
closing of the merger CDnow and N2K's transfer agents will not register
transfers of shares that were outstanding prior to the closing. If shares of
N2K common stock or CDnow common stock are presented to N2K, CDnow or CDnow/N2K
after the mergers for any reason, the certificates will be canceled and
exchanged for shares of CDnow/N2K.
Fractional Shares. CDnow/N2K will not issue fractional shares of common stock
in the merger. Instead of fractional shares, CDnow/N2K will pay cash without
interest to holders of N2K common stock who
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<PAGE>
THE MERGER AGREEMENT
would otherwise have received a fraction of a share of CDnow/N2K common stock.
The Nasdaq sales price of the CDnow/N2K common stock the day after the merger
closes will determine the amount of cash paid by CDnow/N2K.
Failure to Exchange. If you have not exchanged your N2K or CDnow common stock
certificates within 180 days after the closing of the merger, you will have to
contact the office of the General Counsel of CDnow/N2K in order to exchange
your N2K or CDnow common stock for CDnow/N2K common stock and cash in lieu of
fractional shares.
No Liability. N2K, CDnow, CDnow/N2K and the exchange agent will not be liable
to any N2K or CDnow shareholder for any shares of CDnow/N2K common stock, or
cash in lieu of fractional shares, delivered to a public official pursuant to
abandoned property, escheat or similar laws.
Dividends and Distributions. CDnow/N2K will not pay any dividends it declared
or any cash payable in lieu of fractional shares to a shareholder until the
shareholder has exchanged the N2K or CDnow share certificates for shares of
CDnow/N2K, as described above under "--Failure to Exchange." Following
surrender of any N2K or CDnow certificates you may hold, CDnow/N2K will pay to
you, without interest, the amount of any dividends declared by CDnow/N2K to
which you are entitled and any cash payable in lieu of fractional shares of
CDnow/N2K common stock as described under "--Fractional Shares" above.
Lost Certificates. If your stock certificates of N2K or CDnow are lost, stolen,
or destroyed prior to the closing of the merger, you must submit an affidavit
of that fact to the office of the General Counsel of CDnow or N2K. Also, if
required by CDnow/N2K, N2K or CDnow, you must post a bond in a reasonable
amount as determined by CDnow/N2K, N2K or CDnow as indemnity against any
potential claim regarding the lost certificates. In exchange for lost, stolen
or destroyed stock certificates, after you have made the affidavit and posted
the bond, the exchange agent will issue to you shares of CDnow/N2K common stock
and any cash in lieu of fractional shares due. The exchange agent will also pay
any unpaid dividends and distributions on shares of CDnow/N2K common stock that
are deliverable upon the CDnow/N2K common stock.
REPRESENTATIONS AND WARRANTIES
The merger agreement contains representations and warranties made by N2K and
CDnow. These are assumptions upon which each company relied when agreeing to
the merger. These representations and warranties deal with issues such as:
. the organization, valid existence and good standing of N2K, CDnow
and their subsidiaries, and similar corporate matters;
. the capital structure of N2K and CDnow;
. the authorization, execution, delivery and enforceability of the
merger agreement and the stock option agreements;
. the consummation of the transactions contemplated by the merger
agreement and the stock option agreements and related matters;
. the conflicts under charters or bylaws;
. the required consents or approvals of the merger;
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<PAGE>
THE MERGER AGREEMENT
. the violations of any instruments or law;
. the documents and financial statements filed by N2K and CDnow with
the Securities and Exchange Commission and the accuracy of
information contained in them;
. the absence of undisclosed liabilities;
. the absence of material adverse events or changes;
. taxes and tax returns;
. properties;
. intellectual property;
. agreements, contracts and commitments;
. litigation;
. environmental matters and hazardous materials;
. employee benefit plans;
. compliance with laws;
. tax matters relating to the merger;
. the accuracy of information supplied by N2K and CDnow in
connection with this joint proxy statement/prospectus;
. labor matters;
. insurance;
. opinions of financial advisors;
. the absence of existing discussions with other parties; and
. the inapplicability to the merger of certain provisions of the
Delaware General Corporation Law and the Pennsylvania Business
Corporation Law.
MATERIAL COVENANTS
The merger agreement includes a number of covenants, most of which provide
parameters within which each company will operate until the merger either
closes or the merger agreement is terminated.
Conduct of Business
From the date of the merger agreement until the closing, N2K and CDnow will:
. continue to operate their respective businesses according to their
customary course of business;
. pay their debts and taxes when due;
. pay or perform other obligations when due; and
. use reasonable efforts to preserve their business organization,
management team and business relationships.
This conduct is subject to exceptions included in the merger agreement
disclosure schedules.
Additional Covenants
The merger agreement also provides that, from the date of the merger agreement
until the closing, N2K and CDnow will not:
. accelerate, amend or change the exercise period of options or
restricted stock granted under employee stock plans or authorize
cash payments in exchange for options granted under employee stock
plans;
. declare or pay dividends on or make distributions on any of its
stock, make other changes in its capitalization, or purchase or
acquire any shares of their stock except from former employees,
directors and consultants in accordance with termination of
service agreements;
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<PAGE>
THE MERGER AGREEMENT
. issue or sell any stock or securities convertible into shares of
their stock, or any subscriptions, rights, warrants or options,
with some exceptions;
. make any material acquisitions;
. sell, lease, sell/leaseback, license or otherwise dispose of
material properties or assets outside the ordinary course of
business;
. increase the compensation of officers or employees, other than
increases to non-officer employees consistent with past practices,
grant additional severance or termination pay or enter into
employment or severance agreements, or take actions regarding
benefit plans for its directors, officers, or employees;
. amend their certificates of incorporation or bylaws, except as
contemplated by the merger agreement;
. incur debt for borrowed money;
. take any action that is likely to result in a material breach of
the merger agreement or the stock option agreements;
. make or rescind any material tax elections, settle any tax claims
or make a material change in their methods of reporting income or
deductions for tax purposes;
. settle any material litigation relating to the merger;
. settle any litigation referred to on the disclosure schedules to
the merger agreement that would require payment over $50,000 above
the amount covered by insurance, excluding the deductible to this
insurance;
. enter into any agreement or contract involving an amount in excess
of $250,000;
. authorize or make capital expenditures in excess of $250,000
individually or as part of a series of related transactions;
. make any material change in their accounting policies;
. take or omit to take any action likely to result in a breach of
any contract or commitment if the result would have a material
adverse effect;
. take any action which could adversely affect or delay the ability
of the parties to obtain approval by any governmental or
regulatory body required to consummate the merger;
. permit their working capital to be less than specified amounts; or
. take, or agree in writing to take, or have any affiliate or other
third party take any of the actions described above.
No Solicitation
From the date of the merger agreement until the closing, we will not, directly
or indirectly:
. solicit or encourage any inquiries or proposals that are or could
lead to a proposal for a merger, business combination or similar
transaction involving the party or any of its subsidiaries, other
than the merger;
. engage in negotiations or discussions concerning a proposal for a
merger or similar transaction;
. provide public information to any person or entity relating to a
proposal for a merger or similar transaction; or
. agree to or recommend any proposal for a merger or similar
transaction.
However, we or our boards of directors may either:
. furnish non-public information to or enter into discussions or
negotiations with a person or entity that has made an unsolicited
proposal for a merger or similar transaction; or
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<PAGE>
THE MERGER AGREEMENT
. modify or withdraw its recommendation regarding the merger or
recommend an unsolicited bona fide written acquisition proposal to
the shareholders of such party, if:
- the board of directors believes in good faith after
consultation with its financial advisor, that the proposal
is reasonably capable of being completed on the terms
proposed;
- taking into account the strategic benefits and the prospects
of CDnow and N2K as a combined company, the directors
believe the proposal would result in a transaction more
favorable to its shareholders over the long term than the
transaction contemplated by the merger agreement;
- the board of directors determines in good faith after
consultation with outside legal counsel that the action is
required for the board to comply with its fiduciary duties
to shareholders under applicable law;
- prior to furnishing non-public information to, or entering
into discussions or negotiations with, the entity making the
proposal for a merger or similar transaction, the board of
directors receives from the entity an executed
confidentiality agreement. The confidentiality agreement
must have terms no less favorable to the party than those
contained in the Confidentiality and Standstill agreement
dated August 17, 1998 and September 25, 1998 between N2K and
CDnow; or
- the board is voting in compliance with Rule 14e-2 under the
Securities Exchange Act of 1934 with regard to a proposal
for a merger or similar transaction.
We also agreed not to release a third party from, or waive a provision of, a
standstill agreement or confidentiality agreement between it and another person
who has made or is likely to make a proposal for a merger or similar
transaction. However, the board of directors may grant a release from a
standstill or confidentiality agreement if it determines that the action is
required to comply with its fiduciary duties to shareholders.
The merger agreement requires us to notify the other within 24 hours upon
receipt of a proposal for a merger or similar transaction by a third party or
upon receipt of a request for non-public information or access to its
properties, books or records in connection with a proposal for a merger or
similar transaction by a third party. The party providing notice is required to
indicate the identity of the third party making the proposal and the terms and
conditions of the proposal. The party providing notice must also continue to
keep the other party informed of the status of any discussions or negotiations
and the terms being discussed or negotiated.
Shareholders' Meetings
We agreed to call separate meetings of our shareholders to be held as promptly
as practicable to vote on the merger. Subject to the discussion above under "--
No Solicitation," we each agreed to:
. recommend to our shareholders adoption and approval of the merger;
and
. coordinate and cooperate with respect to the timing of our
shareholders' meeting, and to use our best efforts to hold the
meeting on the same day as the other party's shareholders' meeting
and as soon as possible after the signing of the merger agreement.
We each agreed to use all reasonable efforts to solicit from our
shareholders proxies in favor of the merger, subject to the
fiduciary duties of the board of directors.
Stock Plans
After the closing of the merger, each outstanding option to purchase N2K common
stock or CDnow common stock will become an option to acquire CDnow/N2K common
stock. The terms and conditions of the replacement CDnow/N2K option will be the
same as the pre-existing N2K or CDnow option it replaces. The option will be
for the number of shares of CDnow/N2K common stock the option holder would have
been entitled to receive in the merger if the holder had exercised the option
immediately before the merger.
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<PAGE>
THE MERGER AGREEMENT
The exercise price per share of each option after the merger will be equal to:
(x) the exercise price immediately prior to the closing of the merger
divided by
(y) the number of whole shares of CDnow/N2K common stock the option
holder would have received in the merger if the holder had
exercised the option immediately before the merger (rounded up to
the nearest whole cent).
As of the record date for the shareholders' meetings, respectively, options to
acquire 2,210,613 shares of N2K common stock and 1,043,730 shares of CDnow
common stock were outstanding.
As soon as practicable after the closing of the merger, CDnow/N2K will deliver
to the participants in the N2K stock plans and CDnow stock plans notices of the
participants' rights pursuant to the stock plans. The grants under those stock
plans will continue on the same terms and conditions as they had before.
CDnow/N2K will reserve for issuance a sufficient number of shares of CDnow/N2K
common stock for delivery under the N2K stock plans and the CDnow stock plans.
As soon as practicable after the closing of the merger, CDnow/N2K will file a
registration statement on Form S-8 for the shares of CDnow/N2K common stock
subject to the options and will use reasonable efforts to maintain the
effectiveness of that registration statement for as long as the options remain
outstanding.
Director and Officer Indemnification
After the closing of the merger, CDnow/N2K, N2K and/or CDnow will indemnify our
present and former directors and officers. The directors and officers will be
indemnified against costs or expenses (including attorneys' fees), liabilities
or amounts paid in settlement in connection with any claim, action, suit,
proceeding or investigation pertaining to any matter existing at or prior to
the closing of the merger. The officers and directors will be indemnified
whether the claim is asserted or claimed prior to, at or after the closing of
the merger. The indemnification will be to the fullest extent that we would
have been permitted under Delaware or Pennsylvania law, their respective
certificate or articles of incorporation or their respective bylaws in effect
on the date of the merger agreement. We will also be obligated to advance
expenses as incurred to the fullest extent permitted. However, the person to
whom expenses are advanced must provide an undertaking to repay the advances if
it is ultimately determined that the person is not entitled to indemnification.
For six years after the closing of the merger, CDnow/N2K will cause us to
maintain, to the extent available in the market, a directors' and officers'
liability insurance policy covering those persons who are covered as of the
date of the merger agreement by our directors' and officers' liability
insurance policy. The coverage will be at least as favorable as our existing
coverage. However, the companies will not be required to spend over twice the
annual premium paid by us for coverage. If the premium would at any time exceed
twice the current premium, then CDnow/N2K, N2K or CDnow will maintain insurance
policies which provide the maximum coverage available at an annual premium
equal to twice the current premium of N2K and CDnow together.
Post-Merger Corporate Governance
See "Directors and Management of CDnow/N2K Following the Merger."
The corporate governance provisions, with the exception of the provision for
the initial officers of CDnow/N2K, will become part of the bylaws of CDnow/N2K
after the merger. These bylaws can be amended only with the approval of 80% of
the members of the board of directors of CDnow/N2K.
Warrants; Registration Rights Agreement
At the closing of the merger, CDnow/N2K will assume all obligations under the
warrants set forth in both parties' disclosure schedules to the merger
agreement. The holders of the warrants will have the right to acquire the same
number of shares of CDnow/N2K common stock as they would have been entitled to
receive had each holder exercised the warrant in full immediately prior to the
closing of the merger. However, warrants
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<PAGE>
THE MERGER AGREEMENT
held by N2K shareholders will be adjusted according to the exchange ratio. This
exchange will be on the same pricing and payment terms and conditions as are
currently applicable under the warrants. The price per share will be calculated
as follows:
(x) the aggregate exercise price immediately prior to the closing of
the merger divided by
(y) the number of full shares of CDnow/N2K common stock as the holders
would have been entitled to receive had each holder exercised the
warrant in full immediately prior the closing of the merger.
At the closing of the merger, CDnow/N2K will offer to enter into registration
rights agreements with parties to registration rights agreements with N2K.
CDnow/N2K will offer to enter similar agreements with any party who is entitled
to benefit from the registration rights created in those existing agreements as
a result of being a party to the initial agreement or by virtue of transfers
from the initial or listed holders. The provisions of the new registration
rights agreements will be substantially similar to the provisions of the
existing registration rights agreements identified on N2K's disclosure
schedules to the merger agreement. These new registration rights agreements
will apply to all shares of CDnow/N2K issued in exchange for shares of N2K
common stock covered by registration rights immediately prior to the N2K
merger.
Employee Benefits; Severance
CDnow/N2K will continue to maintain the existing N2K and CDnow annual bonus
plans for management employees for the 1998 fiscal year. It will also calculate
the amounts payable to participants of these plans on a basis consistent with
the terms of each plan and the past practices of N2K or CDnow. For purposes
where length of service is relevant, except for pension benefit accruals, under
any employee benefit plan, CDnow/N2K's plans will recognize credit for service
with N2K or CDnow and any of their subsidiaries to the same extent that that
service was recognized before the merger.
N2K may provide for stay bonuses and/or other arrangements to retain the
services of key personnel prior to the closing of the merger. Personnel who
have employment agreements with N2K are not eligible for stay bonuses. The
aggregate value of the bonuses and arrangements will not exceed $250,000 unless
otherwise agreed by CDnow and N2K.
Other Covenants
Under the merger agreement, each of N2K and CDnow has also agreed to:
. confer on a regular basis regarding ongoing operations;
. promptly provide the other party with copies of all filings made
with governmental entities in connection with the merger;
. to give prompt notice to the other of, and use reasonable efforts
to cure, any circumstance which causes a breach of any
representation, warranty, covenant or agreement;
. file this joint proxy statement/prospectus and the registration
statement;
. obtain all necessary state securities laws, permits or approvals;
. continue the quotation and listing of N2K common stock and CDnow
common stock on Nasdaq up to the closing of the merger;
. give the other party access to all its personnel, properties,
books, contracts, commitments and records, and to furnish related
information reasonably requested by the other;
. use best efforts to consummate the merger as promptly as
practical;
. obtain any consents, licenses, permits, waivers, approvals,
authorizations or orders from governmental entities or other third
parties in connection with the merger;
. make all necessary filings and submissions with respect to the
merger under federal, state and foreign securities laws, antitrust
laws and other applicable laws;
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<PAGE>
THE MERGER AGREEMENT
. consult with the other party, and use reasonable efforts to agree
upon press releases or other public statements concerning the
merger;
. not take any action reasonably likely to jeopardize the tax
treatment of the merger;
. use reasonable efforts to obtain and deliver to the other party
the affiliate agreements;
. use all reasonable efforts to cause the CDnow/N2K common stock
issued in the merger to be approved for listing on the Nasdaq,
prior to the closing of the merger;
. use all reasonable efforts to obtain "comfort" letters of the
party's independent public accountants with respect to the
registration statement;
. fully perform their obligations under the stock option agreements;
. work together to coordinate all aspects of transition, planning
and implementation relating to the merger;
. cooperate in the preparation and filing of all returns and other
documents regarding the merger;
. pay real property transfer or gains, sales, use, transfer, value
added, stock transfer and stamp taxes;
. pay any transfer, recording, registration and other fees or any
similar taxes which become payable in connection with the merger;
. pay, on behalf of each company's shareholders, any New York State
Real Estate Transfer Tax, New York City Real Property Transfer
Tax, New York State Stock Transfer Tax and any similar taxes
imposed on the shareholders of N2K and CDnow by any other state
which become payable in connection with the merger;
. give the other party the opportunity to participate in the defense
of shareholder litigation against N2K or CDnow or their directors
relating to the merger;
. consult with each other prior to making its financial results for
any period publicly available, and consult with the other prior to
making filings, and to timely file, with the SEC;
. consult with respect to business practices and policies and make
modifications or changes to practices or policies as mutually
agreed upon; and
. consult with respect to the character, amount and timing of
restructuring charges as may be mutually agreed upon.
CONDITIONS TO OBLIGATIONS TO EFFECT THE MERGER
The obligations of N2K and CDnow to effect the merger do not arise until the
following conditions have been satisfied or waived:
. approval of the N2K merger by the N2K shareholders and the CDnow
merger by the CDnow shareholders;
. expiration or termination of any applicable anti-trust waiting
period;
. receipt of approvals and completion of filings with government
entities or regulatory bodies necessary to avoid a material
adverse effect on the merger;
. effectiveness of the registration statement which this joint proxy
statement/prospectus forms a part;
. no government entity or regulatory body action which has the
effect of making the merger illegal or otherwise prohibits the
merger;
. the shares of CDnow/N2K common stock to be issued in the merger
and upon exercise of N2K options and CDnow options will have been
approved for listing on the Nasdaq; and
. N2K and CDnow will have taken all actions necessary so that not
later than the closing of the merger, the articles of
incorporation and bylaws of CDnow/N2K will have been amended as
contemplated by the merger agreement, and at the closing of the
merger, the board of directors of CDnow/N2K and of each committee
of the board of directors of CDnow/N2K will be as described "The
Merger Agreement--Material Covenants--Post-Merger Corporate
Governance."
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<PAGE>
THE MERGER AGREEMENT
In addition to the obligation described above, the obligation of N2K to
complete the merger is subject to the satisfaction or waiver of the following
conditions:
. the representations and warranties of CDnow in the merger
agreement will be true and correct as of the date of the merger
agreement and as of the closing of the merger, except for, (a)
changes contemplated by the merger agreement and (b) inaccuracies
which, have not had and are not likely to have a CDnow material
adverse effect, as defined below, on CDnow or on the merger, and
N2K shall have received a certificate signed on behalf of CDnow by
the chief executive officer and the chief financial officer of
CDnow to that effect;
. CDnow will have materially performed all obligations required to
be performed by it under the merger agreement at or prior to the
closing of the merger, and N2K will have received a certificate
signed on behalf of CDnow by the chief executive officer and the
chief financial officer of CDnow to that effect;
. N2K will have received the opinion of Dewey Ballantine LLP,
counsel to N2K, that: (a) the N2K merger will be treated as a
reorganization described in Section 368(a) of the Code and/or (b)
taken together with the CDnow merger, the N2K merger will be
treated as a transfer of property to CDnow/N2K by holders of N2K
common stock described in Section 351 of the tax code; and
. from the date of the merger agreement through the closing of the
merger, there shall not have occurred a CDnow material adverse
effect, as defined below, on the business of CDnow.
For purposes of this section, CDnow material adverse effect means a material
adverse effect on the business of CDnow that does not include the effect of any
changes resulting from general conditions applicable to the online music
retailing industry and not specifically relating to CDnow, or from general
business or United States economic conditions that do not have a
disproportionate effect on CDnow or caused by:
. the transactions contemplated by the merger agreement and public
announcement of those transactions;
. any steps taken or proposed to be taken in connection with changes
to CDnow's business practices and policies or in connection with
restructuring measures and decisions, all of which will be made in
accordance with Section 5.30 of the merger agreement; or
. any actions taken or omissions by CDnow with the prior written
consent of CDnow in effecting the transactions contemplated by the
merger agreement.
Similarly, the obligation of CDnow to complete the merger are subject to the
satisfaction or waiver of the following conditions:
. the representations and warranties of N2K in the merger agreement
will be true and correct as of the date of the merger agreement
and as of the closing of the merger, except for: (a) changes
contemplated by the merger agreement and (b) inaccuracies which
have not had and are not likely to have a N2K material adverse
effect, and CDnow shall have received a certificate signed on
behalf of N2K by the chief executive officer and the chief
financial officer of N2K to that effect;
. N2K will have materially performed all obligations required to be
performed by it under the merger agreement at or prior to the
closing of the merger, and CDnow will have received a certificate
signed on behalf of N2K by the chief executive officer and the
chief financial officer of N2K to that effect;
. CDnow will have received the opinion of Morgan, Lewis & Bockius
LLP, counsel to CDnow, that: (a) the CDnow merger will be treated
as a reorganization described in Section 368(a) of the tax code
and/or (b) taken together with the N2K merger, the CDnow merger
will be treated, as a transfer of property to CDnow/N2K by holders
of CDnow common stock described in Section 351 of the tax code;
and
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<PAGE>
THE MERGER AGREEMENT
. from the date of the merger agreement through the closing of the
merger there will have not occurred a N2K material adverse effect,
as defined below, on the business of N2K.
For the purposes of this section, N2K material adverse effect means a material
adverse effect upon the business of N2K that does not include the effect of any
changes resulting from general conditions applicable to the online music
retailing industry and not specifically relating to N2K, or from general
business or United States economic conditions that do not have a
disproportionate effect on N2K, or caused by
. the transactions contemplated by the merger agreement and public
announcement of those transactions;
. any steps taken or proposed to be taken in connection with changes
to CDnow's business practices and policies or in connection with
restructuring measures and decisions, all of which will be made in
accordance with Section 5.30 of the merger agreement, or
. any actions taken or omission by N2K with the prior written
consent of CDnow in effecting the transactions contemplated by the
merger agreement.
TERMINATION; TERMINATION FEES AND EXPENSES
The merger agreement may be terminated at any time before the closing of the
merger. This termination may occur before or after approval of the merger by
the shareholders of N2K and CDnow in the following manner:
. By mutual written consent of N2K and CDnow.
. By either N2K or CDnow if the merger has not been consummated by
March 31, 1999, however, the right to terminate under this clause
is not available to a party whose failure to fulfill an obligation
under the merger agreement is the cause of the failure of the
merger to occur.
. By either N2K or CDnow if a court of competent jurisdiction or
other governmental entity has issued a nonappealable final order
or taken any other nonappealable final action permanently
restraining, enjoining or prohibiting the merger.
. By N2K or CDnow, if the CDnow shareholders have not approved the
merger as required.
. By CDnow or N2K, if the N2K shareholders have not approved the
merger as required.
. By N2K, if any of the following occurs.
- the CDnow board has withdrawn or modified its recommendation
of the merger;
- after CDnow receives from an outside party a proposal for a
merger or similar transaction, N2K requests that the board
of directors of CDnow reconfirm its recommendation of the
merger to the shareholders of CDnow and the board of
directors of CDnow fails to do so within 10 business days
after it receives N2K's request;
- the CDnow board recommended to the shareholders of CDnow a
merger or similar transaction with another entity;
- anyone other than N2K or an affiliate of N2K commences a
tender offer or exchange offer for 20% or more of the
outstanding shares of CDnow common stock and the board of
directors of CDnow recommends that the shareholders of CDnow
tender their shares in this tender or exchange offer; or
- for any reason CDnow fails to call and hold the CDnow
shareholders' meeting by March 31, 1999.
. By CDnow, if any of the following occurs:
- the board of directors of N2K has withdrawn or modified its
recommendation of the merger;
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THE MERGER AGREEMENT
- after N2K receives from an outside party a proposal for a
merger or similar transaction, CDnow requests in writing
that the board of directors of N2K reconfirm its
recommendation of the merger to the shareholders of N2K and
the board of directors of N2K fails to do so within 10
business days after it receives CDnow's request;
- the board of directors of N2K has recommended to the
shareholders a merger or similar transaction with another
entity;
- anyone other than CDnow or an affiliate of CDnow commences a
tender offer or exchange offer for 20% or more of the
outstanding shares of N2K common stock and the board of
directors of N2K recommends that the shareholders of N2K
tender their shares in such tender or exchange offer; or
- for any reason N2K fails to call and hold the N2K
shareholders' meeting by March 31, 1999.
. By N2K or CDnow, prior to the approval of the merger by the
shareholders of that party, if the board of directors of that
party determines that accepting a proposal for a merger or similar
transaction received from a third party is required for the board
of directors to comply with its fiduciary duties to shareholders.
This determination must be made in good faith after consultation
with outside legal counsel. However, no such termination will be
effective under this clause unless any termination fee payable by
that party is paid.
. By N2K or CDnow, if there has been a breach of any representation,
warranty, covenant or agreement by the other party, which:
- will cause the CDnow representation bringdown condition, or
the N2K representation bringdown condition, not to be
satisfied, and
- has not been cured within 20 business days following receipt
of written notice of the breach from the other party.
. By N2K or CDnow if an event has occurred which makes it impossible
for the conditions to the obligations to effect the merger, as
described above, with certain exceptions, to be satisfied.
However, any termination under this clause will not be effective
until 20 business days after notice of the termination is
delivered by the terminating party to the other party. The
termination will be automatically rescinded if the condition
breached is solely for the benefit of the party receiving notice
of termination and that party, prior to the 20th business day
after the breach, waives the condition.
. By N2K or CDnow if there has been a breach of the representations,
warranties, covenants or agreements set out in Section 3.10(c),
3.11(b) or 5.1(l) of the merger agreement in the case of a
termination by CDnow; which would have a material adverse effect
on the business of N2K or in Section 4.10(c) of the merger
agreement in the case of a termination by N2K which would have a
material adverse effect on the business of CDnow.
. By CDnow if there has been a material adverse effect on the
business of N2K not cured within 20 business days.
. By N2K if there has been a material adverse effect on the business
of CDnow not cured within 20 business days.
In the event of termination of the merger agreement by N2K or CDnow as provided
above, the merger agreement will become void. In that case there will be no
liability or obligation, with limited exceptions, on the part of N2K, CDnow,
CDnow/N2K or their respective officers, directors, shareholders or affiliates.
There are exceptions to the limitation of liability with respect to termination
fees, and termination will not limit liability for a willful breach of the
merger agreement. The indemnification provisions described above under
"Interests of CDnow and N2K Executive Officers and Directors in the Merger--
Indemnification and Insurance" and the termination fee provisions described
below will remain in full force and effect and survive any termination of the
merger agreement.
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<PAGE>
THE MERGER AGREEMENT
Except as described below, whether or not the merger is consummated, all fees,
costs and expenses incurred in connection with the merger will be paid by the
party incurring the expenses.
N2K will pay CDnow a termination fee of $3.75 million upon the earliest to
occur of the following events:
. the termination of the merger agreement by either CDnow or N2K
because of the other party's failure to receive shareholder
approval of the N2K shareholders as described above, if a proposal
for a merger or similar transaction with a third party involving
N2K has been publicly announced prior to the N2K shareholders'
meeting and either a definitive agreement for a merger or similar
transaction with a third party is entered into, or a merger or
similar transaction with a third party is consummated, within
eighteen months of such termination;
. the termination of the merger agreement by CDnow under the other
circumstances described above; or
. the termination of the merger agreement by N2K under the other
circumstances described above.
CDnow will pay N2K a termination fee of $3.75 million upon the earliest to
occur of the following events:
. the termination of the merger agreement by either N2K or CDnow
because of the other party's failure to receive shareholder
approval of the CDnow shareholders as described above, if a
proposal for a merger or similar transaction with a third party
involving CDnow has been publicly announced prior to the CDnow
shareholders' meeting and either a definitive agreement for a
merger or similar transaction with a third party is entered into,
or a merger or similar transaction with a third party is
consummated, within eighteen months of such termination;
. the termination of the merger agreement by N2K under the other
circumstances described above; or
. the termination of the merger agreement by CDnow under the other
circumstances described above.
Either party's payment of the termination fee will be the sole remedy of the
other against it and any of its subsidiaries and their respective directors,
officers, employees, agents, advisors or other representatives with respect to
the occurrences giving rise to the payment. This limitation will not apply in
the event of a willful breach of the merger agreement by either party. The
amount of the termination fee will be reduced to the extent that the total
profit exceeds $3.75 million.
AMENDMENT AND WAIVER
The merger agreement may be amended by CDnow and N2K by their respective boards
of directors. Amendments may be made at any time before or after approval of
the merger by the shareholders of N2K or CDnow. However, some amendments may by
law require further shareholder approval.
Amendments must be in a written document signed by each of the parties.
However, the merger agreement may be amended in writing without obtaining the
signatures of N2K, CDnow or CDnow/N2K if the amendment is solely to add the N2K
merger subsidiary and CDnow merger subsidiary as parties to the merger
agreement.
At any time prior to the closing of the merger, CDnow and N2K may:
. extend the time for performing any of the obligations or other
acts of the other parties;
. waive any inaccuracies in the representations and warranties in
the merger agreement or in any of the other documents for the
merger; and
. waive compliance with any of the agreements or conditions
contained in any of the documents relating to the merger.
The above actions must be properly approved or authorized by the respective
boards of directors of CDnow and N2K and must be in writing.
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<PAGE>
OTHER AGREEMENTS
OTHER AGREEMENTS
The following summarizes the material terms of the N2K stock option agreement,
the CDnow stock option agreement, the N2K shareholder support agreement and the
CDnow shareholder support agreement. We have filed copies of these agreements
as exhibits to the registration statement that includes this joint proxy
statement/prospectus.
N2K STOCK OPTION AGREEMENT
Description of the Agreement. The N2K stock option agreement grants N2K the
right under the circumstances described below to acquire up to 3,517,207 shares
CDnow common stock. With regard to the N2K stock option agreement:
. 3,517,207 represents 19.9% of the outstanding share of CDnow
common stock on the date we signed the merger agreement; and
. the exercise price shall equal the lesser of (a) $ 9.4375 per
share, or (b) the average closing price of CDnow common stock
during the period from October 19 through October 23, 1998.
The N2K stock option agreement may make an acquisition of CDnow by a third
party more costly. A third party seeking to acquire CDnow must also acquire the
shares underlying the N2K option. In addition, by exercising its option, N2K
could jeopardize the ability of a third party to account for an acquisition of
CDnow as a pooling of interests.
Exercise of the N2K Option. N2K may exercise its option, in whole or in part,
after the occurrence of an event which would entitle N2K, upon termination of
the merger agreement by CDnow, to payment of the N2K termination fee. The N2K
option may not be exercised if N2K is in material breach of any of its material
representations, warranties, covenants or agreements contained in the N2K stock
option agreement or in the merger agreement. N2K may exercise the N2K option by
either:
. paying the option price, as described above, and receive the
shares; or
. electing to receive a cash payment in lieu of the shares from
CDnow. The cash payment is to be the amount by which (a) the
higher of the price paid by a third party in an acquisition of
CDnow or the then current market price of the CDnow common stock
exceeds (b) the N2K option price set forth above.
CDnow Repurchase Right. CDnow may repurchase the shares that N2K obtained by
exercising the N2K option. If a change in control event, as defined in the N2K
stock option agreement, with respect to CDnow has not occurred prior to the
first anniversary of the termination of the merger agreement, CDnow may, during
the 30-day period beginning on the anniversary, elect to purchase all, but not
less than all, of the N2K option shares. The purchase price will be equal to
the greater of (a) the N2K option price or (b) the average of the closing sales
prices for shares of CDnow common stock on the 20 trading days ending five days
prior to the date CDnow gives notice of its intention to exercise the
repurchase right.
Registration. If N2K exercises this option, it will receive unregistered shares
of CDnow common stock. N2K may require CDnow to register the shares so that N2K
may sell the shares. N2K is only allowed two registration requests.
Maximum Payments to N2K. In no event will the N2K total profit exceed $3.75
million. N2K total profit includes:
. termination fees paid to N2K;
. the amount received by N2K for the repurchase of the N2K option
shares by CDnow in""--CDnow Repurchase Right" above, less the
purchase price paid by N2K for the shares; and
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<PAGE>
OTHER AGREEMENTS
. the amount received by N2K in the sale of N2K option shares, less
the purchase price paid by N2K for such shares.
Termination of the Option. The N2K option terminates upon the earlier of:
. the closing of the merger;
. the date on which N2K realizes a N2K total profit of $3.75
million;
. the date on which the merger agreement is terminated, provided
that the N2K option is not exercisable at such time and does not
become exercisable simultaneously with the termination; or
. 90 days after the date the N2K option becomes exercisable,
provided that if the N2K option cannot be exercised, or the N2K
option shares cannot be delivered to N2K upon exercise, because of
a preliminary or permanent injunction or other court order. This
date will be extended until 30 days after the impediment to
exercise has been removed.
CDNOW STOCK OPTION AGREEMENT
Description of the Agreement. The CDnow stock option agreement grants CDnow the
right under the circumstances described below to acquire up to 2,827,299 shares
of authorized but unissued N2K common stock. With regard to the CDnow stock
option agreement:
. 2,827,299 represents 19.9% of the outstanding shares of N2K common
stock on the date we signed the merger agreement; and
. the exercise price shall equal the lesser of (a)$ 5.50 per share
or (b) the average closing price of N2K common stock during the
period from October 19 through October 23, 1998.
The CDnow stock option agreement may make an acquisition of N2K by a third
party more costly. A third party seeking to acquire N2K must also acquire the
shares underlying the CDnow option. In addition, by exercising its option,
CDnow could jeopardize the ability of a third party to account for an
acquisition of N2K as a pooling of interests.
Exercise of the CDnow Option. CDnow may exercise its option, in whole or in
part, after the occurrence of an event which would entitle CDnow, upon
termination of the merger agreement by N2K, to payment of the CDnow termination
fee. The CDnow option may not be exercised if CDnow is in material breach of
any of its material representations, warranties, covenants or agreements
contained in the CDnow stock option agreement or in the merger agreement. CDnow
may exercise the CDnow option by either:
. paying the option price, as described above, and receive the
shares; or
. electing to receive a cash payment in lieu of the shares from N2K.
The cash payment will be the amount by which (a) the higher of the price paid
by a third party in an acquisition of N2K or the then current market price of
the N2K common stock exceeds (b) the CDnow option price described above.
N2K Repurchase Right. N2K may repurchase the shares that CDnow obtained by
exercising the CDnow option. If a change in control event, as defined in the
CDnow stock option agreement, with respect to N2K has not occurred prior to the
first anniversary of the termination of the merger agreement, N2K may, during
the 30-day period beginning on such anniversary, elect to purchase all, but not
less than all, of the CDnow option shares. The purchase price will be equal to
the greater of (a) the CDnow option price or (b) the average of the closing
sales prices for shares of N2K common stock on the 20 trading days ending five
days prior to the date N2K gives notice of its intention to exercise the
repurchase right.
Registration. If CDnow exercises this option, it will receive unregistered
shares of N2K common stock. CDnow may require N2K to register the shares so
that CDnow may sell the shares. CDnow is only allowed two registration
requests.
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<PAGE>
OTHER AGREEMENTS
Maximum Payments to CDnow. In no event will the CDnow total profit exceed $3.75
million. The CDnow total profit includes:
. termination fees paid to CDnow;
. the amount received by CDnow for the repurchase of the CDnow
option shares by N2K pursuant to "--N2K Repurchase Right" above,
less the purchase price paid by CDnow for the shares; and
. the amount received by CDnow in the sale of N2K option shares,
less the purchase price paid by CDnow for the shares.
Termination of the Option. The CDnow option terminates upon the earlier of:
. the closing of the merger;
. the date on which CDnow realizes a CDnow total profit of $3.75
million;
. the date on which the merger agreement is terminated, provided
that the N2K option is not exercisable at the time and does not
become exercisable simultaneously upon termination; or
. 90 days after the date the CDnow option becomes exercisable,
except that if the CDnow option cannot be exercised, or the CDnow
option shares cannot be delivered to CDnow upon exercise, because
of a preliminary or permanent injunction or other court order.
This date will be extended until 30 days after the impediment to
exercise has been removed.
N2K SHAREHOLDER SUPPORT AGREEMENT
Lawrence L. Rosen, Jonathan V. Diamond, R. David Grusin, Bruce Johnson and
James E. Coane entered into the N2K shareholder support agreement. These
shareholders collectively hold approximately 16.6% of the combined voting power
of the outstanding capital stock of N2K. Together, these shareholders are able
to significantly influence the vote on the approval and adoption of the merger
proposal.
At the N2K special meeting or at any other shareholders' meeting and in any
action by written consent of the shareholders of N2K, each signing shareholder
must vote all of his shares of N2K common stock
. in favor of the adoption of the merger agreement and the approval
of the N2K merger and the other transactions contemplated by the
merger agreement and
. in favor of any other action required for the consummation of the
transactions contemplated by the merger agreement and considered
and voted upon by the N2K shareholders. In addition, each signing
shareholder agreed that, upon request by CDnow, he will furnish
written confirmation, in form and substance reasonably
satisfactory to CDnow, of his support for the merger agreement and
the merger.
Pursuant to the N2K shareholder support agreement, each signing shareholder
agreed not to
.sell assign, transfer or otherwise dispose of any of his respective
shares,
. deposit any of his respective shares into a voting trust or enter
into a voting agreement or arrangement inconsistent with the N2K
shareholder support agreement, or
. enter any contract, option or other arrangement for the sale,
assignment, transfer or other disposition of any N2K stock.
Each shareholder agreed
. that he will not, nor will he authorize or permit any of N2K's
officers, directors, employees, agents or representatives to,
directly or indirectly, initiate or solicit any inquiries or the
making of any proposal for the acquisition of N2K and
. that he will notify CDnow as soon as possible, and in any event
within 48 hours, if any such inquiries or proposals are received
by, any information or documents are requested from, or any
negotiations or discussions are sought to be initiated or
continued with, him or her or any of his affiliates.
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OTHER AGREEMENTS
The N2K shareholder support agreement will terminate upon the earliest to occur
of the closing of the merger or any termination of the merger agreement in
accordance with the terms thereof. Messrs. Johnson and Coane obligations under
this agreement terminate upon the termination of their employment with N2K or
if they cease to be members of N2K's board of directors.
CDNOW SHAREHOLDER SUPPORT AGREEMENT
Jason Olim entered into the CDnow shareholder support agreement. Mr. Olim holds
approximately 16.7% of the combined voting power of the outstanding capital
stock of CDnow. Therefore, he is able to significantly influence the vote on
the merger proposal.
At the CDnow special meeting or at any other CDnow shareholders' meeting, and
in any action by written consent of the shareholders of CDnow, Mr. Olim must
vote all of his shares of CDnow common stock
. in favor of the adoption of the merger agreement and the approval
of the CDnow merger and the other transactions contemplated by the
merger agreement, and
. in favor of any other matter necessary to the consummation of the
transactions contemplated by the merger agreement and considered
and voted upon by the shareholders of CDnow. In addition, Mr. Olim
agreed that, upon request by N2K, he will furnish written
confirmation, in form and substance reasonably satisfactory to
N2K, of his support for the merger agreement and the merger.
Pursuant to the CDnow shareholder support agreement, Mr. Olim agreed not to
. sell assign, transfer or otherwise dispose of any of his shares,
. deposit any of his shares into a voting trust or enter a voting
agreement or arrangement inconsistent with the CDnow shareholder
support agreement, or
. enter any contract, option or other arrangement for the sale,
assignment, transfer or other disposition of any shares.
Mr. Olim agreed
. that he will not, nor will he authorize or permit any of CDnow's
officers, directors, employees, agents representatives to,
directly or indirectly, initiate or solicit any inquiries or the
making of any proposal for the acquisition of CDnow and
. that he will notify N2K as soon as possible, and in any event
within 48 hours, are any such inquiries or proposals are received
by, any information or documents is requested from, or any
negotiations or discussions are sought to be initiated or
continued with, him or any of his affiliates.
The CDnow shareholder support agreement will terminate upon the earlier of the
closing of the merger or any termination of the merger.
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OPINIONS OF FINANCIAL ADVISORS
OPINIONS OF FINANCIAL ADVISORS
OPINION OF CDNOW'S FINANCIAL ADVISOR
CDnow engaged BT Alex. Brown, on August 24, 1998, to act as its exclusive
financial advisor in connection with the merger. On October 22, 1998, at a
meeting of the CDnow board held to evaluate the proposed merger, BT Alex. Brown
rendered to the CDnow board an oral opinion, subsequently confirmed by delivery
of a written opinion dated October 22, 1998, to the effect that, as of the date
and based upon and subject to the assumptions made, matters considered and
limitations stated in this opinion, the CDnow exchange ratio was fair, from a
financial point of view, to the holders of CDnow common stock.
THE FULL TEXT OF BT ALEX. BROWN'S WRITTEN OPINION DATED OCTOBER 22, 1998, WHICH
STATES, AMONG OTHER THINGS, THE ASSUMPTIONS MADE, MATTERS CONSIDERED AND
LIMITATIONS OF THE REVIEW UNDERTAKEN, IS ATTACHED AS APPENDIX V TO THIS JOINT
PROXY STATEMENT/PROSPECTUS AND IS INCORPORATED HEREIN BY REFERENCE. BT ALEX.
BROWN'S OPINION IS DIRECTED TO THE CDNOW BOARD, ADDRESSES ONLY THE FAIRNESS OF
THE CDNOW EXCHANGE RATIO FROM A FINANCIAL POINT OF VIEW, AND DOES NOT
CONSTITUTE A RECOMMENDATION TO ANY SHAREHOLDER AS TO HOW THAT SHAREHOLDER
SHOULD VOTE AT THE CDNOW SPECIAL MEETING. CDNOW SHAREHOLDERS SHOULD CAREFULLY
READ THE ENTIRE BT ALEX. BROWN WRITTEN OPINION. THIS SECTION IS ONLY A SUMMARY
OF THE WRITTEN OPINION, AND AS A SUMMARY IS QUALIFIED AND NOT A SUBSTITUTE FOR
THE WRITTEN OPINION.
In connection with its opinion, BT Alex. Brown:
. reviewed publicly available financial information and other
information concerning CDnow and N2K and internal analyses and
other information furnished to it by CDnow and N2K;
. held discussions with the members of the senior managements of
CDnow and N2K regarding the business and prospects of their
respective companies and the prospects of a combined company;
. reviewed the reported prices and trading activity for CDnow common
stock and N2K common stock;
. compared financial and stock market information for CDnow and N2K
with similar information for a number of other selected companies
whose securities are publicly traded;
. reviewed the financial terms of a number of recent business
combinations which it deemed comparable in whole or in part;
. reviewed the terms of the merger agreement and related documents;
and
. performed other studies and analyses and considered other factors
as it deemed appropriate.
In preparing its opinion, BT Alex. Brown did not assume responsibility for the
independent verification of, and did not independently verify, any information
concerning CDnow or N2K, including any financial information, forecasts or
projections, considered in connection with the rendering of its opinion.
Accordingly, for purposes of its opinion, BT Alex. Brown assumed and relied
upon the accuracy and completeness of all information concerning CDnow and N2K.
BT Alex. Brown has not conducted a physical inspection of any of the properties
or assets of CDnow or N2K, and has not prepared or obtained any independent
evaluation or appraisal of any of the assets or liabilities of CDnow or N2K.
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<PAGE>
OPINIONS OF FINANCIAL ADVISORS
With respect to the financial forecasts and projections made available to BT
Alex. Brown and used in its analysis, including the analyses and forecasts of
potential transaction benefits arising from cost savings, operating
efficiencies, and revenue effects and which are expected to be achieved as a
result of the merger:
. BT Alex. Brown assumed that these financial forecasts and
projections were reasonably prepared on bases reflecting the best
currently available estimates and judgments of the management of
CDnow or N2K, as the case may be;
. these financial forecasts and projections also included, with the
consent of the CDnow board, assumptions pertaining to any
potential liability which may arise from the litigation currently
pending against N2K and;
. in rendering its opinion, BT Alex. Brown expressed no view as to
the reasonableness of such forecasts and projections, including
the potential transaction benefits, or the assumptions on which
they were based.
BT Alex. Brown's opinion was necessarily based upon economic, market and other
conditions as in effect on, and the information made available to it as of
October 22, 1998. BT Alex. Brown did not express an opinion as to the price at
which CDnow common stock or CDnow/N2K common stock actually might trade
following the announcement or consummation of the merger.
The CDnow board informed BT Alex. Brown, and in rendering its opinion BT Alex.
Brown assumed, that the merger will be free of federal tax to each of CDnow,
N2K and their respective shareholders. BT Alex. Brown also assumed that, in all
respects material to its analysis,
. the representations and warranties of CDnow and N2K contained in
the merger agreement were true and correct,
. CDnow and N2K will each perform all of the covenants and
agreements to be performed by it under the merger agreement and
all conditions to the obligations of each of CDnow and N2K to
consummate the merger will be satisfied without any waiver
thereof.
. all material governmental regulatory or other approvals and
consents required in connection with the consummation of the
merger will be obtained;
. and in connection with obtaining any necessary governmental,
regulatory or other approvals and consents, or any amendments,
modifications or waivers to any agreements, instruments or orders
to which either CDnow or N2K is a party or is subject or by which
it is bound, no limitations, restrictions or conditions will be
imposed or amendments, modifications or waivers made that would
have a material adverse effect on CDnow or N2K or materially
reduce the completed benefits of the merger to CDnow.
In connection with its engagement, BT Alex. Brown was not authorized to, and
did not, solicit third party indications of interest with respect to the
acquisition of all or a part of CDnow, nor did BT Alex. Brown review with CDnow
or the CDnow board any potential transactions in lieu of the merger.
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<PAGE>
OPINIONS OF FINANCIAL ADVISORS
Below is a summary of the material financial analyses performed and factors
considered by BT Alex. Brown in connection with its opinion and reviewed with
the CDnow board at its meeting on October 22, 1998:
Contribution Analysis. BT Alex. Brown analyzed the relative contributions of
CDnow and N2K to, among other things, the estimated revenues, gross profit,
earnings before interest and taxes, and net loss of the pro forma combined
company, excluding potential transaction benefits, for the latest three months
and nine months as of September 30, 1998, and for calendar years 1998, 1999 and
2000 based on internal estimates of the management of CDnow and N2K, and
compared these contributions to the pro forma ownership of the current holders
of CDnow common stock in the pro forma combined company. This analysis
indicated that, based upon the projected results for CDnow and N2K, CDnow would
contribute to the pro forma combined company:
<TABLE>
<CAPTION>
CDNOW CONTRIBUTION
-----------------------------------------------------------------------------------------------------------------
HISTORICAL FOR THE PERIOD ENDED SEPTEMBER 30, 1998 PROJECTED FOR THE YEAR ENDED DECEMBER 31,
----------------------------------------------------------- ---------------------------------------------
LATEST 3 MONTHS LATEST 9 MONTHS 1998 1999 2000
------------------------- ------------------------- ------------- ------------- -------------
<S> <C> <C> <C> <C> <C>
Revenues 56.9% 56.2% 55.2% 52.4% 48.3%
Gross Profit 55.4% 54.1% 53.3% 53.0% 48.7%
EBIT 39.4%* 38.2%* 38.4%* 45.1%* 49.6%*
Net Loss 39.3%* 38.2%* 37.7%* 45.0%* 48.5%*
</TABLE>
- --------
* Indicates contribution of a loss.
BT Alex. Brown also reviewed the historical and current financial conditions of
each of CDnow and N2K, respectively, and analyzed the relative contributions of
CDnow and N2K to the assets, liabilities and shareholders' equity of the pro
forma combined company.
BT Alex. Brown noted that, based on the CDnow exchange ratio, current holders
of CDnow common stock would own approximately 60% of the pro forma combined
company upon consummation of the merger. This ownership percentage compares
favorably with CDnow's contribution to the pro forma combined company and
supports BT Alex. Brown's opinion.
Historical Market Capitalization Analysis. BT Alex. Brown also analyzed the
relative contributions of CDnow and N2K to the estimated equity market
capitalization of the pro forma combined company over the 10 day, 15 day, 30
day, 60 day, 90 day, 120 day, 150 day periods (trading days) prior to October
22, 1998 and during the period February 10, 1998, the date of CDnow's initial
public offering of CDnow common stock, to October 22, 1998. The average market
capitalization contributions for CDnow during these periods were:
<TABLE>
<CAPTION>
CDNOW
AS OF OCTOBER 22, 1998 CONTRIBUTION
-------------------------------- ------------
<S> <C>
Latest 10 Trading Day Average... 65.6%
Latest 15 Trading Day Average... 65.8%
Latest 30 Trading Day Average... 60.5%
Latest 60 Trading Day Average... 58.2%
Latest 90 Trading Day Average... 56.6%
Latest 120 Trading Day Average.. 55.8%
Latest 150 Trading Day Average.. 55.2%
Average Since CDnow IPO
(February 10, 1998)............ 55.0%
</TABLE>
BT Alex. Brown noted that analyst reports warning of weaker than expected
revenue and earnings results at N2K for the three months ended September 30,
1998 were released by two investment banks on September 30, 1998 and October 2,
1998. The market capitalization contribution for CDnow subsequently rose from
52.0% on September 28, 1998 to 66.4% on October 5, 1998. While no similar
reports were released regarding CDnow, BT Alex. Brown had been provided by
CDnow management with estimated results for the three months ended September
30, 1998 that were also below analyst expectations. BT Alex. Brown also noted
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<PAGE>
OPINIONS OF FINANCIAL ADVISORS
that news reports regarding merger discussions between CDnow and N2K and a
press release from CDnow and N2K confirming that merger discussions were
ongoing were published on October 7, 1998, 11 trading days prior to the public
announcement of the merger. On October 7, 1998, the market capitalization
contribution for CDnow based upon closing prices was 64.8%.
BT Alex. Brown noted that, based on the CDnow exchange ratio, current holders
of CDnow common stock would own approximately 60% of the pro forma combined
company upon consummation of the merger. In consideration of information
publicly available with respect to CDnow and N2K prior to September 30, 1998,
this ownership percentage compares favorably with CDnow's contribution to the
estimated equity market capitalization of the pro forma combined company and
supports BT Alex. Brown's opinion.
Pro Forma Earnings Analysis. BT Alex. Brown analyzed the pro forma effects of
the merger on the revenue per share and earnings per share of CDnow in calendar
years 1999 and 2000 based on internal estimates of the management of CDnow and
N2K. BT Alex. Brown noted that the managements of CDnow and N2K had agreed to
use their best efforts to seek pooling of interests accounting treatment but
that the merger might be accounted for under the purchase method of accounting.
Accordingly, BT Alex. Brown provided analyses of the transaction merger based
upon pooling and purchase accounting to the CDnow board. After taking into
account potential transaction benefits related to the merger as provided by the
managements of CDnow and N2K, the effect on the revenue and earnings per share
to CDnow shareholders would be:
<TABLE>
<CAPTION>
PROJECTED ACCRETION/
(DILUTION) FOR
FISCAL YEAR ENDING
DECEMBER 31,
-----------------------
1999 2000
---------- ----------
<S> <C> <C>
Revenue per Share................................. 10.7 % 23.8%
Earnings per Share
Pooling of Interests Accounting................ (0.8)% 54.3%
Purchase Accounting............................ (11.0)% 40.7%
</TABLE>
This analysis suggests that holders of CDnow common stock may be subject to a
minor amount of earnings dilution in 1999, but could benefit from material
earnings accretion in 2000. In addition, for both 1999 and 2000, holders of
CDnow common stock would benefit from material accretion in revenue per share,
which is another valuation parameter for internet-related companies. While this
analysis supports BT Alex. Brown's opinion, this analysis also relies
significantly upon the financial projections provided by the managements of
CDnow and N2K. The actual operating or financial results achieved by the pro
forma combined company may vary from projected results and variations may be
material as a result of business and operational risks, the timing and amount
of potential transaction benefits, the costs associated with achieving those
potential transaction benefits and other factors.
Comparative Stock Price Performance. BT Alex. Brown reviewed and analyzed
recent and historical market prices for CDnow common stock and N2K common stock
and compared their respective stock price performance with the stock price
performance of the Nasdaq Index and an index of other selected internet
retailers comprised of Amazon.com, Inc., Cyberian Outpost, Inc., E*Trade Group,
Inc., ONSALE, Inc., Preview Travel, Inc. and Beyond.com Corporation for the
period February 10, 1998 to October 22, 1998. BT Alex. Brown noted that, in
relative terms, CDnow's common stock and N2K's common stock reacted similarly
in the market and, generally, traded consistently together. BT Alex. Brown
further noted that, in absolute terms, the market prices of CDnow common stock
and N2K common stock had deteriorated relative to the other internet retailers
and the Nasdaq Index due primarily, in its opinion, to concerns about
increasing competition and the ability to meet research analyst earnings
expectations in the future. BT Alex. Brown also noted that no company used in
this analysis is identical to CDnow, N2K or CDnow/N2K and that this analysis
must take into account differences in the financial and operating
characteristics of the respective companies. The generally consistent relative
and absolute trends in and between CDnow's common stock and N2K's common stock
supports BT Alex. Brown's opinion.
Analysis of Other Selected Publicly Traded Companies. This analysis examines a
company's valuation in the public market as compared to the valuation in the
public market of other selected publicly
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<PAGE>
OPINIONS OF FINANCIAL ADVISORS
traded companies. BT Alex. Brown compared financial information relating to
CDnow and N2K including, among other things, common equity market valuation and
the ratios of common equity market value to estimated revenues for 1998 and
1999, based upon estimates derived from analyst reports, to corresponding
information from two separate groups. One group consisted of publicly traded
business-to-business internet industry related companies. This business-to-
business group was comprised of Beyond.com Corporation, Digital River, Inc. and
DoubleClick, Inc. The other group consisted of transaction-based internet
companies serving consumers. This transaction based group was comprised of
Amazon.com, Inc., CDnow, Inc., Cyberian Outpost, Inc., Egghead.com, Inc.,
E*Trade Group, Inc., N2K Inc., ONSALE, Inc., Preview Travel, Inc.
<TABLE>
<CAPTION>
EQUITY VALUE AS A
MULTIPLE OF
PROJECTED REVENUES FOR
THE YEAR ENDING
DECEMBER 31,
-------------------------------
1998 1999
--------- ---------
<S> <C> <C>
CDnow................................. 2.7x 1.1x
N2K................................... 1.6x 0.6x
Business-to-Business Internet Selected
Companies............................ 7.6x 3.4x
Transaction-Based Internet Selected
Companies............................ 4.7x 2.8x
</TABLE>
BT Alex. Brown also noted that estimated results for CDnow and N2K for the
three months ended September 30, 1998 were below analyst expectations, limiting
the utility of the analysis. BT Alex. Brown also noted that all of the selected
companies provided products and services not marketed by CDnow or N2K.
Analysis of Selected Merger of Equals Transactions. BT Alex. Brown reviewed the
financial terms, to the extent publicly available, of 18 proposed, pending or
completed merger of equal transactions since October 23, 1994. BT Alex. Brown
calculated various financial multiples and the premiums over market value based
on publicly available information for each of the selected transactions and
compared them to corresponding financial multiples and the premiums over market
for the merger, based on the exchange ratio of .83.
<TABLE>
<CAPTION>
PREMIUM (DEFICIT) TO N2K AT PREMIUM (DEFICIT) OF NEGOTIATED EXCHANGE RATIO TO MARKET EXCHANGE
A .83 EXCHANGE RATIO RATIO BASED ON PRECEDENT MERGER OF EQUALS TRANSACTIONS
--------------------------- ---------------------------------------------------------------------
AS OF
AS OF OCTOBER 7,
OCTOBER 22, 1998 1998 MEAN HIGH LOW
---------------- ---------- ---------------------- ---------------------- -----------------------
<S> <C> <C> <C> <C> <C>
One Day Prior 42.4% 22.6% 7.3% 64.4% (10.0%)
Four Week Average 15.5% (10.8%) 9.6% 94.5% (16.3%)
</TABLE>
Accordingly, the premiums to N2K, one day prior and for a four week average, at
an 0.83 exchange ratio were within the range of the premiums calculated for the
selected transactions. This analysis supports BT Alex. Brown's opinion. BT
Alex. Brown noted, however, that the companies involved in the selected
transactions were not in the internet industry. In addition, all multiples for
the selected transactions were based on public information available at the
time of announcement of each transaction, and the accuracy thereof, without
taking into account differing market and other conditions during the four year
period during which the selected transactions occurred.
Other Factors. In rendering its opinion, BT Alex. Brown also reviewed and
considered, among other things:
. historical and projected financial data and operating data for
CDnow and N2K;
. selected mergers and acquisitions transactions announced in the
internet industry;
. the current shareholder profiles of CDnow and N2K; and
. the existing senior management and board composition of CDnow and
N2K and the proposed senior management and board composition of
CDnow/N2K.
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<PAGE>
OPINIONS OF FINANCIAL ADVISORS
The preparation of a fairness opinion is a complex analytic process involving
various determinations as to the most appropriate and relevant methods of
financial analyses and the application of those methods to the particular
circumstances. Fairness opinions are not readily susceptible to summary
description. The analyses and the summary stated above must be considered as a
whole. Selecting portions of the analyses, without considering all analyses, or
selecting portions of the above summary, without considering all factors and
analyses, could create a misleading or incomplete view of the processes
underlying the analyses and opinion. In performing its analyses, BT Alex. Brown
made numerous assumptions with respect to industry performance, general
business, economic, market and financial conditions and other matters, many of
which are beyond the control of CDnow and N2K. No company, transaction or
business used in the analyses as a comparison is identical to CDnow, N2K,
CDnow/N2K or the proposed merger, nor is an evaluation of the results of the
analyses entirely mathematical; rather, the analyses involve complex
considerations and judgments concerning financial and operating characteristics
and other factors that could affect the merger, public trading or other values
of the companies, business segments or transactions being analyzed. The
estimates contained in the analyses and the ranges of valuations resulting from
any particular analysis are not necessarily indicative of actual values or
future results, which may be significantly more or less favorable than those
suggested by the analyses. In addition, analyses relating to the value of
businesses or securities do not purport to be appraisals or to reflect the
prices at which businesses or securities actually may be sold. Accordingly, the
analyses and estimates are inherently subject to substantial uncertainty.
The type and amount of consideration payable in the merger were determined
through negotiations between CDnow and N2K and were approved by the CDnow
board. Although BT Alex. Brown provided advice to CDnow during the course of
these negotiations, the decision to enter into the merger was solely that of
the CDnow board. BT Alex. Brown's opinion and financial analyses were only one
of a number of factors taken into consideration by the CDnow board in its
evaluation of the proposed merger and should not be viewed as determinative of
the views of the CDnow board or management of CDnow with respect to the CDnow
exchange ratio or the merger.
Based on the terms of BT Alex. Brown's engagement, CDnow agreed to pay $450,000
to BT Alex. Brown for rendering the BT Alex. Brown Opinion, which will be
credited against an aggregate financial advisory fee of $1,750,000 payable upon
consummation of the merger. In addition, CDnow agreed to reimburse BT Alex.
Brown for its reasonable travel and other out-of-pocket expenses, including
reasonable fees and disbursements of counsel, and to indemnify BT Alex. Brown
and related parties against liabilities, including a number of liabilities
under the federal securities laws, relating to, or arising out of, its
engagement.
CDnow selected BT Alex. Brown based on BT Alex. Brown's reputation, expertise
and familiarity with CDnow and its business. BT Alex. Brown is an
internationally recognized investment banking firm and, as a customary part of
its investment banking business, is engaged in the valuation of businesses and
their securities in connection with mergers and acquisitions, negotiated
underwritings, private placements and valuations for estate, corporate and
other purposes. BT Alex. Brown has, from time to time, provided investment
banking and other financial services to CDnow or its affiliates, BT Alex. Brown
acted as lead managing underwriter in connection with CDnow's public offerings
of CDnow common stock in February 1998 and July 1998 for which it received
customary compensation. At the time its opinion was rendered, BT Alex. Brown
owned warrants to purchase 154,817 shares of CDnow common stock at a price of
$3.63 per share. BT Alex. Brown maintains a market in CDnow common stock and
regularly publishes research reports regarding the internet commerce industry
and the businesses and securities of CDnow and other publicly owned companies
in the internet commerce industry. In the ordinary course of business, BT Alex.
Brown may actively trade or hold the securities of both of CDnow and N2K for
its own account and the account of customers and, accordingly, may at any time
hold a long or short position in securities of CDnow and N2K.
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<PAGE>
OPINIONS OF FINANCIAL ADVISORS
OPINION OF N2K'S FINANCIAL ADVISOR
At the meeting of the N2K board on October 22, 1998, Allen & Company
Incorporated delivered its opinion to the effect that, as of such date, the
terms of the merger were fair to the holders of N2K common stock from a
financial point of view.
The full text of the written opinion of Allen & Company, dated October 22,
1998, is set forth as Appendix VI to this joint proxy statement/prospectus and
describes the assumptions made, matters considered and limits on the review
undertaken. N2K SHAREHOLDERS ARE URGED TO READ THE OPINION CAREFULLY AND IN ITS
ENTIRETY. Allen & Company's opinion is directed only to the fairness, from a
financial point of view, of the terms of the merger to the holders of N2K
common stock and does not constitute a recommendation of the merger over other
courses of action that may be available to N2K or constitute a recommendation
to any holder of N2K common stock concerning how such holder should vote with
respect to the merger.
In arriving at its opinion, Allen & Company:
. reviewed the terms and conditions of the merger, including the
draft merger agreement and the draft agreements ancillary thereto
in substantially final form;
. analyzed publicly available historical business and financial
information relating to N2K and CDnow, as presented in documents
filed with the SEC;
. reviewed certain financial, operating and budgetary data provided
to Allen & Company by N2K and CDnow relating to their respective
businesses;
. conducted discussions with certain members of the senior
management of N2K and CDnow with respect to the financial
condition, business, operations, objectives and prospects of N2K
and CDnow, respectively, as well as industry trends prevailing in
their businesses;
. reviewed and analyzed public information, including certain stock
market data and financial information relating to selected public
companies in lines of business which Allen & Company believed to
be comparable to N2K's and CDnow's, as well as equity research
analysts' reports and estimates for N2K and CDnow;
. reviewed the trading history of the N2K common stock and the CDnow
common stock, including their performance in comparison to market
indices and to selected companies in comparable businesses;
. reviewed public financial and transaction information relating to
business combination transactions which Allen & Company deemed to
be comparable to the merger; and
. conducted such other financial analyses and investigations as
Allen & Company deemed necessary or appropriate for the purposes
of the opinion expressed therein.
In connection with its review, Allen & Company assumed and relied on the
accuracy and completeness of the information it reviewed for the purpose of its
opinion. Allen & Company did not assume any responsibility for independent
verification of such information or for any independent evaluation or appraisal
of the assets of N2K or CDnow. With respect to N2K's and CDnow's financial,
operating and budgetary data referred to above, Allen & Company assumed that
they had been reasonably prepared on bases reflecting the best currently
available estimates and judgments of the management of N2K and CDnow.
Allen & Company expressed no opinion with respect to such financial, operating
and budgetary data or the assumptions on which they were based.
Allen & Company's based its opinion upon business, market, economic and other
conditions as they existed on, and could be evaluated as of, the date of its
opinion. Allen & Company's opinion does not imply any conclusion as to the
likely trading range of the CDnow/N2K common stock following the consummation
of the merger, which may vary depending on, among other factors, changes in
interest rates, dividend rates, market conditions, general economic conditions
and other factors that generally influence the price of securities.
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<PAGE>
OPINIONS OF FINANCIAL ADVISORS
In connection with its analysis, Allen & Company assumed that, in all material
respects,
. the representations and warranties of N2K and CDnow contained in
the merger agreement were true and correct, N2K and CDnow will
perform all of the covenants to be performed by them under the
merger agreement and all conditions to the consummation of the
merger by N2K and CDnow will be satisfied,
. the merger will be free from federal tax for each of N2K and CDnow
and their respective shareholders,
. all material governmental, regulatory or other approvals and
consents required in connection with the consummation of the
merger will be obtained,
. in connection with obtaining any such approvals or consents or any
amendments, modifications or waivers to any agreements to which
either N2K or CDnow is a party, no restrictions will be imposed or
modifications made that would have a material adverse effect on
N2K or CDnow or materially reduce the contemplated benefits of the
merger to N2K.
The following is a summary of the presentations made by Allen & Company to the
N2K board of directors and of all of its material financial analyses performed
in connection with the rendering of Allen & Company's fairness opinion:
Transaction Summary. Prior to delivering its opinion to N2K's board, Allen &
Company reviewed information with the board relating to N2K and CDnow including
the information reviewed and analyzed in connection with rendering its opinion,
the financial terms of the merger and the financial analyses summarized below.
Allen & Company described an analysis of the pro forma ownership of the
combined company resulting from the merger, noting that such analysis indicated
that N2K and CDnow would own the following percentages of the combined company
on a primary basis and fully-diluted basis:
<TABLE>
<CAPTION>
Fully-
Primary Diluted
------- -------
<S> <C> <C>
N2K...................................................... 40.05% 40.03%
CDnow.................................................... 59.95% 59.97%
</TABLE>
Allen & Company's fully-diluted calculations were based on approximately
991,000 N2K options and 546,000 CDnow options and 182,000 CDnow warrants
outstanding as of October 15, 1998.
Allen & Company also reviewed with the board the profile of each of N2K's and
CDnow's respective shareholder bases, as well as the profile of the shareholder
base of the combined company on a pro forma basis. Allen & Company noted that
the per share value of the N2K common stock implied by the merger of $7.159 was
31.6% greater than the closing price of the N2K common stock on October 21,
1998 ($5.438) and 32.6% greater than the average price of the N2K common stock
over the 10 trading days preceding October 22, 1998 ($5.400). Allen & Company
also compared the total enterprise value of N2K as of October 21, 1998,
calculated according to the recent value of all equity securities plus long-
term debt and capitalized leases less cash, without giving effect to the
merger, to the total enterprise value implied by the merger and compared the
total equity value of N2K as of October 21, 1998, calculated based on the
recent value of all equity securities to the total equity value implied by the
merger on a primary and fully-diluted basis. These analyses resulted in the
following comparisons:
<TABLE>
<CAPTION>
N2K value on N2K value
October 21, 1998 implied by the merger
---------------- ---------------------
<S> <C> <C>
Enterprise Value................... $24.3 million $49.8 million
Equity Value....................... $77.4 million $101.8 million
Fully-Diluted Equity Value......... $78.6 million $104.0 million
</TABLE>
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<PAGE>
OPINIONS OF FINANCIAL ADVISORS
Comparative Review. Allen & Company reviewed for the N2K board various
historical financial, operating and stock market data for each of N2K and
CDnow, including the current number of customers for each company. Allen &
Company noted that N2K's and CDnow's percentages of pro forma year-to-date
revenues from music sales of the combined company would be 39.1% and 60.9%,
respectively, and their percentages of the pro forma number of current
customers of the combined company would be 41.6% and 58.4%, respectively. Allen
& Company commented that such percentages were in line with the N2K and CDnow
exchange ratios offered in the merger.
Allen & Company provided the N2K board an overview of the current state of the
music online retail market. Allen & Company noted that several larger players
with greater resources than either N2K and CDnow have entered the market in
recent months. Allen & Company commented that the entry of these new
participants has made the market increasingly competitive and has a direct
effect on the increasing sales and marketing spending by industry retailers and
on the availability of financing for such retailers.
Allen & Company compared the historical and estimated operating performances of
N2K and CDnow. Allen & Company noted that N2K's compounded revenue growth rate
of 52.2% during the two-year period beginning with the first quarter of 1997
exceeded CDnow's compounded revenue growth rate of 34.5% for the same period,
although N2K's growth rate reflected a lower revenue base for N2K at the
beginning of the period. Allen & Company further noted that as a result of this
growth, N2K's share of revenues and customers vis-a-vis CDnow has increased
during the two-year period. However, Allen & Company commented that N2K's
growth has been fueled by higher customer acquisition costs, both on a
cumulative and on a per customer basis. Allen & Company discussed the fact that
the companies' low gross margins have had a negative effect on the availability
of capital necessary to support increasing sales and marketing costs. As a
result, Allen & Company noted that each company's accumulated loss has grown
rapidly, with N2K's accumulated loss roughly 40% greater than CDnow's.
Allen & Company also compared the operating performances of N2K and CDnow as
projected by their respective management teams for the remainder of 1998 and
for 1999. Allen & Company noted that N2K's projected growth rate for 1999 is
greater than CDnow's projected growth rate with respect to both revenues and
customers. Allen & Company commented that such projections showed a market
share increase in customers for N2K despite expanded sales and marketing
expenditures projected by CDnow. Allen & Company also noted, however, that
N2K's projected 1998 and 1999 operating performance as compared to consensus
analyst estimates varied to a greater extent than CDnow's projected 1998 and
1999 operating performance as compared to consensus analyst estimates. For
instance, Allen & Company noted that the variance of projected 1998 third
quarter revenues and net income to consensus analyst estimates was (21.4%) and
(16.0%), respectively, for N2K and (8.5%) and 4.4%, respectively, for CDnow.
Allen & Company reviewed the historical stock price and trading volume data for
the N2K common stock and CDnow common stock and compared the historical trading
patterns of these securities to the trading patterns of certain market indices
(H&Q Internet Index and Nasdaq Composite Index) and for a selected group of
companies which Allen & Company deemed to be comparable based upon their
participation in the internet retailing industry (Amazon.com, Ameritrade,
Beyond.com, Cybershop, Cyberian Outpost, eBay, Egghead, E*trade, ONSALE, Peapod
and Preview Travel; hereinafter referred to as the "Comparable Company Group").
Allen & Company noted that the historical market value of the N2K has generally
been between 40% and 50% of the combined market value of the N2K common stock
and CDnow common stock and that this historical range was in line with the N2K
and CDnow exchange ratios offered in the merger. Allen & Company also analyzed
the historical trading patterns of the N2K common stock and CDnow common stock
in relation to selected public announcements regarding the companies and
reviewed the perspective of certain Wall Street equity research analysts on the
N2K common stock and CDnow common stock.
Transaction Analysis. Allen & Company discussed with the N2K board competitive
advantages resulting from the merger as expressed to Allen & Company by
management of N2K and CDnow, including the expectation that the market share of
the combined company would give it an improved competitive position
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<PAGE>
OPINIONS OF FINANCIAL ADVISORS
against its larger rivals as compared with either company's standalone
position. Allen & Company also commented that, according to the respective
management teams of N2K and CDnow, the merger could reasonably be expected to
produce various operating cost savings and revenue enhancements for the
combined company, including cost savings with respect to marketing costs and
operating and development overhead costs and potential higher advertising
revenues arising from increased pricing and greater advertising space sell-
through. Allen & Company also provided the N2K board with a comparison of N2K's
projected financial statements as an independent company, as provided by N2K's
management, with the pro forma projected financial statements of the combined
company resulting from the merger as provided by the respective management
teams of N2K and CDnow. Allen & Company noted that this comparison revealed
several benefits for the combined company, including various revenue
enhancements and other cost efficiencies.
Allen & Company commented that while there were no directly comparable
transactions involving internet retailing companies, it reviewed the merger in
light of selected recent acquisition transactions which it deemed could be
characterized as merger of equals transactions. Allen & Company noted that,
despite wide variances with respect to terms of specific transactions, the
financial terms of the merger fall within the historical parameters of the
terms of the comparable transactions Allen & Company reviewed.
Allen & Company also analyzed the merger by comparing various financial
performance criteria and stock market data for each of N2K and CDnow to
financial performance criteria and stock market data for the Comparable Company
Group. Allen & Company noted N2K and CDnow traded at a discount to their peers
in the Comparable Company Group, which in Allen & Company's opinion, was due to
concerns about N2K's and CDnow's business model and capital resources and
concerns about increasing industry competition. Allen & Company highlighted,
for instance, the following multiples of adjusted market value (AMV: market
capitalization adjusted for the impact of dilutive securities) to estimated
1998 revenues and estimated 1999 revenues:
<TABLE>
<CAPTION>
AMV Multiple
of Revenues
-------------
Company 1998 E 1999 E
------- ------ ------
<S> <C> <C>
N2K 1.6x 0.6x
CDnow 2.7x 1.0x
Comparable Company Group:
Average 8.0x 4.0x
Median 3.0x 1.5x
</TABLE>
In addition, Allen & Company commented that N2K's and CDnow's multiples based
on their respective enterprise values, calculated based on the recent value of
all equity securities plus long-term debt and capitalized leases less cash, are
considerably lower than their multiples based on adjusted market value due to
the higher percentage of cash relative to their respective market values. For
instance, Allen & Company highlighted the following multiples of enterprise
value to estimated 1998 revenues and estimated 1999 revenues for N2K, CDnow and
the Comparable Company Group:
<TABLE>
<CAPTION>
EV Multiple
of Revenues
-----------
Company 1998E 1999E
------- ----- -----
<S> <C> <C>
N2K 0.5x 0.2x
CDnow 1.8x 0.7x
Comparable Company Group:
Average 6.9x 3.5x
Median 2.0x 1.0x
</TABLE>
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<PAGE>
OPINIONS OF FINANCIAL ADVISORS
Allen & Company also performed an analysis of various internet sectors (online
brokers, auctions, software retailing, music retailing, portals and overall
internet retailing), which demonstrated that the recognized leader in each
sector generally traded at premium multiples as compared to secondary sector
participants. Allen & Company noted, for instance, the multiples of adjusted
market value to estimated 1998 revenues for the following leaders and secondary
participants, respectively, in the following sectors:
<TABLE>
<CAPTION>
Industry Leader Secondary Participant
Sector and Multiple and Multiple
------ ----------------- ----------------------
<S> <C> <C>
Online brokers E*trade (4.1x) Ameritrade (2.6x)
Software retailing Beyond.com (5.6x) Egghead (1.1x)
Music retailing CDnow (2.7x) N2K (1.6x)
Portals Yahoo! (68.8x) Excite (12.5x)
Overall internet retailing Amazon.com (11.9x) Average retailer (4.1x)
</TABLE>
Allen & Company commented that, based upon its review of recent stock market
activity and its analysis of the stock market performance of internet sector
market leaders, sector leaders have generally retained their values relative to
market peaks to a greater extent than other internet portals and retailers.
No company used in the comparable company analyses summarized above is
identical to N2K or CDnow, and no transaction used in the comparable
transaction analysis summarized above is identical to the merger. Accordingly,
any such analysis of the fairness of the terms of the merger to the holders of
N2K common stock involves complex considerations and judgments concerning
differences in the potential financial and operating characteristics of the
comparable companies and transactions and other factors in relation to the
trading and acquisition values of the comparable companies.
The preparation of a fairness opinion is not susceptible to partial analysis or
summary description. Allen & Company believes that its analyses and the summary
set forth above must be considered as a whole and that selecting portions of
its analyses and the factors considered by it, without considering all analyses
and factors, could create an incomplete view of the processes underlying the
analysis set forth in its opinion. Allen & Company has not indicated that any
of the analyses which it performed had a greater significance than any other.
In determining the appropriate analyses to conduct and when performing those
analyses, Allen & Company made numerous assumptions with respect to industry
performance; general business, financial, market and economic conditions; and
other matters, many of which are beyond the control of N2K or CDnow. The
analyses which Allen & Company performed are not necessarily indicative of
actual values or actual future results, which may be significantly more or less
favorable than suggested by these analyses. Such analyses were prepared solely
as part of Allen & Company's analysis of the fairness, from a financial point
of view, of the terms of the merger to the holders of N2K common stock. The
analyses do not purport to be appraisals or to reflect the prices at which a
company might actually be sold or the prices at which any securities may trade
at the present time or at any time in the future.
Allen & Company is a nationally recognized investment banking firm that is
continually engaged in the valuation of businesses and their securities in
connection with mergers and acquisitions, negotiated underwriting, competitive
bids, secondary distributions of listed and unlisted securities, private
placements and valuations for estate, corporate and other purposes. N2K
retained Allen & Company based on such qualifications as well as its
familiarity with N2K. As of the date of its opinion, Allen & Company and
certain of its officers, directors and affiliates beneficially owned
approximately 205,000 shares of N2K common stock and Allen & Company held
warrants to acquire 196,110 shares of N2K common stock. In addition, as a part
of its investment banking and securities trading business, Allen & Company may
hold positions in and trade in the securities of N2K and CDnow from time to
time.
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<PAGE>
OPINIONS OF FINANCIAL ADVISORS
N2K entered into a letter agreement with Allen & Company as of August 6, 1998,
according to which Allen & Company agreed to act as N2K's financial advisor in
connection with the merger and to render an opinion as to the fairness from a
financial point of view of the terms of the merger to the N2K shareholders.
Under the engagement letter, N2K is required to pay Allen & Company a fee equal
to $1,250,000 which became due upon the delivery of the Allen & Company
fairness opinion. In addition, N2K agreed to pay to Allen & Company, upon
consummation of the merger, a fee equal to 1% of the total consideration
received by N2K's stockholders in connection with the merger valued as of the
date this joint proxy statement/prospectus is mailed to N2K's stockholders,
less the fee paid to Allen & Company upon the delivery of its opinion. If the
joint proxy statement/prospectus had been mailed on January 15, 1999, this 1%
of the consideration would have been approximately $2,880,000. The actual
amount will depend on the market value of the CDnow common stock on the mailing
date of this joint proxy statement/prospectus. Whether or not the merger is
consummated, N2K has agreed, according to the engagement letter, to reimburse
Allen & Company for all its reasonable out-of-pocket expenses, including the
fees and disbursements of its counsel, incurred in connection with its
engagement by N2K, and to indemnify Allen & Company against certain liabilities
and expenses in connection with its engagement.
-72-
<PAGE>
OWNERSHIP OF CDNOW, N2K AND CDNOW/N2K
OWNERSHIP OF CDNOW, N2K AND CDNOW/N2K
The following tables contain information about the beneficial ownership of the
CDnow common stock and the N2K common stock of:
. Each person known . The chief executive . Each director of
to us to own officer and four CDnow and N2K.
beneficially more other most highly
than 5% of the compensated executive
outstanding shares officers of each of
of the CDnow common CDnow and N2K.
stock or N2K common
stock.
. All directors and
executive officers
of N2K as a group.
. All directors and
executive officers
of CDnow as a
group.
Each table also contains information regarding the beneficial ownership of
CDnow/N2K common stock, on a pro forma basis as if the merger has been
completed, by the persons identified above based on their ownership of CDnow
common stock and N2K common stock as of December 31, 1998. Unless otherwise
indicated, to our knowledge, all persons listed below have sole voting and
investment power over their shares of common stock, unless they share ownership
with spouse.
<TABLE>
<CAPTION>
PRO FORMA
BENEFICIAL OWNERSHIP BENEFICIAL OWNERSHIP
OF CDNOW OF CDNOW/N2K
COMMON STOCK COMMON STOCK
------------------------------------ ------------------------------------
OPTIONS/ OPTIONS/
NAME OF BENEFICIAL OWNER SHARES WARRANTS TOTAL PERCENT SHARES WARRANTS TOTAL PERCENT
- ------------------------ --------- -------- --------- ------- --------- -------- --------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
EXECUTIVE OFFICERS AND
DIRECTORS
Jason Olim(1)........... 2,960,025 -- 2,960,025 16.6% 2,960,025 -- 2,960,025 9.9%
Matthew Olim(1)......... 2,960,025 -- 2,960,025 16.6 2,960,025 -- 2,960,025 9.9
Rod Parker(2)........... -- 30,000 30,000 * -- 30,000 30,000 *
Patrick Kerins(3)....... 1,000 1,569 2,569 * 1,000 1,569 2,569 *
John Regan(4)........... -- -- -- -- -- -- -- *
Joel Sussman(5)......... -- 20,500 20,500 -- -- 20,500 20,500 *
All executive officers
and directors of CDnow
as a group
(7 persons)............. 5,921,050 91,069 6,012,119 33.5 5,921,050 91,069 6,012,119 20.1
FIVE PERCENT HOLDERS
Grotech Partners IV,
L.P.(6)................ 1,638,258 8,403 1,646,661 9.2 1,638,258 8,403 1,646,661 5.5
</TABLE>
- --------
* Less than one percent.
(1) Excludes 41,244 shares owned by Dave Olim, the father of Jason and Matthew
Olim. Jason and Matthew Olim each disclaim beneficial ownership of these
shares. The address of Jason and Matthew Olim is 1005 Virginia Drive, Fort
Washington, Pennsylvania 19034.
(2) Includes shares presently obtainable, or obtainable within the next 60
days, upon the exercise of stock options.
(3) Excludes 1,646,661 shares held by Grotech Partners IV, L.P., of which Mr.
Kerins is a managing director. Mr. Kerins disclaims beneficial ownership
of any shares owned by Grotech Partners IV, L.P.
(4) Excludes 181,873 shares held by Keystone Ventures IV, L.P., a partnership
of which Mr. Regan is a Vice President of the general partner. Mr. Regan
disclaims beneficial ownership of any shares owned by Keystone Ventures
IV, L.P.
(5) Includes shares presently obtainable, or obtainable within the next 60
days, upon the exercise of stock options.
(6) The address of Grotech Partners IV, L.P. is 9690 Deereco Road, Timonium,
Maryland 21093. Grotech Partners IV, L.P. disclaims beneficial ownership
of any shares beneficially owned by Patrick Kerins.
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<PAGE>
OWNERSHIP OF CDNOW, N2K AND CDNOW/N2K
<TABLE>
<CAPTION>
PRO FORMA
BENEFICIAL OWNERSHIP
BENEFICIAL OWNERSHIP OF CDNOW/N2K
OF N2K COMMON STOCK COMMON STOCK
------------------------------------- -----------------------------------
OPTIONS/ OPTIONS/
NAME OF BENEFICIAL OWNER SHARES WARRANTS TOTAL PERCENT SHARES WARRANTS TOTAL PERCENT
- ------------------------ --------- --------- --------- ------- ------- --------- --------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
EXECUTIVE OFFICERS AND
DIRECTORS
Jonathan V. Diamond..... 799,526 305,575 1,105,101 7.5% -- 917,233 917,234 3.0%
Lawrence L. Rosen(1).... 723,650 304,325 1,027,975 7.0 600,629 252,590 853,219 2.8
Robert David Grusin..... 704,420 304,325 1,008,745 6.9 -- 837,258 837,258 2.7
Susanne Harrison(2)..... 2,264 16,393 18,687 * 1,879 13,606 15,485 *
James E. Coane(3)....... 100,000 80,862 180,862 1.2 83,000 67,115 150,115 *
Robert C. Harris........ -- 71,875 71,875 * -- 59,656 59,656 *
Bruce Johnson........... -- 80,490 80,490 1.0 -- 66,806 66,806 *
All executive officers
and directors of N2K as
a group
(10 persons)............ 2,568,607 1,153,160 3,721,767 -- 685,508 3,089,067 3,774,575 11.2
</TABLE>
- --------
* Less than one percent.
(1) Includes 187,500 shares of N2K common stock (corresponding to 155,625
shares of CDnow/N2K common stock) held by the Lawrence L. Rosen Family
Trust. Mr. Rosen disclaims beneficial ownership of the shares owned by the
Lawrence L. Rosen Family Trust.
(2) Includes 1,338 shares of N2K common stock held by Ms. Harrison's spouse
(corresponding to 1,110 shares of CDnow/N2K common stock). Ms. Harrison
disclaims beneficial ownership of any shares owned by her spouse.
(3) Includes 25,000 shares of N2K common stock (corresponding to 20,750 shares
of CDnow/N2K common stock) owned by Mr. Coane's spouse.
COMPLIANCE WITH SECTION 16(A) OF THE SECURITIES EXCHANGE ACT OF 1934
Section 16(a) of the Securities Exchange Act of 1934 requires a company's
directors and executive officers and persons who beneficially own more than 10%
of that company's common stock to file reports of ownership and changes in
ownership with the Securities and Exchange Commission. These directors,
executive officers and greater than 10% stockholders are required by SEC
regulation to furnish to the company copies of all Section 16(a) forms they
file.
N2K believes that for fiscal year 1998, all Section 16(a) filing requirements
were satisfied on a timely basis, except that Robert C. Harris, Jr. was late
with one report and Susan Harris was late with two reports. N2K believes that
for fiscal year 1997, all Section 16(a) filing requirements were satisfied on a
timely basis except that James E. Coane III, Bruce Johnson and Jerold R. Rosen
each failed to file one report. N2K believes that all late filings noted were
inadvertent.
CDnow believes that for fiscal year 1998, all Section 16(a) filing requirements
were satisfied on a timely basis.
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<PAGE>
COMPARISON OF SHAREHOLDERS' RIGHTS
COMPARISON OF SHAREHOLDERS' RIGHTS
The rights of CDnow shareholders are currently governed by the Pennsylvania
corporate law and the articles of incorporation and bylaws of CDnow. The rights
of N2K shareholders are currently governed by the Delaware General Corporation
Law and the certificate of incorporation and bylaws of N2K. In accordance with
the merger agreement, at the closing of the merger, the shareholders of CDnow
and the shareholders of N2K will become shareholders of CDnow/N2K. Accordingly,
upon consummation of the merger, the rights of CDnow shareholders and N2K
shareholders who become shareholders of CDnow/N2K will be governed by the
Pennsylvania corporate law, the CDnow/N2K Articles of Incorporation and the
CDnow/N2K bylaws. The following are summaries of material differences between
current rights of CDnow and N2K shareholders and those of CDnow/N2K
shareholders following the merger.
The following discussions are not intended to be complete. You should also
refer to the Delaware corporate law, the CDnow/N2K charter and the CDnow/N2K
bylaws. Copies of the CDnow/N2K charter and the CDnow/N2K bylaws as currently
proposed, are attached to this joint proxy statement/prospectus as Appendices
II and III. Copies of the CDnow charter, the CDnow bylaws, the N2K Charter and
the N2K bylaws will be sent to the holders of shares of CDnow common stock and
N2K common stock, respectively, upon request. See "Where You Can Find More
Information."
COMPARISON OF RIGHTS OF CURRENT CDNOW SHAREHOLDERS WITH CDNOW/N2K SHAREHOLDERS
FOLLOWING THE MERGER
CDnow and CDnow/N2K are both organized under the laws of Pennsylvania and are
subject to the Pennsylvania corporate law. Any differences, therefore, in the
rights of the holders of CDnow/N2K common stock and CDnow common stock arise
solely from the differences in their respective articles of incorporation and
bylaws and are described below.
Number and Election of Directors
The CDnow bylaws and the CDnow/N2K bylaws each establish three classes of
directors and each provide that the total number of directors and the number of
directors within each class shall be as determined by the CDnow/N2K board. The
CDnow/N2K bylaws, however, contain special provisions regarding the composition
of the board of directors prior to December 31, 2001. See "Directors and
Management of CDnow/N2K Following the Merger."
Action by Shareholders Without a Meeting
Under the Pennsylvania corporate law, unless the bylaws of a corporation
provide otherwise, any corporate action may be taken without a meeting by
unanimous written consent, or if the bylaws provide for it, by partial written
consent. The CDnow bylaws provide that action required or permitted to be taken
at a shareholders' meeting may be taken without a meeting if consents thereto
are delivered by shareholders possessing a majority of the outstanding shares
of CDnow common stock to the secretary of the board. The CDnow/N2K bylaws allow
shareholders to take action without a meeting only by unanimous written
consent.
Shareholder's Proposals
The CDnow bylaws do not require advance notice for shareholder proposals. The
CDnow/N2K bylaws provide that nominations by shareholders of persons for
election to the board of directors at the annual meeting and for the proposal
of other business to be considered at an annual meeting must be received not
less than 60 days prior to the meeting. This 60 day deadline is decreased to 15
days if less than 75 days' notice or prior public disclosure of the date of the
meeting is given or made to the shareholders.
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<PAGE>
COMPARISON OF SHAREHOLDERS' RIGHTS
Amendments to Bylaws
Under the Pennsylvania corporate law, bylaws may be adopted, amended and
repealed by the shareholders entitled to vote thereon. This authority may be
expressly vested in the board of directors by the bylaws, subject to the power
of the shareholders to change this action, unless the subject of the amendment
is solely within the decision power of the shareholders. The CDnow bylaws and
CDnow/N2K bylaws may be amended or repealed or new bylaws may be adopted,
either (a) by vote of the shareholders at any annual or special meeting, or (b)
with respect to matters not committed to the shareholders by statute, by a vote
of a majority of the board of directors. The provisions in the CDnow/N2K bylaws
relating to the election of directors prior to December 31, 2001 and to the
employment agreements of Jonathan V. Diamond and Jason Olim, however, may be
amended only upon action by an 80% majority of the entire CDnow/N2K board.
Anti-Takeover Provisions
The Pennsylvania corporate law contains provisions applicable to publicly-held
Pennsylvania corporations that may be deemed to have an anti-takeover effect.
Pennsylvania corporations may expressly opt-out of one or all of these
provisions. CDnow has opted out of all but one of these provisions and
CDnow/N2K has opted out of all but two of these provisions.
Under Section 1715 of the Pennsylvania corporate law, directors of a
corporation are not required to regard the interests of the shareholders as
being dominant or controlling in considering the best interests of the
corporation. The directors may consider, to the extent they deem appropriate,
such factors as the effects of any action upon any group affected by such
action, including, shareholders, employees, suppliers, customers and creditors
of the corporation and upon communities in which offices or other
establishments of the corporation are located. The directors may also consider
the short term and long term interests of the corporation. This may include
benefits that may accrue to the corporation from its long term plans and the
possibility that these interests may be best served by the continued
independence of the corporation. In addition, the directors may consider the
resources, intent and conduct of any person seeking to acquire control of the
corporation and all other pertinent factors. The Pennsylvania corporate law
provisions also provide directors with broad discretion with respect to actions
that may be taken in response to acquisitions or proposed acquisitions of
corporate control. Section 1715 is applicable to each of CDnow/N2K and CDnow.
Subchapter F of Subchapter 25 of the Pennsylvania corporate law is designed to
regulate certain "business combinations" between Exchange Act companies and
"interested shareholders." In general, Subchapter F prohibits the consummation
of enumerated business combination transactions, such as mergers and stock
acquisitions, during a five year moratorium period unless either the stock
purchase through which the interested shareholder became an interested
shareholder receives the prior approval of a corporation's board of directors
or such business combination transaction received the prior approval of a
corporation's board or the approval of specified classes of shareholders or all
shareholders. In some instances the interested shareholder must also comply
with specified "fair price" valuation and payment requirements. The moratorium
period runs from the date on which the interested shareholder becomes an
"interested shareholder." Generally, a shareholder becomes an interested
shareholder on the date the shareholder first acquires beneficial ownership of
20% or more of the corporation's voting shares. After the moratorium period, a
corporation can undertake a business combination with the interested
shareholder only upon shareholder approval as specified in Subchapter F and, in
some cases, upon payment of a specified "fair price" to shareholders. Section F
is applicable to CDnow/N2K and inapplicable to CDnow.
Section 1715 and Subchapter F of the Pennsylvania corporate law may discourage
open market purchases or a non-negotiated tender or exchange offer for common
stock and, accordingly, may be considered disadvantageous by a shareholder who
would desire to participate in any such transactions. In addition, Section 1715
and Subchapter F may have a depressive effect on the price of common stock.
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<PAGE>
COMPARISON OF SHAREHOLDERS' RIGHTS
COMPARISON OF RIGHTS OF CURRENT N2K SHAREHOLDERS AND CDNOW/N2K SHAREHOLDERS
FOLLOWING THE MERGER
Dividend Rights
N2K. Under the Delaware corporate law, a corporation may pay dividends out of
surplus or, if no such surplus exists, out of net profits for the fiscal year
in which such dividends are declared and/or for its preceding fiscal year,
provided, however, that dividends may not be paid out of net profits if the
capital of such corporation is less than the aggregate amount of capital
represented by the outstanding stock of all classes having a preference upon
the distribution of assets.
CDnow/N2K. Under the Pennsylvania corporate law, a corporation is prohibited
from making a distribution to shareholders if, after giving effect thereto:
. that corporation would be unable to pay its debts as they become
due in the usual course of business; or
. the total assets of that corporation would be less than the sum of
its total liabilities plus the amount that would be needed, if
that corporation were then dissolved, to satisfy the rights of
shareholders having superior preferential rights upon dissolution
to the shareholders receiving such distribution. For the purpose
of clause (b), the board of directors may base its determination
on one or more of the following: the book value, or the current
value, of the corporation's assets and liabilities, unrealized
appreciation and depreciation of the corporation's assets and
liabilities or any other method that is reasonable in the
circumstances. The CDnow/N2K bylaws provide that, subject to the
Pennsylvania corporate law and the CDnow/N2K charter, the board of
directors may declare dividends in cash or property other than its
own shares. The CDnow/N2K bylaws state that if at the time
CDnow/N2K has no earned surplus and is not insolvent, the board of
directors may distribute to holders of CDnow/N2K shares having a
cumulative preferential right to receive dividends in discharge of
their cumulative dividend rights, dividends payable in cash out of
the unrestricted capital surplus if CDnow/N2K would not thereby be
rendered insolvent. These payments shall be identified as a
payment of cumulative dividends out of capital surplus.
Number and Election of Directors
N2K. Under the Delaware corporate law, cumulative voting in the election of
directors is only permitted if expressly authorized in a corporation's
certificate of incorporation. The N2K charter does not provide for cumulative
voting in the election of directors. The N2K bylaws provide that the number of
directors shall be fixed from time to time by resolution of the board of
directors. There are currently seven members of the N2K board. Under the
Delaware corporate law and the N2K bylaws, any director or the entire board of
directors may be removed, with or without cause, by the owners of a majority of
the shares then entitled to vote at an election of directors or by consent of
the holders of a majority of the outstanding stock. The N2K charter does not
provide for a classified board.
CDnow/N2K. Under the Pennsylvania corporate law, cumulative voting is required
unless otherwise provided in the articles of incorporation. The CDnow/N2K
charter provides that shareholders shall not have the right to cumulate their
votes for the election of directors. Under the Pennsylvania corporate law, the
board of directors may be removed at any time with or without cause by the vote
of shareholders entitled to vote thereon. Furthermore, the articles of a
corporation may not prohibit the removal of directors by the shareholders for
cause. The CDnow/N2K bylaws state that the entire board of directors or any
individual directors may be removed only for cause by a vote of a majority of
the shareholders entitled to vote thereon. The CDnow/N2K bylaws will provide
for a board of directors consisting of nine persons divided among three
classes. The CDnow/N2K bylaws further provide that, until December 31, 2001,
four members of the board of CDnow/N2K will be CDnow directors and three
members of the board of CDnow/N2K will be N2K directors. Initially, two members
of the board of CDnow/N2K will be independent directors jointly selected by the
CDnow directors and the N2K directors. The Class I directors will consist of
one CDnow director, one N2K director and one
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<PAGE>
COMPARISON OF SHAREHOLDERS' RIGHTS
independent director. The Class II directors will consist of one CDnow
director, one N2K director and one independent director. The Class III
directors will consist of two CDnow directors and one N2K director. Until
December 31, 2001, the board of CDnow/N2K is obligated by the CDnow/N2K bylaws
to nominate at each shareholders' meeting such designees, nominated by the N2K
directors or the CDnow directors, as may be necessary to ensure that there will
be four CDnow directors and three N2K directors.
Fiduciary Duties of Directors
N2K. Under the Delaware corporate law, the business and affairs of a
corporation are managed by or under the direction of its board of directors. In
exercising their powers, directors are charged with a fiduciary duty of care to
protect the interests of the corporation and a fiduciary duty of loyalty to act
in the best interests of its shareholders.
Under the Delaware corporate law, the duty of care requires that the directors
act in an informed and deliberative manner and to inform themselves, prior to
making a business decision, of all material information reasonably available to
them. The duty of care also requires that directors exercise care in overseeing
and investigating the conduct of corporate employees. The duty of loyalty may
be summarized as the duty to act in good faith, not out of self-interest, and
in a manner which the directors reasonably believe to be in the best interests
of the shareholders.
A party challenging the propriety of a decision of a board of directors bears
the burden of rebutting the applicability of the presumptions afforded to
directors by the "business judgment rule." If the presumption is not rebutted,
the business judgment rule attaches to protect the directors and their
decisions, and their business judgments will not be second guessed. Where,
however, the presumption is rebutted, the directors bear the burden of
demonstrating the entire fairness of the relevant transaction. Notwithstanding
the foregoing, Delaware courts subject directors' conduct to enhanced scrutiny
in respect of defensive actions taken in response to a threat to corporate
control and approval of a transaction resulting in a sale of control of the
corporation.
CDnow/N2K. The fiduciary duties of directors are similar under the Pennsylvania
corporate law to the duties prescribed under the Delaware corporate law. Under
the Pennsylvania corporate law, directors are required to discharge their
duties in good faith and in a manner reasonably believed to be in the best
interests of the corporation. They are required to use such care, including
reasonable inquiry, skill and diligence, as a person of ordinary prudence would
use under similar circumstances. Unlike the Delaware corporate law, however,
the Pennsylvania corporate law includes a provision specifically permitting
directors, in discharging their duties, to consider the effects of any action
taken by them upon any or all groups affected by such action, including
shareholders, employees, suppliers, customers and creditors of such
corporation, and upon communities in which offices or other establishments of
such corporation are located. Furthermore, unlike the Delaware corporate law,
the Pennsylvania corporate law also makes clear that directors have no greater
obligation to justify their activities and need not meet any higher burden of
proof in the context of a potential or proposed acquisition of control than in
any other context.
Liability of Directors
N2K. The Delaware corporate law permits a corporation to include in its
certificate of incorporation a provision limiting or eliminating the liability
of its directors to such corporation or its shareholders for monetary damages
arising from a breach of fiduciary duty, except for:
. a breach of the duty of loyalty to the corporation or its
shareholders;
. acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law;
. a declaration of a dividend or the authorization of the repurchase
or redemption of stock in violation of the Delaware corporate law;
or
. any transaction from which the director derived an improper
personal benefit. The N2K charter contains such a provision
eliminating the liability of its directors to such extent.
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COMPARISON OF SHAREHOLDERS' RIGHTS
CDnow/N2K. Under the Pennsylvania corporate law, a corporation may include in
its bylaws a provision, adopted by a vote of its shareholders, which eliminates
the personal liability of its directors, as such, for monetary damages for any
action taken or the failure to take any action unless
. such directors have breached or failed to perform their duties;
and
. the breach or failure to perform constitutes self-dealing, willful
misconduct or recklessness. A Pennsylvania corporation is not
empowered, however, to eliminate personal liability where the
responsibility or liability of a director is pursuant to any
criminal statute or is for the payment of taxes pursuant to any
federal, state or local law.
Indemnification of Directors and Officers
N2K. Under the Delaware corporate law, a corporation may indemnify any person
involved in a third party action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of being a director, officer,
employee or agent of the corporation, against expenses (including attorneys'
fees), judgments, fines and settlement amounts actually and reasonably incurred
in connection with such action, suit or proceeding or incurred by reason of
such persons being or having been a representative of such corporation, if such
person acted in good faith and reasonably believed that his actions were in or
not opposed to the best interests of such corporation and, with respect to any
criminal proceeding, had no reasonable cause to believe that his conduct was
unlawful. Under the Delaware corporate law, a corporation may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust of
other enterprise against expenses, including attorney's fees, actually and
reasonably incurred by such person in connection with the defense or settlement
of such action or suit if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper. The Delaware corporate law also provides that a corporation
may advance to a director or officer expenses incurred by him in defending any
action, upon receipt of an undertaking by the present or former director or
officer to repay the amount advanced if it is ultimately determined that he is
not entitled to indemnification. A determination as to the amount of the
indemnification to be made by the corporation shall be made, with respect to a
person who is a director or officer at the time of that determination by a
majority vote of the directors who are not parties to that action, even though
less than a quorum, or by a committee of such directors designated by majority
vote of such directors, even though less than a quorum, or if there are no such
directors, or, if these directors so direct, by independent legal counsel, or
by the shareholders. If, however, a present or former director or officer is
successful in defending a third party or derivative action, indemnification for
expenses incurred is mandatory. The Delaware corporate law provides further
that the provisions for indemnification contained therein are nonexclusive of
any other rights to which the party may be entitled under any bylaw, agreement,
vote of shareholders, disinterested directors or otherwise. The N2K bylaws
provide for indemnification of any person to the fullest extent permitted by
law and authorize N2K to purchase and maintain insurance on behalf of any such
person.
CDnow/N2K. The provisions of the Pennsylvania corporate law regarding
indemnification are substantially similar to those of the DGCL. Unlike the
Delaware corporate law, however, the Pennsylvania corporate law expressly
permits indemnification in connection with any action, including a derivative
action, unless a court determines that the acts or omissions giving rise to the
claim constituted willful misconduct or recklessness. The CDnow/N2K bylaws
provide for indemnification of representatives against liability incurred by
reason of the fact that such representative was serving in an indemnified
capacity except (a) where
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indemnification is expressly prohibited by applicable law, or (b) where a
determination is made that the representative's conduct constituted willful
misconduct or recklessness within the Pennsylvania corporate law, was based
upon or attributable to the receipt by the representative of a personal benefit
to which the representative is not legally entitled or was otherwise unlawful.
Annual Meetings
N2K. Under the Delaware corporate law, if the annual meeting for the election
of directors is not held on the designated date, or action by written consent
to elect directors in lieu of an annual meeting has not been taken, the
directors are required to cause that meeting to be held as soon as is
convenient. If there is a failure to hold the annual meeting or to take action
by written consent to elect directors in lieu of an annual meeting for a period
of 30 days after the designated date for the annual meeting, or if no date has
been designated for a period of 13 months after latest to occur of the
organization of the corporation, its last annual meeting or the last action by
written consent to elect directors in lieu of an annual meeting, the Court of
Chancery may summarily order a meeting to be held upon the application of any
shareholder or director.
CDnow/N2K. Under the Pennsylvania corporate law, if the annual meeting for
election of directors is not held within six months after the designated date,
any shareholder may call the meeting at any time thereafter.
Special Meetings
N2K. Under the Delaware corporate law, a special meeting of the shareholders
may be called by the board of directors or any other person as may be
authorized by the certificate of incorporation or the bylaws. The N2K bylaws
state that the special meetings of the shareholders for any purpose may be
called by the board of directors, the President or the Secretary. The N2K
bylaws also state that a special meeting of the shareholders shall be called by
the President or the Secretary whenever shareholders owning a majority of the
shares of N2K entitled to vote on matters to be submitted to the shareholders
shall make application therefore in writing.
CDnow/N2K. Under the Pennsylvania corporate law, special meetings of
shareholders may be called by the board of directors, by any officers or by any
other persons as provided in the bylaws, and, unless otherwise provided in the
articles, by shareholders entitled to cast at least 20% of the votes that all
shareholders are entitled to cast at a particular meeting. The CDnow/N2K
bylaws, however, provide that special meetings of the shareholders may only be
called at any time by the Chief Executive Officer or a majority of the board of
directors and may not be called by shareholders.
Action by Shareholders Without a Meeting
N2K. The Delaware corporate law permits the shareholders of a corporation to
consent in writing to any action without a meeting, unless the certificate of
incorporation of that corporation provides otherwise, provided this consent is
signed by shareholders having at least the minimum number of votes required to
authorize that action at a meeting of shareholders at which all shares entitled
to vote thereon were present and voted. The N2K charter does not restrict the
ability of N2K shareholders to act by written consent.
CDnow/N2K. Under the Pennsylvania corporate law, unless the bylaws of a
corporation provide otherwise, any corporate action may be taken without a
meeting, by partial or unanimous written consent. The CDnow/N2K Bylaws allow
shareholders to take action without a meeting only by unanimous written
consent.
Shareholder Proposals
N2K. The Delaware corporate law does not include a provision restricting the
manner in which nominations for directors may be made by shareholders or the
manner in which business may be brought before a meeting. The N2K bylaws permit
shareholders to call a special meeting but require that such request be in
writing, state the purpose thereof and be delivered to the President or
Secretary.
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COMPARISON OF SHAREHOLDERS' RIGHTS
CDnow/N2K. The Pennsylvania corporate law, like the Delaware corporate law,
does not include a provision restricting the manner in which nominations for
directors may be made by shareholders or the manner in which business may be
brought before a meeting. The CDnow/N2K bylaws provide that nominations by
shareholders of persons for election to the board of directors at the annual
meeting and for the proposal of other business to be considered at an annual
meeting must be received not less than 60 days prior to the meeting. This 60
day deadline is decreased to 15 days if less than 75 days' notice or prior
public disclosure of the date of the meeting is given or made to the
shareholders.
Charter Amendments
N2K. Under the Delaware corporate law, an amendment or change to the
certificate of incorporation generally requires the approval of the board of
directors, followed by the approval of such amendment by the affirmative vote
of the owners of a majority of the shares entitled to vote thereon. When an
amendment of the certificate would adversely affect the rights of a class of
stock or the rights of a series of a class, the Delaware corporate law provides
that the enactment of the amendment also requires the affirmative vote of the
owners of a majority of the outstanding shares of such class or series.
CDnow/N2K. Under the Pennsylvania corporate law, unlike the Delaware corporate
law, an amendment to the articles only requires the approval of the board of
directors followed by the affirmative vote of a majority of the votes cast by
all shareholders entitled to vote thereon and, if any class or series of shares
is entitled to vote thereon as a class, the affirmative vote of a majority of
the votes cast in each such class vote. Furthermore, the Pennsylvania corporate
law provides that, unless otherwise provided in the articles, an amendment of
the articles of a corporation need not be adopted by the board of directors
prior to its submission to the shareholders for approval if it is proposed by a
petition of shareholders entitled to cast at least 10% of the votes that all
shareholders are entitled to cast thereon. The CDnow/N2K charter may be amended
as provided by the Pennsylvania corporate law.
Amendments to Bylaws
N2K. Under the Delaware corporate law, bylaws may be adopted, amended or
repealed by the shareholders entitled to vote thereon, provided, however, that
any corporation may, in its certificate of incorporation, confer this power
upon the directors, provided the power vested in the shareholders shall not be
divested or limited where the board of directors also has such power. The N2K
charter vests the board of directors with the authority to adopt, amend or
repeal bylaws. The N2K bylaws provide that the bylaws may be amended or
repealed, and new bylaws may be made, by an affirmative majority of the votes
cast at any annual or special meeting of shareholders, or by an affirmative
vote of a majority of the directors present at a meeting of the board of
directors.
CDnow/N2K. Under the Pennsylvania corporate law, bylaws may be adopted, amended
and repealed by the shareholders entitled to vote thereon. This authority may
be expressly vested in the board of directors by the bylaws, subject to the
power of the shareholders to change such action, unless the subject of the
amendment is solely within the province of the shareholders. The provisions in
the CDnow/N2K bylaws relating to the election of directors prior to December
31, 2001 and amendments to the employment agreements of Jonathan V. Diamond and
Jason Olim, however, require the approval of an 80% vote of the entire
CDnow/N2K board.
Mergers and Major Transactions
N2K. Under the Delaware corporate law, whenever the approval of the
shareholders of a corporation is required for an agreement of merger or
consolidation or for a sale, lease or exchange of all or substantially all of
its assets, such agreement, sale, lease or exchange must be approved by the
affirmative vote of the owners of a majority of the outstanding shares entitled
to vote thereon. Notwithstanding the foregoing, unless required by its
certificate of incorporation, no vote of the shareholders of a constituent
corporation surviving a merger is necessary to authorize a merger if:
(a) the agreement of merger does not amend in any respect the
certificate of incorporation of such constituent corporation,
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(b) each share of stock of such constituent corporation outstanding
immediately prior to such merger is to be an identical outstanding
or treasury share of the surviving corporation after such merger and
(c) either no shares of common stock of the surviving corporation and no
shares, securities or obligations convertible into such common stock
are to be issued under such agreement of merger, or the number of
shares of common stock issued or so issuable does not exceed 20% of
the number thereof outstanding immediately prior to such merger. In
addition, the Delaware corporate law provides that a parent
corporation that is the record holder of at least 90% of the
outstanding shares of each class of stock of a subsidiary may merge
such subsidiary into such parent corporation without the approval of
such subsidiary's shareholders or board of directors and without the
approval of the parent's shareholders.
CDnow/N2K. Under the Pennsylvania corporate law, shareholder approval is
required for the sale, lease, exchange or other disposition of all, or
substantially all, of the property and assets of a corporation when not made in
the usual and regular course of the business of such corporation or for the
purpose of relocating the business of such corporation or in connection with
the dissolution or liquidation of the corporation. Unlike the Delaware
corporate law, however, in cases where shareholder approval is required, a
merger, consolidation, sale, lease, exchange or other disposition must be
approved by a majority of the votes cast by all shareholders entitled to vote
thereon. Under the Pennsylvania corporate law, unless required by the bylaws of
a constituent corporation, shareholder approval is not required for a plan of
merger or consolidation if:
(a) the surviving or new corporation is a domestic corporation whose
articles are identical to the articles of such constituent
corporation,
(b) each share of such constituent corporation outstanding immediately
prior to the merger or consolidation will continue as or be
converted into, except as otherwise agreed to by the holder thereof,
an identical share of the surviving or new corporation and
(c) such equity plan provides that the shareholders of such constituent
corporation will hold in the aggregate shares of the surviving or
new corporation having a majority of the votes entitled to be cast
generally in an election of directors. In addition, the Pennsylvania
corporate law provides that no shareholder approval is required if,
prior to the adoption of such equity plan, another corporation that
is a party to such equity plan owns 80% or more of the outstanding
shares of each class of such constituent corporation.
Dissenters' Rights of Appraisal
N2K. Under the Delaware corporate law, unless the certificate of incorporation
of a corporation provides otherwise, there are no appraisal rights provided in
the case of certain mergers, a sale or transfer of all or substantially all of
its assets or an amendment to the corporation's certificate of incorporation.
Moreover, the Delaware corporate law does not provide appraisal rights in
connection with a merger or consolidation, unless the certificate of
incorporation provides otherwise, to the owners of shares of a corporation
that, at the record date fixed to determine the shareholders entitled to
receive notice of and to vote at the meeting of shareholders to act upon the
merger or consolidating agreements, is either:
. listed on a national securities exchange or designated as a
national market system security by the NASD, or
. held of record by more than 2,000 shareholders, unless the
applicable agreement of merger or consolidation requires the
owners of these shares to receive, in exchange for these shares,
anything other than:
. shares of stock of the resulting or surviving corporation;
. shares of stock of any other corporation listed on a
national securities exchange; and, or designated as
described above, or held of record by more than 2,000
holders; or
. cash in lieu of fractional shares or any combination of the
foregoing.
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In addition, the Delaware corporate law denies appraisal rights to the
shareholders of the surviving corporation in a merger if that merger did not
require for its approval, the vote of the shareholders of the surviving
corporation.
CDnow/N2K. The Pennsylvania corporate law provides that shareholders of a
corporation have a right of appraisal with respect to specified corporate
actions, including:
. a plan of merger, consolidation, division, as defined in Section
1951 of the Pennsylvania corporate law share exchange or
conversion, as defined in Section 1961 of the Pennsylvania
corporate law;
. certain other plans or amendments to its articles in which
disparate treatment is accorded to the holders of shares of the
same class or series; and
. a sale, lease, exchange or other disposition of all or
substantially all of the corporation's property and assets, except
if, such sale, lease, exchange or other disposition is:
. made in connection with the dissolution or liquidation of
the corporation;
. the acquiring corporation owns all of the outstanding shares
of the acquired corporation or the voting rights,
preferences, limitations or relative rights of the acquired
corporation are not altered thereby; or
. the assets sold, leased, exchanged or otherwise disposed of
are simultaneously leased back to the corporation.
Under the Pennsylvania corporate law, appraisal rights are not provided,
however, to the holders of shares of any class that is either listed on a
national securities exchange or held of record by more than 2,000 shareholders
unless:
. such shares are not converted solely into shares of the acquiring,
surviving, new or other corporation and cash in lieu of fractional
shares;
. such shares constitute a preferred or special class of stock, and
the articles of such corporation, the corporate action under
consideration or the express terms of the transaction encompassed
in such corporate action do not entitle all holders of the shares
of such class to vote thereon and the transaction requires for the
adoption thereof the affirmative vote of a majority of the votes
cast by all shareholders of such class; or
. such shares constitute a group of a class or series which are to
receive the same special treatment in the corporate action under
consideration, and the holders of such group are not entitled to
vote as a special class in respect of such corporate action.
Anti-Takeover Provisions
N2K. Under the Delaware corporate law, a corporation is prohibited from
engaging in any business combination with an interested shareholder who,
together with his affiliates or associates owns, or within a three-year period
did own, 15% or more of the corporation's voting stock, unless
. prior to the time the shareholder became an interested
shareholder, the board of directors approved either the business
combination or the transaction which resulted in the shareholder
becoming an interested shareholder;
. the interested shareholder owned at least 85% of the voting stock
of the corporation, excluding specified shares, upon consummation
of the transaction which resulted in the shareholder becoming an
interested shareholder; or
. on or subsequent to the time the shareholder became an interested
shareholder, the business combination is approved by the board of
directors of the corporation and authorized by the affirmative
vote, at an annual or special meeting and not by written consent,
by at least 66 2/3% of the outstanding voting shares of that
corporation, excluding shares held by that interested shareholder.
A business combination generally includes:
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. mergers, consolidations and sales or other dispositions of
10% or more of the assets of a corporation to or with an
interested shareholder;
. certain transactions resulting in the issuance or transfer
to an interested shareholder of any stock of the corporation
or its subsidiaries; and
. other transactions resulting in a disproportionate financial
benefit to an interested shareholder.
This provision of the Delaware corporate law does not apply to a corporation
if, subject to certain requirements, the certificate of incorporation or bylaws
contain a provision expressly electing not to be governed by this provision or
the corporation does not have voting stock either listed on a national
securities exchange, authorized for quotation on an inter-dealer quotation
system of a registered national securities association or held of record by
more than 2,000 shareholders.
CDnow/N2K. The Pennsylvania corporate law contains provisions applicable to
publicly-held Pennsylvania corporations that may be deemed to have an anti-
takeover effect. CDnow/N2K has opted out of all but two of these provisions.
Under Section 1715 of the Pennsylvania corporate law, directors of a
corporation are not required to regard the interests of the shareholders as
being dominant or controlling in considering the best interests of the
corporation. The directors may consider, to the extent they deem appropriate,
such factors as:
. the effects of any action upon any group affected by that action,
including shareholders, employees, suppliers, customers and
creditors of the corporation and upon communities in which offices
or other establishments of the corporation are located;
. the short term and long term interests of the corporation,
including benefits that may accrue to the corporation from its
long term plans and the possibility that these interests may be
best served by the continued independence of the corporation;
. the resources, intent and conduct of any person seeking to acquire
control of the corporation; and
. all other pertinent factors.
The Pennsylvania corporate law provisions also provide directors with broad
discretion with respect to actions that may be taken in response to
acquisitions or proposed acquisitions of corporate control.
Subchapter F of Subchapter 25 of the Pennsylvania corporate law is designed to
regulate certain business combinations between Exchange Act companies and
interested shareholders. In general, Subchapter F prohibits the consummation of
enumerated business combination transactions, such as mergers and stock
acquisitions, during a five year moratorium period unless either the stock
purchase through which the interested shareholder became an interested
shareholder receives the prior approval of a corporation's board of directors
or such business combination transaction received the prior approval of a
corporation's board or the approval of specified classes of shareholders or all
shareholders. In some instances, the interested shareholder must comply with
specified fair price valuation and payment requirements. The moratorium period
runs from the date on which the interested shareholder becomes interested
shareholder. Generally, a shareholder becomes an interested shareholder on the
date the shareholder first acquires beneficial ownership of 20% or more of the
corporation's voting shares). After the moratorium period, a corporation can
undertake a business combination with the interested shareholder only upon
shareholder approval as specified in Subchapter F and, in some cases, upon
payment of a specified fair price to shareholders.
Section 1715 and Subchapter F of the Pennsylvania corporate law may discourage
open market purchases or a non-negotiated tender or exchange offer for common
stock and, accordingly, may be considered disadvantageous by a shareholder who
would desire to participate in any such transactions. In addition, Section 1715
and Subchapter F may have a depressive effect on the price of common stock.
Section 1715 and Subchapter F are applicable to CDnow/N2K.
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Dissolution
N2K. Under the Delaware corporate law, if the board of the directors of the
corporation deems it advisable that the corporation should be dissolved and a
majority of the outstanding stock of the corporation entitled to vote thereon
votes in favor of the proposed dissolution, the corporation shall be dissolved
upon the filing of a certificate of dissolution with the Secretary of State of
the State of Delaware. The corporation shall continue after dissolution for the
purposes of defending suits and settling its affairs for a three-year period.
The Delaware corporate law sets forth certain payment and distribution
procedures a dissolving corporation must follow in connection with winding up
its affairs. Such procedures include certain notification requirements and,
under certain circumstances, obtaining the approval of the Delaware Court of
Chancery. Under the Delaware corporate law, directors of a dissolved
corporation that comply with the payment and distribution procedures provided
therein shall not be personally liable to the claimants of the dissolved
corporation.
CDnow/N2K. Under the Pennsylvania corporate law, if the board of directors
adopts a resolution recommending to dissolve the corporation, the shareholders
must adopt the resolution by the affirmative vote of a majority of the votes
cast by all shareholders entitled to vote thereon. Unlike the Delaware
corporate law, the Pennsylvania corporate law provides two different procedures
for the corporation to provide for the winding up and distribution of the
corporation's assets. The board of directors of the corporation may elect that
the dissolution shall proceed under Subchapter H or under Section 1975 of the
Pennsylvania corporate law. Under Section 1975, the corporation must provide
for the liabilities of the corporation prior to filing the articles of
dissolution in the Pennsylvania Department of State. Directors of corporations
that elect to follow this procedure are held to the standard of care that
applies to all of their other duties. The Subchapter H provision is largely
analogous to the procedure under the Delaware corporate law. Under the
Pennsylvania corporate law, however, the corporation only continues to exist
for the purpose of settling its affairs for a period of two years. Furthermore,
the court in determining the amount of security that shall be posted by the
dissolved corporation shall consider the amount that would be reasonably likely
to be sufficient to provide compensation for claims that are unknown but that
are likely to arise or become known for a period of only two years after the
dissolution of the corporation.
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DESCRIPTION OF CDNOW/N2K CAPITAL STOCK FOLLOWING THE MERGER
DESCRIPTION OF CDNOW/N2K CAPITAL STOCK FOLLOWING THE MERGER
The following summarizes the terms of the CDnow/N2K common stock you will
receive in the merger. Please read the Amended and Restated Articles of
Incorporation and the bylaws which are attached hereto as Appendices II and
III.
AUTHORIZED CAPITAL STOCK
CDnow/N2K Capital Stock
. 200 million shares of common stock, no par value authorized.
. 50 million shares of preferred stock, no par value authorized.
. Following the merger, approximately 29.5 million shares of common
stock will be outstanding.
COMMON STOCK
Voting
. One vote for each share held of record.
. No cumulative voting rights.
. Election of directors by plurality of votes cast; and all other
matters by majority of votes cast, except as otherwise required by
law.
Dividends
. Subject to preferred stock rights, entitled to receive ratably
declared dividends.
. The board may only declare dividends out of legally available
funds.
Additional Rights
. Subject to the preferred stock rights, entitled to receive ratably
net assets which are available after payment of debts, upon
liquidation, dissolution or winding up of CDnow/N2K.
. No preemptive rights.
. No subscription rights.
. No redemption rights.
. No sinking fund rights.
. No conversion rights.
The rights and preferences of common shareholders are subject to the rights of
any series of preferred stock CDnow/N2K may issue.
PREFERRED STOCK
By resolution of the board, CDnow/N2K may, without any further vote by its
shareholders, authorize and issue an aggregate of 50 million shares of
preferred stock. The preferred stock may be issued in one or more classes or
series. With respect to each class or series, the board may determine the
designation and the number of shares, voting rights, preferences, limitations
and special rights, including any dividend rights, conversion rights,
redemption rights and liquidation preferences. Because of the rights that may
be granted, the issuance of preferred stock may delay or prevent a change of
control.
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DESCRIPTION OF CDNOW/N2K CAPITAL STOCK FOLLOWING THE MERGER
PENNSYLVANIA ANTI-TAKEOVER LAWS
The Pennsylvania corporate law contains provisions applicable to publicly held
Pennsylvania corporations that may be deemed to have an anti-takeover effect.
CDnow/N2K specifically opted out of all of these provisions, except for those
described below.
Under Section 1715 of the Pennsylvania corporate law, directors of the
corporation are not required to regard the interests of the shareholders as
being dominant or controlling in considering the best interests of the
corporation. The directors may consider, to the extent they deem appropriate,
such factors, including:
. the effects of any action upon any group affected by such actions
including shareholders, employees, suppliers, customers and
creditors of the corporation and upon communities in which offices
or other establishments of the corporation are located;
. the short term and long term interests of the corporation,
including benefits that may accrue to the corporation from its
long term plans and the possibility that these interests may be
best served by the continued independence of the corporation;
. the resources, intent and conduct of any person seeking to acquire
control of the corporation; and
. all other pertinent factors.
Section 1715 further provides that any act of the board of directors, a
committee of the board or an individual director relating to or affecting an
acquisition or potential or proposed acquisition of control to which a majority
of disinterested directors have assented will be presumed to satisfy the
standard of care set forth in the Pennsylvania corporate law, unless it is
proven by clear and convincing evidence that the disinterested directors did
not consent to such act in good faith after reasonable investigation. As a
result of this and the other provisions of the Pennsylvania corporate law,
directors are provided with broad discretion with respect to actions that may
be taken in response to acquisitions or proposed acquisitions of corporate
control.
Chapter 25, Subchapter F of the Pennsylvania corporate law is designed to
regulate certain business combinations between most publicly traded
Pennsylvania corporations and interested shareholders. In general, Subchapter F
prohibits the consummation of enumerated business combination transactions
during a five year moratorium period. The moratorium period does not apply to:
. business combinations with persons who became interested
shareholders with the approval of the board of directors;
. business combinations that were approved prior to the date on
which the shareholder became an interested shareholder;
. business combinations approved by a majority of disinterested
shareholders at a meeting at least three months after the
interested shareholder acquires at least 80% of the outstanding
voting stock if the consideration paid to other holders of the
corporation's outstanding securities satisfies fair price
requirements set forth in Subchapter F of the Pennsylvania
corporate law;
. business combinations approved by all of the holders of the
outstanding shares.
The moratorium period runs from the date on which the interested shareholder
becomes an interested shareholder. Generally, a shareholder becomes an
interested shareholder the date the shareholder first acquires beneficial
ownership of 20% or more of the corporation's voting shares. After the
moratorium period, the corporation can undertake a business combination with an
interested shareholder only upon approval of disinterested shareholders holding
a majority of the voting shares or in a transaction approved by shareholders
that satisfies the fair price provisions referred to above.
Section 1715 and Subchapter F may discourage open market purchases of common
stock or a non-negotiated tender or exchange offer for the common stock of a
corporation and, accordingly, may be considered disadvantageous by a
shareholder who would desire to participate in any such transactions. In
addition, Section 1715 and Subchapter F may have a depressive effect on the
price of the common stock.
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DESCRIPTION OF CDNOW/N2K CAPITAL STOCK FOLLOWING THE MERGER
TRANSFER AGENT AND REGISTRAR
The Transfer Agent and Registrar with respect to the CDnow/N2K common stock is
Stock Trans, Inc., Ardmore, Pennsylvania.
NASDAQ NATIONAL MARKET LISTING; DELISTING AND DEREGISTRATION OF CDNOW AND N2K
COMMON STOCK
It is a condition to the merger that the shares of CDnow/N2K common stock
issuable in connection with the merger be approved for listing on the Nasdaq
National Market. If we close the merger, the CDnow common stock and the N2K
common stock will each cease to be listed on the Nasdaq National Market.
FEDERAL SECURITIES LAWS CONSEQUENCES; STOCK TRANSFER RESTRICTION AGREEMENTS
Unless you are an affiliate, the shares of CDnow/N2K common stock you receive
in the merger will be freely transferable. Generally, an affiliate is someone
who is controlled by or controls CDnow or N2K. Affiliates generally include
certain officers, directors and principal shareholders of CDnow or N2K. The
Securities Act of 1933, as amended and Rules 144 and 145 restrict the ability
of affiliates to resell their shares of CDnow/N2K common stock. The merger
agreement requires us to use reasonable efforts to obtain written agreements
with our affiliates to the effect that they will not sell or otherwise dispose
their shares in violation of the Securities Act or the rules.
The joint proxy statement/prospectus does not cover any resales of the CDnow
common stock to be received by the shareholders of CDnow or the shareholders of
N2K upon consummation of the merger, and no person is authorized to make any
use of this joint proxy statement/prospectus in connection with any such
resale.
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INDUSTRY OVERVIEW
INDUSTRY OVERVIEW
We believe that a significant opportunity exists for the online retail sale of
music on the internet. According to the International Federation of the
Phonographic Industry, worldwide sales of pre-recorded music and music videos
in 1997 were approximately $38.1 billion, of which one-third was in North
America. Online music retailers currently account for a small but growing
portion of total sales. Jupiter Communications estimates that sales of pre-
recorded music over the internet will grow on a worldwide basis from
approximately $47 million in 1997 to $1.6 billion in 2002.
A number of characteristics of online music retailing make the online sale of
pre-recorded music particularly attractive relative to traditional retail
stores. The online environment offers many data management and multimedia
features which enable consumers to listen to sound samples, search for music by
genre, title or artist and access a wealth of information and events, including
reviews, related articles, music history, news and recommendations. Online
retailers can more easily obtain extensive demographic and behavioral data
about their customers, providing them with greater direct marketing
opportunities and the ability to offer a more personalized shopping experience.
In addition, online retailers can also offer consumers significantly broader
product selection, the convenience of home shopping and 24-hour-a-day, seven-
day-a-week operations, available to any location, foreign or domestic, that has
access to the internet.
While physical store-based music retailers must make significant investments in
inventory, real estate and personnel for each store location, online retailers
incur a fraction of these costs, generally use centralized distribution, and
have virtually unlimited merchandising space. Traditional retailers are
compelled to limit the amount of inventory they carry at each store and focus
on a smaller selection of faster-selling hit releases. As a result, we believe
that a typical music store may carry up to 12,000 merchandise units and a
megastore may carry up to 50,000 merchandise units compared to the more than
390,000 merchandise units offered by the CDnow or N2K store. According to
Jupiter, approximately 80% of unit sales at traditional retail stores come from
approximately 20% of the available titles. Online retailers can offer consumers
a broader range of titles and information and can also offer products from a
wider range of music labels, including smaller independent labels which account
for an increasing percentage of new titles. According to Soundscan, independent
labels accounted for 21% of the total music market in 1996 versus 12% in 1992.
While independent labels released 66% of new titles in 1996, traditional music
stores often lack the capacity to stock or promote the vast majority of these
titles.
We also believe that online retailers will benefit from the changing
demographic profile of music consumers. According to the Recording Industry
Association of America, domestic purchases of recorded music by persons age 30
and over have increased from approximately 34% of total U.S. sales in 1996 to
approximately 48% of sales, or approximately $5.9 billion, in 1997. We believe
that the internet represents a particularly attractive medium for retailing to
customers in this age group as they are typically less hits-driven than younger
age groups and are more likely to purchase a wide variety of titles. These
customers generally can afford to buy more titles at one time, have access to
computers and use the internet and have credit cards with which to make
electronic payments.
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DESCRIPTION OF CDNOW
DESCRIPTION OF CDNOW
BUSINESS
CDnow is a leading retailer of CDs and other music-related products. CDnow's
online store offers broad selection, information, easy-to-use navigation and
search capabilities, a high level of customer service, competitive pricing and
personalized merchandising. Customers may choose from more than 390,000 CDs and
other merchandise. CDnow believes that it offers customers an online selection
of readily available products that is five to ten times greater than a typical
music retailer maintains in store. The CDnow store also assists music buyers
with approximately 345,000 music samples and 160,000 product notes, reviews,
editorials and related articles, including reviews and articles from Rolling
Stone, MTV/VH1, CMJ and CDnow's editorial staff. The CDnow store is open 24
hours a day, seven days a week and offers its customers convenient and timely
product delivery, including an overnight delivery option.
CDnow has grown rapidly since its launch in 1994. More than 738,000 customers
have made purchases from 1994 through September 30, 1998. More than 442,000 of
these customers made their first purchases during the nine month period ended
September 30, 1998. Average daily visits to the CDnow store increased from
approximately 12,000 in January 1996 to approximately 215,000 in September
1998. CDnow's net sales grew to $13.9 million for the third quarter of 1998
compared to $11.6 million for the second quarter of 1998 and $3.9 million for
the third quarter of 1999.
CDnow believes it has a significant number of loyal customers. Despite the
rapid increase in new customers, sales to existing customers accounted for
approximately 59% of net sales in the third quarter of 1998.
CDnow began as a sole proprietorship in February 1994 and became a Pennsylvania
corporation in April 1995. CDnow's principal offices are located at
CDnow, Inc.
1005 Virginia Avenue
Fort Washington, Pennsylvania 19034
(215) 619-9900
THE CDNOW ONLINE RETAIL STORE
CDnow strives to make the CDnow store informative and authoritative. Customers
may easily learn about, discover and purchase CDs and other music-related
products. CDnow designed its store to be intuitive and easy to use. CDnow's
store, allows customers to find and order a CD with a minimum of effort.
CDnow offers many attractive features for music shoppers. Customers can focus
their searches, browse among top sellers and other featured titles, read
reviews, listen to music samples, participate in promotions and check order
status. New users may access an information page that CDnow specifically
designed to give shoppers a quick understanding of the site and its many
features.
Merchandising CDnow currently offers:
more than:
additional products, including
. 325,000 CDs, . T-shirts,
. 40,000 movies, . music books,
. 10,000 music videos and . DVDs and
. CD-Roms.
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DESCRIPTION OF CDNOW
To encourage purchases, CDnow features various promotions on a rotating basis
throughout the store. CDnow adjusts pricing strategies and tactics as necessary
to maintain competitiveness. CDnow generally prices recent releases and popular
titles aggressively. CDnow reduces shipping costs for larger orders to
encourage customers to purchase multiple titles.
Personalization. CDnow launched its My CDnow service in September 1998 to
provide customers with customized and personalized features. CDnow believes
that these features will increase customer retention, likelihood of purchases
and average order sizes. CDnow provides customers with:
. recommendations using artificial intelligence technology;
. the ability to rate albums the customer owns;
. a "wish list" capability to keep track of albums
the customer intends to purchase at a later date;
. a "gift registry" that allows visitors to purchase
albums as gifts for participating customers;
. automatic login; one-click order feature;
. a "favorite artists" list;
. order history; and
. frequent buyer points and credit information.
Searching. Through CDnow's "FastFind" search engine, customers can quickly and
easily navigate the store to find CDs and other products of interest. Customers
can search for products based on artist, album title, song title, record label,
musical genre or release date for new releases. CDnow recently upgraded its
search engine using Verity, Inc.'s K2 search technology. This technology helps
customers make successful searches even with incomplete or misspelled artists'
names. By clicking on the album title, a visitor can browse among CDnow's
database of reviews, cover art, sound samples and album notes. Through CDnow's
"Lexicon" feature, customers can browse alphabetical lists based on artists,
types of products, record labels and album cover art.
Content and Music Discovery. CDnow believes that effective use of content
encourages purchases by customers who may be browsing the site without a
specific title in mind. CDnow's online store contains music samples, extensive
information with regard to titles, reviews, editorials, ratings and articles on
music topics and other information. To help customers browse and discover CDs,
the CDnow store is organized into six music spaces:
. Country/Folk
. Rock/Pop
. World/New Age
. Jazz/Blues
. Classical
. Urban/Electronic
The main page of each space features links to genre-specific lists, articles,
reviews and contests. Within each space, customers can browse sale items, new
releases, advance orders and charts, read exclusive CDnow reviews, listen to
music samples and purchase CDs recommended by CDnow.
Since February 1998, to enhance the attractiveness of its online store to
customers, CDnow has entered into agreements with:
. MTV/VH1--CDnow may use the MTV and VH1 brand names in conjunction
with the display of MTV and VH1 content, music reviews and music
news.
. Rolling Stone Network--CDnow may use Rolling Stone's brand name in
conjunction with the display of cover art and excerpts of feature
stories, record reviews, artist biographies and music news from
current and past editions of Rolling Stone magazine.
. the CMJ New Music Report and CMJ New Music Monthly--CDnow has
access to more than 25,000 reviews from CMJ.
. Billboard magazine top seller music charts.
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DESCRIPTION OF CDNOW
Custom Compilations. CDnow offers customized CDs through its stores as a result
of its acquisition of superSonic Boom, Inc. Customers can build full-length CDs
from a collection of individual songs from major artists. CDnow manufactures
and ships each custom CD from its Fort Washington facility. The customer can
choose from a catalogue of more than 60,000 songs to build his or her custom
CD. CDnow is currently offering a Valentine's Day collection, and intends to
offer more collections in the future. In addition, CDnow sells custom CDs in
volume to other companies for use by such companies in promotions they run from
time to time.
Purchasing. Once a customer selects a CD, he or she simply clicks on the price
to add products, including advance orders of yet-to-be released products, to
their virtual shopping carts. Customers can add and remove products from their
shopping carts as they browse, prior to making a final purchase. The shopping
cart page displays each item that has been placed in the cart, including title,
price and any applicable discount. To purchase, customers select the shipping
and payment methods, if desired, gift wrapping and a personalized message. Then
the customer clicks on the "Place Order" button. Customers can also create a
wish list of products they may want to purchase on future visits. The wish list
is a special section of the My CDnow service where items may be stored between
visits.
Payment. Customers may pay for orders with credit cards, personal checks or
money orders. For convenience, CDnow enables customers to store credit card
information on CDnow's secure server, thereby avoiding the need to re-enter
this information when making future purchases. CDnow offers customers a variety
of shipping options, including overnight delivery. CDnow automatically confirms
each order by e-mail within minutes after the final order is placed and
subsequently confirms shipment of each order by e-mail. CDnow offers a money-
back return policy.
Distribution and Filling Orders. CDnow's inventory is owned and held by outside
vendors who ship directly to CDnow's customers. The breadth of the inventory
maintained by these vendors provides CDnow with the ability to maintain high
order fill rates. CDnow updates its site daily with inventory information
received from its vendors, which enables customers to check the availability of
products before ordering. CDnow electronically transmits orders to its outside
vendors at least once daily. These vendors ship orders using a CDnow label and
invoice, in most cases within a day after an order is placed with CDnow.
Multilingual Capabilities. CDnow generated approximately 22% of its net sales
from international markets for the quarter ended September 30, 1998. CDnow
offers foreign language versions of its Web site that contain translation of
account registration and ordering instructions and supports its international
sales efforts with customer service representatives fluent in these languages.
CDnow currently offers versions of its online store in the following foreign
languages:
. Spanish . Portuguese
. French . Japanese
. German . Dutch
. Italian
MARKETING AND PROMOTION
CDnow designed its marketing and promotion strategy to broaden awareness of the
CDnow brand, increase customer traffic to CDnow's Web site and encourage new
and repeat purchases. CDnow markets and promotes its brand using marketing
agreements, online and traditional advertising, CDnow's Cosmic Credit Program,
and direct marketing. CDnow believes that using these multiple marketing
channels reduces reliance on any one source of customers, maximizes brand
awareness and lowers average customer acquisition cost.
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DESCRIPTION OF CDNOW
Marketing Agreements
.CDnow believes that marketing agreements with major internet service
and content providers and global music-oriented media companies can be a
significant source of new customers. CDnow has the following marketing
agreements and arrangements:
Yahoo! On September 2, 1998, the CDnow entered into a global merchant
agreement with Yahoo! Inc., extending and expanding upon earlier
agreements with Yahoo! of August 1997 and March 1998. Under the Yahoo!
agreement:
. CDnow continues to be granted music-retail exclusivity on music-
related search results pages on Yahoo!'s main directory,
www.yahoo.com;
. CDnow is integrated into other areas of the Yahoo! Service,
including Yahoo! Mail;
. CDnow becomes the premier music retailer on many of Yahoo!'s
international sites;
. the term of the Yahoo! agreement ends on December 31, 2000.
CDnow may terminate the Yahoo! agreement earlier upon payment of
a specified termination fee; and
. coincident with the Yahoo! agreement, Yahoo! agreed to purchase
up to $2 million in newly issued shares of CDnow common stock,
of which $1 million was invested in September 1998, and the
remainder is to be invested as of December 31, 1999.
WebCrawler. CDnow and Excite have entered into an agreement under which
CDnow is designated as the exclusive online music retailer within
Excite's WebCrawler service. Excite has granted CDnow the exclusive
right to sponsor targeted links, advertising banners and specific
keywords for online retail music purchases within WebCrawler. The
agreement also requires Excite to deliver a minimum number of links and
banners on the WebCrawler service during each year of the agreement and
limits Excite's ability to include advertising for other music retailers
on the WebCrawler service.
GeoCities. CDnow and GeoCities, Inc. have entered into an agreement
under which CDnow is designated as the exclusive retailer of music and
video products and one of the four key commerce partners that will
occupy a premier position on certain portions of the GeoCities Web site.
The agreement requires GeoCities to deliver a minimum number of
impressions per month, with each impression consisting of a user's
viewing of a page on the GeoCities site containing a link to CDnow's Web
site. The initial term of the agreement expired in February 1999, and
has been extended for two months while the companies discuss the terms
renewal of the agreement.
Lycos. CDnow and Lycos have entered into an agreement designating CDnow
as the exclusive music retailer for the Lycos and Tripod Web sites.
Lycos has granted CDnow the exclusive right to sponsor targeted links,
relevant content and promotions throughout the Lycos and Tripod Web
sites. In addition, CDnow has a right-of-first-refusal regarding any
music retail opportunities on the Lycos and Tripod Web sites. The
agreement requires Lycos and Tripod to deliver a minimum number of
CDnow-branded page views during each year of the term, and precludes
Lycos and Tripod from entering into new agreements regarding advertising
for other music retailers throughout the Lycos and Tripod Web sites. The
agreement expires in August 2001.
Lycos Bertelsmann. CDnow and Lycos Bertelsmann have entered into an
agreement designating CDnow as the exclusive music retailer for Lycos
Bertelsmann's Web services in various European countries, and CDnow has
been granted the exclusive right to sponsor targeted Links, advertising
banners, specific keywords, and relevant content on the Lycos
Bertelsmann sites. In addition, CDnow has a right-of-first-refusal
regarding any opportunities that Lycos Bertelsmann offers to any other
entity that principally sells music products. The agreement requires
Lycos Bertelsmann to deliver a minimum number of page views during each
year of the term. The term of the agreement expires in April 2001.
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DESCRIPTION OF CDNOW
Rolling Stone Network. CDnow and Rolling Stone Network have entered into
an agreement designating CDnow as the only World Wide Web-based music
retailer that may use the Rolling Stone brand name in conjunction with
the display of cover art and excerpts of feature stories, record
reviews, artist biographies and music news from current and past
editions of Rolling Stone magazine. In addition, CDnow is the exclusive
online music retailer on the JAMtv and Rolling Stone Network Web sites
with the exclusive right to sponsor targeted links, relevant content and
promotions. The agreement also requires the delivery of a minimum number
of page views on the JAMtv and Rolling Stone Network Web sites during
each year of the agreement. CDnow has also agreed to purchase targeted
print, radio broadcast and other promotional advertising from JAMtv and
Straight Arrow, the publisher of Rolling Stone magazine.
MTV/VH1. Under the MTV/VH1 alliance, CDnow is the premier online
retailer of recorded music on the MTV and VH1 cable television channels
with preferred advertising rights with respect to special events and
promotions, including exclusive online sponsorship of the 1998 Video
Music Awards. The alliance with MTV/VH1 entitles CDnow to use the MTV
and VH1 brand names in conjunction with the display of MTV and VH1
content, music reviews and music news and provides CDnow with integrated
links from the MTV and VH1 Web sites. CDnow also has certain rights of
first refusal to be the exclusive online music retailer of the 1999 and
2000 Video Music Awards with a portion of its minimum annual payments
applicable, at CDnow's option, to such sponsorship.
Online and Traditional Advertising
CDnow promotes its brand using a combination of online and traditional
advertising. CDnow advertises on the sites of major internet content and
service providers, including Alta Vista, Microsoft Network and targeted music-
related sites such as Billboard Magazine's online site. As part of these
arrangements, CDnow typically purchases banner advertisements, often in
conjunction with specified search keywords or on contextually appropriate
pages, that allow consumers to immediately click through to the CDnow site. The
significant flexibility of online advertising allows CDnow to quickly adjust
its advertising plans in response to seasonal and promotional activities.
CDnow believes that traditional advertising is a key ingredient in building
brand recognition and promoting the benefits of online retail shopping.
Traditional advertising can be an effective means of promoting widespread brand
awareness and attracting traditional retail consumers to CDnow's online store
including consumers with little or no history of online purchases. CDnow's
traditional advertising efforts have included radio advertising in major
markets, print advertising in music-related publications and television
advertising. CDnow has purchased television advertising on such programs as
MTV's 1998 Video Music Awards, VH1's Flashback Week and the 1998 and 1999
Grammy Awards.
Cosmic Credit Program
Through its Cosmic Credit Program, as of September 30, 1998, CDnow has
arrangements with over 118,000 small Web sites, typically fan sites devoted to
particular music artists. Approximately 108,000 of these sites have enrolled
since December 31, 1997. CDnow provides Cosmic Credit sites with embedded
hyperlinks through which potential customers can immediately be connected to
the CDnow site. CDnow pays Cosmic Credit participants commissions in store
credit or cash based upon the dollar amount of purchases made by persons using
the link. These highly focused, music-oriented sites are a significant source
of traffic and new customers for CDnow. Cosmic Credit participants sign up
online and are listed inside the CDnow store to assist CDnow's customers in
finding these sites. CDnow rewards the best Cosmic Credit sites with special
incentives.
Direct Marketing
CDnow uses direct marketing techniques to target new and existing customers
with communications and promotions. CDnow sends a personalized e-mail
newsletter, The CDnow Update, to its customers. This e-mail newsletter includes
purchase recommendations based on demonstrated customer preferences and prior
purchases. The newsletter also includes more general information concerning new
releases and promotions. In
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DESCRIPTION OF CDNOW
addition, CDnow targets e-mail communications to persons who have registered at
the CDnow store but have not made purchases, to new customers and to customers
who have not made recent purchases. Through these customized programs, CDnow
hopes to further stimulate demand, increase repeat purchases, build customer
loyalty, and better understand customer preferences.
CUSTOMER SERVICE
CDnow believes that a high level of customer service and support is critical to
retaining and expanding its user base. CDnow customer service representatives
are available 24 hours a day on weekdays and from 10:00 a.m. to 6:00 p.m.
Eastern Time on weekends to provide assistance via e-mail, phone or fax. CDnow
strives to answer all inquiries within 24 hours. CDnow currently has
approximately 45 customer service representatives, including representatives
fluent in nine foreign languages. Customer service representatives handle
questions about orders, assist customers in finding CDs and other music-related
products and register a customer's credit card information over the telephone.
Customer service representatives are a valuable source of feedback regarding
user satisfaction.
DISTRIBUTION AND FILLING ORDERS
CDnow does not carry an inventory and relies exclusively on third party vendors
for distribution and filling orders. CDnow believes that this distribution
strategy allows it to offer extensive selection while avoiding the high fixed
costs and capital requirements associated with owning and warehousing product
inventory and the significant operational effort associated with same-day
shipment. CDnow has experienced a return rate of approximately one percent of
all merchandise sold.
Since August 1994, CDnow has primarily used Valley Media to fill orders for
CDs, cassettes and vinyl records produced in the U.S. CDnow transmits data to
Valley through a secure network to ensure customer security and data integrity.
Valley picks, packs and ships customer orders and charges CDnow for
merchandise, shipping and handling. In most cases, products are shipped within
two business days after an order is placed with CDnow. CDnow performs customer
billing through a third-party credit card processor. To date, Valley has
satisfied CDnow's requirements on a timely basis. For the nine months ended
September 30, 1998, payments to Valley accounted for approximately 85% of
CDnow's cost of sales. For the year ended December 31, 1997, payments to Valley
accounted for approximately 81% of CDnow's cost of sales. CDnow's agreement
with Valley expires in June 1999. Valley may terminate its existing agreement
with CDnow upon 30 days' written notice, if Valley discontinues filling orders
for all of its online service customers.
Since May 1997, CDnow has used MSI to fill orders for CDs produced by non-U.S.
labels. Beginning in July 1998, CDnow has also utilized MSI to provide an
additional 60,000 international titles from a fulfillment center in the
Netherlands servicing primarily European markets.
TECHNOLOGY
CDnow has developed technologies and implemented systems to support
distributed, reliable and scalable online retailing in a secure and easy-to-use
format. Using a combination of proprietary solutions and commercially
available, licensed technologies, CDnow has deployed systems for online content
dissemination, online transaction processing, customer service, market analysis
and electronic data interchange.
Multimedia and User Database. CDnow has developed a database management system
to index, retrieve and manipulate product information, content, product
catalog, orders and transactions, and customer information. This system allows
for rapid searching, sorting, viewing and distribution of a large volume of
content including audio samples, music reviews, track lists, cover art and
photos. CDnow uses Oracle 7.3 as the technology for database management. In
December 1997, CDnow deployed a data warehouse that enables it to access
detailed transaction and customer interaction data and perform sophisticated
market analysis and predictive modeling.
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DESCRIPTION OF CDNOW
Store Architecture. CDnow's hardware and software systems are based upon a
distributed transaction processing model that allows applications to be
distributed among multiple parallel servers. Many of the software components,
and the pages of the CDnow online store, are developed using a proprietary
technology that extends HTML with product, transaction, retail, and advanced
programming constructs. This technology results in the separation of the page
look and feel from the individual data elements and their associated database
lookups thus reducing software updates for changes to the CDnow online store
and minimizing the engineering required to maintain a growing amount of items
and content. CDnow's technology also enables other internet sites with
different formats to integrate CDnow store elements such as search, artist and
album pages.
Interfaces. CDnow has developed technologies and tools for managing interfaces
with internet service and content providers. A switchboard system and linking
interface are made available to businesses with which CDnow has developed
marketing arrangements and to Cosmic Credit sites. These technologies and tools
and the switchboard system and linking interface allow the linking of external
internet sites, banners, and promotions to items and functions contained in the
CDnow store. CDnow's Online Marketing group uses proprietary tools to manage
the marketing and Cosmic Credit relationships in an efficient manner. CDnow has
developed similar systems and tools for its Customer Service department. The
ability to manage customer accounts and orders enables CDnow's Customer Service
department to add capacity effectively and communicate efficiently, thereby
responding to most inquiries within 24 hours. These systems automate many
routine communications and allow customers to better manage their accounts and
orders.
Fault Tolerance and Scalability. CDnow's hardware servers, storage systems,
internet connections and networks allow its online systems to operate
continuously and enable it to maintain a 24-hour-a-day, seven-day-a-week retail
store. CDnow runs its Oracle databases and Web servers on a series of Sun
Enterprise 4000 servers which are able to respond to software or hardware
failure. CDnow maintains dedicated connections to the internet lines provided
by multiple internet service providers. This technology, combined with the
architecture of the systems, allows CDnow to increase capacity by adding new
components or servers while maintaining performance and cost effectiveness.
CDnow uses both proprietary and commercially available tools to monitor and
manage these systems with minimal operator participation.
Security. CDnow employs both commercial and proprietary firewalls integrated
into the architecture of its system to keep its internet connections secure.
CDnow uses the Netscape SSL Commerce Server for secure electronic transactions
over the internet and uses proprietary electronic data interchange interfaces
and private networks to ensure the security of customer order information and
credit card transactions shared with its vendors and credit card processor.
Advanced Technologies. CDnow continually evaluates emerging technologies and
new developments in many areas including electronic commerce, database
management and networking. CDnow is currently evaluating technologies that
allow for the digital distribution of music recordings. Since April 1997, CDnow
has been using collaborative filtering to make personal music recommendations
in its customer newsletter, The CDnow Update. CDnow makes online recommendation
technology available to its shoppers through the Album Advisor feature, which
was introduced in January 1998.
COMPETITION
The online commerce market is new, rapidly evolving and intensely competitive.
CDnow expects competition to further intensify. Barriers to entry are minimal,
and a competitor can launch a new site at a relatively low cost. In addition,
the broader retail music industry is intensely competitive. CDnow currently
competes with a variety of companies, including:
. online vendors of music, music videos and other related products;
. online service providers which offer music products directly or in
cooperation with other retailers;
. traditional retailers of music products, including specialty music
retailers;
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DESCRIPTION OF CDNOW
. other retailers that offer music products, including mass
merchandisers, superstores and consumer electronic stores; and
. non-store retailers such as music clubs. Many of these traditional
retailers also support dedicated Web sites that compete directly
with CDnow.
CDnow believes that the principal competitive factors in its online market are
brand recognition, selection, price, effectiveness of advertising and other
customer acquisition efforts, variety of value-added services, ease of use,
site content, quality of service and technical expertise. Many of CDnow's
current and potential competitors have longer operating histories, larger
customer bases, greater brand recognition and significantly greater financial,
marketing and other resources than CDnow. CDnow is aware that certain of its
competitors have adopted and may continue to adopt aggressive pricing or
inventory availability policies and devote substantially more resources to Web
site and systems development than CDnow. Increased competition may result in
reduced operating margins, loss of market share and a diminished brand
franchise.
There can be no assurance that CDnow will be able to compete successfully
against current and future competitors. New technologies and the expansion of
existing technologies may increase the competitive pressures of CDnow. For
example, applications that select specific titles from a variety of Web sites
based on factors such as price may channel customers to online retailers that
compete with CDnow. In addition, many companies that allow access to
transactions through network access or Web browsers promote CDnow's competitors
and could charge CDnow a substantial fee for inclusion.
INTELLECTUAL PROPERTY
CDnow regards its trademarks, trade secrets and similar intellectual property
as valuable to its business, and CDnow relies on trademark and copyright law,
trade secret protection and confidentiality and/or license agreements with its
employees, partners and third parties to protect its proprietary rights. There
can be no assurance that the steps taken by CDnow will be adequate to prevent
misappropriation or infringement of its intellectual property.
CDnow has licensed in the past, and expects that it may license in the future,
some of its proprietary rights, such as trademarks or copyrighted material, to
third parties. While CDnow attempts to ensure that the quality of its brand is
maintained by such licensees, there can be no assurance that such licensees
will not take actions that might materially adversely affect the value of
CDnow's proprietary rights or reputation, which could have a material adverse
effect on CDnow. "Risk Factors--We may not be able to protect our proprietary
rights and may infringe on the proprietary rights of others, both of which
would have a material adverse effect on our business."
EMPLOYEES
As of October 31, 1998, CDnow had 183 full-time and 19 part-time employees.
CDnow also employs independent contractors and other temporary employees in its
editorial, operations and administrative functions. None of CDnow's employees
is represented by a labor union under a collective bargaining agreement. CDnow
considers its employee relations to be good. Competition for qualified
personnel in CDnow's industry is intense, particularly among software
development and other technical staff. CDnow believes that its future success
will depend in part on its continued ability to attract, hire and retain
qualified personnel. "Risk Factors--Our success is dependent on our key
personnel, who may decide not to continue to work for CDnow/N2K, and we may not
be able to hire enough qualified personnel to meet our hiring needs."
FACILITIES
CDnow's executive offices are located in, and substantially all of its
operating activities are conducted from, leased office space located in Fort
Washington, Pennsylvania. CDnow has leased this facility, which contains
approximately 60,000 square feet, under a lease that expires in 2006. CDnow
does not own any real estate.
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DESCRIPTION OF CDNOW
LEGAL PROCEEDINGS
CDnow has been named a party in an action entitled Rubin v. Rosen et al.
(Docket No. 16743 NC, filed in the Chancery Court of Delaware for the County of
New Castle). CDnow believes that the claims are without merit and intends to
defend the action vigorously. As of the date hereof, CDnow has not been served
with notice that it will appear in court to defend the action. See "Description
of N2K--Litigation." From time-to-time, CDnow may be involved in litigation
relating to claims arising out of its ordinary course of business.
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SELECTED HISTORICAL FINANCIAL INFORMATION OF CDNOW
SELECTED HISTORICAL FINANCIAL INFORMATION OF CDNOW
CDnow provides the following financial information to aid you in your analysis
of the financial aspects of the merger. The statement of operations data for
the years ended December 31, 1995, 1996 and 1997 and the balance sheet data as
of December 31, 1996 and 1997 have been derived from the Consolidated Financial
Statements, which have been audited by Arthur Andersen LLP, independent public
accountants, and are included elsewhere in this joint proxy
statement/prospectus. The statement of operations data for the period from
inception (February 12, 1994) to December 31, 1994 and the selected balance
sheet data as of December 31, 1994 and 1995 have been derived from consolidated
financial statements audited by Arthur Andersen LLP, independent public
accountants, not included in this joint proxy statement/prospectus. The
statement of operations data for the nine months ended September 30, 1997 and
1998 and the balance sheet data as of September 30, 1998 have been derived from
unaudited consolidated financial statements of CDnow that, in the opinion of
the Company, include all adjustments (consisting only of normal recurring
adjustments) necessary for a fair presentation of the results of operations for
the period in accordance with generally accepted accounting principles. The
results of operations for the nine months ended September 30, 1998 are not
necessarily indicative of the results that may be expected for any interim
period or for the full year. This information is only a summary and you should
read it in conjunction with "CDnow Management's Discussion and Analysis of
Financial Condition and Results of Operations" and CDnow's historical financial
statements and related notes thereto contained elsewhere in this joint proxy
statement/prospectus and other documents CDnow has filed with the SEC. In
addition, see Note 2 to Notes to CDnow's Consolidated Financial Statements for
an explantation of the computation of the net loss per common share amounts.
See Note 7 to Notes to CDnow's Consolidated Financial Statements for an
explanation of the dispute settlement. See "Where You Can Find More
Information."
<TABLE>
<CAPTION>
PERIOD FROM
INCEPTION
(FEBRUARY 12, NINE MONTHS ENDED
1994) TO YEAR ENDED DECEMBER 31, SEPTEMBER 30,
DECEMBER 31, ------------------------------------- -------------------------
1994 1995 1996 1997 1997 1998
------------- ---------- ----------- ------------ ----------- ------------
<S> <C> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS
DATA:
Net sales............... $ 103,116 $2,176,474 $ 6,300,294 $ 17,372,795 $ 9,452,864 $ 35,503,805
Cost of sales........... 92,962 1,815,672 5,074,087 13,847,773 7,333,069 28,549,562
--------- ---------- ----------- ------------ ----------- ------------
Gross profit............ 10,154 360,802 1,226,207 3,525,022 2,119,795 6,954,243
Operating expenses:
Operating and
development............ 26,946 149,982 669,280 2,541,434 1,444,011 5,155,718
Sales and marketing..... 12,945 229,912 765,156 9,607,603 3,603,238 31,293,668
General and
administrative......... 28,712 180,573 563,593 1,953,078 1,266,296 2,781,334
Dispute settlement...... -- -- 1,024,030 -- -- --
--------- ---------- ----------- ------------ ----------- ------------
Total operating
expenses............... 68,603 560,467 3,022,059 14,102,115 6,313,545 39,230,720
--------- ---------- ----------- ------------ ----------- ------------
Operating loss.......... (58,449) (199,665) (1,795,852) (10,577,093) (4,193,750) (32,276,477)
Interest income
(expense), net......... -- (1,248) (14,556) (170,312) 64,084 1,452,160
--------- ---------- ----------- ------------ ----------- ------------
Net loss................ (58,449) (200,913) (1,810,408) (10,747,405) (4,129,666) (30,824,317)
Accretion of preferred
stock to redemption
value.................. -- -- -- (410,103) (263,748) (115,542)
--------- ---------- ----------- ------------ ----------- ------------
Net loss applicable to
common shareholders.... $ (58,449) $ (200,913) $(1,810,408) $(11,157,508) $(4,393,414) $(30,939,859)
========= ========== =========== ============ =========== ============
Net loss per common
share(3)............... $ (0.01) $ (0.03) $ (0.29) $ (1.42) $ (0.56) $ (2.10)
========= ========== =========== ============ =========== ============
Weighted average number
of common shares
outstanding(3)......... 6,000,000 6,000,000 6,139,702 7,845,684 7,845,684 14,764,870
========= ========== =========== ============ =========== ============
</TABLE>
-99-
<PAGE>
SELECTED HISTORICAL FINANCIAL INFORMATION OF CDNOW
<TABLE>
<CAPTION>
DECEMBER 31,
------------------------------------------- SEPTEMBER 30,
1994 1995 1996 1997 1998
-------- --------- ---------- ----------- -------------
<S> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
Cash and cash equivalents... $ 2,008 $ 43,812 $ 775,865 $10,686,001 $59,563,026
Working capital (deficit)... (42,206) (235,478) 231,455 (1,218,005) 56,663,989
Total assets................ 25,765 268,468 1,575,459 16,448,425 77,571,386
Long-term debt, excluding
current portion............ -- 9,519 91,133 962,144 1,130,484
Redeemable convertible
preferred stock............ -- -- -- 9,492,594 --
Total shareholders' equity
(deficit).................. (18,449) (99,362) 514,017 (9,752,450) 63,398,975
</TABLE>
-100-
<PAGE>
CDNOW MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
CDNOW MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
OVERVIEW
CDnow believes that the key factors affecting its long-term financial success
include its ability to obtain new customers at reasonable costs, retain
customers and encourage repeat purchases. CDnow continuously seeks to expand
its customer base through multiple marketing channels, which include:
. pursuing an aggressive marketing campaign using a combination of
online and traditional marketing;
. establishing marketing agreements with major internet and
proprietary online content and service providers;
. entering into linking arrangements with other Web sites as part of
its Cosmic Credit Program; and
. using direct marketing techniques to target new and existing
customers with personalized communications. CDnow entered into
marketing agreements and business alliances with Yahoo!, Excite
and GeoCities in August 1997, September 1997 and January 1998,
respectively, and has accelerated its marketing campaign since
CDnow's initial public offering in February 1998 by expanding its
relationship with Yahoo! and entering into additional alliances
with Lycos, Lycos Bertelsmann, Rolling Stone Network, CMJ and
MTV/VH1.
Since its inception, CDnow has incurred significant net losses and, as of
September 30, 1998, had accumulated losses of $43.6 million. As it seeks to
expand aggressively, CDnow believes that its operating expenses will
significantly increase as a result of the financial commitments related to the
development of marketing channels, future business relationships, and
improvements to its Web site and other capital expenditures. CDnow expects that
it will continue to incur losses and generate negative cash flow from
operations for the foreseeable future as it continues to develop its business.
As CDnow has relatively low product gross margins, the ability of CDnow to
generate and enhance profitability depends upon its ability to substantially
increase its net sales. To the extent that significantly higher net sales do
not result from CDnow's marketing efforts, CDnow will be materially adversely
affected. There can be no assurance that CDnow will be able to generate
sufficient revenues from the sale of CDs and other music-related products to
achieve or maintain profitability on a quarterly or annual basis.
For the nine months ended September 30, 1998 and the year ended December 31,
1997, international sales accounted for approximately 22% and 29%,
respectively, of net sales. While CDnow expects that net sales from
international markets will continue to represent a significant portion of total
net sales, CDnow believes that the percentage of its net sales from
international markets may decrease in future periods due to the substantial
increase in CDnow's domestic marketing and advertising expenditures.
-101-
<PAGE>
CDNOW MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
RESULTS OF OPERATIONS
The following table sets forth statement of operations data as a percentage of
net sales for the periods indicated:
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
YEAR ENDED SEPTEMBER
DECEMBER 31, 30,
--------------------- -------------
1995 1996 1997 1997 1998
----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C>
Net sales.............................. 100.0 % 100.0 % 100.0 % 100.0 % 100.0 %
Cost of sales.......................... 83.4 80.5 79.7 77.6 80.4
----- ----- ----- ----- -----
Gross profit......................... 16.6 19.5 20.3 22.4 19.6
Operating Expenses:
Operating and development............ 6.9 10.6 14.6 15.3 14.5
Sales and marketing.................. 10.6 12.1 55.3 38.1 88.1
General and administrative........... 8.3 9.0 11.3 13.4 7.9
Dispute settlement................... -- 16.3 -- -- --
----- ----- ----- ----- -----
Total operating expenses............. 25.8 48.0 81.2 66.8 110.5
----- ----- ----- ----- -----
Operating loss....................... (9.2) (28.5) (60.9) (44.4) (90.9)
Interest income (expense), net......... -- ( 0.2) ( 1.0) 0.7 4.1
----- ----- ----- ----- -----
Net loss............................... (9.2)% (28.7)% (61.9)% (43.7)% (86.8)%
===== ===== ===== ===== =====
</TABLE>
Reclassifications
Information Royalties
This year, CDnow determined to include Information Royalties in operating and
development expenses rather than in cost of sales, as was previously the case.
Information Royalties are royalties paid on CD sales in return for licensing of
ratings, reviews and other information. In addition, CDnow determined to
include credit card processing fees in sales and marketing expenses, rather
than in costs of sales as was previously the case. CDnow made these changes
based on management's determination that the changes are consistent with the
treatment of these expenses generally. We have restated CDnow's results of
operations to reflect this change for all periods.
The table below shows the amount of Information Royalties and Credit Card
Processing Fees for the years ended December 31, 1995, 1996 and 1997, and the
nine months ended September 30, 1997 and 1998.
<TABLE>
<CAPTION>
YEAR ENDED NINE MONTHS ENDED
DECEMBER 31, SEPTEMBER 30,
------------------------- -----------------
1995 1996 1997 1997 1998
------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Information Royalties $ -- $146,200 $225,737 $151,027 $269,041
Credit Card Processing Fees 28,940 143,702 468,225 246,879 952,991
</TABLE>
If CDnow included Information Royalties and Credit Card Processing Fees in
costs of sales, gross profit margins would have been:
<TABLE>
<CAPTION>
YEAR ENDED NINE MONTHS ENDED
DECEMBER 31, SEPTEMBER 30,
------------------------------------------- ------------------------------------------
1995 1996 1997 1997 1998
----- ---- ---- -------- --------
<S> <C> <C> <C> <C>
15.2% 14.9% 16.3% 18.2% 16.1%
</TABLE>
NINE MONTHS ENDED SEPTEMBER 30, 1998 COMPARED TO THE NINE MONTHS ENDED
SEPTEMBER 30, 1997.
Net Sales. Net sales primarily reflect the sales of CDs and related
merchandise, net of estimated returns, and include outbound shipping and
handling charges. Net sales were $35.5 million for the nine months ended
September 30, 1998, representing an increase of 276% over the nine months ended
September 30, 1997. The increase is attributable to continued growth of CDnow's
customer base and repeat purchases from existing
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<PAGE>
CDNOW MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
customers who have typically purchased more units per order than new customers.
Net sales were favorably affected by increased advertising and promotional
activities, including CDnow's purchase of advertising during the 1998 Grammy
Awards and 1998 MTV Video Music Awards, as well as the continued implementation
of its strategic alliances. For the nine months ended September 30, 1998, CDnow
added approximately 442,000 new customers, bringing the total number of
customers since inception to 738,000 as of September 30, 1998, compared to
100,000 new customers that were added during the nine months ending September
30, 1997. International sales represented 22% of net sales for the nine months
ended September 30, 1998 compared to 33% for the nine months ended September
30, 1997. CDnow believes that the decrease in international sales as a
percentage of net sales is due to a proportionally larger increase in domestic
sales resulting from the substantial increase in domestic marketing and
advertising expenditures. Nevertheless, international sales increased to $7.6
million for the nine months ended September 30, 1998, from $3.2 million in the
nine months ended September 30, 1997.
Cost of Sales. Cost of sales consists primarily of the cost of merchandise sold
to customers, including filling orders and outbound shipping and handling. Cost
of sales increased by $21.2 million, or 289%, to $28.5 million for the nine
months ended September 30, 1998, compared to $7.3 million for the nine months
ended September 30, 1997. CDnow's gross profit decreased to 19.6% for the nine
months ended September 30, 1998 from 22.4% for the nine months ended September
30, 1997. The decline in gross margin was attributable to more aggressive
pricing of recent releases and popular titles, as well as increased sales
discounts offered by CDnow. Gross margin for the three months ended September
30, 1998 was 20.9% compared to 20.0% for the three months ended June 30, 1998,
with such increase attributable to selective price increases implemented late
in the second quarter and an increase in revenues from advertising which has a
higher margin than product sales.
Operating and Development Expense. Operating and development expense consists
primarily of payroll and related expenses for store management, design,
development and network operations personnel, systems and telecommunications
infrastructure and royalties paid by CDnow on CD sales in return for licensing
of ratings, reviews, sound samples and other information. Store development
costs are charged to expense as incurred. Operating and development expense
increased by $3.8 million or 257% to $5.2 million for the nine months ended
September 30, 1998 compared to $1.4 million for the nine months ended September
30, 1997. The increase is attributable to increased staffing and associated
costs related to enhancing the features and functionality of CDnow's Web site
and transaction-processing systems, as well as increased investment in store
content, systems and telecommunications infrastructure. As a percentage of net
sales, operating and development expense decreased to 14.5% for the nine months
ended September 30, 1998, compared to 15.3% for the nine months ended September
30, 1997, as operating development expenses were spread over a larger revenue
base.
Sales and Marketing Expense. Sales and marketing expense consists primarily of
payments related to advertising, promotion and marketing agreements as well as
payroll and related expenses for personnel engaged in marketing, selling and
customer service activities and credit card fees. Sales and marketing expense
increased by $27.7 million to $31.3 million for the nine months ended
September 30, 1998 compared to $3.6 million for the nine months ended September
30, 1997. As a percentage of net sales, sales and marketing expense grew to
88.1% for the nine months ended September 30, 1998 compared to 38.1% for the
nine months ended September 30, 1997. The increase in both absolute dollars and
as a percentage of net sales was primarily attributable to increased online and
traditional advertising, including CDnow's purchase of advertising during the
1998 Grammy Awards and the 1998 MTV Video Music Awards, costs associated with
CDnow's marketing agreements and promotional and public relations expenditures.
CDnow increased its advertising expense to $23.7 million for the nine months
ended September 30, 1998, compared to $2.1 million for the nine months ended
September 30, 1997. In addition, CDnow incurred increased staffing and related
costs in connection with the implementation of its marketing strategy and
customer service activities necessary to support its increased customer base
and increased credit card processing fees related to the growth of revenues.
CDnow expects the dollar amount of sales and marketing expense generally and
advertising expense in particular to continue to increase in future periods.
While CDnow is hopeful that its net sales will also increase in future periods
so that
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<PAGE>
CDNOW MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
its sales and marketing expense will not continue to represent an increasing
percentage of net sales, CDnow is not able to predict whether its net sales
will increase by a sufficient amount for this to occur. No assurance can be
given that CDnow will achieve increased net sales or that sales and marketing
expense will not increase as a percentage of net sales.
General and Administrative Expense. General and administrative expense consists
of payroll and related expenses for executive, accounting and administrative
personnel, insurance, professional fees and other general and corporate
expenses. General and administrative expense increased by $1.5 million, or 120%
to $2.8 million for the nine months ended September 30, 1998 compared to $1.3
million for the nine months ended September 30, 1997. The increase in general
and administrative expense was primarily due to the hiring of additional
personnel and increases in professional fees as well as the costs associated
with becoming a public company. As a percentage of net sales, general and
administrative expense decreased to 7.9% for the nine months ended September
30, 1998 compared to 13.4% for the nine months ended September 30, 1997 as
general and administrative expenses were spread over a large revenue base.
Net Loss. CDnow's net loss was $30.8 million for the nine months ended
September 30, 1998 compared to $4.1 million for the nine months ended September
30, 1997.
YEAR ENDED DECEMBER 31, 1997 COMPARED TO THE YEAR ENDED DECEMBER 31, 1996
Net Sales. Net sales increased by $11.1 million or 176% to $17.4 million for
the year ended December 31,1997 from $6.3 million for the year ended December
31, 1996. This increase is primarily attributable to the significant growth of
CDnow's customer base and repeat purchases from CDnow's existing customers who
have typically purchased more units per order than new customers. International
sales represented approximately 29% and 40% of net sales for the years ended
December 31, 1997 and December 31, 1996, respectively. CDnow believes that this
decrease in international sales as a percentage of net sales is due to the
substantial increase in CDnow's domestic marketing and advertising
expenditures. At December 31, 1997, CDnow had approximately 296,000 customer
accounts compared to approximately 88,000 customer accounts at December 31,
1996.
Cost of Sales. Cost of sales increased by $8.7 million or 173% to $13.8 million
for the year ended December 31, 1997 from $5.1 million for the year ended
December 31, 1996. This increase is primarily attributable to CDnow's increased
sales volume. CDnow's gross profit margin was 20.3% for the year ended December
31, 1997 compared to 19.5% for the year ended December 31, 1996. The increase
in gross margin as a percentage of net sales was primarily due to price
reductions from CDnow's suppliers and a change to a lower-price supplier for
imported music and music-related products. CDnow's gross profit margin declined
in the fourth quarter of 1997 due to increased sales promotions during the
holiday season.
Operating and Development Expense. Operating and development expense increased
by $1.9 million to $2.5 million for the year ended December 31, 1997 from
$669,000 for the year ended December 31, 1996. As a percentage of net sales,
these expenses were 14.6% for the year ended December 31, 1997 and 10.6% for
the year ended December 31, 1996. This increase was due to increased staffing
and associated costs related to enhancing the features, content and
functionality of CDnow's online store and transaction-processing systems, as
well as increased investments in systems and telecommunications infrastructure.
Sales and Marketing Expense. Sales and marketing expense increased by $8.8
million to $9.6 million for the year ended December 31, 1997 from $765,000 for
the year ended December 31, 1996 with $6.0 million of this expense incurred in
the fourth quarter. As a percentage of net sales, these expenses increased to
55.3% for the year ended December 31, 1997 from 12.1% for the year ended
December 31, 1996. This increase was due to the significant expansion of
CDnow's advertising expenditures, costs associated with marketing agreements
with Yahoo! and Excite and the increased staffing and associated costs related
to implementing CDnow's marketing strategy and supporting CDnow's increased
customer base. CDnow increased its advertising expense to $6.8 million for the
year ended December 31, 1997 compared to $61,000 for the year ended December
31, 1996.
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<PAGE>
CDNOW MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
General and Administrative Expenses. General and administrative expense
increased by $1.4 million to $2.0 million for the year ended December 31, 1997
from $564,000 for the year ended December 31, 1996. As a percentage of net
sales, these expenses increased to 11.3% for the year ended December 31, 1997
compared to 9.0% for the year ended December 31, 1996. This increase was
primarily due to the recruitment and hiring of additional personnel and
increases in professional fees and travel expenses.
Net Loss. CDnow's net loss increased by $8.9 million to a loss of $10.7 million
for the year ended December 31, 1997 from a net loss of $1.8 million for the
year ended December 31, 1996.
YEAR ENDED DECEMBER 31, 1996 COMPARED TO THE YEAR ENDED DECEMBER 31, 1995
Net Sales. Net sales increased 189% to $6.3 million for the year ended December
31, 1996 from $2.2 million for the year ended December 31, 1995 as a result of
the significant growth of CDnow's customer base and repeat purchases from
existing customers. International sales represented approximately 40% and 22%
of net sales for the year ended December 31, 1996 and the year ended
December 31, 1995, respectively. At December 31, 1996, CDnow had approximately
88,000 customer accounts compared to approximately 27,000 customer accounts at
December 31, 1995.
Cost of Sales. Cost of sales increased 179% to $5.1 million for the year ended
December 31, 1996 from $1.8 million for the year ended December 31, 1995,
reflecting CDnow's increased sales volume. CDnow's gross profit margin
increased to 19.5% for the year ended December 31, 1996 from 16.6% for the year
ended December 31, 1995.
Operating and Development Expense. Operating and development expense increased
to $669,000 for the year ended December 31, 1996 from $150,000 for the year
ended December 31, 1995. As a percentage of net sales, operating and
development expense grew to 10.6% for the year ended December 31, 1996 from
6.9% for the year ended December 31, 1995. This increase in both absolute
dollars and as a percentage of net sales was primarily attributable to
increased staffing and associated costs related to enhancing the features,
content and functionality of CDnow's online store as well as increased
investment in systems and telecommunications infrastructure.
Sales and Marketing Expense. Sales and marketing expense increased to $765,000
for the year ended December 31, 1996 from $230,000 for the year ended December
31, 1995. As a percentage of net sales, sales and marketing expense was 12.1%
for the year ended December 31, 1996 from 10.6% for the year ended December 31,
1995. This increase in both absolute dollars and as a percentage of net sales
was primarily attributable to increased staffing and associated costs related
to implementing CDnow's marketing strategy and supporting CDnow's increased
customer base, as well as to expansion of CDnow's online advertising,
promotional and public relations expenditures.
General and Administrative Expense. General and administrative expense
increased to $564,000 for the year ended December 31, 1996 from $181,000 for
the year ended December 31, 1995. As a percentage of net sales, general and
administrative expense grew to 9.0% for the year ended December 31, 1996 from
8.3% for the year ended December 31, 1995. This increase in both absolute
dollars and as a percentage of net sales was primarily due to the hiring of
additional personnel and increases in professional fees and travel expenses.
Dispute Settlement. In December 1996, as part of a settlement of a dispute
related to certain business arrangements and discussions among CDnow and
certain persons who are now shareholders of CDnow, CDnow issued common stock
valued at approximately $1.0 million to the three shareholders of MBL
Entertainment Inc. See "Certain Relationships and Related TransactionsStock
Purchase and Shareholders' Agreement" and Note 7 to Note to Financial
Statements.
Net Loss. CDnow's net loss increased by $1.6 million to a loss of $1.8 million
for the year ended December 31, 1996 from a net loss of $201,000 for the year
ended December 31, 1995.
-105-
<PAGE>
CDNOW MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
LIQUIDITY AND CAPITAL RESOURCES
At September 30, 1998 CDnow's cash and cash equivalents were $59.6 million
compared to $7.2 million at September 30, 1997. In July 1998, CDnow consummated
a follow-on public offering, selling an aggregate of 1,250,000 shares of common
stock and raising net proceeds of approximately $21.7 million. In February
1998, CDnow consummated its initial public offering, selling an aggregate of
4,561,250 shares of common stock which included 461,250 shares sold in March
1998 upon the exercise of the underwriters' overallotment option and raising
net proceeds of approximately $67.0 million. Prior to February 1998, CDnow
primarily financed its operations through:
. private sales of capital stock, which, through December 31, 1997,
totaled $10.5 million, including $9.3 million raised in July and
August of 1997,
. the private sale of $5.8 million of the Series A Notes in November
1997,
. internally-generated cash flow, advances from related parties and
. certain other short-term loans.
Net cash used in operating activities of $32.2 million for the nine months
ended September 30, 1998 was primarily attributable to a net loss of $30.8
million and an increase of $5.0 million in prepaid expenses partially offset by
a $2.2 million increase in accounts payable, accrued expenses and depreciation
and amortization of $1.6 million.
Net cash used by investing activities was $1.7 million for the nine months
ended September 30, 1998, and consisted of purchases of equipment of $2.3
million and $424,000 for the acquisition of superSonicBoom, Inc., partially
offset by the sale of short-term investments of $1.0 million. Net cash used in
investing activities of $2.0 million for the nine months ended September 30,
1997 was attributable to purchases of equipment of $1.3 million and to
purchases of short-term investments of $984,000, partially offset by sales and
maturities of short-term investments of $246,000. Net cash provided by
financing activities was $82.8 million for the nine months ended September 30,
1998, and consisted largely of net proceeds of approximately $88.7 million from
CDnow's 1998 public offerings, offset by the retirement of $5.8 million of
CDnow's Series A Notes.
CDnow is required to pay aggregate minimum fixed fees of $9.3 million, $27.4
million, $26.7 million and $3.6 million during the remaining three months of
1998 and the years ending December 31, 1999, 2000 and 2001, respectively, under
CDnow's marketing agreements.
CDnow expects to fund its future payment obligations under its marketing
agreements and strategic alliances from its cash and cash equivalents and from
cash generated from future operations and financing activities. As of September
30, 1998, CDnow had $59.6 million of cash and cash equivalents. As of that
date, CDnow's principal commitments consisted of obligations under its
marketing agreements as well as obligations outstanding under capital and
operating leases. Although CDnow has no material commitments for capital
expenditures, it anticipates substantial increases in its capital expenditures
and lease commitments consistent with anticipated growth in operations,
infrastructure and personnel.
SEASONALITY
CDnow expects that it will experience seasonality in its business, reflecting a
combination of seasonal fluctuations in sales via electronic commerce and
traditional retail seasonality patterns affecting sales of recorded music.
Sales in the traditional retail music industry are significantly higher in the
fourth calendar quarter of each year than in the preceding three-quarters.
However, to date, CDnow's limited operating history and rapid growth make it
difficult to ascertain the effects of seasonality on its business. CDnow
believes that period-to-period comparisons of CDnow's historical results are
not necessarily meaningful and should not be relied upon as an indication of
future results.
-106-
<PAGE>
CDNOW MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
FACTORS AFFECTING CDNOW'S BUSINESS AND PROSPECTS
CDnow expects to experience significant fluctuations in its future quarterly
operating results due to a variety of factors, many of which are outside
CDnow's control. Factors that may affect CDnow's quarterly operating results
include:
. ability to retain existing customers, attract new customers and
maintain customer satisfaction;
. introduction of new or enhanced Web pages, services, products and
marketing agreements by CDnow and its competitors;
. price competition or higher wholesale prices;
. level of use of the internet and consumer acceptance of the
internet for the purchase of recorded music;
. seasonality of recorded music sales;
. ability to upgrade and develop its systems and infrastructure and
attract qualified personnel;
. technical difficulties, system downtime or internet blackouts and
brownouts;
. amount and timing of operating costs and capital expenditures
relating to expansion of CDnow's business, operations and
infrastructure;
. timing of Company promotions and sales programs;
. level of merchandise returns experienced by CDnow;
. government regulation; and
. general economic conditions and economic conditions specific to
electronic commerce and the music industry.
Risks Associated with the Year 2000. The Year 2000 issue is the result of
computer programs being written using two digits rather than four to define the
applicable year. In other words, date-sensitive software may recognize a date
using "00" as the year 1900 rather than the year 2000. This could result in
system failures or miscalculations causing disruptions of operations,
including, among others, a temporary inability to process transactions, send
invoices or engage in similar normal business activities. To date, we have
experienced very few problems related to Year 2000 testing and those requiring
immediate modification have been fixed in our day to day operating environment.
CDnow does not believe that there is material exposure to the Year 2000 issue
with respect to its electronic commerce transaction processing and online store
systems since these systems correctly define the Year 2000.
CDnow is currently conducting an analysis to determine the extent to which
others have Year 2000 issues. These include CDnow's major suppliers' systems,
including the systems of credit card processors, telecommunications providers,
product distributors and companies with whom CDnow has marketing agreements.
CDnow's primary distributor for direct-to-consumer music products, Valley
Media, has indicated that it has begun its remediation efforts and expects to
be in compliance before the year 2000. CDnow is currently unable to predict the
extent to which the Year 2000 issue will affect Valley's suppliers, or the
extent to which Valley would be vulnerable to its suppliers' failure to
remediate any Year 2000 issues on a timely basis. The failure of a major
supplier subject to the Year 2000 issue to convert its systems on a timely
basis or a conversion that is incompatible with CDnow's systems could have a
material adverse effect on CDnow. In addition, most of the purchases from
CDnow's online stores are made with credit cards, and our operations may be
materially adversely affected to the extent customers are unable to use their
credit cards due to Year 2000 issues that are not rectified by their credit
card providers.
CDnow did not incur any expenses related to Year 2000 compliance during the
nine months ended September 30, 1998. CDnow incurred $20,000 of expense related
to Year 2000 compliance during the three months ended December 31, 1998 and
expects to expend $55,000 in 1999 to support Year 2000 compliance initiatives.
CDnow intends to actively work with and encourage its suppliers to minimize the
risks of business disruptions resulting from Year 2000 issues and develop
contingency plans where necessary. Such plans may
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CDNOW MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
include, but are not limited to, using alternative suppliers and establishing
contingent supply arrangements. CDnow expects to have such plans in place by
June 30, 1999.
RECENTLY ISSUED ACCOUNTING PRONOUNCEMENTS
See Note 2 "Recently Issued Accounting Pronouncements" on page F-18 to
Consolidated Financial Statements of CDnow.
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DESCRIPTION OF N2K
DESCRIPTION OF N2K
BUSINESS
N2K is one of the leading online music entertainment companies using the
internet and other proprietary online services to promote, market and sell
music and related merchandise. N2K's strategy is to build loyal customer
communities around Web sites that provide music and genre-specific content and
enable consumers to purchase CDs, cassettes and related merchandise. N2K
believes that as its customer base continues to grow, it will be able to
increase revenues from sales of music, related merchandise, advertising and
sponsorship programs.
N2K's online music retail store is Music Boulevard (MUSICBLVD.COM), around
which N2K organizes its genre-specific music Web sites, Rocktropolis
(ROCKTROPOLIS.COM), Jazz Central Station (JAZZCENTRALSTATION.COM) and Classical
Insites (CLASSICALINSITES.COM). In addition to these genre Web sites, N2K also
operates Web sites for artists including Miles Davis, The Rolling Stones and
Leonard Bernstein. N2K's Web sites allow customers to view current music news
and reviews, artist biographies and discographies, musicians' favorite artist
recordings and historical and educational information. In addition, customers
may hear and view cybercasts, recording and video samples. On each of these
sites, consumers may search for artists, songs and compositions, browse and
purchase music recordings from a database of over 250,000 CDs, cassettes, LPs,
videos and related music items, digitally access 30-second music samples from a
selection of over 350,000 songs, read from over 60,000 reviews and related
articles and view music video clips. In July 1997, N2K introduced the emod
system. This system allows consumers to purchase and digitally download from a
collection of music singles. All product purchases are coordinated through
Music Boulevard. N2K believes that by providing a wealth of information in a
highly personalized, interactive context, it creates an entertaining
environment that attracts traffic to its online stores and Web sites, fosters
brand awareness and encourages purchases of music and related merchandise.
As part of its business strategy, N2K establishes business alliances with
global online, music and media companies to attract additional customers to,
and increase brand awareness of, N2K's Web sites and online stores. For
example, N2K benefits from a business alliance with America Online, Inc. under
an interactive marketing agreement. The material elements of this alliance are:
. Music Boulevard is featured as the exclusive online music retailer
within AOL's MusicSpace channel;
. Music Boulevard receives a featured position on AOL's Shopping
Channel;
. Music Boulevard participates in a variety of banner advertising
opportunities;
. Music Boulevard is assigned specific keywords within the AOL
service; and
. Music Boulevard benefits from promotional and featured buttons on
aol.com's home and principal shopping pages.
Similarly, N2K has entered into agreements with Excite, Infoseek and Netscape,
pursuant to which visitors to the Excite online marketing, Infoseek and
Netscape Web sites may access a co-branded Music Boulevard service. From this
service, visitors may purchase music and related products and access music
content and related information. In addition, N2K has an exclusive agreement
with CBS Cable, owner and operator of TNN and CMT, to create and promote
country music retailing through its Web site, country.com, and to create
Country Music Boulevard, a special co-branded area in the Music Boulevard
Network. Under this agreement, Country Music Boulevard became the exclusive
online country music store on country.com and Music Boulevard. In addition,
during April 1998, N2K signed agreements to form exclusive business alliances
with AOL Bertelsmann (for Europe) and Disney Online and a non-exclusive
agreement with Microsoft Corporation.
N2K intends to capitalize on the global nature of the internet to build an
international customer base by creating local language versions of, and
localized content for, N2K's Web sites and online stores. N2K has established a
wholly-owned subsidiary in Japan, the world's second largest market for
recorded music sales,
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DESCRIPTION OF N2K
and has launched Japanese versions of Music Boulevard (MUSICBLVD.COM/JP) and
Jazz Central Station (JP.JAZZCENTRALSTATION.COM). N2K expanded the number of
titles offered in Japan and has provided more localized product to
international markets by creating alliances with international order filling
operations. N2K has entered into an exclusive agreement with Shinseido Inc.,
the leading music retail chain in Japan, to add approximately 150,000 new
local-language music titles to the Japanese version of Music Boulevard which
launched in October 1998. N2K has entered into an agreement with MSI of Miami
Corp. under which MSI provides over 60,000 international titles to Music
Boulevard's catalog of offerings. N2K has an agreement with MTV Networks, on
behalf of MTV International Networks, to create localized MTV-Music Boulevard
sites for Europe, Brazil, Japan and Asia. In addition, N2K has established
business alliances with entities such as AOL Japan, AOL Europe, Yahoo! Japan
and Infoseek Europe. N2K offers registration and ordering instructions on Music
Boulevard in English, Japanese, German, French and Spanish.
N2K WEB SITES
N2K's online music retail store is Music Boulevard (MUSICBLVD.COM). N2K
organizes its genre-specific music Web sites, Rocktropolis (ROCKTROPOLIS.COM),
Jazz Central Station (JAZZCENTRALSTATION.COM) and Classical Insites
(CLASSICALINSITES.COM) around Music Boulevard. In addition to these genre Web
sites, N2K also hosts Web sites for such artists as Miles Davis
(MILESDAVIS.COM), The Rolling Stones (STONESWORLD.COM) and Leonard Bernstein
(LEONARDBERNSTEIN.COM). As part of its multiple Web site strategy, N2K assigns,
whenever possible, a separate universal resource locator or URL to each of its
genre and artist Web sites. N2K continually reviews and revises these Web sites
to provide both an interesting and easy to use on-line experience. N2K believes
that both customers and advertisers prefer Web sites with distinct URLs
designed for specific audiences. All of the genre and artist specific sites
provide information about recordings and the opportunity to purchase from Music
Boulevard.
Music Retail and Genre Web sites. N2K believes that by providing a wealth of
information in a highly personalized interactive context it is able to create
an entertaining environment that attracts traffic to its online stores, fosters
brand awareness and encourages purchases of music and related merchandise.
N2K's existing online music retail stores and genre Web sites include the
following:
MUSICBLVD.COM
Music Boulevard is N2K's flagship online store, featuring a rich graphical and
musical environment containing over 75,000 graphic images and offering over
250,000 CDs, cassettes, LPs, videos and related music items. The Music
Boulevard URL leads to a home page containing site navigation, featured store
specials, site features, search capability and links to genre-specific store
departments. Users may choose desired locations by clicking on a navigation bar
or hyperlinked text allowing them to:
. purchase music items online and check their order status;
. search for artists, titles, songs or compositions;
. access specials and sales promotions;
. link to genre departments including Rock/Pop, Alternative,
R&B/Hip-Hop, Jazz, Classical, Country, World Music, Shows &
Soundtracks and Various & Family;
. access features such as
--music news,
--a pre-release ordering section
--Billboard and Music Boulevard charts,
--over 60,000 reviews and features from allstar, our online music
magazine,
--Jazz Central Station news on Jazz Central Station news on Jazz
Track and
--CI Classical Review which contains news from Classical Insites,
and articles from SPIN, JazzTimes, Puncture, Fanfare, Dirty Linen,
Relix, Blues Access and IAJE Jazz Educators Journal magazines;
. join the Music Boulevard Frequent Buyer's Club;
. link to the area containing the most recently purchased albums in
each genre; and
. listen to sound samples in MPEG, RealAudio or Liquid Audio
formats.
A personal shopping cart allows the customer to select merchandise while
navigating through Music Boulevard. Items can be added to or subtracted from a
shopping cart at any time. As a customer completes a
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search, similar or complementary artists and titles are suggested. By pressing
the "buy" button, the customer completes the ordering process. See "--Sales and
Marketing--Ordering, Filling Orders and Customer Service." Music Boulevard
customers can join the Music Boulevard Frequent Buyers Club and receive a free
CD after purchasing a certain quantity of CDs. To join the Frequent Buyers
Club, customers complete a brief survey which provides valuable demographic
data. N2K currently uses the Frequent Buyers Club data to analyze customer
shopping trends and demographics. N2K is currently evaluating ways in which it
may utilize this data to customize marketing programs. Each Music Boulevard
department contains new releases, on sale items, daily and weekly featured
reviews, a sales promotion billboard and virtual endcaps with sale pricing,
icons for audio samples and short editorial copy.
ROCKTROPOLIS.COM
The Rocktropolis Web site is an in-depth, multimedia entertainment and
information resource for the global rock and pop music communities.
Rocktropolis offers a comprehensive guide to the world of rock and pop music,
enabling customers to listen to live performances, discuss their favorite
artists and access music reviews online. Each area of Rocktropolis has a unique
design, advanced multimedia elements and engaging content. Rocktropolis'
primary areas include: Events, Talk, Search, Rocktropolis Radio and News.
Events features live and archived cybercasts of artist concerts and interviews.
Featured artists have included David Bowie, Sting, Beck, the Sex Pistols, Porno
for Pyros, Bush, The Tragically Hip, Chemical Brothers, Motley Crue, Los Lobos
and Sheryl Crow. Talk features special-event chats, 24-hour chat rooms and
bulletin boards. Search enables customers to retrieve news stories, gossip
items, album reviews and other information about their favorite artists. Search
also features links to N2K's artist Web sites, including the Rolling Stones Web
site. Rocktropolis Radio features four separate pre-selected streaming audio
stations covering Rock, Electronic, Punk and College genres. News is the home
of the award-winning allstar online music magazine, which provides daily music
news and gossip, allstar feature albums and live reviews, as well as in-depth
interviews with some of rock music's most important musicians.
JAZZCENTRALSTATION.COM
Jazz Central Station is an in-depth jazz multimedia music entertainment and
information resource bringing together jazz fans, musicians, educators and
industry leaders from around the globe. Jazz Central Station features live
chats with renowned artists, in-depth information, artist interviews, sound
clips and educational resources for music students. The site spotlights a
rotating roster of jazz artists as well as listings of current and upcoming
album releases, tour schedules, concerts and festivals worldwide. Jazz Central
Station is home to the Chick Corea Web site and the official site for Miles
Davis (milesdavis.com). N2K has also agreed to develop a site devoted to Wynton
Marsalis (wyntonmarsalis.com), which will be linked to Jazz Central Station.
Jazz Central Station also hosts artist sites for Joshua Redman and Gerry
Mulligan. Additionally, Jazz Central Station is the only Web site to offer a
continuous audio stream of WBGO 88.3 FM, a leading jazz radio station.
Jazz Central Station is the official Web site for the International Association
of Jazz Educators or IAJE, the Playboy Jazz Festival, the North Sea Jazz
Festival and George Wein's Festival Productions, which is the producer of the
JVC Jazz Festival. In 1996, Jazz Central Station inaugurated the first annual
JCS Global Jazz Poll.
Jazz Central Station has an acclaimed Board of Advisors, including Chick Corea,
Quincy Jones, Ramsey Lewis, Bruce Lundvall, Dan Morgenstern and George Wein.
CLASSICALINSITES.COM
Classical Insites is an in-depth multimedia music entertainment and information
resource for the global classical music community. The site is designed to
enable customers to explore the history of classical music and important
personalities in the field, listen to performances and discussions by legendary
artists, seek out
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DESCRIPTION OF N2K
worldwide classical music events and purchase music and related merchandise on-
line. In addition to text, features are enhanced by graphic and multimedia
elements. Classical Insites' primary areas include:
. the Hall of Fame, a gallery of composers and performers including
recent inductees Luciano Pavarotti, Leontyne Price, Yo-Yo Ma and
Pierre Boulez; and
. the Performance Center, which includes a concert hall which
features broadcasts, performances and other events, a spotlight
area which introduces the work of important, lesser-known
composers and performers, an information booth which provides
links to performing organizations around the world and a screening
room which features exciting new films and great film scores.
Other highlights of Classical Insites include the official Web
site of Leonard Bernstein (leonardbernstein.com).
Classical Insites also hosts the official Web site of WQXR (96.3 FM), one of
the country's leading classical music radio stations. This site offers music
listings and program information, as well as a live audio stream which allows
customers worldwide to hear WQXR's classical programming. Classical Insites'
customers can enjoy online editions of Fanfare Magazine and CI Classical
Review. Classical Insites will soon announce the winners of its first Global
Classical Music Poll, in which customers voted for their favorite artists. The
Lifetime Achievement category of this award is being voted on by Classical
Insites' distinguished Board of Advisors. The Board of Advisors is composed of
artists and industry leaders that collectively represent the various aspects of
the diverse classical music community, including Betty Allen, Marilyn Bergman,
Nina Bernstein, John Corigliano, Peter Gelb, Charles Hamlen, Omus Hirschbein,
Bobby McFerrin, Arnold Steinhardt, Michael Tilson Thomas and Charles Webb.
Artist Web sites. N2K's artist Web sites provide customers with access to
interviews, discographies, sound and video samples, artists' best recordings,
artists' recommended listening and touring and biographical information. These
artist Web sites each have a separate URL.
STONESWORLD.COM
Stones World is a Rolling Stones Web site that features an extensive overview
of the band. The Web site features a comprehensive catalog of the Rolling
Stones' music, comprised of five separate sections: Discography, Down on the
Corner, Mile Stones, Index and a welcome message from Mick Jagger and
Keith Richards. This Web site incorporates sound samples, live concert clips,
band and concert information, interviews, archival photos, full lyrics and an
interactive poker game. Stones fans can communicate with each other via the Web
site's Message Board.
LEONARDBERNSTEIN.COM
The Leonard Bernstein Web site is the official Web site celebrating Leonard
Bernstein's life and legacy. This Web site was developed in conjunction with
the Bernstein family and estate. Drawing primarily on the vast archive of
Bernstein materials left to the Library of Congress, this Web site presents a
multifaceted portrait of Leonard Bernstein through an extensive collection of
rare documents, photographs, interview excerpts, audio samples and video
material. Visitors to the Leonard Bernstein Web site enter a virtual rendition
of Bernstein's actual studio and can explore "themes" that offer unique insight
into this great American musician's creative mind. The Web site offers
customers the opportunity to read from a selection of Leonard Bernstein's
private letters and peruse his manuscript scores, working notes, rare
photographs, programs and more. Among some of the Web site's offerings are
exhibits featuring West Side Story (including documentation of its long and
complicated genesis), The Young People's Concerts with the New York
Philharmonic (including letters from devoted fans of all ages whose lives were
changed by these ground-breaking educational programs) and Bernstein's 1943
debut with the New York Philharmonic. Many of the elements featured on the Web
site have never before been available to the public. Special Leonard Bernstein
recordings and related merchandise are available exclusively through Music
Boulevard.
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DESCRIPTION OF N2K
International Web sites. Another element of N2K's business strategy involves
capitalizing on the global nature of the internet. N2K is working to build an
international customer base by creating local language versions of, and
localized content for, N2K's Web site. See "Description of N2K--Business" for a
more complete description of N2K's international Web sites.
ENCODED MUSIC
In January 1997, N2K launched its own record label, Encoded Music, to create,
produce, license, acquire and market high-quality recorded music. The
recordings were to be distributed through N2K's online store, record stores and
other traditional retail and distribution channels. Encoded Music produces
recordings across several music genres, including rock, pop, jazz, classical
and blues. In building and expanding the record label, Encoded Music licenses
master recordings from other record labels, acquires master recordings and
publishing catalogs and signs artists to the record label.
Encoded Music has entered into a letter agreement with Sony's RED Distribution
under which RED Distribution will be the exclusive distribution agent in the
United States for the Encoded Music label. The agreement has a three-year term
which expires on October 15, 1999. According to the agreement, RED Distribution
is paid a distribution fee calculated in accordance with a graduated percentage
of net sales. The agreement also provides that Encoded Music will deliver at
least 12 newly compiled or recorded, previously unreleased studio albums during
each year of the term of the agreement.
For each artist recording, Encoded Music creates a tailored marketing plan. In
conjunction with a recording's release, Encoded Music employs traditional
marketing efforts, including coordination of radio advertisements, distribution
of CDs to radio syndicates to encourage air-time play, distribution of point-
of-purchase displays to retail locations and organization of live performances
and appearances for the artist. Users of N2K's Web sites are directed to an
artist's Web site or featured area of a Web site or online store for editorial
content, sound and video samples, digital downloading of singles and samples
and artist cybercasts.
N2K has negotiated the material terms of an agreement with Warlock Records Inc.
for the formation of a joint venture limited liability corporation, N-Coded
Music, LLC, which will operate a record label specializing in jazz and related
recorded music. Warlock will provide 100% of the venture's capital requirements
during an initial three (3) year period. N2K will assign to the joint venture
most of the master recordings and artist recording agreements from Encoded
Music. Accordingly, Warlock will hold 80.1% of the equity in the joint venture
and N2K will hold the remaining 19.9%. In addition, N2K will receive a royalty
of 6% of the retail selling price of products sold by the joint venture against
which N2K will be paid a non-refundable advance in the amount of $334,000 with
possible subsequent advances amounting to an additional $666,000. These
royalties are subject to adjustments and reductions for certain categories of
sale, in accordance with record industry practice.
ADVERTISING SALES AND SPONSORSHIPS
N2K has positioned its Web sites as an interconnected online music network,
offering advertisers and marketers the ability to reach highly targeted
communities of music fans worldwide. Advertisers on N2K's online store have
included MCA Records, Intel, Microsoft Corp., Sony Online Ventures, IBM and
Visa, among others. Advertisers are offered a variety of advertising options,
which can be combined in different percentages to reach the desired advertising
mix. N2K has implemented NetGravity's software for advertising space
management, tracking of page impressions and reporting to advertisers.
N2K utilizes various advertising models to allow a high degree of flexibility
in responding to individual advertisers' needs. It has implemented a graduated
cost per thousand rate structure, charging a higher cost per thousand for its
more highly targeted audiences. N2K intends to reserve a portion of its
available advertising inventory in order to promote the sale of merchandise and
to feature content and events on its Web sites.
The forms of advertising currently offered on N2K's Web sites include banners,
featured content presentations and integrated page icons. Advertisements are
displayed on home pages, store departments, search results, artist
discographies and on sale and new release listings, among other high traffic
Music Boulevard
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DESCRIPTION OF N2K
locations. These advertising spaces can be dynamically served through the use
of the NetGravity software to rotate, change or target existing messages or
increase the number of advertisements delivered in a given space.
N2K also offers advertisers and marketers alternative forms of Web site
advertising. N2K's advertising model includes sponsorship packages to encourage
customers to associate specific content with an identified sponsor. Sponsorship
fees are fixed according to time-based arrangements. N2K utilizes a combination
of internal direct sales personnel and external agencies to solicit and service
advertisers on N2K's Web sites.
MARKETING AND PROMOTION
BUSINESS ALLIANCES
The significant elements of each of N2K's material business alliances include
the following:
. Under the terms of an interactive marketing agreement with AOL,
N2K and AOL share revenues generated from the sale of advertising,
sponsorships, CDs and related merchandise. Music Boulevard is
featured as the exclusive on-line music retailer within AOL's
MusicSpace channel, receives a featured position on AOL's Shopping
Channel, participates in a variety of banner advertising
opportunities and is assigned specific keywords within the AOL
service. The contract with AOL has a term of three years and is
renewable at the option of AOL for additional one-year terms. The
AOL contract also provides for promotional and featured buttons on
aol.com's home and principal shopping pages for a one-year term.
See "Management's Discussion and Analysis of Financial Condition
and Results of Operations."
. Under the terms of an agreement with Excite, Inc. N2K and Excite
share the gross margins realized by N2K on revenues generated from
transactions, advertising, sponsorship and promotions on Music
Boulevard as a result of customers referred from the excite.com
Web site. The Excite contract provides for N2K to pay Excite an
initiation fee and an annual exclusivity fee, as well as an annual
sponsorship fee for on-going programming, links, placements,
advertisements and promotions. The Excite contract has an initial
term which expires on April 1, 2000. Pursuant to this agreement,
Excite must offer N2K the right of first refusal to negotiate with
Excite for renewal of the Excite contract. See "Management's
Discussion and Analysis of Financial Condition and Results of
Operations."
. In July 1998, N2K signed a three-year agreement with Infoseek to
become the exclusive online music retailer on Infoseek and the
related Infoseek international sites. The agreement requires N2K
to make payments totaling $15.0 million, of which $500,000 has
been paid and $500,000, $1.5 million, $6.0 million and $6.5
million are to be paid during the fourth quarter 1998, and the
years ended 1999, 2000 and 2001, respectively. In exchange for the
payments, Infoseek is required to deliver a minimum of
approximately 3.6 billion impressions and 36.0 million click-
throughs to Music Boulevard. In addition, Infoseek can receive
additional compensation if pre-established new customer
acquisition targets are achieved.
. Under the Netscape license agreement, N2K has agreed to pay
Netscape a one-time license fee of $4.0 million, $3.0 million of
which was paid by December 31, 1997 and the remainder of which was
paid in April of 1998. The agreement was amended in July of 1998,
effectively eliminating the remaining $1.0 million payment
scheduled on December 18, 1998 and $1.0 million payment scheduled
in June 1999. The terms of the existing agreements were extended
to May 30, 2000. The revenue share arrangement was also adjusted
to become effective after N2K exceeded certain minimum revenue
levels from purchases by customers referred from the Netscape.com
Web site.
. N2K has an agreement with CBS Cable, owner and operator of TNN,
CMT, and the country.com Web site. Under the agreement, N2K must
share (a) net revenues with CBS Cable from the sale of both music
products and non-music product, such as apparel, video tapes and
other music related products and (b) any net fees or net
advertising revenues
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DESCRIPTION OF N2K
generated from advertising placed on any of the co-branded pages
on both Country Music Boulevard and country.com. The agreement
expires five years following the launch date of Country Music
Boulevard, a co-branded site developed by CBS Cable and N2K, and
can be terminated earlier by either party in the event that
certain revenue targets are not achieved.
. The agreement between N2K and AOL Bertelsmann gives Music
Boulevard a featured position on AOL Europe. The agreement has a
one-year term from the date of launch with a one-year option to
renew.
. The agreement with Disney Online calls for N2K to pay marketing
and sponsorship fees and to pay a royalty on merchandise purchases
consummated through links with Music Boulevard. The agreement has
a one-year term from the launch of the Disney Boutique with an
option for an additional one-year term on mutually acceptable
terms. The Disney Boutique is a co-branded Music Boulevard which
is linked to Disney online and features Disney-branded products.
. The agreement with Microsoft Corporation calls for N2K to pay a
monthly fee and a royalty on gross revenue generated by customers
linking to Music Boulevard from Microsoft Plaza. The agreement has
a one-year term from the launch of the link between Music
Boulevard and Microsoft Plaza. Continuous six-month extensions are
available unless either party terminates the agreement.
. N2K's agreement with Virgin Records requires N2K to pay to Virgin
Records a royalty on sales of all products sold by N2K to those
customers who were linked from the Virgin Records Web site prior
to making a purchase with N2K. The agreement with Virgin Records
had an initial term of one year, was extended for one year on
October 27, 1997 and has automatic renewal terms.
. N2K has an agreement with MTV Networks, on behalf of MTV
International Networks, to create localized MTV-Music Boulevard
sites for Europe, Brazil, Japan and Asia. The agreement involves
the payment of a royalty on sales of all products coming through
the local MTV-Music Boulevard sites. N2K has one year from the
date of the agreement (July 29, 1997) to launch each local Music
Boulevard site. The agreement has a one-year term from the launch
date of each site.
. N2K receives an administration fee based on a percent of gross
advertising revenues, and shares net advertising revenues with
WBGO. N2K is required to incur certain non-material development
and maintenance expenses for the related Web site during the
contract term. The agreement expires in September 1999, with
automatic one-year renewals.
SALES AND MARKETING
N2K's overall sales and marketing strategy is designed to effectively
merchandise music and related products sold through Music Boulevard by
building brand awareness, attracting repeat customers and driving traffic to
N2K's online store. N2K utilizes a combination of traditional advertising and
promotion, online promotion and product merchandising and on-line partnering
programs, including the Affiliate program, to accomplish these objectives. N2K
currently employs approximately 19 people in its sales and marketing
department.
N2K utilizes business alliances to increase brand awareness and drive traffic
to Music Boulevard. In addition, the N2K Affiliate program enables operators
of independent Web sites to offer their customers the ability to purchase CDs,
cassettes and music-related merchandise through a link to Music Boulevard,
earning a commission on items sold through their Web sites. N2K also employs a
combination of online and off-line advertising and promotion campaigns to
stimulate traffic to its online store. N2K purchases targeted keyword
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keyword advertising on search engines and directories who target customers with
demographic profiles similar to those of N2K's customers, including services
such as Hot Bot and selected destination Web sites such as E!Online and
Billboard.com. In addition, N2K attracts customers through negotiated cost-per-
lead and cost-per-click arrangements with such sites as AudioNet, Preview
Travel, Big Yellow and the DoubleClick Direct network. Generally, these
advertisements are in the form of interactive banners. Finally, N2K establishes
hyperlinks between N2K's Web sites and artist and fan club Web sites, posts
notices in music-related news groups and secures reviews and event notices in
appropriate directory Web sites.
N2K is building its brand awareness through television and print advertising.
N2K expects to spend between $5.0 million and $6.0 million in traditional
advertising during the 1998 calendar year. N2K has a proactive public relations
program and participates in trade shows and conferences and sends
representatives on speaking engagements.
N2K also promotes its Music Boulevard Web site through hyperlinks from record
label Web sites and through its relationship with SoundScan. N2K believes that
hyperlinks between Music Boulevard and record label Web sites are attractive to
record companies who do not sell to consumers directly on their own Web sites
because of conflicts with retailers. In its relationship with SoundScan, N2K
reports the weekly recorded music transactions taking place on its Music
Boulevard Web site. SoundScan uses this information along with data from the
vast majority of music retail locations nationwide to tally U.S. music sales.
This data is the exclusive criteria for compiling the Billboard charts and
qualifies the N2K network of Web sites as a potential advertising medium for
record labels.
On November 2, 1998, N2K launched MyMusicBoulevard, a personalized music
service forming the basis of N2K's relationship management strategy with its
customers and a core component of N2K's customer retention strategy.
MyMusicBoulevard allows customers to build their own electronic newsletter
filled with music information and entertainment culled from N2K's vast content
offering. In exchange, N2K receives detailed information regarding the music
tastes and preferences of customers N2K hopes that with this information it
will be better able to serve its present and future customers.
A key part of N2K's merchandising and customer acquisition and retention
strategies is its ability to link its music genre, artist and title-specific
content, such as record reviews, artist profiles and special promotions, to the
music ordering section of Music Boulevard.
Pricing. N2K adjusts pricing strategies and tactics as necessary to maintain
competitiveness. N2K's strategy is to aggressively price all recent releases
and popular titles. N2K seeks to encourage the purchase of multiple titles by
capping shipping costs and guaranteeing two-day delivery within the U.S. for
purchases of five titles or more.
In-Store Merchandising. N2K utilizes numerous merchandising features to
encourage and enhance a consumer's buying experience. N2K believes that the
customer's ability to listen to audio samples from a selection of over 350,000
songs is a significant incentive to purchase. Prior to making a purchase on
Music Boulevard, a consumer can also access a variety of information about an
artist, music group, album or music genre.
N2K regularly creates artist and sales programs on its music Web sites to
maximize visibility and sell-through. N2K contracts with Billboard to display
the top selling music charts on the Music Boulevard Web site. N2K believes
these charts provide consumers with an effective resource for locating samples
and sale pricing. Also, N2K has enabled its customers to purchase upcoming
popular album releases that do not yet appear in conventional retail stores.
These titles are delivered to Music Boulevard customers on their respective
titles' release dates. N2K promotes these types of sales events via ad banners
both on N2K Web sites and other Web sites.
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<PAGE>
DESCRIPTION OF N2K
Exclusive Product Distribution. Through its relationships with music artists
and their business representatives, N2K has arranged with several well-known
artists in the past to sell selected recordings exclusively through the Music
Boulevard distribution channel. N2K intends to continue to pursue similar
arrangements in the future. In addition to generating a higher profit margin,
these exclusive releases are not available through any other music retailers.
N2K hopes that these arrangements give Music Boulevard a significant
competitive advantage.
Push Marketing. N2K has created virtual listening posts, which consist of CD
covers prominently displayed and accompanied by audio samples in multiple
formats, competitive sale pricing and "Order Now" buttons on Music Boulevard
and in the individual music genre department storefronts. N2K believes that
record labels find the virtual listening posts attractive for promoting new CD
releases.
Customer Acquisition and Conversion. N2K collects customer information through
a variety of programs which require registration on both Music Boulevard and
the genre Web sites. These programs enable N2K to collect demographic data
which can be used to market directly to N2K's customers. These programs include
sweepstakes, contests, coupon giveaways, free shipping and other sales
promotions to generate new business.
Customer Retention. N2K has implemented a Frequent Buyers Club membership
program. This program allows members to receive a free CD after a certain
number of purchases. N2K believes that a major benefit of this program is the
ability to collect customer demographics and attempt to capture all or a
greater portion of a member's online music purchases. N2K uses an existing
technology, known as "cookies," to track basic customer actions and sessions on
the Music Boulevard Web site. The Music Boulevard cookie is able to restore a
customer's shopping basket and online session, even if the customer leaves the
Web site and returns later. N2K believes the use of this technology facilitates
and encourages customers to spontaneously visit N2K's Web sites.
One-to-One Marketing. N2K believes that one-to-one marketing enhances its
ability to know its customers' music and lifestyle preferences. Also, N2K
believes that these programs provide customers with a more personal and
enhanced experience. After collecting consumer data, N2K uses e-mail to send
customers compelling messages that are tailored to each customer's previous
purchasing and browsing behavior. These messages typically contain
announcements regarding discount coupons, new releases and special sales. N2K
is implementing software developed by Net Perceptions Inc. to personalize the
Music Boulevard Web site to each individual customer and provide CD
recommendations derived from past buying behavior and buying patterns among the
entire Music Boulevard community of customers.
Ordering, Filling Orders and Customer Service. N2K has designed its ordering
system to be easy-to-use and simple to understand. In order to maintain high
customer satisfaction and price competitiveness, N2K places an emphasis on
reliable product delivery. At any time during a visit to Music Boulevard, a
customer can click on the "Add CD to Cart" button to place an item in his or
her personal shopping basket. The customer can continue to shop the online
store, adding chosen items. When a customer is ready to submit an order, he or
she simply returns to the order page to choose a shipping method, such as U.S.
Mail, 2-Day Federal Express or Federal Express Overnight to customers from the
U.S. and air mail and DHL Express to non-U.S. customers, and the form of
payment. At this point, if the particular customer is not previously registered
with Music Boulevard, he or she is prompted to register, enter his or her name
and address and select a password. The customer then has the option of securely
submitting credit card information on-line or calling or faxing the information
to the Music Boulevard Customer Service Department. Music Boulevard also
provides the option of payment by check or money order. By assigning a password
to every buyer, the Music Boulevard ordering process facilitates repeat
purchases by eliminating the need to re-submit credit card and shipping
information for subsequent orders. N2K keeps customers informed regarding the
status of their orders by sending e-mail messages which, among other things,
notify the customer regarding the receipt and shipment of each order and
whether an item is back-ordered.
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<PAGE>
DESCRIPTION OF N2K
N2K primarily uses Valley Media, Inc. to ship CDs, cassettes, LPS, videos and
related music items. All inventory is owned and stored by Valley. Four times
daily, N2K batches customer orders and electronically transmits them to Valley.
N2K uses a secure network through which it transmits data to Valley, thereby
helping to ensure customer security and data integrity. Valley assembles, packs
and ships customer orders and charges N2K for merchandise, shipping and
handling. Customer billing is performed for N2K by a third-party credit card
processor, First USA, Inc. If any particular customer selection is not in
stock, Music Boulevard sends the affected customer an e-mail to notify him or
her that the item is backlogged. To date, N2K has experienced a return rate of
approximately 2% of all CDs and cassettes sold.
With regard to international markets, N2K has expanded the number of titles it
offers and has provided more localized product in those markets by creating
alliances with companies to fill international orders. N2K has entered into an
exclusive agreement with Shinseido Inc., a leading music retail chain in Japan,
to add approximately 150,000 new local-language music titles to the Japanese
version of Music Boulevard, which launched in October 1998. N2K has entered
into an agreement with MSI of Miami Corp., whereby MSI will provide over 60,000
international titles to Music Boulevard's catalog of offerings. N2K also offers
registration and ordering instructions on Music Boulevard in English, Japanese,
German, French and Spanish.
N2K believes that high levels of customer service and support are critical to
the value of its services and to retaining and expanding its customer base.
Accordingly, N2K has significantly increased its staffing levels in the
Customer Service Department and currently employs 45 representatives on a full-
time basis and 22 representatives on a part-time basis. Music Boulevard
Customer Service representatives are available 24 hours a day on weekdays, and
10:00 AM to 6:00 PM EST on weekends for customer service through a combination
of e-mail, fax and a toll-free telephone number. Customer service is assisted
by automated e-mail notifications which greatly assist in keeping customers up-
to-date on the status of their orders. Company representatives handle general
questions about the service as well as register customers' credit card
information over the phone. N2K believes that these representatives are a
valuable source of feedback regarding customer satisfaction. N2K intends to use
this information to improve its services. Customers of N2K are not charged for
service and support.
TECHNOLOGY
N2K has developed sophisticated information services delivery and customer
tracking systems. It has done this by joining third-party systems, when
available, and by developing its own proprietary tools. N2K's systems and tools
provide functionality in six primary areas:
. Web site development,
.audio encoding and online delivery,
.fault tolerance,
.security,
.scalability and
.advanced technologies.
The systems and tools provide scalability which allows N2K to maintain
performance as there are increases in the number of customers using the system
and the amount of data processed, and also to add new functionality as new
needs and technologies emerge.
Web site Development. N2K's catalog of CDs and cassettes is stored in an Oracle
database. This catalog forms the core of the music entertainment content
collection and contains links to related content such as audio samples, images,
editorial content and charts. Each individual page of N2K's Music Boulevard
online store is built dynamically from these elements and uses a proprietary
web page template technology. This template technology results in the
separation of a page's look and feel from the individual data elements. This
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<PAGE>
DESCRIPTION OF N2K
separation eliminates software updates for page layout changes and greatly
reduces the programming required to maintain a growing amount of content.
Templates also enable online stores with different formats to seamlessly
integrate Music Boulevard store elements such as search and discography pages.
N2K has developed proprietary software specifically to enable its editorial and
creative staff to design content that is tightly integrated into this
environment. As a result, N2K can efficiently import editorial content from
third-party sources like magazines. For high-volume, non-secure Web
transactions, N2K uses the Apache web server, a modular, high-performance
system.
Audio Encoding and Delivery. N2K uses a variety of audio compression
technologies for its audio samples and downloads. These technologies are
tailored to specific applications. In light of current customer patterns, N2K
uses the popular RealNetworks' RealAudio format for delivering real-time
streaming 30-second audio previews and feature-length web broadcasts. The
Liquid Audio streaming format, which employs high quality DOLBY Digital
compression, is used for real-time preview samples for those tracks which are
available for digital distribution. Thirty-second downloadable preview samples
are also available in the industry standard MPEG format.
Each of N2K's audio formats has certain minimum system requirements for
hardware and software. In order for a customer to listen to the audio samples
on Music Boulevard, a customer must have a multimedia-equipped personal
computer and must download software for each format. For example, the minimum
system PC requirements for a customer desiring to play an audio sample in the
MPEG audio format are an MPEG Audio Player and a 386/40mhz CPU on a Windows 3.1
operating system with eight megabytes of random access memory.
N2K is also actively pursuing new and emerging audio compression technologies
for the digital distribution of music. Full-length downloadable master
recordings, available via N2K's emod system, are available as DOLBY Digital
downloads suitable for transfer to standard audio CDs. Emod is N2K's audio
delivery system which makes it possible to deliver high quality audio online to
consumers.
Fault Tolerance. N2K has operated a 24-hour a day, seven-day a week computing
facility in the online information industry for over ten years. Drawing on this
experience, N2K's Web site and online store architecture use redundant servers
and a redundant array of independent drive storage systems so that downtime due
to system outages or maintenance is minimized. N2K is deploying an architecture
in which all components of the online systems are redundant, allowing
continuous operation even in the event of occasional component failures. N2K
runs its Oracle database on the Sun Enterprise 10000 server because of its
scalability and fault tolerant characteristics, including redundant components
which can be changed without causing system downtime.
Security. N2K employs commercially available firewalls to keep its internet
connections secure. N2K uses the Apache SSL Server for secure electronic
transactions over the internet. It uses proprietary electronic data interchange
interfaces and private networks to ensure the security of customer credit card
transactions and other order information shared with N2K's fulfillment partners
and third party billing company. N2K plans to implement standardized electronic
transaction mechanisms, such as Secure Electronic Transaction technology, the
standard being developed by major credit card companies, as they become
commercially available.
Scalability. The structure of N2K's hardware and software is built upon a
distributed transaction processing model that allows software to be distributed
among multiple parallel servers. This architecture allows N2K to scale by
either adding new servers or increasing the capacity of existing servers. The
current system is designed to scale from 6,000 concurrent customer sessions
currently to at least 20,000 concurrent customer sessions while maintaining
customer performance. In the rapidly changing internet environment, the ability
to update the application system to stay current with new technologies is
important. The system's template technology and modular database design allow
the addition or replacement of server-based applications such as multimedia
formats and delivery systems, additional electronic data interchange-based
fulfillment partners and search and retrieval engines. This architecture also
enables low-cost, rapid deployment of additional Web sites and online stores
that integrate with the shopping and genre sites.
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<PAGE>
DESCRIPTION OF N2K
Advanced Technologies. N2K continually evaluates emerging technologies, new
developments in web technologies and CD/DVD multimedia advances. N2K is
currently working with technologies such as Sun's Java language, Apple's Web
Objects tools and electronic payment and transaction systems for an
international multiple fulfillment distribution system and Real Time Streaming
Protocol for the orderly delivery of multimedia content over the internet.
N2K and BMI, Inc. are involved in on-going discussions in connection with BMI's
view that N2K needs a license in order to publicly perform any BMI-affiliated
music on N2K's web sites or otherwise. N2K has informed BMI that it is willing
to enter into a license agreement with respect to some uses of BMI-affiliated
music by N2K, including cybercasts and re-transmission of radio broadcasts over
the internet. N2K has also informed BMI of its view that under the U.S.
copyright laws it is not required to take a license from BMI or any other party
with respect to other uses of BMI-affiliated music. The parties continue to
discuss these issues.
COMPETITION
The market for internet content providers is highly competitive and rapidly
changing. Since the internet's commercialization in the early 1990's, the
number of internet Web sites which compete for consumers' attention and
spending has proliferated. With low barriers to entry, N2K expects that
competition will continue to intensify. Currently, there are more than 100
music retailing Web sites on the internet. In addition to intense competition
from internet content providers, N2K also faces competition from traditional
media such as radio, television and print with respect to competing for
consumers' attention. N2K Encoded Music competes with the major and other
independent record labels. With respect to recorded music sales, N2K competes
with numerous internet retailers, including traditional music retail chains,
record labels and independents with Web sites on the internet. In addition, N2K
competes with traditional retail stores, including chains and megastores, mass
merchandisers, consumer electronics stores and music clubs.
N2K believes that the primary competitive factors involved in providing music
entertainment products and services via the internet are name recognition,
variety of value-added services, ease of use, price, quality of service,
availability of customer support, reliability, technical expertise and
experience. N2K's success in this market will depend heavily upon its ability
to provide high quality, entertaining content, along with cutting-edge
technology and value-added internet services. Other factors that will affect
N2K's success include its continued ability to attract experienced marketing,
sales and management talent. In addition, the competition for advertising
revenues both on internet sites and in more traditional media is intense. N2K
believes that its high-quality music-related content, offered free of charge,
is an important differentiation from other music-related and music-
merchandising Web sites.
Many of N2K's current and potential competitors in the internet and music
entertainment businesses have longer operating histories, significantly greater
financial, technical and marketing resources, greater name recognition and
larger existing customer bases than N2K. These competitors may be able to
respond more quickly to new or emerging technologies and changes in customer
requirements and to devote greater resources to the development, promotion and
sale of their products or services than N2K.
EMPLOYEES
As of December 31, 1998, N2K had 244 full-time employees, including 192 in
operations and development, 19 in sales and marketing and 197 in general and
administrative. As of the same date, N2K also had 28 part-time employees,
primarily focused on customer service and 8 consultants, primarily focused on
N2K's music entertainment business. N2K's future success depends, in
significant part, upon the continued service of its key technical, editorial,
sales, product development and senior management personnel and on its ability
to attract and retain highly qualified employees. There is no assurance that
N2K will continue to attract and retain high-caliber employees. Competition for
such personnel is intense.
N2K's employees are not represented by any collective bargaining organization.
N2K has never experienced a work stoppage and considers relations with its
employees to be good.
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<PAGE>
DESCRIPTION OF N2K
TRADEMARKS AND PATENTS
Music Boulevard and its related logo are registered service marks of N2K. N2K
has also applied for trademark and/or service mark registrations for Music
Blvd.(TM), N2K Encoded(TM) and Rocktropolis(TM). In addition, N2K is using
allstar(TM), Classical Insites(TM), emod(TM), Jazz Central Station(TM) and its
related logo, N2K(TM), Need To Know(TM) and RAM(TM) as trademarks and/or
service marks.
FACILITIES
N2K Inc. is located in the New York Information Technology Center at 55 Broad
Street in New York, New York. N2K leases its facilities and other equipment
under operating and capital lease agreements. N2K leases approximately 55,400
square feet of office space at these facilities. The agreements for
approximately 44,000 square feet, 6,000 square feet, 2,000 square feet and
2,000 square feet expire on August 31, 2002, December 31, 2002, January 31,
2003 and July 31, 2003, respectively. An additional 1,400 square feet is leased
on a month-to-month basis. These facilities offer advanced technology amenities
including state-of-the-art voice, video and data transmission and advanced
telecom and data security. N2K leases an additional 25,000 square foot facility
in Wayne, Pennsylvania which houses N2K's main computer operations. The leases
for approximately 23,000 square feet and 2,000 square feet expire on August 31,
2001 and February 28, 2002, respectively. There can be no assurance that a
system failure at this location would not adversely affect the performance of
N2K's services. N2K leases approximately 2,000 square feet of office space in
Los Angeles, California. N2K believes that its existing facilities are adequate
for its current requirements and that additional space can be obtained to meet
its requirements for the foreseeable future.
LITIGATION
N2K and its directors are defendants in a consolidated purported class action
in the U.S. District Court for the Southern District of New York entitled In re
N2K Inc. Securities Litigation (Docket No. 98 CIV 3304 (HB)). The consolidated
action consolidates two purported class actions, entitled Bender v. Rosen et
al. (Docket No. 98 CIV 3304 (HB)) and Kuhn v. N2K Inc. et al. (Docket No. 98
CIV 4360 (HB)), that were filed in the United States Court for the Southern
District of New York in May 1998 and June 1998, respectively. The consolidated
action is a purported class action on behalf of common shareholders and seeks
to recover unspecified damages and other relief, as well as recovery of costs
and expenses, stemming from alleged violations of the Securities Act of 1933 in
connection with the public offering of the shares of N2K's common stock in
April 1998. The consolidated action alleges that, among other things, the
defendants failed to disclose N2K's first quarter financial results in the
registration statement for the April 1998 public offering. N2K believes that
the claims in the consolidated action are without merit and is vigorously
defending the action. The defendants moved to dismiss the complaint on August
21, 1998 for failure to state a claim and/or for failure to plead fraud with
the requisite particularity. The motion to dismiss has been fully briefed and
is awaiting decision.
In October 1998, an action entitled Rubin v. Rosen et al. (Docket No. 16743NC)
was filed against N2K, N2K's directors and CDnow in the Chancery Court of
Delaware for the County of New Castle. The Rubin action is a purported class
action on behalf of all common shareholders of N2K, alleging that the
consideration to be received by the purported class in connection with the
proposed merger between N2K and CDnow is unfair and grossly inadequate and that
the individual defendants breached their fiduciary duties in connection with
the merger. The Rubin action alleges that the consideration for N2K
shareholders is inadequate because (1) the value of N2K stock materially
exceeds the consideration to be received by N2K shareholders in the merger, (2)
the individual defendants did not value N2K through a bidding or market check
mechanism and (3) the merger agreement does not protect the N2K shareholders
from a decline in the price of CDnow stock. The plaintiffs seek injunctive
relief and unspecified damages, as well as costs and expenses. N2K believes
that the claims are without merit and intends to defend the action vigorously.
N2K and its directors moved to dismiss the complaint on December 30, 1998, for
failure to state a claim. No briefing schedule on the motion has been set.
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<PAGE>
DESCRIPTION OF N2K
In November 1998, an action entitled Ticketmaster Ticketing Co. v. N2K Inc.
(Docket No. BC200194) was filed against N2K in California Superior Court for
the County of Los Angeles. The Ticketmaster action alleges that N2K breached a
marketing and advertising contract dated April 23, 1998 between Ticketmaster
and N2K, which N2K terminated effective October 31, 1998 due to alleged
breaches of the agreement by Ticketmaster as well as other tortious conduct.
Ticketmaster seeks damages in an amount not less than $8 million, plus pre- and
post-judgment interest, as well as fees and costs. N2K has not yet answered the
complaint. N2K believes that it has substantial defenses to the claim asserted,
intends to defend the action
vigorously and intends to file a cross-complaint for affirmative relief.
In November 1998, an action entitled Metallica v. N2K Inc. et al. (Docket No.
98-9122 GHK(ANx)) was filed in the United States District Court for the Central
District of California against N2K, Metro Independent Records, Richard
Driscoll, Dutch East India Trading, and ten unnamed persons or entities. The
Metallica action alleges that N2K and the other defendants have infringed
copyrights and trademarks owned by Metallica and the other plaintiff, Creeping
Death Music, and have violated California state law by manufacturing,
distributing, advertising and selling a compact disc entitled "Metallica, Bay
Area Thrashers, The Early Years." Plaintiffs seek injunctive relief including,
but not limited to, an order requiring defendants to cease their alleged
copyright and trademark infringements, damages, including but not limited to
treble plaintiffs' damages and defendants' profits attributable to the alleged
infringements, other damages and injunctive relief, as well as fees and costs.
N2K has not yet answered or responded to the complaint. N2K believes that the
claims against it are without merit and expects such claims will be resolved
through negotiation with plaintiffs and without material adverse effect to N2K.
N2K and 17 other entities have been named as defendants in a civil action
captioned Interactive Gift Express v. Compuserve, Inc., et al., which is
pending in the U.S. District Court, Southern District of New York, Docket 95 CV
6871 (BSJ). N2K has also been named as defendant in a civil action captioned
Parsec Sight/Sound, Inc. v. N2K Inc., which is pending in the U.S. District
Court of Pennsylvania, Western District, Docket 98 CV 0118. The plaintiffs in
each of these actions allege infringement of certain intellectual property
rights, and each seeks treble damages and costs in an unspecified amount, as
well as other declaratory and injunctive relief. In the Interactive Gift
action, the court has issued a preliminary ruling favorable to defendants.
Plaintiffs have stated that they will consent to entry of judgment against them
in order to speed their appeal of the court's ruling. In the Parsec action, N2K
has answered the complaint and discovery is ongoing. N2K believes that the
claims against it in each action are without merit and intends to vigorously
defend against each of them. Moreover, N2K believes that these lawsuits, even
if adversely determined, will not have a material adverse effect on N2K's
business, financial condition or results of operations.
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<PAGE>
SELECTED HISTORICAL FINANCIAL INFORMATION OF N2K
SELECTED HISTORICAL FINANCIAL INFORMATION OF N2K
N2K provides the following financial information to aid you in your analysis of
the financial aspects of the merger. The statement of operations data for the
years ended December 31, 1995, 1996 and 1997 and the balance sheet data as of
December 31, 1996 and 1997 have been derived from the Consolidated Financial
Statements, which have been audited by Arthur Andersen LLP, independent public
accountants, and are included elsewhere in this joint proxy
statement/prospectus. The statement of operations data for the years ended
December 31, 1993 and 1994 and the selected balance sheet data as of December
31, 1993, 1994 and 1995 have been derived from consolidated financial
statements audited by Arthur Andersen LLP, independent public accountants, not
included in this joint proxy statement/prospectus. The statement of operations
data for the nine months ended September 30, 1997 and 1998 and the balance
sheet data as of September 30, 1998 have been derived from unaudited
consolidated financial statements of N2K that, in the opinion of the N2K,
include all adjustments (consisting only of normal recurring adjustments)
necessary for a fair presentation of the results of operations for the period
in accordance with generally accepted accounting principles. The results of
operations for the nine months ended September 30, 1998 are not necessarily
indicative of the results that may be expected for any interim period or for
the full year. In December 1998, N2K management approved a plan for the
disposal of its Encoded Music Division. Accordingly, the operating results and
assets and liabilities of these businesses have been accounted for as
discontinued operations and are reflected separately from continuing
operations. N2K incurred an extraordinary charge to its statement of operations
equal to the unamortized portion of the discount associated with the fair value
of the warrants that were issued in connection with the management and senior
notes. The extraordinary charge was incurred when the outstanding balance on
the management and senior notes was satisfied prior to maturity upon
consummation of N2K's initial public offering in October 1997. This information
is only a summary and you should read it in conjunction with "N2K Management's
Discussion and Analysis of Financial Condition and Results of Operations" and
N2K's historical financial statements and related notes thereto contained
elsewhere in this joint proxy statement/prospectus and other documents N2K has
filed with the SEC. See "Where You Can Find More Information."
<TABLE>
<CAPTION>
NINE MONTHS ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
------------------------------------------------------------ ------------------------
1993 1994 1995 1996 1997 1997 1998
--------- ----------- ---------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS
DATA:
Net revenues............ $ -- $ -- $ 96,505 $ 1,655,704 $ 8,108,449 $ 4,115,458 $24,890,121
Cost of revenues........ -- -- 85,176 1,447,888 6,212,741 3,284,672 19,888,878
--------- ----------- ---------- ----------- ----------- ----------- -----------
Gross profit........... -- -- 11,329 207,816 1,895,708 830,786 5,001,243
Operating expenses:
Operating and
development........... -- 257,826 1,034,617 7,007,929 10,585,441 7,082,806 16,092,108
Sales and marketing.... -- 173,41j5 1,077,649 2,772,167 6,690,884 2,612,009 29,818,641
General and
administrative........ 541,241 896,195 871,667 2,477,995 4,647,810 3,125,505 3,357,404
Charge for purchased
research and
development........... -- -- -- 5,242,523 -- -- --
--------- ----------- ---------- ----------- ----------- ----------- -----------
Operating loss......... (541,241) (1,327,436) (2,972,604) (17,292,798) (20,028,427) (11,989,534) (44,266,910)
Interest and other
income................. 43,761 73,359 106,370 352,531 693,881 166,312 2,446,254
Interest expense........ (82,890) (48,398) (18,237) (52,281) (653,455) (484,486) (55,071)
--------- ----------- ---------- ----------- ----------- ----------- -----------
Loss from continuing
operations............. (580,370) (1,302,475) (2,884,471) (16,992,548) (19,988,001) (12,307,708) (41,875,727)
Income (loss) from
discontinued
operations............. 1,085,256 1,444,885 1,289,671 (1,915,361) (9,683,466) (4,806,679) (12,307,531)
Gain on disposal of
discontinued
operations............. -- -- -- -- 1,574,493 1,574,493 --
--------- ----------- ---------- ----------- ----------- ----------- -----------
Income (loss) before
extraordinary item..... 504,886 142,410 (1,594,800) (18,907,909) (28,096,974) (15,539,894) (54,183,258)
</TABLE>
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<PAGE>
SELECTED HISTORICAL FINANCIAL INFORMATION OF N2K
<TABLE>
<CAPTION>
NINE MONTHS ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
------------------------------------------------------------- --------------------------
1993 1994 1995 1996 1997 1997 1998
--------- --------- ----------- ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C> <C> <C>
Extraordinary item...... -- -- -- -- (639,262) -- --
--------- --------- ----------- ------------ ------------ ------------ ------------
Net income (loss)....... $ 504,886 $ 142,410 $(1,594,800) $(18,907,909) $(28,736,236) $(15,539,894) $(54,183,258)
========= ========= =========== ============ ============ ============ ============
Basic and diluted income
(loss) per common
share:
Continuing operations.. $ (0.37) $ (0.83) $ (1.84) $ (6.15) $ (4.09) $ (4.11) $ (3.12)
Discontinued
operations............ 0.69 0.92 0.82 (0.70) (1.98) (1.61) (0.91)
Gain on disposal of
discontinued
operations............ -- -- -- -- 0.32 0.53 --
Extraordinary item..... -- -- -- -- (0.13) -- --
--------- --------- ----------- ------------ ------------ ------------ ------------
Basic and diluted net
income (loss) per
common share........... $ 0.32 $ 0.09 $ (1.02) $ (6.85) $ (5.88) $ (5.19) $ (4.03)
========= ========= =========== ============ ============ ============ ============
Shares used in computing
basic and diluted net
income (loss) per
common share........... 1,566,917 1,566,936 1,566,955 2,760,948 4,885,556 2,994,770 13,434,772
========= ========= =========== ============ ============ ============ ============
</TABLE>
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
------------------------------------------------------- SEPTEMBER 30,
1993 1994 1995 1996 1997 1998
---------- ---------- ---------- ---------- ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
Cash and cash
equivalents............ $ 858,272 $1,469,764 $ 547,624 $4,483,450 $36,831,748 $54,277,085
Working capital......... 543,947 1,756,815 3,960 1,910,864 50,859,351 57,722,701
Total assets............ 1,645,275 2,685,317 1,973,332 9,329,922 64,021,556 80,802,343
Stockholders' equity.... 542,130 2,243,704 648,984 4,908,379 53,147,935 61,125,543
</TABLE>
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N2K MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
OVERVIEW
N2K is an online music entertainment company using the internet as a global
platform for promoting, marketing and selling music and related merchandise.
N2K's strategy is to build loyal customer communities around genre-specific Web
sites that provide music content and enable consumers to purchase CDs,
cassettes, LPs, videos and related music items. N2K had its own record label,
N2K Encoded Music, that used N2K's online store, as well as record stores and
other traditional distribution channels, to promote, distribute and sell
original and licensed artist recordings. In December 1998, N2K decided to focus
exclusively on its online music store and, accordingly, approved a formal plan
of disposal for its record label. See "--Recent Events" and "--Discontinued
Operations."
N2K was founded as Telebase, Inc. in 1984 as a provider of online information
services. In 1994, recognizing increasing opportunities in the consumer
entertainment market, Telebase expanded its online business strategy to include
music entertainment and began expending significant resources to enter this
market. Telebase launched its Music Boulevard online store and began selling
recorded music and related merchandise in 1995. In February 1996, Telebase
merged with N2K Inc., a New York corporation, founded in 1995 as a developer of
online music entertainment content, and the merged entity changed its name to
N2K Inc. In April 1997, N2K decided to focus exclusively on its music
entertainment business and, accordingly, the board of directors approved a
formal plan of disposal for its online information services business. In August
1997, N2K sold substantially all of the net assets of this business. See "--
Discontinued Operations." In October 1997, N2K, which had previously been
incorporated in Pennsylvania, was reincorporated as a Delaware corporation and
consummated an initial public offering. On April 20, 1998, N2K closed on the
sale of 2,000,000 shares of common stock in a follow-on public offering.
N2K launched its first internet site, Music Boulevard, in August 1995, and
introduced its first music genre site, Jazz Central Station, in January 1996.
N2K revenues have grown significantly while N2K incurred net losses for 1995,
1996, 1997 and the nine months ended September 30, 1998 as it built its
business. N2K is currently generating revenues from the sale of CDs and
cassettes produced by others, the sale of advertising on its Web sites and
online stores and the sale of related merchandise. N2K believes that increased
sales of advertising on its Web sites and online stores will contribute to
higher margins in the future. The margins from the sale of CDs and cassettes
produced by others are affected by product costs, shipping and handling fees
and promotional discounts, such as discounted selling prices and reduced or
free shipping and handling. N2K believes that frequent promotional discounts
will be necessary to build repeat customer traffic to its Web sites and online
stores, which will reduce its gross margins. N2K believes that its future
financial performance will be determined by its success in improving margins on
the sale of CDs and cassettes produced by others, expanding and improving
customer service operations, introducing new products and services and selling
advertising and sponsorship programs on its Web sites and online stores.
Management has increased the resources within N2K to support these functions.
N2K's strategy to develop products and services for the music entertainment
business was primarily responsible for the decline in net income and increase
in net loss for the years ended December 31, 1994, 1995, 1996 and 1997. N2K has
only a limited operating history in its continuing operations upon which an
evaluation of N2K and its prospects can be based. Accordingly, N2K believes
that the results of its operations for the past five years, during which time
N2K had minimal revenues, are not meaningful indications of future performance.
N2K incurred losses from continuing operations of $2.9 million for the year
ended December 31, 1995 and $17.0 million for the year ended December 31, 1996,
of which $5.2 million represented aggregate one-time charges in connection with
the write-off of purchased research and development. N2K incurred losses from
continuing operations of $20.0 million and $41.9 million for the year ended
December 31, 1997 and the nine months ended September 30, 1998, respectively.
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N2K currently intends to increase its operating expenses as a result of N2K's
strategic alliances, to fund increased sales and marketing, to enhance existing
Web sites and online stores and to complete business relationships important to
the success of N2K. To the extent that such expenses precede or are not
subsequently followed by increased revenues, N2K's business, results of
operations and financial condition will be materially adversely affected. There
can be no assurance that N2K will be able to generate sufficient revenues from
the sale of music recordings, related merchandise, advertising and sponsorship
programs to achieve or maintain profitability on a quarterly or annual basis in
the future. N2K expects negative cash flow from operations to continue for the
foreseeable future as it continues to develop and market its business.
Pursuant to the Telebase merger in February 1996, the shareholders of the old
N2K received an aggregate of 1,684,819 shares of common stock valued at $4.2
million. The Telebase merger was accounted for as a purchase transaction with a
total purchase price, including transaction costs, of approximately $4.4
million. In connection with the Telebase merger, $4.1 million was charged to
expense as of the date of the transaction as it represented purchased research
and development. N2K allocated the remainder of the purchase price ($280,000)
to acquired technology costs, which is being amortized over five years on a
straight-line basis. The results of the acquired business and the shares issued
in connection with the transaction have been included in N2K's financial
statements since February 13, 1996.
On June 21, 1996, N2K acquired the rock Web site, rocktropolis.com, from
Rocktropolis Enterprises, LLC, for $633,000 in cash and 44,790 shares of common
stock. The acquisition was accounted for as a purchase. N2K incurred a one-time
charge of $1.1 million for purchased research and development associated with
this transaction. N2K also recorded an intangible asset (the Rocktropolis
tradename) of $100,000 that is being amortized over five years on a straight-
line basis.
RECENT EVENTS
Encoded Music
N2K had its own record label, N2K Encoded Music, which used N2K's Web sites, as
well as record stores and other traditional distribution channels, to promote,
distribute and sell original and licensed artist recordings. In December 1998,
N2K approved a formal plan of disposal for N2K Encoded Music. N2K Encoded Music
has been accounted for as a discontinued operation with a measurement date of
December 22, 1998. See "-- Discontinued Operations."
CDnow Merger
On October 23, 1998, N2K and CDnow issued a joint press release with N2K
announcing the execution of a definitive merger agreement. CDnow is an online
retailer of CDs and other music related products. The merger will be effected
through the formation of a new publicly traded company, initially to be called
CDnow/N2K, Inc. The agreement provides for each existing N2K shareholder to
receive 0.83 shares of common stock in the new company for each N2K share owned
by such party, and each existing CDnow shareholder to receive 1.00 share of
common stock in the new company for each CDnow share owned by such party. The
merger agreement and press release are filed as exhibits to N2K's Current
Report on Form 8-K dated October 22, 1998 and filed October 29, 1998.
RESULTS OF OPERATIONS
N2K expects to experience significant fluctuations in future quarterly
operating results that may be caused by a variety of factors, including,
without limitation:
. N2K's ability to retain existing customers, attract new customers
at a steady rate and maintain customer satisfaction;
. the announcement or introduction of new or enhanced Web sites and
online stores; products and business alliances by N2K and its
competitors;
. the mix of products sold by N2K;
. seasonality of the recorded music industry;
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. seasonality of advertising sales;
. N2K promotions and sales programs, price competition or higher
recorded music prices in the industry;
. the level of use of the internet and increasing consumer
acceptance of the internet for the purchase of consumer products
such as those offered by N2K;
. N2K's ability to upgrade and develop its systems and
infrastructure in a timely and effective manner;
. the level of traffic on N2K's online store;
. technical difficulties, system downtime or internet brownouts;
. the amount and timing of operating costs and capital expenditures
relating to expansion of N2K's business, operations and
infrastructure and the implementation of marketing programs, key
agreements and business alliances;
. the level of merchandise returns experienced by N2K; and
. general economic conditions and economic conditions specific to
the internet, online commerce and the recorded music industry.
While N2K has a limited operating history in the music entertainment business,
it anticipates that revenues will eventually track traditional music purchase
and advertising sales patterns. As a result, N2K believes that period-to-period
comparisons of its results of operations are not and will not necessarily be
meaningful and should not be relied upon as an indication of future
performance.
NINE MONTHS ENDED SEPTEMBER 30, 1998 COMPARED WITH NINE MONTHS ENDED
SEPTEMBER 30, 1997.
N2K incurred losses from continuing operations of $41.9 million and $20.0
million and net losses of $54.2 million and $15.5 million for the nine months
ended September 30, 1998 and 1997, respectively.
Net Revenues. Net revenues for the nine months ended September 30, 1998 totaled
$24.9 million compared to $4.1 million for the nine months ended September 30,
1997. Net revenues for the nine months ended September 30, 1998 and 1997
consisted primarily of sales of CDs and cassettes produced by others. Net
revenues from the sale of merchandise sold via the internet include shipping
and handling charges. Net sales derived from advertising sold on N2K's online
store totaled $2.8 million for the nine months ended September 30, 1998
compared to $421,000 for the nine months ended September 30, 1997.
Cost of Revenues. Cost of revenues totaled $19.9 million for the nine months
ended September 30, 1998 compared to $3.3 million for the nine months ended
September 30, 1997. Cost of revenues consists of payments to third parties for
the cost and distribution of CDs and cassettes and fulfillment of customer
orders (including the costs incurred to ship merchandise sold via the internet
to its customers). N2K's gross profit as a percentage of revenues remained
relatively constant. N2K expects revenues from the sale of advertising and
other music related merchandise, which generate higher gross profit, to
increase in future periods.
Operating and Development Expenses. Operating and development expenses
increased from $7.1 million for the nine months ended September 30, 1997 to
$16.1 million for the nine months ended September 30, 1998, primarily due to
increased staffing and related overhead expenses as N2K expanded its
operations. Specifically, N2K had dedicated resources to the expansion of
customer service operations. Operating and development personnel totaled 202
full-time employees as of September 30, 1998 compared to 100 full-time
employees as of September 30, 1997. Operating and development expenses consist
primarily of software engineering, multimedia production, graphic design,
customer service, telecommunications charges and computer operations. This
infrastructure is sufficient to support higher revenues and, accordingly, N2K
expects that, as revenues increase, operating and development expenses will
decrease as a percentage of revenues.
Sales and Marketing Expenses. Sales and marketing expenses increased from $2.6
million for the nine months ended September 30, 1997 to $29.8 million for the
nine months ended September 30, 1998. The
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increase in sales and marketing expenses was primarily attributable to the
amortization of the costs associated with N2K's new business alliances and the
expansion of N2K's online advertising and off-line media campaign. Sales and
marketing expenses consist primarily of the amortization of the costs
associated with N2K's various business alliances, external advertising, credit
card processing charges, profit participations payable to business alliance
partners, promotions, trade shows, advertising sales and personnel expenses.
N2K expects that levels of sales and marketing expenditures will increase in
future periods due to the execution of new advertising and promotional programs
designed to acquire new customers and retain existing customers, but total
sales and marketing expenses will decline as a percentage of revenues.
General and Administrative Expenses. General and administrative expenses
increased from $3.1 million for the nine months ended September 30, 1997 to
$3.4 million for the nine months ended September 30, 1998. General and
administrative expenses consist of executive management, accounting and human
resources personnel and expenditures for applicable overhead costs. N2K expects
general and administrative expenses to continue to increase in absolute dollars
as N2K incurs additional costs related to the growth of its business.
Interest and Other Income and Interest Expense. Interest and other income and
interest expense primarily consists of interest income on short-term liquid
investments of N2K's excess cash and interest expense incurred as a result of
the financing of equipment through capital leases and the use of N2K's former
revolving credit line. Interest and other income increased from $166,000 for
the nine months ended September 30, 1997 to $2.4 million for the nine months
ended September 30, 1998 primarily due to N2K investing the proceeds of the
initial public offering which occurred in the fourth quarter of 1997 and the
proceeds of its secondary public offering which occurred in the second quarter
of 1998. Interest expense decreased from $484,000 for the nine months ended
September 30, 1997 to $55,000 for the nine months ended September 30, 1998
primarily attributable to interest in 1997 relating to certain Management and
Senior Notes which did not exist in 1998.
FISCAL 1997 COMPARED WITH FISCAL 1996.
Net Revenues. Net revenues for 1997 totaled $8.1 million compared to $1.7
million for 1996. Net revenues for 1997 and 1996 consisted primarily of sales
of CDs and cassettes produced by others. Net revenues from the sale of
merchandise via the internet include shipping and handling charges.
Cost of Revenues. Cost of revenues totaled $6.2 million for 1997 compared to
$1.4 million for 1996. Cost of revenues consists of payments to third parties
for the cost and distribution of CDs and cassettes and fulfillment of customer
orders (including the costs incurred to ship merchandise sold via the internet
to its customers). N2K's gross profit as a percentage of revenues increased due
to the sale of advertising, which typically generates a higher gross margin.
Operating and Development Expenses. Operating and development expenses
increased from $7.0 million for 1996 to $10.6 million for 1997 due to increased
staffing as N2K expanded its operations. Operating and development personnel
totaled 122 full-time employees as of December 31, 1997 compared to 97 full-
time employees as of December 31, 1996. Operating and development expenses
consist primarily of software engineering, multimedia production, graphic
design, customer service, telecommunications charges and computer operations.
Sales and Marketing Expenses. Sales and marketing expenses increased from $2.8
million for 1996 to $6.7 million for 1997. The increase in sales and marketing
expenses was primarily attributable to the amortization of the costs associated
with N2K's various business alliances, the expansion of N2K's online and print
advertising, public relations and other promotional expenditures, as well as
increased personnel and related expenses required to implement N2K's marketing
strategy. Sales and marketing personnel totaled 15 full-time employees as of
December 31, 1997 compared to 24 full-time employees as of December 31, 1996.
Sales and marketing expenses consist primarily of the amortization of the costs
associated with N2K's various business alliances, external advertising, credit
card processing charges, profit participations payable to strategic alliance
partners, promotions, trade shows, advertising sales and personnel expenses.
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General and Administrative Expenses. General and administrative expenses
increased from $2.5 million for 1996 to $4.6 million for 1997, primarily due to
increased staffing and overhead expenses. General and administrative personnel
totaled 27 full-time employees as of December 31, 1997 compared to 18 full-time
employees as of December 31, 1996. General and administrative expenses consist
of executive management, accounting and human resources personnel, and
expenditures for applicable overhead costs.
Interest and Other Income and Interest Expense. Interest and other income and
interest expense consists of interest income on short-term liquid investments
of N2K's excess cash and interest expense incurred as a result of the financing
of equipment through capital leases, the use of N2K's former revolving credit
line and interest incurred on the management and senior notes. Interest income
for 1997 and 1996 related to N2K investing the proceeds of equity financings
received in 1997 and 1996.
Extraordinary Item. N2K incurred an extraordinary charge to its statement of
operations equal to the unamortized portion of the discount associated with the
fair value of the warrants that were issued in connection with the management
and senior notes. The extraordinary charge was incurred when the outstanding
balance on the management and senior notes was satisfied prior to maturity upon
consummation of N2K's IPO.
FISCAL 1996 COMPARED WITH FISCAL 1995.
Net Revenues. Net revenues for 1996 totaled $1.7 million compared to $97,000
for 1995. Net revenues in 1996 and 1995 consisted primarily of sales of CDs and
cassettes produced by others and a limited amount of advertising revenues. N2K
did not have any revenues from continuing operations prior to August 1995 when
N2K launched Music Boulevard.
Cost of Revenues. Cost of revenues totaled $1.4 million for 1996 compared to
$85,000 for 1995. Cost of revenues consists of payments to a third-party
fulfillment operation for the shipment to N2K's customers of music CDs and
cassettes produced by others.
Operating and Development Expenses. Operating and development expenses
increased from $1.0 million for 1995 to $7.0 million for 1996 due to increased
staffing resulting from the Telebase merger in February 1996 and an increased
development effort for N2K's music Web sites and its online stores. Operating
and development personnel increased from 26 as of December 31, 1995 to 97 as of
December 31, 1996.
Sales and Marketing Expenses. Sales and marketing expenses increased from $1.1
million for 1995 to $2.8 million for 1996 due to increased staffing and
supporting higher levels of sales. Sales and marketing personnel increased from
two as of December 31, 1995 to 24 as of December 31, 1996. Advertising and
promotional costs increased from $389,000 for the year ended December 31, 1995
to $1.8 million for the year ended December 31, 1996.
General and Administrative Expenses. General and administrative expenses
increased from $872,000 for 1995 to $2.5 million for 1996 due to the addition
of personnel as a result of the Telebase merger in February 1996. General and
administrative personnel increased from 11 as of December 31, 1995 to 18 as of
December 31, 1996.
Interest and Other Income and Expense. Interest income increased from $106,000
for 1995 to $353,000 for 1996 due to N2K investing the proceeds of equity
financings received in 1996. Interest expense increased from $18,000 for 1995
to $52,000 for 1996 due to the addition of capital leases from the merger and
the use of N2K's former revolving credit line in 1996 to fund working capital.
LIQUIDITY AND CAPITAL RESOURCES
N2K has financed its operations and capital expenditures primarily from equity
financings, lease financings, a revolving bank credit line and short-term loans
described herein. At September 30, 1998, N2K
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had a cash balance of $54.3 million. N2K believes that its current cash balance
will be sufficient to finance N2K's planned operations and capital expenditures
through September 1999. N2K expects negative cash flow from operations to
continue for the foreseeable future, as it continues to develop and market its
operations. Inflation has not had any material impact on N2K's operations.
Net cash of $874,000, $10.7 million, $40.7 million and $37.8 million was used
for operating activities for the years ended December 31, 1995, 1996 and 1997
and the nine months ended September 30, 1998, respectively, primarily as a
result of the net losses generated during those periods. During 1997, N2K made
payments of $18.3 million to AOL, Excite and Netscape under the AOL, Excite and
Netscape contracts which are reflected in the increase in prepaid expenses. N2K
financed these activities through the private placement of three series of
preferred stock, which yielded net proceeds of $19.0 million in 1996 and $7.2
million in 1997. In July and August 1997, N2K received $7.8 million from the
issuance of the management and senior notes. In August 1997, N2K also sold
substantially all of the net assets of its discontinued operations and received
$3.0 million, which was paid in cash at closing. In October 1997, N2K received
net proceeds of $65.3 million from the IPO. N2K also borrowed $400,000 under
its revolving line of credit in 1995 to fund operating activities, which was
repaid in 1996 with the proceeds of the sale of preferred stock. N2K borrowed
$850,000 under its revolving credit line in the first half of 1997 to fund
operating activities, the outstanding balance of which was repaid with the
proceeds of the IPO.
Purchases of property and equipment totaled $339,000, $2.9 million, $4.3
million and $6.3 million for the years ended December 31, 1995, 1996 and 1997
and the nine months ended September 30, 1998, respectively. N2K projects that
total purchases of property and equipment will be approximately $8.4 million in
1998, which includes $1.5 million for the creation of a redundant system and
$6.9 million to support the expansion of facilities and operating systems for
its Web sites and online stores and obtain computer-related equipment to
support increased personnel. N2K also invested cash of $672,000 to acquire the
rock Web site, Rocktropolis, in June 1996.
In July 1997, N2K issued $1.75 million aggregate principal amount of promissory
notes to Lawrence L. Rosen, Jonathan V. Diamond and Robert David Grusin, each
of whom loaned N2K $583,333. These notes bore interest at 14% per annum and
were due on the earlier of (a) a change of control of N2K, as defined, and (b)
March 31, 1998. These notes, including interest, converted into an aggregate of
95,354 shares of common stock upon the consummation of the IPO in October 1997.
In consideration for these loans, N2K issued an aggregate of 48,609 warrants to
purchase 48,609 shares of common stock, representing 16,203 warrants to each of
Messrs. Rosen, Diamond and Grusin. The warrants are exercisable at a price of
$12.00 per share and expire in July 2004. The notes were recorded net of the
value ($150,000) associated with these warrants. This discount was being
amortized over the term of the debt through March 31, 1998. When the notes were
converted into common stock in October 1997, N2K recorded an extraordinary
charge to its statement of operations which was equal to the unamortized
portion of the discount or approximately $102,000.
In August 1997, N2K issued $6,021,600 aggregate principal amount of Senior
Notes to a group of five institutional investors affiliated with an insurance
company and one existing shareholder of N2K in return for loans in that amount
to N2K. The senior notes bore interest at 14% per annum and were due on the
earlier of (a) consummation of N2K's initial public offering, (b) a change of
control of N2K and (c) March 31, 1998. In consideration for these loans, N2K
issued an aggregate of 167,266 warrants to purchase 167,266 shares of common
stock. The warrants are exercisable at a price of $12.00 per share and expire
in August 2004. The senior notes were recorded net of the value ($800,000)
associated with these warrants. This discount was being amortized over the term
of the debt through March 31, 1998. In connection with the early repayment of
the senior notes upon the consummation of the IPO, N2K recorded an
extraordinary charge to its statement of operations equal to the unamortized
portion of the discount or approximately $537,000. In addition, N2K issued
warrants to purchase 83,389 shares of common stock at an exercise price of
$12.00 per share as a placement fee relating to this transaction.
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N2K has entered into a number of business alliance agreements, including
agreements with America Online Inc., Excite Inc., Netscape Communications
Corporation, Ticketmaster Ticketing Company, Inc., AOL Bertelsmann Online,
Disney Online, Microsoft Corporation and Infoseek Corporation. N2K's minimum
commitments as of September 30, 1998 under all of its business alliance
agreements include cash payments of approximately $8.9 million, $14.4 million,
$10.0 million and $6.5 million for 1998, 1999, 2000, and 2001, respectively.
Payments totaling $7.9 million were made under N2K's business alliances during
the nine months ended September 30, 1998. Subsequent to September 30, 1998,
$4.5 million was paid under N2K's business alliances. Note that payments due to
Ticketmaster Ticketing Company, Inc. are included in the above amounts. See
"Description of N2K--Litigation" section of this joint proxy
statement/prospectus. In addition, in connection with certain of its business
alliances, N2K is required to pay royalties. These royalties are based upon a
percentage of net revenues and do not begin until certain levels of net
revenues have been derived form the alliance.
N2K had a commitment for a $2.0 million revolving line of credit with
CoreStates Bank, N.A., which expired on June 30, 1998. N2K currently does not
have a credit facility.
From-time to-time, in the ordinary course of business, N2K evaluates possible
acquisitions of, or investments in, businesses, products and technologies that
are complementary to those of N2K. A portion of N2K's cash resources may
therefore be used to fund acquisitions or investments.
DISCONTINUED OPERATIONS
Online Information Services
Beginning in 1984, N2K operated an online information services business. In
1994, N2K expanded its business strategy to include music entertainment. In
April 1997, N2K decided to focus exclusively on its music entertainment
business, and, as such, elected to discontinue its online information services
business. At that time, the board of directors approved a formal plan of
disposal for its online information services business. In August 1997, N2K sold
substantially all of the net assets of this business.
The online information services business has been accounted for as a
discontinued operation. Accordingly, the operating results and assets and
liabilities of this business have been reflected separately from continuing
operations. The sale of the online information services business in August 1997
resulted in a gain of approximately $1.6 million, which was recorded in the
period ended September 30, 1997. See Note 3 of Notes to Consolidated Financial
Statements.
For the years ended December 31, 1995, 1996 and 1997, the discontinued
operations generated revenues of $11.0 million, $7.9 million, and $2.4 million,
respectively. The discontinued operations generated net income of $1.3 million
in 1995, and net losses of $969,000 in 1996 and $416,000 in 1997.
N2K Encoded Music
N2K had its own record label, N2K Encoded Music, which used N2K's Web sites, as
well as record stores and other traditional channels, to promote, distribute
and sell original and licensed artist recordings. In August 1998, management
announced a restructuring of its record label, N2K Encoded Music. The
restructuring was done in an effort to streamline the cost structure of Encoded
Music as well as create efficiencies that will leverage N2K's strengths in the
internet music space. Historically, N2K focused on two genres of music:
Rock/Pop and Jazz. Through this restructuring, N2K will no longer produce or
license artist recordings in the Rock/Pop genre. N2K immediately ceased all of
its operations in the Rock/Pop genre. Accordingly, N2K recorded a restructuring
charge of $4.3 million. This charge is included in loss form discontinued
operations in the accompanying financial information. This charge represented
(i) certain costs relating to severance due to a reduction in Encoded Music's
workforce ($2.0 million); (ii) costs associated with the termination of certain
of its contractual commitments ($1.4 million); and (iii) non-cash costs
associated with the write-down of certain assets and other miscellaneous costs
($860,000). The reduction in Encoded Music's workforce represented 21
individuals, or all of its employees who worked in the Rock/Pop genre and
included individuals in promotions, sales and marketing and management. The
contractual commitments terminated primarily relate to contracts
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which N2K had with various artists/projects. Pursuant to these contracts, N2K
was obligated to provide the funding and support of each of these artists'
projects. As a result of N2K exiting the Rock/Pop genre, N2K no longer
supported these projects. Accordingly, the costs incurred represented the costs
that N2K was required to pay, or is expected to pay to settle its obligation
under its original artist recording agreements for each of these projects.
These arrangements should be settled and paid by June 1999. N2K's management
believes that this provision is adequate based upon the decisions currently
made by management. However, the amount N2K ultimately incurs could be
different from these estimates. At September 30, 1998, $3.8 million of
restructuring charges remained in accrued liabilities. The balance was
comprised of $1.9 million for severance costs, $1.1 million to terminate
certain of its existing contracts, and $844,000 for other miscellaneous costs.
Cash expenditure related to this restructuring, for the three months ended
September 30, 1998 were $499,000. Other than the amounts paid, there were not
any changes to this liability since the initial charge. Cash expenditures
related to this restructuring for the fourth quarter of 1998 and the years
ended December 31, 1999 and 2000 are expected to be approximately $445,000,
$2.1 million and $644,000, respectively. Actual costs incurred are charged
against the accrued Encoded Music restructuring account when paid.
In December 1998, N2K approved a formal plan of disposal for N2K Encoded Music.
N2K Encoded Music has been accounted for as a discontinued operation with a
measurement date of December 22, 1998. N2K has negotiated the material terms of
an agreement to sell the majority of Encoded Music to an unrelated third party.
N2K expects that the disposal of N2K Encoded Music will result in a loss on the
disposal of the segment's net assets. Accordingly, as of December 22, 1998, N2K
has accrued the expected loss on the disposal, as well as the expected losses
of the segment from the measurement date to the anticipated disposal date. As
these accruals were recorded on December 22, 1998, the accompanying financial
information does not reflect such amounts. These accruals will be recorded in
the quarter ended December 31, 1998. However, the accompanying financial
information reflects the operating results and balance sheet items of the
discontinued operations separately from continuing operations. See Note 3 of
"N2K's Notes to Consolidated Financial Statements."
For the years ended December 31, 1996, 1997 and the nine months ended September
30, 1998, N2K Encoded Music generated revenues of $0, $3.2 million and $2.8
million, respectively. N2K Encoded Music incurred net losses of $947,000 in
1996, $9.3 million in 1997 and $12.3 million for the nine months ended
September 30, 1998.
RECENT ACCOUNTING PRONOUNCEMENTS
In June 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 131, "Disclosures about Segments of an
Enterprise and Related Information." This standard establishes standards for
the way that public business enterprises report information about operating
segments in annual financial statements and requires that those enterprises
report selected information about operating segments in interim financial
reports issued to shareholders. It also establishes standards for related
disclosures about products and services, geographic areas and major customers.
SFAS No. 131 is required to be adopted for N2K's 1998 year-end financial
statements.
In June 1998, the Financial Accounting Standards Board issued SFAS No. 133,
"Accounting for Derivative Instruments and Hedging Activities." SFAS No. 133
establishes accounting and reporting standards for derivative instruments,
including certain derivative instruments embedded in other contracts and for
hedging activities. SFAS No. 133 is effective for all fiscal quarters of fiscal
years beginning after June 15, 1999. N2K believes that SFAS No. 133 will not
have any impact on its financial statements and results of operations.
RISKS ASSOCIATED WITH THE YEAR 2000
The Year 2000 issue is the result of computer programs being written using two
digits rather than four to define the applicable year. In other words, date-
sensitive software may recognize a date using "00" as the year 1900 rather than
the year 2000. This could result in system failures or miscalculations causing
disruptions of operations, including, among others, a temporary inability to
process transactions, send invoices or engage in
-132-
<PAGE>
N2K MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
similar normal business activities. N2K has appointed a Year 2000 Program
Coordinator to perform an audit to assess the scope of N2K's risks and bring
its applications into compliance. The coordinator is undertaking an assessment
of N2K's compliance and has begun to develop a plan for ensuring compliance for
N2K's corporate business and information systems. To date, N2K has experienced
very few problems related to Year 2000 testing and those problems requiring
immediate modification have been fixed in N2K's day to day operating
environment. N2K does not believe that it has material exposure to the Year
2000 issue with respect to its own information systems since its existing
systems correctly define the Year 2000.
The Program Coordinator has begun to conduct an analysis to determine the
extent to which major suppliers' systems insofar as they relate to N2K's
business are subject to the Year 2000 issue. N2K's primary provider of order
fulfillment for direct-to-consumer music products, Valley Media, Inc., has
indicated that it has begun its remediation efforts and expects to be in
compliance before the Year 2000. N2K is currently unable to predict the extent
to which the Year 2000 issue will affect its suppliers, or the extent to which
it would be vulnerable to its suppliers' failure to remediate any Year 2000
issues on a timely basis. The failure of a major supplier subject to the Year
2000 issue to convert its systems on a timely basis or a conversion that is
incompatible with N2K's systems could have a material adverse effect on N2K. In
addition, most of the purchases from Music Boulevard are made with credit
cards, and N2K's operations may be materially adversely affected to the extent
its customers are unable to use their credit cards due to Year 2000 issues that
are not rectified by their credit card providers.
The costs incurred by N2K during the nine months ended September 30, 1998 to
address Year 2000 compliance were approximately $50,000. N2K estimates that it
will incur up to approximately $75,000 for the three months ended December 31,
1998 and approximately $435,000 during fiscal 1999 to support its compliance
initiatives. Currently, N2K has not adopted a contingency plan to address
possible risks to its system. However, N2K expects to have one adopted by the
second quarter of 1999.
-133-
<PAGE>
1999 EQUITY COMPENSATION PLAN
ADOPTION OF THE CDNOW/N2K, INC 1999 EQUITY COMPENSATION PLAN
PROPOSAL
The CDnow and N2K board of directors propose and recommend that you approve and
adopt the CDnow/N2K, Inc 1999 Equity Compensation Plan.
PURPOSES AND EFFECTS
The CDnow board, the N2K board and the CDnow/N2K board approved the equity
plan. The equity plan gives certain employees, consultants, and advisors of
CDnow/N2K and its subsidiaries and non-employee members of CDnow/N2K's board,
the opportunity to receive grants of incentive stock options, also referred to
as ISOs, nonqualified stock options, also referred to as NQSOs, and or
restricted stock. The equity plan encourages participants to contribute to
CDnow/N2K's growth. This benefits CDnow/N2K shareholders because it aligns the
participant's economic interests with CDnow/N2K shareholder interests.
If the equity plan is approved by the CDnow shareholders and N2K shareholders,
it will become effective on the effective date of the merger.
The equity plan criteria are described below:
. A grant can include ISOs, NQSOs or restricted stock;
. No more than 10% of the outstanding shares of CDnow/N2K common
stock at the time of grant may be issued;
. The maximum number of shares of CDnow/N2K common stock which may
be issued or transferred under the equity plan is 2,500,000;
. The maximum limit may increase or decrease if: a stock dividend,
spinoff, recapitalization, split, combination, exchange,
reclassification, merger or other corporate change occurs;
. Shares previously granted as CDnow stock options and N2K stock
options will be assumed by CDnow/N2K and will not be added to the
maximum limit;
. The maximum number of shares that may be covered by grants to an
individual during a calender year is 800,000 shares;
. Shares subject to grants which have options that are later
terminated, expired, canceled, forfeited, exchanged or surrendered
without being exercised or shares of restricted stock that are
forfeited, will again be available for purposes of the equity
plan.
Administration. A committee, appointed by the CDnow/N2K board, will administer
and interpret the equity plan. Non-employee directors and outside directors may
be on the committee. Rule 16b-3 under the Securities Exchange Act of 1934, and
section 162(m) of the tax code, define non-employee director and outside
director, respectively.
The committee determines:
. Persons (employees, consultants, non-employee directors) who may
receive grants under the equity plan;
. Number of shares of CDnow/N2K common stock subject to each grant;
. Time the grants will be made;
. Duration of any applicable exercise or restriction period, this
includes the criteria for vesting and the acceleration of vesting;
and
. Any other matters that arise under the equity plan.
The committee's determinations are binding. However, the CDnow/N2K board may
ratify or approve any grants.
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<PAGE>
1999 EQUITY COMPENSATION PLAN
Eligibility. All employees of CDnow/N2K and its subsidiaries, CDnow/N2K board
members, officers, non-employee directors and consultants may participate in
the equity plan pursuant to its terms:
. Employees are eligible to receive ISOs, NQSOs and restricted
stock.
. Consultants are eligible to receive NQSOs and restricted stock.
. Non-employee directors are eligible receive NQSOs and restricted
stock.
No options or other awards have been granted under the equity plan.
Options. At the time of each grant under the equity plan, the committee
determines the option price per share of CDnow/N2K common stock. The option
price per share for any ISO may not be less than the fair market value of the
CDnow/N2K common stock at the time of the grant. The exercise price may be
greater than, less than or equal to the fair market value of the CDnow/N2K
common stock on the date of grant. However, the exercise price must be at least
110% of the fair market value on the date of the grant, for a person granted an
ISO owning more than 10% of CDnow/N2K's common stock. The committee determines
the term of each stock option, not to exceed ten years. The term may not exceed
five years, for an ISO granted to a person owning more than 10% of CDnow/N2K
common stock. The committee determines when options are exercisable and may
accelerate the exercisability of any or all outstanding options at any time for
any reason.
Payment for the exercise of an option may be made in cash or, with committee
approval, by tendering shares of CDnow/N2K common stock owned by the grantee.
Other methods are permitted if approved by the committee, including payment
through a broker. Options may be exercised while the grantee is an employee,
consultant or CDnow/N2K director or within a specified time after termination
of employment or service.
Restricted Stock. Shares may be issued for cash consideration or for no cash
consideration. The committee may condition or restrict grants of restricted
stock. Unless the committee determines otherwise, an employee, non-employee
director or consultant who ceases employment or providing services, forfeits
any restricted stock as to which restrictions or conditions have not lapsed.
Tax Code Restriction. Under section 162(m) of the tax code, CDnow/N2K may be
unable to claim a federal income tax deduction for total renumeration in excess
of $1,000,000 paid to the chief executive officer or to any of the other four
officers most highly compensated in any year. Total remuneration includes
amounts received upon the exercise of stock options granted under the equity
plan and the value of shares received when shares of restricted stock became
transferable or such other time when income is recognized. However, an
exception is available for qualified performance-based compensation if certain
requirements are met. Stock options granted under the equity plan will meet the
qualified performance-based compensation requirements. Restricted stock grants,
generally, will not meet the requirements of qualified performance-based
compensation.
Transferability. Generally, grants are not transferable by the participant,
except in the event of death. The committee may permit a transfer of NQSOs or
restricted stock, pursuant to a domestic relations order. The committee may
also grant NQSOs that allow transfers of the NQSOs to family members or trusts
or partnerships for family members, provided the grantee does not receive
consideration and the option continues to be subject to the same terms and
conditions after the transfer.
Amendment and Termination. The CDnow/N2K board may amend or terminate the
equity plan at any time. However, the CDnow/N2K board must obtain shareholder
approval, when required under sections 422 and 162(m) of the tax code to exempt
compensation under the equity plan from the deduction limit. The equity plan
will terminate immediately prior to the tenth anniversary of its effective
date, unless terminated earlier by the CDnow/N2K board or extended by the
CDnow/N2K board with shareholder approval. When the equity plan is terminated,
the committee's power and authority over the outstanding grants does not
change.
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<PAGE>
1999 EQUITY COMPENSATION PLAN
Change of Control of CDnow/N2K. The following rule may be changed by the
committee. If CDnow/N2K is a party before a change of control occurs, but is
not a party after the change of control occurs, non-exercised stock options
will be treated differently. Non-exercised stock options will be assumed by or
substituted by whatever corporation exists in place of CDnow/N2K. The
committee, in addition to having the power to change the above rule, may also:
. Allow the option holders to exercise the stock options
immediately, removing all restrictions and conditions on the
options.
. Require the options be surrendered for cash or CDnow/N2K common
stock, in which case, the price will be the stock price of
CDnow/N2K common stock minus the exercise price of the option.
. Terminate any unexercised options if the option holder does not
want to surrender the options.
. Do nothing, in which case, the terms of the options remain
unchanged.
A change of control means one of the following:
. Any person, other than CDnow/N2K or certain related entities,
acquires 30% of CDnow/N2K voting common stock or more of the
voting power of the outstanding CDnow/N2K securities; this does
not include a situation where CDnow/N2K becomes a subsidiary of
another corporation entitling CDnow/N2K shareholders to receive
shares representing more than 50% of all votes which the other
corporation's shareholders hold with the right to elect directors;
. CDnow/N2K board of directors or shareholders approve:
a) A merger or consolidation of CDnow/N2K with another
corporation (this only applies if CDnow/N2K shareholders,
prior and subsequent to the merger, do not own more than 50%
of votes to which the shareholders of the surviving
corporation would be able to elect directors);
b) A sale of substantially all of CDnow/N2K's assets;
c) A liquidation or dissolution of CDnow/N2K;
d) A person attempts to purchase 30% or more of outstanding
CDnow/N2K voting stock; or
e) After a predetermined date, the CDnow/N2K board of directors
does not consist of individuals who were elected, or
nominated for election, by the directors in the office at
the time of such election or nomination.
The committee has the power to alter CDnow/N2K common stock, and the CDnow/N2K
common stock that may be issued under the equity plan, with respect to number,
kind, or option price. This power is subject to outstanding options and
restricted stock grants.
Federal Income Tax Treatment. The current federal income tax treatment of
grants under the equity plan is generally described below. Local and state tax
authorities may also tax incentive compensation awarded under the equity plan,
and tax laws are subject to change. Participants are urged to consult with the
personal tax advisors concerning the application of the general principles
discussed below to their own situations and the application of state and local
tax laws.
There are no federal income tax consequences to a participant or to CDnow/N2K
upon the grant of an NQSO under the equity plan. Upon the exercise of an NQSO,
a participant will recognize ordinary compensation income in an amount equal to
the excess of the fair market value of the shares at the time of exercise over
the exercise price of the NQSO, and CDnow/N2K generally will be entitled to a
corresponding federal income tax deduction. Upon the sale of shares acquired by
the exercise of an NQSO, a participant will have a capital gain or loss in an
amount equal to the difference between the amount realized upon the sale and
the participant's adjusted tax basis in the shares. The adjusted tax basis is
the exercise price plus the amount of ordinary income recognized by the
participant at the time of exercise of the NQSO. The capital gain tax rate will
depend on the length of time the shares are held and other factors.
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<PAGE>
1999 EQUITY COMPENSATION PLAN
A participant who is granted an ISO will not recognize taxable income for
purposes of the regular federal income tax, upon either the grant or exercise
of the ISO. However, for purposes of the alternative minimum tax imposed under
the tax code, in the year in which an ISO is exercised, the amount by which the
fair market value of the shares acquired upon exercise exceeds the exercise
price will be treated as an item of adjustment and included in the computation
of the recipient's alternative minimum taxable income. A participant who
disposes of the shares acquired upon exercise of an ISO after two years from
the date the ISO was granted and after one year from the date such shares were
transferred upon exercise of the ISO will recognize capital gain or loss in the
amount of the difference between the amount realized on the sale and the
exercise price or the participant's other tax basis in the shares, and
CDnow/N2K will not be entitled to any tax deduction by reason of the grant or
exercise of the ISO.
Generally, if a participant disposes of the shares acquired upon exercise of an
ISO before satisfying both holding period requirements, his gain recognized on
such a disposition will be taxed as ordinary income to the extent of the
difference between the fair market value of such shares on the date of exercise
and the exercise price, and CDnow/N2K will be entitled to a deduction in that
amount. The gain, if any, in excess of the amount recognized as ordinary income
on such a disqualifying disposition will be capital gain.
A participant normally will not recognize taxable income upon receiving
restricted stock, and CDnow/N2K will not be entitled to a deduction, until such
stock is transferable by the participant or no longer subject to a substantial
risk of forfeiture for federal tax purposes, whichever occurs earlier. When the
stock is either transferable or no longer subject to a substantial risk of
forfeiture, the participant will recognize ordinary compensation income in an
amount equal to the fair market value of the shares at that time less any
amount paid for such shares, and CDnow/N2K generally will be entitled to a
deduction in the same amount. A participant may, however, elect to recognize
ordinary compensation income in the year the restricted stock is awarded in an
amount equal to the fair market value of the shares subject to the restricted
stock grant at that time, less any amount paid for such shares, determined
without regard to the restrictions. In such event, CDnow/N2K generally will be
entitled to a corresponding deduction in the same year. Any gain or loss
recognized by the participant upon subsequent disposition of the shares will be
capital gain or loss.
CDnow/N2K's income tax deduction in any of the foregoing cases may be limited
by the $1,000,000 limit of tax code section 162(m) if the grant does not
qualify as "qualified performance-based compensation" under tax code section
162(m). See "Section 162(m)" above.
Grants Under the Equity Plan. Because grants will be made from time to time by
the committee in its discretion, the grants that may be received in the future
by persons eligible to participate in the equity plan are not presently
determinable.
VOTE REQUIRED FOR APPROVAL
Adoption and approval of the equity plan requires the affirmative vote of the
majority of the votes cast by CDnow shareholders and the affirmative vote of
the majority of the shares entitled to vote and present in person or
represented by proxy at the N2K special meeting.
THE CDNOW AND N2K BOARDS OF DIRECTORS RECOMMEND
A VOTE FOR APPROVAL AND ADOPTION OF THE EQUITY PLAN PROPOSAL
-137-
<PAGE>
LEGAL MATTERS
LEGAL MATTERS
The validity of the CDnow/N2K common stock to be issued in connection with the
merger will be passed upon by Morgan, Lewis & Bockius LLP, Philadelphia,
Pennsylvania.
-138-
<PAGE>
EXPERTS
EXPERTS
The financial statements of CDnow as of December 31, 1996 and 1997 and for each
of the three years in the period ended December 31, 1997, included in this
joint proxy statement/prospectus have been audited by Arthur Andersen LLP,
independent public accountants, as indicated in their report with respect
thereto, and are included herein in reliance upon the authority of said firm as
experts in giving said reports.
The financial statements of N2K as of December 31, 1996 and 1997, and for each
of the three years in the period ended December 31, 1997, included in this
joint proxy statement/prospectus have been audited by Arthur Andersen LLP,
independent public accountants, as indicated in their report with respect
thereto, and are included herein in reliance upon the authority of said firm as
experts in giving said reports.
The financial statements of N2K Inc., a New York corporation, as of December
31, 1995 included in this joint proxy statement/prospectus have been audited by
Richard A. Eisner & Company, LLP, independent auditors, as set forth in their
report thereon appearing elsewhere in this joint proxy statement/prospectus and
have been included in reliance upon such report given upon the authority of
such firm as experts in auditing and accounting.
-139-
<PAGE>
FUTURE SHAREHOLDER PROPOSALS
FUTURE SHAREHOLDER PROPOSALS
Any CDnow/N2K shareholder who intends to submit a proposal for inclusion in the
proxy materials for the 2000 annual meeting of CDnow/N2K must submit such
proposal to the Secretary of CDnow/N2K by November 19, 1999. SEC rules set
forth standards as to what shareholder proposals are required to be included.
In addition, the CDnow/N2K bylaws provide that any shareholder wishing to make
a nomination for director, or wishing to introduce a proposal or other
business, at the 2000 annual meeting of CDnow/N2K must give at least 60 days
advance notice, subject to exceptions, and that notice must meet other
requirements set forth in the CDnow/N2K bylaws.
If the merger is not completed by the first quarter of 1999, CDnow expects to
hold an annual meeting of shareholders in the second quarter of 1999. SEC rules
set forth standards as to what stockholder proposals are required to be
included in a proxy statement. The CDnow bylaws provide that any CDnow
shareholder wishing to make a nomination for director, or wishing to introduce
a proposal on other business, at the 1999 annual meeting of CDnow must notify
the Secretary of CDnow sixty days prior to the meeting, of the shareholder's
intentions and provide certain other information in advance of such meeting, in
accordance with the procedures detailed in the CDnow bylaws.
In the event the merger is not consummated, the 1999 annual meeting of
shareholders of N2K is expected to be held on or about April 30, 1999 and the
only shareholder proposals eligible to be considered for inclusion in the proxy
materials for the 1999 annual meeting of N2K will be those which were duly
submitted to the Secretary of N2K, by December 17, 1998, as provided in the
1998 Annual Meeting Proxy Statements of N2K.
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<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
WHERE YOU CAN FIND MORE INFORMATION
CDnow and N2K file annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any reports, statements
or other information we file at the SEC's public reference rooms in Washington,
D.C., New York, New York and Chicago, Illinois. Please call the SEC at 1-
800-SEC-0330 for further information on the public reference rooms. Our SEC
filings are also available to the public from commercial document retrieval
services and at the Web site maintained by the SEC at "http://www.sec.gov."
CDnow/N2K filed a Registration Statement on Form S-4 to register with the SEC
the CDnow/N2K common stock to be issued to CDnow and N2K shareholders in the
merger and this joint proxy statement/prospectus constitutes a prospectus of
CDnow/N2K in addition to being a joint proxy statement of CDnow and N2K. As
allowed by SEC rules, this joint proxy statement/prospectus does not contain
all the information you can find in the registration statement or the exhibits
to the registration statement.
If you are a shareholder, we may have sent you some of the documents referenced
above, but you can obtain any of them through us or the SEC. You may obtain
documents incorporated by reference without charge by writing or calling the
appropriate party at the following addresses:
CDnow, Inc. N2K Inc.
Investor Relations Investor Relations
1005 Virginia Drive 55 Broad Street
Fort Washington, PA 19034 New York, NY 10004
Tel: 215/619-9900 Tel: 212/378-5555
If you would like to request documents from us, please do so by February 22,
1999 to receive them before the special meetings.
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS JOINT PROXY
STATEMENT/PROSPECTUS TO VOTE ON THE MERGER. WE HAVE NOT AUTHORIZED ANYONE TO
PROVIDE YOU WITH INFORMATION THAT IS DIFFERENT FROM WHAT IS CONTAINED IN THIS
JOINT PROXY STATEMENT/PROSPECTUS. THIS JOINT PROXY STATEMENT/PROSPECTUS IS
DATED FEBRUARY 16, 1999. YOU SHOULD NOT ASSUME THAT THE INFORMATION CONTAINED
IN THE JOINT PROXY STATEMENT/PROSPECTUS IS ACCURATE AS OF ANY DATE OTHER THAN
SUCH DATE, AND NEITHER THE MAILING OF THE JOINT PROXY STATEMENT/PROSPECTUS TO
SHAREHOLDERS NOR THE ISSUANCE OF CDNOW/N2K COMMON STOCK IN THE MERGER SHALL
CREATE ANY IMPLICATION TO THE CONTRARY.
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<PAGE>
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
<TABLE>
<S> <C>
UNAUDITED PRO FORMA FINANCIAL INFORMATION
- -----------------------------------------
Basis of Presentation.................................................... F-2
Unaudited Pro Forma Statement of Operations--Year Ended December 31,
1997.................................................................... F-3
Unaudited Pro Forma Statement of Operations--Nine Months Ended September
30, 1998................................................................ F-4
Unaudited Pro Forma Balance Sheet--September 30, 1998.................... F-5
Notes to Unaudited Pro Forma Financial Information....................... F-6
CDNOW, INC. AND SUBSIDIARIES
- ----------------------------
Report of Independent Public Accountants................................. F-9
Consolidated Balance Sheets.............................................. F-10
Consolidated Statements of Operations.................................... F-11
Consolidated Statements of Redeemable Convertible Preferred Stock and
Shareholders' Equity (Deficit).......................................... F-12
Consolidated Statements of Cash Flows.................................... F-13
Notes to Consolidated Financial Statements............................... F-14
N2K INC. AND SUBSIDIARIES
- -------------------------
Report of Independent Public Accountants................................. F-29
Consolidated Balance Sheets.............................................. F-30
Consolidated Statements of Operations.................................... F-31
Consolidated Statements Stockholders' Equity............................. F-32
Consolidated Statements of Cash Flows.................................... F-33
Notes to Consolidated Financial Statements............................... F-35
OLD N2K
- -------
Independent Auditors' Report............................................. F-57
Balance Sheet............................................................ F-58
Statement of Operations.................................................. F-59
Statement of Stockholders' Equity........................................ F-60
Statement of Cash Flows.................................................. F-61
Notes to Financial Statements............................................ F-62
</TABLE>
F-1 Financial Statements
<PAGE>
UNAUDITED PRO FORMA COMBINED FINANCIAL INFORMATION
Basis of Presentation
On October 22, 1998, CDnow and N2K entered into the Merger Agreement whereby
the stockholders of CDnow and N2K will exchange their respective Common Stock
for an 60% and 40% interest in CDnow/N2K, respectively. The Merger will be
accounted for as a purchase by CDnow pursuant to Accounting Principles Board
Opinion No. 16 "Business Combinations" ("APB 16").
The following unaudited pro forma combined consolidated financial information
combines the historical consolidated statements of operations of CDnow with the
historical consolidated statements of operations of N2K (CDnow and N2K are
collectively referred to as the "Combined Company") after giving effect to the
Merger, as if the Merger had occurred on January 1, 1997, and the historical
balance sheet of CDnow with the historical balance sheet of N2K as if the
merger had occurred on September 30, 1998.
We present the pro forma amounts below for informational purposes only. These
pro forma amounts are not necessarily indicative of the results of operations
of the combined company that would have actually occurred had the Merger been
consummated as of January 1, 1997 or of the financial condition of the combined
company had the Merger been consummated as of September 30, 1998 or of the
future results of operations or financial condition of the combined company.
The unaudited pro forma statements of operations and the unaudited pro forma
combined balance sheet do not reflect:
. the operating results of N2K and CDnow from October 1, 1998 through the
consummation date of the merger or
. any synergies we expect to realize as a result of the Merger, in
particular the elimination of costs associated with duplicative
operating and administrative activities. We cannot assure that such
synergies will be realized.
In addition, it is expected that the operating results of N2K from October 1,
1998 through the consummation date of the Merger will materially increase the
excess of purchase price over the fair value of net assets acquired and,
therefore, will increase the amount of pro forma amortization in each of the
periods presented.
Financial Statements F-2
<PAGE>
UNAUDITED PRO FORMA STATEMENT OF OPERATIONS
YEAR ENDED DECEMBER 31, 1997
<TABLE>
<CAPTION>
CDnow N2K Pro Forma Pro Forma
Historical Historical Adjustments Combined
------------- ------------- ----------- -------------
<S> <C> <C> <C> <C>
NET SALES............... $ 17,372,795 $ 8,108,449 $ 25,481,244
COST OF SALES........... 13,847,773 6,212,741 20,060,514
------------- ------------- -------------
Gross Profit.......... 3,525,022 1,895,708 5,420,730
------------- ------------- -------------
OPERATING EXPENSES:
Operating and
development.......... 2,541,434 10,585,441 13,126,875
Sales and marketing... 9,607,603 6,690,884 16,298,487
General and
administrative....... 1,953,078 4,647,810 9,693,849 (5c) 16,294,737
------------- ------------- -------------
14,102,115 21,924,135 45,720,099
------------- ------------- -------------
Operating loss...... (10,577,093) (20,028,427) (40,299,369)
INTEREST AND OTHER
INCOME................. 201,650 693,881 895,531
INTEREST EXPENSE........ (371,962) (653,455) (1,025,417)
------------- ------------- -------------
LOSS FROM CONTINUING
OPERATIONS............. $ (10,747,405) $ (19,988,001) $ (40,429,255)
============= ============= =============
Loss from continuing
operations per common
share (Note 4)......... $ (1.42) $ (4.09) $ (3.43)
============= ============= =============
Weighted average number
of common shares
outstanding (Note 4)... 7,845,684 4,885,556 (830,545)(3) 11,900,695
============= ============= =============
</TABLE>
See accompanying Notes to Unaudited Pro Forma Financial Statements.
F-3 Financial Statements
<PAGE>
UNAUDITED PRO FORMA STATEMENT OF OPERATIONS
NINE MONTHS ENDED SEPTEMBER 30, 1998
<TABLE>
<CAPTION>
CDnow N2K Pro Forma Pro Forma
Historical Historical Adjustments Combined
------------- ------------- ----------- -------------
<S> <C> <C> <C> <C>
NET SALES............... $ 35,503,805 $ 24,890,121 $ 60,393,926
COST OF SALES........... 28,549,562 19,888,878 48,438,440
------------- ------------- -------------
Gross Profit.......... 6,954,243 5,001,243 11,955,486
------------- ------------- -------------
OPERATING EXPENSES:
Operating and
development.......... 5,155,718 16,092,108 21,247,826
Sales and marketing... 31,293,668 29,818,641 61,112,309
General and
administrative....... 2,781,334 3,357,404 7,020,386 (5c) 13,159,124
------------- ------------- -------------
39,230,720 49,268,153 95,519,259
------------- ------------- -------------
Operating loss...... (32,276,477) (44,266,910) (83,563,773)
INTEREST AND OTHER
INCOME................. 2,015,234 2,446,254 4,461,488
INTEREST EXPENSE........ (563,074) (55,071) (618,145)
------------- ------------- -------------
LOSS FROM CONTINUING
OPERATIONS............. $ (30,824,317) $ (41,875,727) $ (79,720,430)
============= ============= =============
Loss from continuing
operations per common
share (Note 4)......... $ (2.10) $ (3.12) $ (3.08)
============= ============= =============
Weighted average number
of common shares
outstanding (Note 4)... 14,764,870 13,434,772 (2,283,911)(3) 25,915,731
============= ============= =============
</TABLE>
See accompanying Notes to Unaudited Pro Forma Financial Statements.
Financial Statements F-4
<PAGE>
UNAUDITED PRO FORMA BALANCE SHEET
SEPTEMBER 30, 1998
<TABLE>
<CAPTION>
CDnow N2K Pro Forma Pro Forma
Historical Historical Adjustments Combined
------------ ------------- ------------ ------------
<S> <C> <C> <C> <C>
ASSETS
Current assets:
Cash and cash
equivalents.......... $ 59,563,026 $ 54,277,085 $113,840,111
Accounts receivable,
net of reserve....... 811,175 1,694,649 2,505,824
Receivable for Common
Stock subject to put
rights............... -- 2,999,995 2,999,995
Prepaid expenses and
other................ 9,170,725 9,651,836 18,822,561
------------ ------------- ------------
Total current
assets............. 69,544,926 68,623,565 138,168,491
------------ ------------- ------------
PROPERTY AND EQUIPMENT,
NET.................... 4,129,299 10,741,354 (1,200,000)(5b) 13,670,653
INTANGIBLES, NET........ 920,735 187,148 61,938,485 (5a) 63,046,368
OTHER ASSETS............ 2,976,426 1,250,276 4,226,702
------------ ------------- ------------
$ 77,571,386 $ 80,802,343 $219,112,214
============ ============= ============
LIABILITIES AND
SHAREHOLDERS' EQUITY
Current liabilities:
Current portion of
long-term debt....... 635,160 303,415 938,575
Accounts payable...... 9,324,304 1,577,119 10,901,423
Accrued expenses...... 2,661,178 6,304,265 10,000,000 (5a,5c) 18,965,443
Accrued compensation
and benefits......... 160,000 1,246,808 1,406,808
Accrued merchandise
costs................ -- 1,469,257 1,469,257
Deferred revenues..... 100,295 -- 100,295
------------ ------------- ------------
Total current
liabilities........ 12,880,937 10,900,864 33,781,801
------------ ------------- ------------
NET LIABILITIES OF
DISCONTINUED
OPERATIONS............. -- 5,139,973 5,139,973
------------ ------------- ------------
LONG-TERM DEBT.......... 1,130,484 311,460 1,441,944
------------ ------------- ------------
DEFERRED RENT AND OTHER
LONG TERM LIABILITIES.. 160,990 324,508 485,498
------------ ------------- ------------
COMMON STOCK SUBJECT TO
PUT RIGHTS............. -- 2,999,995 2,999,995
------------ ------------- ------------
SHAREHOLDERS' EQUITY:
Common stock.......... 101,482,736 14,229 98,893,404 (5c) 200,390,369
Additional paid-in
capital.............. 4,325,817 171,356,553 (158,400,158)(5c) 17,282,212
Deferred
compensation......... (246,679) -- (246,679)
Accumulated deficit... (42,162,899) (110,245,239) 110,245,239 (5c) (42,162,899)
------------ ------------- ------------
Total shareholders'
equity............. 63,398,975 61,125,543 175,263,003
------------ ------------- ------------
$ 77,571,386 $ 80,802,343 $219,112,214
============ ============= ============
</TABLE>
See accompanying Notes to Unaudited Pro Forma Financial Statements.
F-5 Financial Statements
<PAGE>
NOTES TO UNAUDITED PRO FORMA FINANCIAL INFORMATION
1. SIGNIFICANT ACCOUNTING POLICIES
There are currently no material differences in the Companies significant
accounting policies, therefore, no consideration has been given to conforming
the Companies significant accounting policies in this pro forma presentation.
The Companies do not expect to have material changes to current accounting
policies in connection with the transaction. For further information on the
Companies significant accounting policies, see notes to the consolidated
financial statements of the Companies, included elsewhere in this proxy
statement.
2. RECLASSIFICATIONS
Certain reclassifications have been made to the unaudited historical balance
sheets of CDnow and N2K to conform to the presentation expected to be used by
the Combined Company. These reclassifications relate to the presentation of
current liabilities and long term assets.
3. EXCHANGE RATIO
Under the Merger Agreement, each outstanding share of CDnow Common Stock will
be converted into one share of CDnow/N2K Common Stock and each share of N2K
Common Stock will be converted into 0.83 shares of CDnow/N2K Common Stock. This
exchange ratio was used in computing share and per share amounts in the
accompanying unaudited pro forma financial statements.
4. LOSS FROM CONTINUING OPERATIONS PER COMMON SHARE
The Combined Company has presented its loss from continuing operations per
common share for 1997 and for the nine months ended September 30, 1998 pursuant
to Statement of Financial Accounting Standards (SFAS) No. 128 "Earnings per
Share".
Basic loss per common share was computed by dividing the loss from continuing
operations applicable to common shareholders by the weighted average number of
shares of Common Stock outstanding during 1997 and the nine months ended
September 30, 1998. The loss from continuing operations applicable to common
shareholders is equal to the loss from continuing operations less the accretion
of CDnow Preferred stock to redemption value of $410,103 and $115,542 for the
year ended December 31, 1997 and the nine months ended September 30, 1998,
respectively. Diluted loss per common share has not been presented, since the
impact on loss per share using the treasury stock method is anti-dilutive due
to the Combined Company's losses.
5. PRO FORMA ADJUSTMENTS
(a) The Pro Forma Balance Sheet reflects the application of the purchase method
pursuant to APB 16 for the acquisition of N2K. The estimated purchase price is
$118,864,000 (based on a value of one CDnow share of $8.375) including
transaction costs of approximately $7,000,000. The estimated purchase price
included the consideration to be issued for N2K shares which was calculated by
multiplying the 14,228,755 shares of N2K Common Stock outstanding as of
September 30, 1998 by
Financial Statements F-6
<PAGE>
NOTES TO UNAUDITED PRO FORMA FINANCIAL INFORMATION--(Continued)
the exchange ratio and multiplying the result by $8.375, which resulted in a
value of $98,907,633. Additionally, the estimated purchase price includes the
value of the equivalent options and warrants to purchase CDnow Common stock to
be issued to holders of options and warrants to purchase N2K Common stock.
These options and warrants were valued using the Black-Scholes method. This
computation resulted in a value of $12,956,395 for the options and warrants.
Based on a preliminary allocation of the purchase price, the application of the
purchase method would have resulted in approximately $62,000,000 in excess of
purchase price over net tangible assets acquired as of September 30, 1998.
Based on a preliminary analysis done by CDnow this amount is expected to be
allocated as follows (i) value associated with specific contracts of $5,000,000
which will be amortized over 20 months (ii) other intangibles, primarily
customer list and strategic alliances of $10,000,000 which will be amortized
over 5 years, and (iii) goodwill of $46,938,485 which will be amortized over 10
years. The final allocation of the purchase price is subject to change and may
include a write-off of in-process research and development.
(b) The Pro Forma Balance Sheet reflects charges expected to be incurred
relating to the restructuring of N2K's operations by CDnow after the closing of
the merger. The Companies have been working together in regards to the
restructuring plan and expect to have a final plan in place prior to the
consummation of the merger. The Companies expect the plan to include costs
associated with the termination of N2K employees, consolidation of facilities
and the disposal of property and equipment. The companies expect to record the
following liabilities and asset reduction in connection with the restructuring:
<TABLE>
<S> <C> <C>
. N2K employee termination liability including severance and other
benefits.......................................................... $2,500,000
. Remaining lease commitment liability for certain of N2K's offices,
net of expected sublease rentals.................................. 500,000
. Estimated loss on disposal of N2K property and equipment.......... 1,200,000
----------
$4,200,000
==========
</TABLE>
The estimated liabilities and loss on disposal of property and equipment
related to N2K will be recorded in accordance with Emerging Issues Task Force
("ETTF") 95-3-"Recognition of Liabilities in Connection with a Purchase
Business Combination" ("ETTF 95-3") and will be reflected in purchase
accounting.
(c) The Pro Forma Statements of operations reflect the amortization of the
contracts, other intangibles and goodwill of $9,693,849 for the year ended
December 31, 1997 and $7,020,386 for the nine months ended September 30, 1998
based on expected estimated useful lives of 20 months, 5 years and 10 years for
the contracts, other intangibles and goodwill, respectively.
F-7 Financial Statements
<PAGE>
NOTES TO UNAUDITED PRO FORMA FINANCIAL INFORMATION--(Continued)
<TABLE>
<S> <C>
Computation of Pro Forma Price:
Issuance of 11,809,867 share of CDnow common stock....... $ 98,907,633
Issuance of options and warrants to purchase CDnow common
stock................................................... 12,956,395
Transaction costs (including those to be borne by N2K)... 7,000,000
EITF 95-3 merger related restructuring charge............ 4,200,000
--------------
Pro Forma Purchase Price............................... 123,064,028
Less value of N2K at September 30, 1998................ (61,125,543)
--------------
Excess of pro forma purchase price over value
acquired.............................................. $ 61,938,485
==============
Preliminary Allocation of Excess Purchase Price
Strategic alliances (up to 20 month life).............. $ 5,000,000
Customer list (5 year life)............................ 10,000,000
Goodwill (10 year life)................................ 46,938,485
--------------
Total allocated...................................... $ 61,938,485
==============
Summary of Pro Forma Entries Impacting Shareholders'
Equity
Common stock
Issuance of 11,809,867 shares of CDnow Common stock.... $ 98,907,633
Elimination of N2K Common stock........................ (14,229)
--------------
Pro forma increase in Common stock................... $ 98,893,404
==============
Additional paid in capital
Issuance of options and warrants to purchase CDnow
Common stock.......................................... $ 12,956,395
Elimination of N2K additional paid in capital.......... (171,356,553)
--------------
Pro forma decrease in additional paid in capital..... $ (158,400,158)
==============
Accumulated deficit
Elimination of N2K accumulated deficit................. $ (110,245,239)
--------------
Pro forma decrease in accumulated deficit............ $ (110,245,239)
==============
</TABLE>
Financial Statements F-8
<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To CDnow, Inc.:
We have audited the accompanying consolidated balance sheets of CDnow, Inc. (a
Pennsylvania Corporation) and Subsidiaries as of December 31, 1996 and 1997,
and the related consolidated statements of operations, redeemable convertible
preferred stock and shareholders' equity (deficit) and cash flows for each of
the three years in the period ended December 31, 1997. These financial
statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of CDnow, Inc. and Subsidiaries
as of December 31, 1996 and 1997, and the results of their operations and their
cash flows for each of the three years in the period ended December 31, 1997,
in conformity with generally accepted accounting principles.
/s/ Arthur Andersen LLP
Philadelphia, Pa.,
January 14, 1998 (except for the stock split
discussed in Note 2, as to which the date is
February 3, 1998)
F-9 Financial Statements
<PAGE>
CDNOW, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
December 31,
------------------------ September 30,
1996 1997 1998
---------- ------------ -------------
(unaudited)
<S> <C> <C> <C>
ASSETS
CURRENT ASSETS:
Cash and cash equivalents............ $ 775,865 $ 10,686,001 $ 59,563,026
Short-term investments............... 245,641 1,003,045 --
Accounts receivable, net of reserve
of $12,000, $77,000 and $119,732.... 130,437 324,411 811,175
Prepaid expenses and other........... 49,821 2,457,958 9,170,725
---------- ------------ ------------
Total current assets............... 1,201,764 14,471,415 69,544,926
PROPERTY AND EQUIPMENT, net............ 362,035 1,884,296 4,129,299
OTHER ASSETS........................... 11,660 92,714 3,897,161
---------- ------------ ------------
$1,575,459 $ 16,448,425 $ 77,571,386
========== ============ ============
LIABILITIES AND SHAREHOLDERS' EQUITY
(DEFICIT)
CURRENT LIABILITIES:
Notes payable........................ $ 200,000 $ 5,575,288 $ --
Current portion of long-term debt.... 35,942 361,562 635,160
Accounts payable..................... 435,682 8,981,430 9,324,304
Accrued expenses..................... 129,317 579,413 2,821,178
Other current liabilities............ 169,368 191,727 100,295
---------- ------------ ------------
Total current liabilities.......... 970,309 15,689,420 12,880,937
---------- ------------ ------------
LONG-TERM DEBT......................... 91,133 962,144 1,130,484
---------- ------------ ------------
DEFERRED RENT LIABILITY................ -- 56,717 160,990
---------- ------------ ------------
REDEEMABLE SERIES A AND B CONVERTIBLE
PREFERRED STOCK....................... -- 9,492,594 --
---------- ------------ ------------
COMMITMENTS AND CONTINGENCIES (Note 10)
SHAREHOLDERS' EQUITY (DEFICIT):
Preferred stock, no par value,
20,000,000 shares authorized,
254,582 Redeemable Series A
Convertible shares and 1,605,505
Redeemable Series B Convertible
shares issued and outstanding at
December 31, 1997................... -- -- --
Common stock, no par value,
50,000,000 shares authorized,
7,845,684, 7,845,684, and 17,674,336
shares issued and outstanding at
December 31, 1996, 1997 and
September 30, 1998.................. 579,549 579,549 101,482,736
Additional paid-in capital........... -- 1,325,817 4,325,817
Deferred compensation................ -- (434,776) (246,679)
Accumulated deficit.................. (65,532) (11,223,040) (42,162,899)
---------- ------------ ------------
Total shareholders' equity
(deficit)......................... 514,017 (9,752,450) 63,398,975
---------- ------------ ------------
$1,575,459 $ 16,448,425 $ 77,571,386
========== ============ ============
</TABLE>
The accompanying notes are an integral part of these statements.
Financial Statements F-10
<PAGE>
CDNOW, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
Nine Months Ended
Year Ended December 31, September 30,
------------------------------------- -------------------------
1995 1996 1997 1997 1998
---------- ----------- ------------ ----------- ------------
(unaudited)
<S> <C> <C> <C> <C> <C>
NET SALES............... $2,176,474 $ 6,300,294 $ 17,372,795 $ 9,452,864 $ 35,503,805
COST OF SALES........... 1,815,672 5,074,087 13,847,773 7,333,069 28,549,562
---------- ----------- ------------ ----------- ------------
Gross profit.......... 360,802 1,226,207 3,525,022 2,119,795 6,954,243
---------- ----------- ------------ ----------- ------------
OPERATING EXPENSES:
Operating and
development.......... 149,982 669,280 2,541,434 1,444,011 5,155,718
Sales and marketing... 229,912 765,156 9,607,603 3,603,238 31,293,668
General and
administrative....... 180,573 563,593 1,953,078 1,266,296 2,781,334
Dispute settlement
(Note 7)............. -- 1,024,030 -- -- --
---------- ----------- ------------ ----------- ------------
560,467 3,022,059 14,102,115 6,313,545 39,230,720
---------- ----------- ------------ ----------- ------------
Operating loss...... (199,665) (1,795,852) (10,577,093) (4,193,750) (32,276,477)
INTEREST INCOME......... -- -- 201,650 94,045 2,015,234
INTEREST EXPENSE........ (1,248) (14,556) (371,962) (29,961) (563,074)
---------- ----------- ------------ ----------- ------------
NET LOSS................ (200,913) (1,810,408) (10,747,405) (4,129,666) (30,824,317)
ACCRETION OF PREFERRED
STOCK TO REDEMPTION
VALUE.................. -- -- (410,103) (263,748) (115,542)
---------- ----------- ------------ ----------- ------------
NET LOSS APPLICABLE TO
COMMON SHAREHOLDERS.... $ (200,913) $(1,810,408) $(11,157,508) $(4,393,414) $(30,939,859)
========== =========== ============ =========== ============
NET LOSS PER COMMON
SHARE.................. $ (0.03) $ (0.29) $ (1.42) $ (0.56) $ (2.10)
========== =========== ============ =========== ============
WEIGHTED AVERAGE NUMBER
OF COMMON SHARES
OUTSTANDING............ 6,000,000 6,139,702 7,845,684 7,845,684 14,764,870
========== =========== ============ =========== ============
</TABLE>
The accompanying notes are an integral part of these statements.
F-11 Financial Statements
<PAGE>
CDNOW, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF REDEEMABLE CONVERTIBLE PREFERRED STOCK AND
SHAREHOLDERS' EQUITY (DEFICIT)
<TABLE>
<CAPTION>
Shareholders Equity (Deficit)
Redeemable ----------------------------------------------------------------------------
Convertible Common Stock Additional
Preferred ----------------------- Paid-in Deferred Accumulated
Stock Shares Amount Capital Compensation Deficit Total
----------- ---------- ------------ ---------- ------------ ------------ ------------
<S> <C> <C> <C> <C> <C> <C> <C>
BALANCE, DECEMBER 31,
1995................... $ -- 6,000,000 $ -- $ 160,000 $ -- $ (259,362) $ (99,362)
Sale of common stock
and warrants.......... -- 921,834 1,069,250 130,750 -- -- 1,200,000
Issuance of common
stock in settlement of
a dispute (Note 7).... -- 882,606 1,024,030 -- -- -- 1,024,030
Issuance of common
stock to repay
advances due to a
related party......... -- 41,244 81,923 -- -- -- 81,923
Services contributed by
the founders (Note
9).................... -- -- -- 117,834 -- -- 117,834
Termination of S
Corporation status.... -- -- (1,595,654) (408,584) -- 2,004,238 --
Net loss............... -- -- -- -- -- (1,810,408) (1,810,408)
----------- ---------- ------------ ---------- --------- ------------ ------------
BALANCE, DECEMBER 31,
1996................... -- 7,845,684 579,549 -- -- (65,532) 514,017
Sale of Redeemable
Series A and B
Convertible Preferred
Stock, net of expenses
and value of warrants
issued................ 9,082,491 -- -- 170,000 -- -- 170,000
Value of warrants
issued with Series A
Convertible Notes..... -- -- -- 404,425 -- -- 404,425
Grant of common stock
option below deemed
fair value for
accounting purposes... -- -- -- 751,392 (751,392) -- --
Amortization of
deferred
compensation.......... -- -- -- -- 316,616 -- 316,616
Accretion of preferred
stock to redemption
value................. 410,103 -- -- -- -- (410,103) (410,103)
Net loss............... -- -- -- -- -- (10,747,405) (10,747,405)
----------- ---------- ------------ ---------- --------- ------------ ------------
BALANCE, DECEMBER 31,
1997................... 9,492,594 7,845,684 579,549 1,325,817 (434,776) (11,223,040) (9,752,450)
Accretion of preferred
stock to redemption
value (unaudited)..... 115,542 -- -- -- -- (115,542) (115,542)
Mandatory conversion of
Redeemable Series A
Convertible Preferred
Stock to Common Stock
(unaudited)........... (9,608,136) 2,790,131 9,608,136 -- -- -- 9,608,136
Issuance of common
stock from
consummation of IPO,
net of offering costs
(unaudited)........... -- 4,561,250 67,077,862 -- -- -- 67,077,862
Issuance of common
stock from secondary
offering, net of
offering costs
(unaudited)........... -- 1,250,000 21,654,300 -- -- -- 21,654,300
Issuance of common
stock (unaudited)..... -- 222,956 3,634,198 -- -- -- 3,634,198
Cashless exercise of
warrants (unaudited).. -- 905,996 -- -- -- -- --
Exercise of warrants
(unaudited)........... -- 32,727 59,890 -- -- -- 59,890
Exercise of options
(unaudited)........... -- 65,592 128,820 -- -- -- 128,820
Remeasurement of value
of shares issued to
Lycos (Note 10)
(unaudited)........... -- -- (1,260,019) -- -- -- (1,260,019)
Amortization of
Deferred Compensation
(unaudited)........... -- -- -- -- 188,097 -- 188,097
Issuance of warrants... 3,000,000 3,000,000
Net Loss (unaudited)... -- -- -- -- -- (30,824,317) (30,824,317)
----------- ---------- ------------ ---------- --------- ------------ ------------
BALANCE, SEPTEMBER 30,
1998 (unaudited)....... $ -- 17,674,336 $101,482,736 $4,325,817 $(246,679) $(42,162,899) $ 63,398,975
=========== ========== ============ ========== ========= ============ ============
</TABLE>
The accompanying notes are an integral part of these statements.
Financial Statements F-12
<PAGE>
CDNOW, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
Nine Months Ended
Year Ended December 31, September 30,
------------------------------------ -------------------------
1995 1996 1997 1997 1998
--------- ----------- ------------ ----------- ------------
(unaudited)
<S> <C> <C> <C> <C> <C>
OPERATING ACTIVITIES:
Net loss.............. $(200,913) $(1,810,408) $(10,747,405) $(4,129,666) $(30,824,317)
Adjustments to
reconcile net loss to
net cash provided by
(used in) operating
activities--
Depreciation and
amortization......... 32,999 105,439 1,066,815 438,503 1,566,344
Provision for returns
and doubtful
accounts............. -- 12,000 65,000 5,000 121,732
Common stock issued in
settlement of a
dispute.............. -- 1,024,030 -- -- --
Services contributed
by the founders...... 120,000 117,834 -- -- --
Increase in operating
assets and
liabilities--
Accounts receivable... (56,127) (86,310) (258,974) (54,875) (603,416)
Prepaid expenses and
other................ (26,994) (34,487) (2,401,794) (490,824) (4,966,500)
Accounts payable...... 109,386 326,296 8,545,748 3,194,675 264,972
Accrued expenses...... 58,124 68,139 450,096 254,117 2,241,765
Deferred revenue...... 4,952 161,155 22,359 44,602 (88,171)
Deferred rent
liability............ -- -- 56,717 -- 104,273
--------- ----------- ------------ ----------- ------------
Net cash provided by
(used in) operating
activities.......... 41,427 (116,312) (3,201,438) (738,468) (32,183,318)
--------- ----------- ------------ ----------- ------------
INVESTING ACTIVITIES:
Purchases of short-
term investments..... -- (245,641) (1,005,501) (983,600) --
Sales and maturities
of short-term
investments.......... -- -- 248,097 245,641 1,003,045
Purchases of property
and equipment........ (135,777) (198,985) (912,560) (1,287,956) (2,320,232)
Acquisition of a
business............. -- -- -- -- (423,694)
--------- ----------- ------------ ----------- ------------
Net cash used in
investing
activities.......... (135,777) (444,626) (1,669,964) (2,025,915) (1,740,881)
--------- ----------- ------------ ----------- ------------
FINANCING ACTIVITIES:
Borrowings on term
loans payable........ -- -- 218,563 218,563 4,871
Payments on term loans
payable.............. -- -- (28,179) (14,548) (47,433)
Borrowings on notes
payable.............. 100,000 200,000 -- -- --
Payments on notes
payable.............. -- (100,000) (200,000) (200,000) --
Proceeds from sale of
common stock and
warrants............. -- 1,200,000 -- -- --
Proceeds from issuance
(repayment of) of
Series A Notes and
warrants............. -- -- 5,602,706 -- (5,777,500)
Proceeds from sale of
preferred stock...... -- -- 9,252,491 9,252,491 --
Proceeds from
(repayment of)
advances due to
related parties...... 37,683 6,341 -- -- (3,261)
Payments on
capitalized lease
obligations.......... (1,529) (13,350) (64,043) (29,742) (296,325)
Proceeds from issuance
of common stock,
net.................. -- -- -- -- 88,732,162
Proceeds from warrants
exercised............ -- -- -- -- 59,890
Proceeds from options
exercised............ -- -- -- -- 128,820
--------- ----------- ------------ ----------- ------------
Net cash provided by
financing
activities.......... 136,154 1,292,991 14,781,538 9,226,764 82,801,224
--------- ----------- ------------ ----------- ------------
INCREASE IN CASH AND
CASH EQUIVALENTS...... 41,804 732,053 9,910,136 6,462,381 48,877,025
CASH AND CASH
EQUIVALENTS, BEGINNING
OF PERIOD............. 2,008 43,812 775,865 775,865 10,686,001
--------- ----------- ------------ ----------- ------------
CASH AND CASH
EQUIVALENTS, END OF
PERIOD................ $ 43,812 $ 775,865 $ 10,686,001 $ 7,238,246 $ 59,563,026
========= =========== ============ =========== ============
</TABLE>
The accompanying notes are an integral part of these statements.
F-13 Financial Statements
<PAGE>
CDNOW, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Information as of September 30, 1998 and for the nine months ended September
30, 1997
and 1998 is unaudited)
1. THE COMPANY
CDnow, Inc. and Subsidiaries (the "Company") is an online retailer of compact
discs ("CDs") and other music-related products. The Company's revenues are
almost entirely derived from the sale of pre-recorded music and music-related
products. The Company contracts with outside vendors for fulfillment services
to deliver its products to customers. Therefore, the Company maintains no
inventories.
Since inception (February 12, 1994), the Company has incurred significant
losses, and as of September 30 , 1998 had accumulated losses of $43.6 million.
For the year ended December 31, 1997, and the nine months ended September 30,
1998 the Company's net loss was $10.7 million and $30.8 million, respectively.
The Company intends to invest heavily in marketing and promotion, strategic
alliances, Web site development and technology, and development of its
administration organization. As a result, the Company believes that it will
incur substantial operating losses for the foreseeable future, and that the
rate at which such losses will be incurred will increase significantly from
current levels. Because the Company has relatively low product gross margins,
achieving profitability given planned investment levels depends upon the
Company's ability to generate and sustain substantially increased revenue
levels. There can be no assurance that the Company will be able to generate
sufficient revenues to achieve or sustain profitability in the future. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" in the Prospectus.
On October 23, 1998, the Company and N2K, Inc. ("N2K") issued a joint press
release announcing the execution of a definitive merger agreement. N2K is an
online retailer of CDs and other music related products. The merger will be
effected through the formation of a new publicly traded company, initially to
be called CDnow/N2K, Inc. ("Newco"). The agreement provides for each existing
Company shareholder to receive one share of common stock in Newco for each
Company share owned by such party and for each existing N2K stockholder to
receive 0.83 shares of common stock in Newco for each N2K share owned by such
party.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Principles of Consolidation
The consolidated financial statements include the accounts of CDnow, Inc. and
its wholly owned subsidiaries. All intercompany balances and transactions have
been eliminated in consolidation.
Interim Financial Statements
The consolidated financial statements for the nine month periods ended
September 30, 1997 and 1998 are unaudited and, in the opinion of management,
include all adjustments (consisting only of normal and recurring adjustments)
necessary for a fair presentation of results for these interim
Financial Statements F-14
<PAGE>
CDNOW, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
periods. The results of operations for the nine months ended September 30, 1998
are not necessarily indicative of the results expected for the entire year.
Management's Use of Estimates
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions
that affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting period.
Actual results could differ from those estimates.
Net Loss Per Common Share
The Company has presented net loss per common share pursuant to Statement of
Financial Accounting Standards (SFAS) No. 128 "Earnings per Share" and the
Securities and Exchange Commission Staff Accounting Bulletin No. 98.
Basic loss per common share was computed by dividing net loss applicable to
common shareholders by the weighted average number of shares of Common Stock
outstanding. Diluted loss per common share has not been presented, since the
impact on loss per share using the treasury stock method is anti-dilutive due
to the Company's losses.
Cash and Cash Equivalents
Cash equivalents are carried at cost plus accrued interest, which approximates
fair value. The Company considers all highly liquid investments with an
original maturity date of three months or less to be cash equivalents. Cash
equivalents of $742,784, $10,005,132, and $58,389,597 at December 31, 1996 and
1997 and September 30, 1998, respectively, included money market funds,
government mortgage-backed bonds and highly rated corporate securities.
Short-Term Investments
At December 31, 1996 and 1997, short-term investments represented government
mortgage-backed bonds maturing in less than a year and each was classified as
available-for-sale. Pursuant to SFAS No. 115, "Accounting for Certain
Investments in Debt and Equity Securities," available-for-sale securities are
carried at fair value, based on quoted market prices, with unrealized gains and
losses, net of tax, reported as a separate component of shareholders' equity.
At December 31, 1996 and 1997, amortized cost approximated fair value and
unrealized gains and losses were immaterial. Gross unrealized holding gains and
losses were immaterial in 1995, 1996 and 1997. The gross proceeds from sales
and maturities of short-term investments were $248,097 in 1997. No short-term
investments were sold or matured prior to 1997. Gross realized gains and losses
were immaterial. For the purpose of determining gross realized gains and
losses, the cost of the securities sold is based upon specific identification.
F-15 Financial Statements
<PAGE>
CDNOW, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Prepaid Expenses
At December 31, 1997 prepaid expenses included $87,397 of net deferred
financing costs related to the Series A Notes. Amortization of deferred
financing costs was $87,397 in 1997 and $87,397 in the nine month period ended
September 30, 1998 and is included in interest expense. Prepaid expenses
included $2,000,000 and $6,860,000 at December 31, 1997 and September 30, 1998,
respectively, related to linking agreements and strategic alliances (see Note
10). At September 30, 1998, Other Assets included $2,093,000 related to linking
agreements and strategic alliances.
The Company follows the American Institute of Certified Public Accountants
Statement of Position 93-7 "Reporting for Advertising Costs" (SOP 93-7) to
account for its linking agreements. Under SOP 93-7, the Company amortizes the
costs associated with its linking agreements over the contract terms, with the
amortization method primarily based on the rate of delivery of a guaranteed
number of impressions to be received during the contract term. To the extent
additional payments are required to be made based on factors such as click-
throughs and new customers generated such payments will be charged to expense
as incurred.
Property and Equipment
Property and equipment are stated at cost. Depreciation and amortization are
provided using the straight-line basis over the estimated useful lives of the
assets or the lease term, whichever is shorter.
Internally Developed Systems and Software
The costs to develop internal systems and software, primarily payroll and
related expenses for development and design of software, are charged to expense
as incurred.
Revenue Recognition
Net sales, which consist primarily of recorded music sold via the Internet,
include shipping and handling charged to customers and are recognized when the
products are shipped. The Company records a reserve for estimated returns,
which is based on historical return rates.
Operating and Development
Operating and development expenses consist principally of payroll and related
expenses for development, editorial, and network operations personnel and
consultants and expenses for systems and telecommunications infrastructure.
Sales and Marketing
Advertising costs are included in sales and marketing expenses and are charged
to expense as incurred. Such costs were $40,523, $61,432, $6,834,000,
$2,136,187, and $23,695,757 for the years ended December 31, 1995, 1996, and
1997 and for the nine months ended September 30, 1997 and 1998, respectively.
The Company gives merchandise credit to the providers of various small Web
Financial Statements F-16
<PAGE>
CDNOW, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
sites through its Cosmic Credit Program. Expenses related to this program are
included in sales and marketing expenses and, to date, have been immaterial.
The Company estimates the amount of unused credits and includes this amount in
accrued expenses.
Gift Certificates and Coupons
Gift certificates are included in deferred revenues in the accompanying
balance sheets and are recognized as net sales when they are redeemed. The
Company estimates the amount of outstanding coupons which will be redeemed and
includes that amount in accrued expenses. This accrual is immaterial for all
periods presented. Coupon expense is included in sales and marketing expenses.
Supplemental Cash Flow Information
The Company paid interest of $2,329, $19,467, $284,565, $29,961, and $563,074
for the years ended December 31, 1995, 1996 and 1997, and the nine months
ended September 30, 1997 and 1998, respectively. In addition, the Company
incurred $15,000, $126,954, $1,070,290, $9,845, and $780,825 in capitalized
lease obligations for the years ended December 31, 1995, 1996 and 1997, and
the nine months ended September 30, 1997 and 1998, respectively. In 1996 the
Company issued 41,244 shares of common stock to retire $81,923 of advances due
to a related party (see Note 9).
Recapitalization
In April 1996, the Company amended its Articles of Incorporation to effect a
10,000-for-1 split of its common shares and to change the number of authorized
common shares to 5,000,000. In July 1997, the Company amended its Articles of
Incorporation to effect a 4-for-1 split of its common shares, to change the
number of authorized common shares to 50,000,000, and to authorize 20,000,000
shares of preferred stock. In January 1998, the Company amended its Articles
of Incorporation to effect a 1.5-for-1 split of its common shares. All
references in the consolidated financial statements to the number of shares
and to per share amounts have been retroactively restated to reflect all of
these changes.
Comprehensive Income
In June 1997, the FASB issued SFAS No. 130, "Reporting Comprehensive Income"
("SFAS 130"). This statement requires companies to classify items of other
comprehensive income by their nature in a financial statement and display the
accumulated balance of other comprehensive income separately from retained
earnings and additional paid-in capital in the equity section of a statement
of financial position. SFAS 130 is effective for financial statements issued
for fiscal years beginning after December 15, 1997. The Company has adopted
SFAS 130 in the first quarter of 1998. The Company has had no other
comprehensive income items to report.
Public Offerings
On February 13, 1998 the Company consummated an initial public offering of its
Common Stock (the "Initial Public Offering"). The company sold 4,561,250
shares of its common stock, no par
F-17 Financial Statements
<PAGE>
CDNOW, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
value, at an initial public offering price of $16.00 per share. After deducting
the underwriters' discount and other offering expenses, the net proceeds to the
company were approximately $67,077,862.
On July 28, 1998 the Company consummated a secondary public offering of its
Common Stock (the "Secondary Offering"). The company sold 1,250,000 shares of
its common stock, no par value, at a public offering price of $18.50 per share.
After deducting the underwriters' discount and other offering expenses, the net
proceeds to the company were $21,654,300.
Recently Issued Accounting Pronouncements
In June 1997, the FASB issued SFAS No. 131, "Disclosure About Segments of an
Enterprise and Related Information" ("SFAS 131"). This statement establishes
additional standards for segment reporting in the financial statements and is
effective for fiscal years beginning after December 15, 1997. Management
believes that SFAS 131 will not have an effect on the Company's consolidated
financial statements.
In June 1998, the FASB issues SFAS No. 133," Accounting for Derivative
Instruments and Hedging Activities" (SFAS 133"). This Statements establishes
accounting and reporting standards for derivative instruments, including
certain derivative instruments embedded in other contacts and for hedging
activities and is effective for all fiscal quarters of fiscal years beginning
after June 15, 1999. Management believes that SFAS 133 will have no impact on
the Company's consolidated financial statements.
Reclassifications
The statement of operations for 1995, 1996 and 1997 and the nine months ended
September 30, 1997 have been reclassified to conform with the presentation of
September 30, 1998.
Beginning in 1998, the Company determined to include royalties paid on CD sales
in return for licensing of ratings, reviews, sound samples and other
information ("Information Royalties") in operating and development expenses
rather than in cost of sales, as was previously the case. This change was made
based on Management's determination that including Information Royalties in
operating and development expense was more consistent with the treatment of
such expenses by retailers generally. The financial information for periods
prior to 1998 has been restated to reflect this change. Information Royalties
were $146,200, $225,737, $151,027, and $269,041 during the years ended December
31, 1996 and 1997 and the nine months ended September 30, 1997 and 1998,
respectively. There were no Information Royalties paid in 1995.
During the three months ended September 30, 1998, the Company determined to
include credit card processing fees ("Credit Card Fees") in sales and marketing
expenses rather than in cost of sales, as was previously the case. This change
was made based on Management's determination that including Credit Card Fees in
sales and marketing expense was more consistent with the treatment of such
Financial Statements F-18
<PAGE>
CDNOW, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
expenses by retailers generally. The financial information for periods prior to
the quarter ended September 30, 1998 has been restated to reflect this change.
Credit Card Fees were $28,940, $143,702, $468,255, $246,879 and $952,991 during
the years ended December 31, 1995, 1996 and 1997 and the nine months ended
September 30, 1997 and 1998, respectively.
3. RISKS AND UNCERTAINTIES
The Company's future results of operations involve a number of risks and
uncertainties. Factors that could affect the Company's future operating results
and cause actual results to vary materially from expectations include, but are
not limited to, dependence on key personnel, uncertain growth of online
commerce, reliance on suppliers of entertainment products, government
regulation, online commerce security risks, substantial competition, reliance
on certain vendors, risk of system failure, absence of redundant facilities,
risks associated with the Year 2000, and capacity constraints. See "Risk
Factors" in the Prospectus.
Dependence on Suppliers
The Company's primary provider of order fulfillment for recorded music titles
is Valley Media, Inc. ("Valley"). The Company has no fulfillment operation or
facility of its own and, accordingly, is dependent upon maintaining its
existing relationship with Valley or establishing a new fulfillment
relationship with one of the few other fulfillment operations. There can be no
assurance that the Company will maintain its relationship with Valley beyond
the term of its existing two year agreement, which expires in June 1999, or
that it will be able to find an alternative, comparable vendor capable of
providing fulfillment services on terms satisfactory to the Company should its
relationship with Valley terminate. Valley accounted for 71%, 76%, 81%, 78% and
85% of the cost of sales for the years ended 1995, 1996 and 1997 and the nine
months ended September 30, 1997 and 1998, respectively. Additionally, the
Company purchased all of its import music titles from another vendor. This
vendor accounted for 21% and 14% of the cost of sales in 1995 and 1996,
respectively. The Company replaced this vendor during the year ended December
31, 1997 and neither the current nor the former vendor accounted for more than
10% of cost of sales in the year ended December 31, 1997 and the nine months
ended September 30, 1997 and 1998.
International Sales
The Company derived 22%, 40%, 29%, 33% and 22% of revenues for the years ended
1995, 1996 and 1997, and for the nine months ended September 30, 1997 and 1998,
respectively, from customers outside the United States. All international sales
are paid in U.S. dollars.
F-19 Financial Statements
<PAGE>
CDNOW, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
4. PROPERTY AND EQUIPMENT
<TABLE>
<CAPTION>
December 31,
Useful Life/ --------------------- September
Lease Term 1996 1997 30, 1998
------------ --------- ---------- -----------
(unaudited)
<S> <C> <C> <C> <C>
Computers and equipment.... 3 years $ 387,348 $2,090,144 $4,759,855
Office furniture and
equipment................. 5 years 117,876 397,930 922,963
--------- ---------- ----------
505,224 2,488,074 5,682,818
Less--Accumulated
depreciation and
amortization.............. (143,189) (603,778) (1,553,519)
--------- ---------- ----------
$ 362,035 $1,884,296 $4,129,299
========= ========== ==========
</TABLE>
Depreciation and amortization expense for the years ended 1995, 1996 and 1997
and the nine months ended September 30, 1997 and 1998 was $32,999, $105,439,
$460,589, $219,349 and $972,838, respectively. Total property and equipment
under capital leases at December 31, 1996 and 1997 and at September 30, 1998
was $141,954, $1,217,130 and $1,997,955 less accumulated amortization of
$25,659, $252,988, and $654,874, respectively.
5. INCOME TAXES
The Company records income taxes using the asset and liability method. Deferred
tax assets and liabilities are recognized for the future tax consequences
attributable to differences between the financial statement carrying amounts of
existing assets and liabilities and their respective tax bases. Deferred tax
assets and liabilities are measured using enacted tax rates expected to apply
to taxable income in the years in which those temporary differences are
expected to be recovered or settled. The effect on deferred tax assets and
liabilities of a change in tax rates is recognized in income in the period that
includes the enactment date.
From inception (February 12, 1994) until April 25, 1995, the Company operated
as an unincorporated entity. From April 25, 1995 until December 5, 1996, the
Company was incorporated and elected to be taxed under Subchapter S of the
Internal Revenue Code. As a result, the Company was not subject to federal or
state income taxes, and the taxable loss of the Company was included in the
shareholders' individual tax returns. On December 6, 1996, the Company
terminated its status as an S corporation and is now subject to federal and
state income taxes.
At December 31, 1997, the Company had a net operating loss carryforward for
federal income tax purposes of approximately $9,700,000. The net operating loss
carryforward will begin to expire in 2011.
The Company's utilization of its loss carryforward will be limited pursuant to
the Tax Reform Act of 1986, due to cumulative changes in ownership in excess of
50%.
Financial Statements F-20
<PAGE>
CDNOW, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
The approximate income tax effect of each type of temporary difference and the
loss carryforward is as follows:
<TABLE>
<CAPTION>
December 31,
----------------------
1996 1997
--------- -----------
<S> <C> <C>
Accruals and reserves not currently deductible....... $ 6,275 $ 38,590
Benefit of net operating loss carryforward........... 1,592 3,240,322
Development expenses not currently deductible........ 160,062 476,736
Depreciation methods................................. 12,134 37,634
Deferred revenues.................................... 42,500 64,078
--------- -----------
222,563 3,857,360
Valuation allowance.................................. (222,563) (3,857,360)
--------- -----------
$ -- $ --
========= ===========
</TABLE>
Due to the Company's history of operating losses the realization of the
deferred tax asset is uncertain. The Company has, therefore, provided a full
valuation allowance against the deferred tax asset.
6. DEBT
On December 31, 1995, the Company issued a note for $100,000 to a private
investor who at the time was also a member of the Company's Board of Directors.
The note plus accrued interest of 10% was repaid on December 31, 1996.
From November 16, 1996 through January 31, 1997, the Company received short-
term loans of $250,000 from certain unrelated investors. The investors received
warrants as part of the consideration for the loans (see Note 8). These loans
bore interest at 6% per year. On May 15, 1997, the Company repaid $110,000 of
the loans and, on July 16, 1997, the remaining unpaid balance plus accrued
interest was paid.
In 1997, the Company obtained three term loans from a bank for an aggregate of
$218,563. The proceeds from the loans were used to purchase equipment, which
equipment collateralizes the loans. The two founders of the Company have
personally guaranteed the loans. The loans bear interest at rates ranging from
8.0% to 9.0% and are repayable in installments over 36 to 48 months. Annual
principal repayments are $57,351 in 1998, $62,300 in 1999, $45,676 in 2000 and
$25,061 in 2001.
In November 1997, the Company sold $5,777,500 of Series A Convertible Notes
(Series A Notes) to certain investors, including $1,000,000 to an existing
shareholder. The notes bear interest at an annual rate of 12% and are due upon
consummation of the Initial Public Offering. In connection with the sale of the
Series A Notes, the Company issued warrants to these investors. The warrants
allow the investors to purchase 48,550 shares of common stock at an exercise
price of $11.90 per share. The warrants were valued using the Black-Scholes
model, and the Series A Notes were recorded net of the value of $404,425
assigned to the warrants. The notes were amortized to their face amount
F-21 Financial Statements
<PAGE>
CDNOW, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
over their estimated term, with $202,213 of amortization included in interest
expense for the year ended December 31, 1997 and $202,212 in the nine months
ended September 30, 1998. The notes were repaid in February 1998.
7. DISPUTE SETTLEMENT
In May 1995, MILO Productions, Inc. ("MILO"), which was owned by the Company's
then shareholders, entered into a partnership with MBL Entertainment, Inc.
("MBL") called Music Now. In December 1995, MBL, an investor and the Company's
then shareholders entered into nonbinding discussions for the purpose of
creating a new company ("NewCo") which would merge with Music Now. These
discussions contemplated, among other things, that the private investor would
make a significant cash investment in, and the Company's then shareholders
would contribute all of the outstanding capital stock of both MILO and the
Company, to NewCo. The parties abandoned these discussions in August 1996, and
MBL and the private investor subsequently instituted a legal action against the
Company, MILO and the Company's then shareholders. On December 6, 1996, the
Company and all parties involved in this dispute negotiated a settlement
pursuant to which (i) the private investor made an investment in the Company
(see Note 8) and (ii) the shareholders of MBL were issued an aggregate of
882,606 shares of common stock. The shares issued to the shareholders of MBL
were valued at $1,024,030 based on the sale of common stock to the investor,
which valued the common stock at $1.16 per share (see Note 8), with the related
charge recorded as an expense in the accompanying statement of operations for
the year ended December 31, 1996. At the time of the settlement, MBL and Music
Now were inactive and had no assets or liabilities.
8. REDEEMABLE CONVERTIBLE PREFERRED STOCK AND SHAREHOLDERS' EQUITY
Common Stock
In December 1996, the Company sold to an investor 921,834 shares of common
stock and a warrant to purchase an additional 871,710 common shares at $1.15
per share, for aggregate consideration of $1,200,000. Using the Black-Scholes
model, the warrants were valued at $130,750. The remaining amount of the
proceeds of $1,069,250 was allocated to common stock, resulting in a value per
share of $1.16. The investor received the right to appoint two members of the
Company's Board of Directors, each having one-half vote. This right terminated
upon the consummation of the Company's Initial Public Offering. The investor,
who is a director of the Company, exercised the warrant upon consummation of
the Initial Public Offering, by tendering to the Company 62,473 shares received
upon exercise to satisfy the $999,561 exercise price. This cashless exercise
resulted in 809,237 net shares of common stock being received by the investor.
Preferred Stock
As of December 31, 1997, the Company had 20,000,000 shares of preferred stock
authorized, of which 254,582 were designated, issued and outstanding as no par
value Redeemable Series A
Financial Statements F-22
<PAGE>
CDNOW, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Convertible Preferred Stock ("Series A Preferred") and 1,605,505 were
designated, issued and outstanding as no par value Redeemable Series B
Convertible Preferred Stock ("Series B Preferred"). The Series A Preferred was
sold to an investor in July 1997 for $4.91 per share, resulting in proceeds to
the Company of $1,152,186, net of expenses. The Series B Preferred was sold to
investors in August 1997 for $5.45 per share, resulting in proceeds to the
Company of $8,100,305, net of expenses.
Each share of Series A and B Preferred converted into shares of the Company's
common stock upon the consummation of the Initial Public Offering in February
1998, on a 1.5-for-1 basis.
Beginning January 1, 2003, the Series A and B Preferred would have been
redeemable at the option of a majority of the holders at $4.91 per share and
$5.45 per share, respectively, plus accrued but unpaid dividends, if any. The
Series A and B Preferred were being accreted to their redemption values for
accounting purposes. The holders of Series A and B Preferred were entitled to
receive cumulative dividends of 8% per share per year, when and if declared by
the Company; no dividends could have been declared or paid on common stock
unless all cumulative dividends were declared and paid on the preferred stock.
The Series A and Series B Preferred had liquidation preferences equal to $4.91
per share and $5.45 per share, respectively, plus any accrued and unpaid
dividends.
Equity Compensation Plan
On June 1, 1996, the Company adopted the Equity Compensation Plan (the "Plan").
Under the Plan, incentive and nonqualified stock options, restricted stock and
stock appreciation rights may be granted to employees, officers, employee
directors and independent contractors and consultants. An aggregate of
1,600,000 shares of common stock have been reserved for issuance under the
Plan. No stock options, restricted stock or stock appreciation rights were
granted in 1996.
Information relative to the Plan is as follows:
<TABLE>
<CAPTION>
Weighted
Range of Aggregate Average
Exercise Exercise Exercise
Shares Prices Price Price
--------- ------------- ----------- --------
<S> <C> <C> <C> <C>
Outstanding January 1,
1997................... -- -- -- --
Granted................. 721,914 $1.33-$ 10.00 $ 2,157,680 $ 2.99
--------- ------------- ----------- ------
Outstanding December 31,
1997................... 721,914 $1.33-$ 10.00 2,157,680 $ 2.99
Granted................. 409,389 $8.50-$ 35.50 8,866,814 $21.66
Exercised............... (65,592) $ 1.33-$ 3.00 (128,820) $ 1.96
Cancelled............... (27,348) $1.33-$ 17.50 (169,705) $ 6.21
--------- ------------- ----------- ------
Outstanding September
30, 1998............... 1,038,363 $1.33-$ 35.50 $10,725,969 $16.33
========= ============= =========== ======
</TABLE>
As of September 30, 1998, there were options to purchase 202,710 shares of
common stock exercisable with a weighted average exercise price of $2.37 per
share. In addition, as of September 30, 1998, there were options to purchase
and 496,045 shares of common stock available for grant under the Plan.
F-23 Financial Statements
<PAGE>
CDNOW, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
The Company accounts for its option grants under APB Opinion No. 25 and related
interpretations. Accordingly, compensation has been recorded for the Plan based
on the intrinsic value of the stock option at the date of grant (i.e., the
difference between the exercise price and the fair value of the Company's
stock). Compensation, if any, is deferred and recorded as expense over the
vesting period. For the year ended December 31, 1997, deferred compensation of
$751,392 was recorded for options granted, of which $316,616 and $188,097 was
charged to compensation expense for the year ended December 31, 1997 and the
nine months ended September 30, 1998 respectively.
In 1995, the FASB issued SFAS No. 123 "Accounting for Stock Based Compensation"
(SFAS 123). SFAS 123 establishes a fair value based method of accounting for
stock-based compensation plans.
This statement also applies to transactions in which an entity issues its
equity instruments to acquire goods or services from non-employees. SFAS 123
requires that an employer's financial statements include certain disclosures
about stock-based employee compensation arrangements regardless of the method
used to account for the plan. Had the Company recognized compensation cost for
its stock option plan consistent with the provisions of SFAS 123, the Company's
pro forma net loss and net loss per common share for the year ended December
31, 1997 would have been as follows:
<TABLE>
<CAPTION>
Year Ended
December 31,
1997
------------
<S> <C>
Net loss applicable to common shareholders:
As reported................................................. $(11,157,508)
============
Pro forma................................................... $(11,265,003)
============
Net loss per common share:
As reported................................................. $ (1.42)
============
Pro forma................................................... $ (1.45)
============
</TABLE>
The weighted average fair value of the stock options granted during the year
ended December 31, 1997 was $2.63. The fair value of each option grant is
estimated on the date of grant using the Black-Scholes option pricing model,
with the following weighted average assumptions: risk free interest rates
ranging from 6.4% to 6.8% based on the rates in effect on the date of grant, a
volatility of 60% for options granted subsequent to the filing date of the
Company's registration statement, no expected dividend yield, and an expected
life of eight years for the options.
Warrants
In August 1997, the Company issued warrants to purchase 121,560 shares of
Series B Preferred at an exercise price of $5.45 per share in connection with
the Series B Preferred financing. The warrants were issued to one of the
investors in the Series B Preferred and to the agent who represented the
Company in that financing. These warrants expire in August 2002. Upon the
closing of the Initial Public Offering, the warrants converted to warrants to
purchase 182,341 shares of common stock at $3.63 per share. Using the Black-
Scholes model, the warrants were valued at $170,000. This amount
Financial Statements F-24
<PAGE>
CDNOW, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
was recorded as a reduction in the carrying value of the preferred stock and
was amortized and included in the accretion to the redemption value of the
preferred stock recorded in each period.
As consideration for certain loans, the lenders received warrants to purchase
59,997 and 76,365 shares of common stock at a price of $1.83 per share until
May 16, 1998 and July 16, 1998, respectively (see Note 6). Based on the
warrants' 18-month term and exercise price, the Black-Scholes model calculated
a minimal value for the warrants.
<TABLE>
<CAPTION>
Exercise Grant Date
Shares Price Fair Value
---------- ------------- ----------
<S> <C> <C> <C>
Outstanding warrants, January 1, 1996.... -- --
Warrants granted to investor (see Note
6)...................................... 871,710 $ 1.83 $ 130,750
Warrants granted to lenders.............. 59,997 $ 1.83 --
---------- -------------
Outstanding warrants, December 31, 1996.. 931,207 $ 1.83
Warrants granted to lenders.............. 76,365 $ 1.83 --
Warrants granted to holders of Series B
Preferred Stock......................... 182,341 $ 3.63 $ 170,000
Warrants granted to Series A Note Holders
(See Note 6)............................ 48,550 $11.90-$16.00 $ 404,425
---------- -------------
Outstanding warrants, December 31, 1997.. 1,238,962 $ 1.83-$16.00
Warrants exercised including 975,345
shares on a cashless basis.............. (1,008,072) $ 1.83
Warrants granted on connection MTV
Networks (see Note 10).................. 226,892 $ 23.28 $3,000,000
---------- -------------
Outstanding warrants, September 30,
1998.................................... 457,782 $ 3.63-$23.28
========== =============
</TABLE>
9. RELATED-PARTY TRANSACTIONS
Additional paid-in capital represents the deemed fair value of services
contributed to the Company by the founders in 1994, 1995 and 1996. During this
period, one of the founders served as President and the other was responsible
for the development of the Company's system architecture and transactions
systems. In 1994 and 1995, the founders were paid no compensation and in 1996
the founders' compensation was below market. The fair value of services
contributed by the founders was determined by the Company's Board of Directors.
In determining the value, the Board considered the founders' level of
experience, position in the Company, the compensation level of other employees,
the Company's financial resources and the status of the Company's development.
The Company had a $3,261 advance due to a founder at December 31, 1996 and
1997. This advance was repaid in the nine months ended September 30, 1998. At
December 31, 1995 the Company had advances due to a founder and his father of
$4,103 and $74,740, respectively. During 1996, the father advanced additional
funds to the Company and, on August 16, 1996, in consideration of the
cancellation of $81,923 debt due to the father, the Company issued 41,244
shares of the Company's common stock. The exchange ratio used to convert the
debt into shares of common stock was negotiated between the founders and their
father and cannot be considered arms-length.
F-25 Financial Statements
<PAGE>
CDNOW, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
10. COMMITMENTS AND CONTINGENCIES
Marketing Agreements and Strategic Alliances
Yahoo! Agreement. On September 2, 1998, the Company entered into a global
merchant agreement with Yahoo! Inc. (the "Yahoo! Agreement"), extending and
expanding upon earlier agreements with Yahoo! of August 1997 and March 1998.
Under the Yahoo! Agreement: (i) the Company continues to be granted music-
retail exclusivity on music-related search-results pages on Yahoo!'s main
directory, www.yahoo.com, (ii) is integrated into other areas of the Yahoo!
Service, including Yahoo! Mail and (iii) becomes the premier music retailer on
many of Yahoo!'s international sites. The term of the Yahoo! Agreement ends on
December 31, 2000, except for presence on the international sites, which ends
in March, 2000. The Company may terminate the Yahoo! Agreement earlier upon
payment of a specified termination fee. Coincident with the Yahoo! Agreement,
Yahoo! agreed to purchase up to $2 million in newly-issued common shares of the
Company at market price, of which $1 million was invested in September 1998,
and the remainder is to be invested on December 31, 1999.
Excite Agreement. On September 30, 1997, the Company entered into a two-year
agreement with Excite, Inc. (the "Excite Agreement"), pursuant to which the
Company became the exclusive retail music store sponsor of the Webcrawler.com
Web site. The Excite Agreement requires the Company to pay Excite a set-up fee,
an annual exclusivity fee and an annual sponsorship fee for ongoing
programming, links, placements, advertisements and promotions. The Excite
Agreement will expire in January 2000.
Lycos Agreement. On March 26, 1998, the Company entered into an agreement with
Lycos, Inc. (the "Lycos Agreement"), pursuant to which the Company became the
exclusive retail music store sponsor of the www.lycos.com and www.tripod.com
Web sites. The Lycos Agreement has a term of three years and will expire in
August 2001. The Company has issued 82,224 shares (the "Lycos Shares") of
common stock to Lycos. The Lycos Shares vest as Lycos delivers certain required
minimum page views, as defined in the Lycos Agreement. The Company has the
right to repurchase any of the Lycos shares that do not become vested at a
price of $0.01 per share. The Company will measure the stock granted as it
vests. If Lycos is unable to deliver a number of guaranteed minimum
impressions, some of the Lycos shares may not vest.
Lycos Bertelsmann Agreement. On April 2, 1998, the Company entered into an
agreement with Lycos Bertelsmann GMBH & Co. KG (the "Lycos Bertelsmann
Agreement"), pursuant to which the Company became the exclusive music retailer
on certain Lycos Bertelsmann branded Web services in Europe, as defined in the
Lycos Bertelsmann Agreement. The Lycos Bertelsmann Agreement has a three year
term expiring in April 2001.
MTV Agreement. On May 18, 1998, the Company entered into a binding memorandum
of terms for a three year advertising and promotion agreement with MTV
Networks, a subsidiary of Viacom International, Inc., pursuant to which the
Company committed to purchase advertising on the MTV
Financial Statements F-26
<PAGE>
CDNOW, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
and VH1 cable television channels and obtained the right to use certain MTV and
VH1 content. The Company has granted MTV Networks a warrant to purchase 226,892
shares of the Company's common stock at an exercise price of $23.28 per share.
The warrant will vest annually over the three years of the contract term.
Other Agreements. On January 5, 1998 the Company entered into a strategic
alliance with GeoCities pursuant to which the Company has been designated as
the exclusive music retailer as well as one of four key commerce partners that
occupy a premier position on certain pages of the GeoCities Web site. The
Company also has committed to make payments under advertising and linking
agreements with Rolling Stone Network, America Online with respect to the
Love@AOL service, and with certain other parties.
The Company is required to pay aggregate minimum fixed fees of $9.3 million,
$27.4 million, $26.7 million and $3.6 million during the remaining three months
of 1998 and the years ending December 31, 1999, 2000 and 2001, respectively,
under the Company's marketing agreements and strategic alliances.
The Company expects to amortize the costs associated with its marketing
agreements and strategic alliances over the contract terms, with the
amortization method primarily based on the rate of delivery of a guaranteed
number of impressions to be received during the contract term.
Many of the Company's agreements, including the Yahoo!, Excite, Lycos and Lycos
Bertelsmann Agreements, contain provisions which may require additional
payments to be made by the Company based on factors such as click-throughs and
new customers generated. To date, the amount of such payments has not been
material. Such payments are charged to expense as incurred. The Company will
continue to evaluate the realizability of assets recorded, if any, related to
the Yahoo!, Excite, Lycos, Lycos Bertelsmann and other agreements, and, if
necessary, write down the assets to realizable value.
Leases
The Company has entered into various noncancelable operating and capital leases
for office space, telephones and other equipment. Future minimum lease payments
under operating and capital leases as of December 31, 1997 are as follows:
<TABLE>
<CAPTION>
Operating Capital
---------- ----------
<S> <C> <C>
1998.................... $ 291,033 $ 464,103
1999.................... 302,044 453,629
2000.................... 343,784 388,761
2001.................... 316,775 146,407
2002.................... 226,037 --
---------- ----------
Total minimum lease
payments............... $1,479,673 1,452,900
==========
Less--Amount
representing interest.. (319,578)
----------
Present value of minimum
capitalized lease
payments............... $1,133,322
==========
</TABLE>
F-27 Financial Statements
<PAGE>
CDNOW, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Rent expense under operating leases was $51,836, $16,905, $207,724, $119,176
and $399,336 for the years ended 1995, 1996 and 1997 and for the nine months
ended September 30, 1997 and 1998, respectively.
Legal Actions
From time-to-time, the Company may be involved in litigation relating to claims
arising out of its ordinary course of business. The Company believes that there
are no claims or actions pending or threatened against the Company, the
ultimate disposition of which, would have a materially adverse effect on the
Company.
Financial Statements F-28
<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To N2K Inc.:
We have audited the accompanying consolidated balance sheets of N2K Inc. (a
Delaware corporation) and subsidiaries as of December 31, 1996 and 1997, and
the related consolidated statements of operations, stockholders' equity and
cash flows for each of the three years in the period ended December 31, 1997.
These financial statements are the responsibility of the Company's management.
Our responsibility is to express an opinion on these financial statements based
on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of N2K Inc. and subsidiaries as
of December 31, 1996 and 1997 and the results of their operations and their
cash flows for each of the three years in the period ended December 31, 1997,
in conformity with generally accepted accounting principles.
/s/ Arthur Andersen LLP
Philadelphia, Pa.,
February 12, 1998 (except with respect to the matter discussed in Note 1, as to
which the date is December 22, 1998)
F-29 Financial Statements
<PAGE>
N2K INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
December 31,
-------------------------- September 30,
1996 1997 1998
------------ ------------ -------------
(Unaudited)
<S> <C> <C> <C>
ASSETS
CURRENT ASSETS:
Cash and cash equivalents......... $ 4,483,450 $ 36,831,748 $ 54,277,085
Accounts receivable, net.......... 63,549 713,386 1,694,649
Receivable for Common stock
subject to put rights............ -- 2,999,995 2,999,995
Prepaid expenses.................. 703,657 16,645,294 9,651,836
------------ ------------ -------------
Total current assets............ 5,250,656 57,190,423 68,623,565
------------ ------------ -------------
NET ASSETS OF DISCONTINUED OPERA-
TIONS.............................. 158,247 -- --
------------ ------------ -------------
PROPERTY AND EQUIPMENT:
Computer equipment................ 2,289,944 4,638,311 10,328,407
Office furniture and equipment.... 491,942 1,079,960 1,606,041
Leasehold improvements............ 486,877 1,213,174 1,569,240
Property and equipment under
capital leases................... 868,436 1,591,387 1,591,387
------------ ------------ -------------
4,137,199 8,522,832 15,095,075
Less-Accumulated depreciation and
amortization..................... (1,002,435) (2,241,059) (4,353,721)
------------ ------------ -------------
Net property and equipment...... 3,134,764 6,281,773 10,741,354
------------ ------------ -------------
OTHER ASSETS:
Intangible assets, net............ 320,162 244,154 187,148
Restricted cash................... 167,000 167,000 167,000
Other............................. 299,093 138,206 1,083,276
------------ ------------ -------------
Total other assets.............. 786,255 549,360 1,437,424
------------ ------------ -------------
$ 9,329,922 $ 64,021,556 $ 80,802,343
============ ============ =============
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Current portion of capital lease
obligations...................... $ 182,868 $ 394,055 $ 303,415
Accounts payable.................. 1,068,657 1,290,474 1,577,119
Accrued merchandise costs......... 24,740 1,169,898 1,469,257
Accrued compensation.............. 492,515 1,259,165 1,246,808
Accrued royalties................. -- 28,289 33,105
Other accrued liabilities......... 1,571,012 2,189,191 6,271,160
------------ ------------ -------------
Total current liabilities....... 3,339,792 6,331,072 10,900,864
------------ ------------ -------------
NET LIABILITIES OF DISCONTINUED
OPERATIONS......................... -- 705,756 5,139,973
------------ ------------ -------------
CAPITAL LEASE OBLIGATIONS........... 235,153 519,215 311,460
------------ ------------ -------------
OTHER LONG-TERM LIABIILTIES......... 309,100 317,583 324,508
------------ ------------ -------------
COMMON STOCK SUBJECT TO PUT RIGHTS.. 537,498 2,999,995 2,999,995
------------ ------------ -------------
COMMITMENTS AND CONTINGENCIES (Note
10)
STOCKHOLDERS' EQUITY:
Preferred stock, $.001 par value,
40,000,000 shares authorized,
15,397,088 shares and none issued
and outstanding.................. 15,397 -- --
Common stock, $.001 par value,
100,000,000 shares authorized,
2,923,216, 12,118,000 and
14,228,755 shares issued and
outstanding actual............... 2,923 12,118 14,229
Additional paid-in capital........ 31,694,385 109,197,798 171,356,553
Accumulated deficit............... (26,804,326) (56,061,981) (110,245,239)
------------ ------------ -------------
Total stockholders' equity...... 4,908,379 53,147,935 61,125,543
============ ============ =============
$ 9,329,922 $ 64,021,556 $ 80,802,343
============ ============ =============
</TABLE>
The accompanying notes are an integral part of these statements.
Financial Statements F-30
<PAGE>
N2K INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
Nine Months Ended
Year Ended December 31 September 30
------------------------------------------ --------------------------
1995 1996 1997 1997 1998
------------ ------------- ------------- ------------ ------------
(Unaudited)
<S> <C> <C> <C> <C> <C>
NET REVENUES............ $ 96,505 $ 1,655,704 $ 8,108,449 $ 4,115,458 $ 24,890,121
COST OF REVENUES........ 85,176 1,447,888 6,212,741 3,284,672 19,888,878
------------ ------------- ------------- ------------ ------------
Gross profit........... 11,329 207,816 1,895,708 830,786 5,001,243
OPERATING EXPENSES:
Operating and
development........... 1,034,617 7,007,929 10,585,441 7,082,806 16,092,108
Sales and marketing.... 1,077,649 2,772,167 6,690,884 2,612,009 29,818,641
General and
administrative........ 871,667 2,477,995 4,647,810 3,125,505 3,357,404
Charge for purchased
research and
development........... -- 5,242,523 -- -- --
------------ ------------- ------------- ------------ ------------
Operating loss......... (2,972,604) (17,292,798) (20,028,427) (11,989,534) (44,266,910)
INTEREST AND OTHER
INCOME................. 106,370 352,531 693,881 166,312 2,446,254
INTEREST EXPENSE........ (18,237) (52,281) (653,455) (484,486) (55,071)
------------ ------------- ------------- ------------ ------------
Loss from continuing
operations............ (2,884,471) (16,992,548) (19,988,001) (12,307,708) (41,875,727)
INCOME (LOSS) FROM
DISCONTINUED
OPERATIONS............. 1,289,671 (1,915,361) (9,683,466) (4,806,679) (12,307,531)
GAIN ON DISPOSAL OF
DISCONTINUED
OPERATIONS............. -- -- 1,574,493 1,574,493 --
------------ ------------- ------------- ------------ ------------
LOSS BEFORE
EXTRAORDINARY ITEM..... (1,594,800) (18,907,909) (28,096,974) (15,539,894) (54,183,258)
EXTRAORDINARY ITEM...... -- -- (639,262) -- --
------------ ------------- ------------- ------------ ------------
NET LOSS................ $ (1,594,800) $ (18,907,909) $ (28,736,236) $(15,539,894) $(54,183,258)
============ ============= ============= ============ ============
BASIC AND DILUTED INCOME
(LOSS) PER COMMON
SHARE:
Loss from continuing
operations............ $ (1.84) $ (6.15) $ (4.09) $ (4.11) $ (3.12)
Income (loss) from
discontinued
operations............ 0.82 (0.70) (1.98) (1.61) (0.91)
Gain on disposal of
discontinued
operations............ -- -- 0.32 0.53 --
Extraordinary item..... -- -- (0.13) -- --
------------ ------------- ------------- ------------ ------------
Net loss per Common
share................. $ (1.02) $ (6.85) $ (5.88) $ (5.19) $ (4.03)
============ ============= ============= ============ ============
SHARES USED IN COMPUTING
BASIC AND DILUTED NET
LOSS PER COMMON SHARE.. 1,566,955 2,760,948 4,885,556 2,994,770 13,434,772
============ ============= ============= ============ ============
</TABLE>
The accompanying notes are an integral part of these statements.
F-31 Financial Statements
<PAGE>
N2K INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
<TABLE>
<CAPTION>
Additional
Preferred Common Paid-in Accumulated
Stock Stock Stock Deficit Total
--------- ------- ------------ ------------- ------------
<S> <C> <C> <C> <C> <C>
BALANCE, DECEMBER 31,
1994................... $ 4,057 $ 1,567 $ 8,539,697 $ (6,301,617) $ 2,243,704
Common stock options
exercised............. -- -- 80 -- 80
Net loss............... -- -- -- (1,594,800) (1,594,800)
-------- ------- ------------ ------------- ------------
BALANCE, DECEMBER 31,
1995................... 4,057 1,567 8,539,777 (7,896,417) 648,984
Issuance of Common
stock and Series E
Preferred stock in
connection with
purchase of New York
N2K................... 1,348 1,348 4,148,708 -- 4,151,404
Issuance of Series E
Preferred stock....... 4,659 -- 3,722,701 -- 3,727,360
Issuance of Series F
Preferred stock, net.. 5,333 -- 15,262,951 -- 15,268,284
Issuance of Common
stock for services
rendered.............. -- 6 14,244 -- 14,250
Common stock options
exercised............. -- 2 6,004 -- 6,006
Net loss............... -- -- -- (18,907,909) (18,907,909)
-------- ------- ------------ ------------- ------------
BALANCE, DECEMBER 31,
1996................... 15,397 2,923 31,694,385 (26,804,326) 4,908,379
Issuance of Series G
Preferred stock, net.. 2,480 -- 7,213,051 -- 7,215,531
Warrants issued in
connection with
Management and Senior
notes................. -- -- 950,000 -- 950,000
Warrants issued in
connection with AOL
Contract.............. -- -- 775,000 -- 775,000
Issuance of Common
stock, net............ -- 3,830 65,320,929 -- 65,324,759
Conversion of Preferred
stock to Common
stock................. (17,877) 5,020 12,857 -- --
Management Note
Conversion............ -- 95 1,811,637 -- 1,811,732
Rocktropolis Put
expiration............ -- 45 537,453 -- 537,498
Common stock purchase
and retirement........ -- (41) -- (521,419) (521,460)
Issuance of Common
stock for services
rendered.............. -- 3 52,496 -- 52,499
Issuance of Common
stock options for
services rendered..... -- -- 31,463 -- 31,463
Common stock options
exercised............. -- 243 798,527 -- 798,770
Net loss............... -- -- -- (28,736,236) (28,736,236)
-------- ------- ------------ ------------- ------------
BALANCE, DECEMBER 31,
1997................... -- 12,118 109,197,798 (56,061,981) 53,147,935
Issuance of Common
stock under employee
stock purchase plan
(unaudited)........... -- 10 94,732 -- 94,742
Issuance of Common
stock, net
(unaudited)........... -- 2,000 61,405,188 -- 61,407,188
Common stock options
and warrants exercised
(unaudited)........... -- 98 366,418 -- 366,516
Issuance of Common
stock for services
rendered (unaudited).. -- 3 62,497 -- 62,500
Issuance of Common
stock options for
services rendered
(unaudited)........... -- -- 229,920 -- 229,920
Net loss (Unaudited)... -- -- -- (54,183,258) (54,183,258)
-------- ------- ------------ ------------- ------------
BALANCE, SEPTEMBER 30,
1998 (unaudited)....... $ -- $14,229 $171,356,553 $(110,245,239) $ 61,125,543
======== ======= ============ ============= ============
</TABLE>
The accompanying notes are an integral part of these statements.
Financial Statements F-32
<PAGE>
N2K INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
Nine Months Ended
Year Ended December 31 September 30
------------------------------------------ ----------------------------
1995 1996 1997 1997 1998
------------ ------------- ------------- ------------- -------------
(Unaudited)
<S> <C> <C> <C> <C> <C>
OPERATING ACTIVITIES:
Net loss............... $ (1,594,800) $ (18,907,909) $ (28,736,236) $ (15,539,894) $ (54,183,258)
Adjustments to
reconcile net loss to
net cash used in
operating activities--
Depreciation and
amortization.......... 238,558 767,357 1,437,541 959,312 2,307,834
Amortization of
marketing advances.... -- -- 2,769,741 158,000 14,926,452
Gain on disposal of
discontinued
operations............ -- -- (1,574,493) (1,574,493) --
Encoded Music
restructuring charge.. -- -- -- -- 4,304,249
Loss on disposal of
property and
equipment............. -- -- 79,620 79,620 --
Extraordinary loss from
early extinguishment
of debt............... -- -- 639,262 -- --
Amortization of
discount on Management
and Senior Notes...... -- -- 310,738 227,000 --
Provision for future
returns............... -- -- 1,816,238 447,641 192,000
Provision for doubtful
accounts.............. -- 18,000 64,045 56,574 99,793
Charge for purchased
research and
development........... -- 5,242,523 -- -- --
Issuance of Common
stock for services
rendered.............. -- 14,250 52,499 -- 62,500
Issuance of Common
stock options for
services rendered..... -- -- 31,463 -- 229,920
Decrease (increase)
in--
Restricted cash........ -- 500,000 -- (300,000) --
Accounts receivable.... 485,839 461,356 (1,022,882) (1,135,991) (684,250)
Prepaid expenses....... (30,225) (610,365) (18,065,728) (3,804,769) (7,818,065)
Inventory.............. -- (113,824) 23,785 23,697 (224,320)
Advances and recoupable
costs................. -- (86,525) (116,825) (1,149,660) 32,444
Other assets........... (229) (49,144) (45,945) (24,501) (1,259,910)
Increase (decrease)
in--
Accounts payable....... (30,951) 1,177,839 (61,680) (90,250) 395,160
Accrued merchandise
costs................. 33,300 (8,560) 1,145,158 539,621 299,359
Accrued compensation... 44,335 484,819 625,084 (119,340) 52,923
Accrued royalties...... -- -- 629,989 259,151 (45,436)
Accrued Encoded Music
restructuring......... -- -- -- -- (499,316)
Other accrued
liabilities........... 821 317,418 (733,858) 763,000 3,993,372
Other long-term
liabilities........... (20,671) 59,073 60,641 3,036 23,945
------------ ------------- ------------- ------------- -------------
Net cash used in
operating
activities........... (874,023) (10,733,692) (40,671,843) (20,222,246) (37,794,604)
------------ ------------- ------------- ------------- -------------
INVESTING ACTIVITIES:
Purchases of and
deposits on property
and equipment......... (338,721) (2,933,196) (4,313,916) (2,636,803) (6,277,541)
Acquisition of New York
N2K, net of cash
acquired.............. -- (224,077) -- -- --
Purchase of
Rocktropolis website.. -- (671,744) -- -- --
Proceeds from disposal
of discontinued
operations............ -- -- 3,000,000 3,000,000 --
------------ ------------- ------------- ------------- -------------
Net cash (used in)
provided by investing
activities........... (338,721) (3,829,017) (1,313,916) 363,197 (6,277,541)
------------ ------------- ------------- ------------- -------------
</TABLE>
The accompanying notes are an integral part of these statements.
F-33 Financial Statements
<PAGE>
N2K INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS (Continued)
<TABLE>
<CAPTION>
Nine Months Ended
Year Ended December 31 September 30
------------------------------------- -------------------------
1995 1996 1997 1997 1998
---------- ----------- ------------ ----------- ------------
(Unaudited)
<S> <C> <C> <C> <C> <C>
FINANCING ACTIVITIES:
Net borrowings
(repayments) under
line of credit....... $ 400,000 $ (400,000) $ -- $ 650,000 $ --
Proceeds from
Management and Senior
Notes................ -- -- 7,771,600 7,771,600 --
Repayment of Senior
Notes................ -- -- (6,021,600) -- --
Payments on capital
lease obligations.... (109,476) (103,115) (233,543) (158,229) (350,964)
Proceeds from issuance
of Preferred stock,
net.................. -- 18,995,644 7,215,531 7,215,531 --
Proceeds from issuance
of Common stock,
net.................. -- -- 65,324,759 -- 61,407,188
Proceeds from issuance
of Common stock under
the employee stock
purchase plan........ -- -- -- -- 94,742
Proceeds from exercise
of Common stock
options and
warrants............. 80 6,006 277,310 75,663 366,516
---------- ----------- ------------ ----------- ------------
Net cash provided by
financing
activities.......... 290,604 18,498,535 74,334,057 15,554,565 61,517,482
---------- ----------- ------------ ----------- ------------
INCREASE (DECREASE) IN
CASH AND EQUIVALENTS.. (922,140) 3,935,826 32,348,298 (4,304,484) 17,445,337
CASH AND CASH
EQUIVALENTS, BEGINNING
OF PERIOD............. 1,469,764 547,624 4,483,450 4,483,450 36,831,748
---------- ----------- ------------ ----------- ------------
CASH AND CASH
EQUIVALENTS, END OF
PERIOD................ $ 547,624 $ 4,483,450 $ 36,831,748 $ 178,966 $ 54,277,085
========== =========== ============ =========== ============
</TABLE>
The accompanying notes are an integral part of these statements.
Financial Statements F-34
<PAGE>
N2K INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Information as of September 30, 1998 and for the nine months
ended September 30, 1997 and 1998 is unaudited)
1. THE COMPANY AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
The Company:
Background and Recent Events
N2K Inc. (the "Company" or "N2K"), formerly Telebase Systems, Inc., was formed
as a result of the merger in February 1996, of N2K Inc., a New York corporation
("New York N2K") which was founded in 1995, and Telebase Systems, Inc.
("Telebase"), which was founded in 1984 as a provider of on-line information
services (see Note 2). In 1994, recognizing increasing opportunities in the
entertainment market, Telebase expanded its strategy to include music
entertainment. In April 1997, the Company discontinued its on-line information
services business and in August 1997, the Company sold substantially all of the
net assets of this business. The operations of the on-line information services
business have been accounted for as discontinued operations (see Note 3).
The Company is an online music entertainment company using the Internet as a
global platform for promoting, marketing and selling music and related
merchandise. The Company's strategy is to build loyal user communities around
genre-specific websites that provide music content and enable consumers to
purchase compact discs ("CDs"), cassettes, LPs, videos and related merchandise.
The Company has incurred significant losses and expects to continue to incur
significant losses on a quarterly and annual basis for the foreseeable future.
As of September 30, 1998, the Company had an accumulated deficit of
$110,245,239. The Company has incurred losses from continuing operations of
$16,992,548, $19,988,001 and $41,875,727 for the years ended December 31, 1996
and 1997 and the nine months ended September 30, 1998, respectively. Since its
inception, the Company has incurred costs to develop and enhance its
technology, to create, introduce and enhance its websites, to establish
marketing and distribution relationships and to build its administrative
organization. The Company currently intends to increase its operating expenses
as a result of the Company's strategic alliances, to fund increased sales and
marketing, to enhance existing websites and to complete strategic relationships
important to the success of the Company. To the extent that such expenses
precede or are not subsequently followed by increased revenues, the Company's
business, results of operations and financial condition will be materially
adversely affected. There can be no assurance that the Company will be able to
generate sufficient revenues from the sale of music recordings, related
merchandise, advertising and sponsorship to achieve or maintain profitability
on a quarterly or annual basis in the future. The Company expects negative cash
flow from operations to continue for the foreseeable future as it continues to
develop and market its business.
F-35 Financial Statements
<PAGE>
N2K INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
The Company had also established its own record label, N2K Encoded Music, which
used the Company's websites, as well as record stores and other traditional
distribution channels, to promote, distribute and sell original and licensed
artist recordings. In August 1998, management announced a restructuring of its
record label, N2K Encoded Music. The restructuring was done in an effort to
streamline the cost structure of Encoded Music. Historically, the Company
focused on two genres of music: Rock/Pop and Jazz. Through this restructuring,
the Company will no longer produce or license artist recordings in the Rock/Pop
genre. The Company immediately ceased all of its operations in the Rock/Pop
genre. Accordingly, the Company recorded a restructuring charge of $4,304,249.
This charge is included in loss from discontinued operations in the
accompanying consolidated statements of operations. This charge represented (i)
certain costs relating to severance due to a reduction in Encoded Music's
workforce ($2,006,360); (ii) costs associated with the termination of certain
of its contractual commitments ($1,437,845); and (iii) non-cash costs
associated with the write-down of certain assets and other miscellaneous costs
($860,044). The reduction in Encoded Music's workforce represented 21
individuals, or all of its employees who worked in the Rock/Pop genre and
included individuals in promotions, sales and marketing and management. The
contractual commitments terminated primarily relate to contracts which N2K had
with various artists/projects. Pursuant to these contracts, N2K was obligated
to provide the funding and support for each of these artists' projects. As a
result of N2K exiting the Rock/Pop genre, N2K no longer supported these
projects. Accordingly, the costs incurred represented the costs that N2K was
required to pay, or is expected to pay to settle its obligation under its
original artist recording agreements for each of these projects. These
arrangements should be settled and paid by June 1999. The Company's management
believes that this provision is adequate based upon the decisions currently
made by management. However, the amount the Company ultimately incurs could be
different from these estimates. At September 30, 1998, $3,804,933 of
restructuring charges remained in accrued liabilities. The balance was
comprised of $1,894,245 for severance costs, $1,066,845 to terminate certain of
its existing contracts, and $843,843 for other miscellaneous costs. Other than
the amounts paid, there were not any changes to this liability since the
initial charge. Cash expenditures related to this restructuring for the three
months ended September 30, 1998 were $499,316. Cash expenditures for the fourth
quarter of 1998 and the years ended December 31, 1999 and 2000 are expected to
be approximately $445,000, $2,059,000 and $644,000, respectively. Actual costs
incurred are charged against the accrued Encoded Music restructuring account
when paid.
In December 1998, the Company approved a formal plan of disposal for
N2K Encoded Music. N2K Encoded Music has been accounted for as a discontinued
operation with a measurement date of December 22, 1998. N2K has negotiated the
material terms of an agreement to sell the majority of Encoded Music to an
unrelated third party. The Company expects that the disposal of N2K Encoded
Music will result in a loss on the disposal of the segment's net assets.
Accordingly, as of December 22, 1998, the Company has accrued the expected loss
on the disposal, as well as the expected losses of the segment from the
measurement date to the anticipated disposal date. As these accruals were
recorded on December 22, 1998, the accompanying consolidated financial
statements do not reflect such amounts. These accruals will be recorded in the
quarter ended December 31, 1998. However, the accompanying consolidated
financial statements reflect the operating results and
Financial Statements F-36
<PAGE>
N2K INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
balance sheet items of the discontinued operations separately from continuing
operations. See Note 3 for more information on the N2K Encoded Music
discontinued operation.
On October 23, 1998, the Company and CDnow, Inc. ("CDnow") issued a joint press
release announcing the execution of a definitive merger agreement. CDnow is an
online retailer of CDs and other music related products. The merger will be
effected through the formation of a new publicly traded company, initially to
be called CDnow/N2K, Inc. The agreement provides for each existing N2K
stockholder to receive 0.83 shares of common stock in the new company for each
N2K share owned by such party, and each existing CDnow shareholder to receive
1.00 share of common stock in the new company for each CDnow share owned by
such party. The merger agreement and press release are filed as exhibits to the
Company's Current Report on Form 8-K dated October 22, 1998 and filed October
29, 1998.
Management and Senior Notes
In July 1997, the Company issued $1,750,000 aggregate principal amount of
promissory notes to Lawrence L. Rosen, Jonathan V. Diamond and Robert David
Grusin (the "Management Notes"), each of whom loaned the Company $583,333. The
Management Notes bore interest at 14% per annum and were due on the earlier of
(i) a change of control of the Company, as defined, and (ii) March 31, 1998.
The Management Notes, including interest, converted into an aggregate 95,354
shares of Common stock upon the consummation of the initial public offering in
October 1997 (the "Management Note Conversion"). In consideration for these
loans, the Company issued an aggregate of 48,609 warrants to purchase 48,609
shares of Common stock, representing 16,203 warrants to each of Messrs. Rosen,
Diamond and Grusin. The warrants are exercisable at a price of $12 per share
and expire in July 2004. The Management Notes were recorded net of the value
($150,000) associated with these warrants. This discount was being amortized
over the term of the debt through March 31, 1998. When the Management Notes
were converted into Common stock, the Company recorded an extraordinary charge
to its consolidated statement of operations, which was equal to the unamortized
portion of the discount (approximately $102,000).
In August 1997, the Company issued $6,021,600 aggregate principal amount of
Senior Notes (the "Senior Notes") to a group of five institutional investors
affiliated with an insurance company and one existing stockholder of the
Company in return for loans in that amount to the Company. The Senior Notes
bore interest at 14% per annum and were due on the earlier of (i) consummation
of the Company's initial public offering, (ii) a change of control of the
Company, as defined, and (iii) March 31, 1998. In consideration for these
loans, the Company issued an aggregate of 167,266 warrants to purchase 167,266
shares of Common stock. The warrants are exercisable at a price of $12 per
share and expire in August 2004. The Senior Notes were recorded net of the
value ($800,000) associated with these warrants. This discount was being
amortized over the term of the debt through March 31, 1998. In connection with
the early repayment of the Senior Notes upon the consummation of the initial
public offering, the Company recorded an extraordinary charge to its
consolidated statement of operations which was equal to the unamortized portion
of the discount
F-37 Financial Statements
<PAGE>
N2K INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
(approximately $537,000). In addition, the Company issued warrants to purchase
83,389 shares of Common stock at an exercise price of $12 per share as a
placement fee relating to this transaction.
Initial Public Offering
On October 22, 1997, the Company completed its initial public offering of
3,330,221 shares of Common stock at a price of $19 per share. Additionally, on
October 22, 1997, the underwriter exercised their overallotment option for the
purchase of 499,533 shares at a price of $19 per share. The Company received
net cash proceeds of approximately $65,300,000 from the initial public
offering. In addition, on October 22, 1997, the following events occurred: (i)
the automatic conversion of all outstanding shares of the Company's Preferred
stock; $0.001 par value, into an aggregate of 4,986,778 shares of Common stock
upon the consummation of the initial public offering; (ii) the automatic
expiration upon the consummation of the initial public offering of the put
rights associated with 44,790 shares of Common stock issued in connection with
purchase of the rock website, Rocktropolis; (iii) the Management Note
Conversion; (iv) the AOL Purchase; and (v) the repayment of the Senior Notes.
Secondary Offering
On April 20, 1998, the Company completed its secondary public offering (the
"Secondary Offering") of 3,125,722 shares of Common stock at a price of $33
per share. Of the 3,125,722 shares of Common stock offered, 2,000,000 were
offered by the Company, and 1,125,722 were offered by selling stockholders.
The Company received net proceeds of approximately $61,560,000.
Stock Split and Reorganization
On October 15, 1997, the Company effected a one-for-four reverse stock split
of each outstanding share of Common stock in N2K Inc., a Pennsylvania
corporation, prior to the reorganization of N2K Inc. as a Delaware
corporation, which occurred on October 16, 1997. All share, stock option and
warrant data have been restated to reflect the reverse stock split.
Summary of Significant Accounting Policies:
Interim Financial Statements
The consolidated financial statements as of September 30, 1998 and for the
nine months ended September 30, 1997 and 1998 are unaudited and, in the
opinion of management, include all adjustments (consisting only of normal
recurring adjustments) necessary for a fair presentation of results for these
interim periods. The results of operations for the nine months ended September
30, 1997 and 1998 are not necessarily indicative of the results to be expected
for the entire year.
Principles of Consolidation
The consolidated financial statements include the accounts of the Company and
its wholly owned subsidiaries. All significant intercompany accounts and
transactions have been eliminated.
Financial Statements F-38
<PAGE>
N2K INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Management's Use of Estimates
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions
that affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting period.
Actual results could differ from those estimates.
Cash and Cash Equivalents
For purposes of the consolidated statements of cash flows, the Company
considers investment instruments with an original maturity of three months or
less to be cash equivalents. Cash equivalents are comprised of investments in
various mutual and money market funds, as well as short-term notes.
Supplemental Disclosures of Cash Flow Information
For the years ended December 31, 1995, 1996 and 1997 and the nine months ended
September 30, 1997 and 1998, the Company paid interest of $18,237, $52,281,
$277,528, $77,030 and $64,277, respectively. Income taxes paid in 1995, 1996,
1997 and 1998 were immaterial. The Company incurred $99,454, $933,227 and
$208,226 of capital lease obligations during 1995, 1997 and the nine months
ended September 30, 1997, respectively. There were no capital lease obligations
incurred during 1996 or 1998.
The following table displays the noncash assets and liabilities that were
consolidated as a result of the New York N2K acquisition on February 13, 1996
(see Note 2):
<TABLE>
<S> <C>
Noncash assets (liabilities):
Accounts receivable........................................... $ 78,090
Prepaid expenses.............................................. 3,540
Property and equipment........................................ 557,455
Other assets.................................................. 36,612
Goodwill...................................................... 280,000
Charge for purchased research and development................. 4,133,281
Accounts payable and other accrued liabilities................ (405,118)
Capital lease obligations..................................... (308,379)
-----------
Net noncash assets acquired................................. 4,375,481
Less--Preferred stock issued................................ (1,078,286)
Common stock issued...................................... (3,073,118)
-----------
Cash paid, net of cash acquired............................... $ 224,077
===========
</TABLE>
F-39 Financial Statements
<PAGE>
N2K INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Additionally, the following table displays the noncash assets that were
acquired as a result of the Rocktropolis website acquisition on June 21, 1996
(see Note 2):
<TABLE>
<S> <C>
Noncash assets :
Charge for purchased research and development.................. $1,109,242
Intangible assets.............................................. 100,000
----------
Net noncash assets acquired.................................. 1,209,242
Less--Common stock issued.................................... (537,498)
----------
Cash paid...................................................... $ 671,744
==========
</TABLE>
Property and Equipment
Property and equipment are stated at cost. Depreciation is calculated on a
straightline basis over the estimated useful lives of the assets. Computer
equipment is depreciated primarily over an estimated useful life of 4 years and
office furniture and equipment is depreciated over an estimated useful life of
4 to 8 years. Leasehold improvements are amortized over the shorter of the
estimated useful life or the lease term. Improvements and betterments are
capitalized, and maintenance and repair costs are charged to expense as
incurred. Upon retirement or disposition, the applicable property amounts are
relieved from the accounts, and any gain or loss is recorded in the
consolidated statement of operations.
Intangible Assets
Intangible assets consist of acquired technology costs and the Rocktropolis
tradename and are being amortized over 5 years on a straightline basis.
The Company evaluates the realizability of intangible assets based on estimates
of undiscounted future cash flows over the remaining useful life of the asset.
If the amount of such estimated undiscounted future cash flow is less than the
net book value of the asset, the asset is written down to its net realizable
value. As of September 30, 1998, no such writedown was required.
Common Stock Subject to Put Rights
America Online, Inc. ("AOL") and the Company entered into an agreement,
pursuant to which AOL agreed to purchase from the Company at the initial public
offering price per share of $19.00 (less underwriting discounts and
commissions) an aggregate amount of $3,000,000 or 169,779 shares of the
Company's Common stock (the "AOL Purchase"). The Company has granted AOL
certain shelf and other registration rights with respect to the shares
purchased by AOL in the AOL Purchase, including the right to require the
Company to register such shares for resale, to have such registration statement
declared effective on or before April 16, 1998 and to maintain the
effectiveness of such registration statement for a period of two years from the
consummation of the AOL Purchase. Accordingly, the value of these shares is not
included in Stockholders' equity. As the Company has failed to cause such
registration statement to be declared effective by April 16, 1998, AOL has the
right to require the Company to repurchase such shares for cash at a price
equal to the greater of the original purchase price therefor (which was being
held by AOL in a segregated account) and the
Financial Statements F-40
<PAGE>
N2K INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
then-current fair market value. On December 16, 1998, the Company and AOL
agreed to offset $3,000,000 in marketing advances which the Company owed to AOL
as of November 1, 1998 against the $3,000,000 AOL owed to the Company under
this agreement. The current fair market value of the Company's Common stock as
of January 20, 1999 was $14.31 per Common share. As of January 20, 1999, these
shares had not been registered and AOL had not exercised its put right. If the
Company is required to purchase the AOL shares, the Common subject to put
rights on the Company's consolidated balance sheets will be accreted to its
fair value based upon the price of the Company's stock at each reporting date.
The fair value will be recorded as a charge to retained earnings at each
reporting date and will reduce earnings available to Common shareholders. As of
January 20, 1999, there is no charge as the market value of the Company's
Common stock is below $19.00 per Common share. The Company's repurchase
obligation is secured by an escrow in the form of cash and/or letter of credit
in an amount to be agreed upon by the Company and AOL, which amount shall not
be less than $3,000,000 nor more than $7,500,000.
In addition, the Company granted AOL a warrant for the future purchase of up to
184,736 additional shares of Common stock (the "AOL Warrant") at an exercise
price equal to the initial public offering price per share. The AOL Warrant is
exercisable as to one-half of the total number of shares on the first
anniversary of the date of issuance and as to the balance of the shares on the
second anniversary of the date of issuance. The AOL Warrant expires in October
2004. The fair value of these warrants ($775,000) has been included in prepaid
expenses and is being amortized over the term of the AOL Contract, which is
three years.
Revenue Recognition
Revenues from the sale of music CDs and cassettes sold via the Internet include
shipping and handling charges and are recognized at the time of shipment. The
Company records the estimated gross profit which will be lost due to current
period shipments being returned in future periods as a reduction of revenues
and cost of revenues in the period of shipment.
The Company has numerous agreements with other companies in the entertainment
business which provide for, among other things, the Company to pay a percentage
of revenues, as defined, derived from customers entering the Company's website
via the websites of these other companies. The Company records these amounts in
sales and marketing expenses in the accompanying consolidated statements of
operations.
Advertising revenues are derived from the sale of advertising on the Company's
websites. Advertising revenues are recognized in the period the advertisement
is displayed, provided that no significant Company obligations remain and
collection of the resulting receivable is probable. Company obligations
typically include guarantees of minimum number of "impressions", or times that
any advertisement is viewed by users on the Company's websites. To the extent
minimum guaranteed impressions are not met, the Company defers recognition of
the corresponding revenues until guaranteed impression levels are achieved.
Revenues from the sale of certain advertising on the Company's websites are
shared with third parties under the terms of certain agreements. The Company
records such advertising revenues gross and records amounts allocable to third
parties
F-41 Financial Statements
<PAGE>
N2K INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
under the terms of such agreements in sales and marketing expenses. To date,
amounts allocable to third parties have not been significant. For the years
ended December 31, 1995, 1996 and 1997 and the nine months ended September 30,
1997 and 1998, advertising revenues were $3,000, $222,680, $965,954, $420,988
and $2,845,136, respectively.
The Company recognizes advertising revenue as a result of barter transactions.
Such revenue is recognized based on the fair value received or sold, whichever
clearly estimates the fair value of the transaction, which generally consists
of advertising or merchandise. Barter revenue and the corresponding expenses
are recognized in the period the advertising is displayed. For the year ended
December 31, 1997 and the nine months ended September 30, 1997 and 1998,
$340,000, $242,945 and $1,718,354, respectively, of advertising revenue was
recognized related to barter transactions. Prior to 1997, the Company had no
barter transactions.
International net revenues were $25,570, $650,258, $2,104,399, $1,307,794 and
$3,829,103 for the years ended December 31, 1995, 1996 and 1997 and the nine
months ended September 30, 1997 and 1998, respectively.
Operating and Development Expenses
Operating and development expenses consist of software engineering, multimedia
production, graphic design, telecommunications charges and computer operations
which support the Company's products. For the years ended December 31, 1995,
1996 and 1997 and the nine months ended September 30, 1997 and 1998, the
Company incurred costs of $724,326, $3,051,174, $4,128,249, $2,989,307 and
$5,432,386, respectively, relating to research and development. These amounts
are included in operating and development expenses as shown in the accompanying
consolidated statements of operations.
Advertising Expenses
Advertising and promotional costs incurred by the Company are expensed the
first time the advertising takes place. Advertising and promotion expense,
excluding the amortization of the Company's marketing advances (see Note 4),
was $388,748, $1,759,515, $3,156,173, $1,852,361 and $12,785,091 for the years
ended December 31, 1995, 1996 and 1997 and the nine months ended September 30,
1997 and 1998, respectively, and is included in sales and marketing expenses in
the accompanying consolidated statements of operations.
Charge for Purchased Research and Development
In connection with the acquisition of New York N2K in February 1996 and the
rock website, Rocktropolis, in June 1996 (see Note 2), $5,242,523 of the
aggregate purchase price was allocated to incomplete research and development
projects. Accordingly, these costs were charged to expense as of the
acquisition dates. The development of these projects had not yet reached
technological feasibility and the technology had no alternative future use. The
acquired technology required substantial additional development by the Company.
Financial Statements F-42
<PAGE>
Loss per Common Share
In February 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards ("SFAS") No. 128, "Earnings per Share," which
superseded Accounting Principles Board Opinion No. 15. SFAS No. 128 requires
dual presentation of basic and diluted earnings (loss) per share for complex
capital structures on the face of the statements of operations. According to
SFAS No. 128, basic earnings (loss) per share, which replaced primary earnings
(loss) per share, is calculated by dividing net income (loss) available to
Common stockholders by the weighted average number of Common shares outstanding
for the period. Diluted earnings (loss) per share, which replaced fully diluted
earnings (loss) per share, reflects the potential dilution from the exercise or
conversion of securities into Common stock, such as stock options.
The Company adopted SFAS No. 128 during the period ended December 31, 1997, as
earlier application was not permitted. As required by SFAS No. 128, all prior-
period loss per Common share data has been restated to conform with the
provisions of this statement.
The following is a summary of the numerators and denominators of the basic and
diluted net loss per Common share computations:
<TABLE>
<CAPTION>
Nine Months Ended
Year Ended December 31 September 30
--------------------------------------- --------------------------
1995 1996 1997 1997 1998
----------- ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
Loss (numerator)........ $(1,594,800) $(18,907,909) $(28,736,236) $(15,539,894) $(54,183,258)
Shares (denominator).... 1,566,955 2,760,948 4,885,556 2,994,770 13,434,772
Per share amount........ $ (1.02) $ (6.85) $ (5.88) $ (5.19) $ (4.03)
</TABLE>
Diluted net loss per share is the same as basic net loss per share as no
additional shares for the potential dilution from the exercise or conversion of
securities into Common stock are included in the denominator as the result is
antidilutive due to the Company's losses. Therefore, options to purchase
2,195,905 shares of Common stock at a weighted average exercise price of $10.56
per share, warrants to purchase 599,554 shares of Common stock at a weighted
average exercise price of $14.16 per share and the AOL Purchase were
outstanding as of September 30, 1998, but were not included in the computation
of diluted net loss per Common share.
Major Supplier and Distribution Agreement
The Company had a contract with Valley Media, Inc. ("Valley"), which was
renegotiated in January 1998. Valley is currently the Company's primary
provider of order fulfillment for direct-to-consumer music products. The
Company has no fulfillment operation or facility of its own and, accordingly,
is dependent upon maintaining its existing relationship with Valley or
establishing a new fulfillment relationship with one of the few other
fulfillment operations. There can be no assurance that the Company will
maintain its relationship with Valley or that it will be able to find an
alternative, comparable supplier capable of providing fulfillment services on
terms satisfactory to the Company should its relationship with Valley
terminate. An unanticipated termination of the Company's relationship with
Valley, particularly during the fourth quarter of the calendar year in which a
high percentage of recorded music sales are made, could materially adversely
affect the Company's results of operations for the quarter in which such
termination occurred even if the Company was able to establish a relationship
with an alternative fulfillment house. The renegotiated contract expires in
F-43 Financial Statements
<PAGE>
February 2000. Valley may terminate its existing agreement with the Company
upon 30 days' written notice, in the event that Valley decides to discontinue
providing services to all of Valley's online service customers. To date, Valley
has satisfied the Company's requirements on a timely basis. However, to the
extent that Valley does not have sufficient capacity and is unable to satisfy
on a timely basis increasing requirements of the Company, such capacity
constraint would have a material adverse effect on the Company's business,
results of operations and financial condition. For the years ended December 31,
1995, 1996 and 1997 and the nine months ended September 30, 1997 and 1998, the
Company incurred costs related to this relationship of approximately $83,000,
$1,439,000, $5,941,000, $3,262,000 and $18,395,000, respectively, which are
included in cost of revenues on the accompanying consolidated statements of
operations. As of December 31, 1996 and 1997 and September 30, 1998, relative
to this relationship, Valley was due approximately $25,000, $1,037,000 and
$1,256,000, respectively, from the Company, which is included in accrued
merchandise costs on the accompanying consolidated balance sheets.
Reclassifications
The consolidated financial statements for prior periods have been reclassified
to conform with the current period's presentation.
2. ACQUISITIONS:
Acquisition of New York N2K
On February 13, 1996, New York N2K merged with and into Telebase in a
transaction accounted for as a purchase. Telebase issued 1,347,857 shares of
Common stock valued at $3,073,118 and 1,347,860 shares of Series E Preferred
stock valued at $1,078,286 in exchange for all of the outstanding Common stock
of New York N2K. The fair value assigned to the Common stock was determined
based upon an independent appraisal. Telebase is the surviving corporation;
however, the corporate name of the surviving corporation was changed to N2K
Inc. Telebase was the acquirer in this purchase. The results of the acquired
business have been included in the consolidated financial statements from the
date of acquisition. The total purchase price of $4,375,481, including
transaction costs, was allocated to the assets acquired and liabilities assumed
based on their respective fair values. The Company recorded $4,133,281 of the
purchase price as a charge to the consolidated statements of operations on the
acquisition date as it was related to the fair value of incomplete research and
development projects. The remaining balance of the purchase price of $280,000
was allocated to acquired technology costs and is being amortized over 5 years
on a straightline basis. If the acquisition of New York N2K had occurred on
January 1, 1995, the unaudited pro forma information, after giving effect to
the pro forma adjustments described below, would have been as follows:
<TABLE>
<CAPTION>
Year Ended
December 31
-------------------------
1995 1996
----------- ------------
<S> <C> <C>
Unaudited pro forma revenues.................... $ 240,131 $ 1,724,331
=========== ============
Unaudited pro forma loss from continuing
operations..................................... $(4,129,250) $(13,243,155)
=========== ============
Unaudited pro forma net loss.................... $(2,839,579) $(15,158,516)
=========== ============
Unaudited pro forma basic and diluted net loss
per Common share............................... $ (1.81) $ (5.49)
=========== ============
</TABLE>
Financial Statements F-44
<PAGE>
The unaudited pro forma information does not purport to be indicative of the
results that would have been attained if the operations had actually been
combined for the periods presented and is not necessarily indicative of the
operating results to be expected in the future.
The pro forma adjustments consist of compensation charges for certain executive
officers who did not receive any compensation from New York N2K prior to the
merger and the amortization of the acquired technology costs. The amount of the
compensation pro forma adjustment was $500,000 and $75,000 for the years ended
December 31, 1995 and 1996, respectively. The amount of the acquired technology
cost amortization pro forma adjustment was $46,667 and $7,000 for the years
ended December 31, 1995 and 1996, respectively. Additionally, the above
unaudited pro forma information excludes the one-time charge of $4,133,281
associated with the writeoff of purchased research and development costs in
connection with the New York N2K acquisition and includes the writeoff of
purchased research and development costs associated with the purchase of the
Rocktropolis website for the year ended December 31, 1996. This one-time charge
would have increased the unaudited pro forma basic and diluted net loss per
Common share for the year ended December 31, 1996 by $1.50.
On February 13, 1996, the Company sold 3,750,000 shares of Series E Preferred
stock at $.80 per share and received gross proceeds of $3,000,000 (see Note 7).
Acquisition of Rocktropolis Website
On June 21, 1996, the Company acquired the assets that relate to the rock
website known as Rocktropolis, from Rocktropolis Enterprises, LLC for $633,000
in cash and 44,790 shares of Common stock valued at $537,498. The total
purchase price of $1,209,242, including transaction costs, was allocated to the
assets acquired based on their respective fair values. The Company recorded
$1,109,242 of the purchase price as a charge to the consolidated statements of
operations on the acquisition date as it was related to the fair value of
incomplete research and development projects. The remaining balance of the
purchase price was allocated to the Rocktropolis tradename and is being
amortized on a straightline basis over 5 years.
The Common stock issued in connection with the acquisition of the Rocktropolis
website could have been "put" back to the Company at a price of $12 per share
at any time beginning 366 days after the issuance date if there was not at that
time a public market for shares of the Company's Common stock. Accordingly, the
value of these shares ($537,498) was not included in Stockholders' equity in
the accompanying consolidated balance sheets prior to the consummation of the
initial public offering. The "put" rights expired upon the consummation of the
initial public offering.
3. DISCONTINUED OPERATIONS:
Online Information Services Business
In April 1997, the Company's Board of Directors approved a formal plan of
disposal for its online information services business. The online information
services business was accounted for as a discontinued operation with a
measurement date of April 4, 1997. The Company expected that the sale of the
online information services business would result in a gain on the disposal of
the segment's net assets which would be sufficient to offset the losses of the
segment from the measurement date to the disposal date. As a result, no amounts
were accrued in the accompanying
F-45 Financial Statements
<PAGE>
consolidated financial statements relating to the disposal of the segment. The
net losses from discontinued operations from the measurement date to the
disposal date were recorded as an adjustment to the net assets of the
discontinued operations in the accompanying consolidated balance sheets. The
accompanying consolidated financial statements reflect the operating results
and balance sheet items of the discontinued operations separately from
continuing operations.
Effective August 1, 1997, the Company entered into an agreement for the sale of
all of the net assets of the on-line information services business, except its
accounts receivable and accounts payable. The total purchase price of
$6,000,000 consisted of $3,000,000 which was paid in cash at closing, and up to
an additional $3,000,000 pursuant to an earn-out which, if and to the extent
earned, is payable at the purchaser's sole discretion on March 31, 1999 and
September 30, 1999, either in cash or that number of shares of its Common stock
having a market value equal to the amount to be paid. The earn-out is based
upon the revenues of the business which are generated from July 1, 1997 through
December 31, 1998. If revenues during the above period do not meet the
specified target, the earn-out is reduced. If revenues during the above period
exceed the specified target, the earn-out is increased, up to a maximum of
$1,000,000. The Company will record the earn-out as a gain on the sale of
discontinued operations when realized. At closing, the Company recorded a gain
on the sale of discontinued operations of $1,574,493. The gain was net of a
provision for certain disposal costs including accruals for future commitments
relating to severance and doubtful accounts relating to the on-line information
services business's accounts receivable. These costs are reflected in accrued
discontinued operations disposal costs (see Note 5). In connection with the
sale, the Company entered into a services agreement under which it will provide
certain services and support personnel to the purchaser through September 1999
for a fixed monthly fee.
N2K Encoded Music
See Note 1, The Company--Background and Recent Events
Revenues and income (loss) from the discontinued operations in the accompanying
consolidated statements of operations were:
<TABLE>
<CAPTION>
Nine Months
Ended
Year Ended December 31 September 30,
------------------------------------ -------------------------
1995 1996 1997 1997 1998
----------- ----------- ----------- ----------- ------------
<S> <C> <C> <C> <C> <C>
Revenues:
Online information
services............. $10,976,711 $7,855,758 $2,411,057 $2,411,057 $ --
N2K Encoded Music..... -- -- 3,154,339 2,391,406 2,754,375
----------- ----------- ----------- ----------- ------------
$10,976,711 $7,855,758 $5,565,396 $4,802,463 $ 2,754,375
=========== =========== =========== =========== ============
Income (loss) before
income taxes:
Online information
services............. $ 1,289,971 $ (968,674) $ (415,970) $ (415,970) $ --
N2K Encoded Music..... -- (946,687) (9,267,496) (4,390,709) (12,307,531)
----------- ----------- ----------- ----------- ------------
1,289,971 (1,915,361) (9,683,466) (4,806,679) (12,307,531)
Income taxes............ 300 -- -- -- --
----------- ----------- ----------- ----------- ------------
Income (loss)........... $ 1,289,671 $(1,915,361) $(9,683,466) $(4,806,679) $(12,307,531)
=========== =========== =========== =========== ============
</TABLE>
Financial Statements F-46
<PAGE>
The assets and liabilities of the online information services business have
been reclassified in the accompanying consolidated balance sheets to separately
identify them as net assets of discontinued operations. A summary of these net
assets of discontinued operations as of December 31, 1996 is as follows:
<TABLE>
<S> <C>
Current assets, excluding accounts receivable................... $ 11,891
Accounts receivable, net........................................ 1,033,734
Property and equipment, net..................................... 278,875
Current liabilities............................................. (1,310,054)
-----------
Net assets of discontinued operations........................... $ 14,446
===========
</TABLE>
The assets and liabilities of N2K Encoded Music have been reclassified in the
accompanying consolidated balance sheets to separately identify them as net
assets (liabilities) of discontinued operations. A summary of these net assets
(liabilities) of discontinued operations as of December 31, 1996 and 1997 and
September 30, 1998 is as follows:
<TABLE>
<CAPTION>
December 31, December 31, September 30,
1996 1997 1998
------------ ------------ -------------
<S> <C> <C> <C>
Current assets, excluding accounts
receivable....................... $ 200,349 $ 434,630 $ 511,577
Accounts receivable, net.......... -- 178,634 111,828
Property and equipment, net....... -- 897,535 779,507
Current liabilities............... (56,548) (2,030,054) (6,391,933)
Non-current liabilities........... -- (186,501) (150,952)
--------- ----------- -----------
Net assets (liabilities) of
discontinued operations.......... $ 143,801 $ (705,756) $(5,139,973)
========= =========== ===========
</TABLE>
4. PREPAID EXPENSES:
Prepaid expenses as of December 31, 1996 and 1997 and September 30, 1998
consist of the following:
<TABLE>
<CAPTION>
December 31
-------------------- September 30,
1996 1997 1998
-------- ----------- -------------
<S> <C> <C> <C>
Marketing Advances:
AOL.................................. $ -- $12,775,000 $ 12,775,000
Excite, Inc. ("Excite").............. -- 3,300,000 4,300,000
Netscape Communications Corporation
("Netscape")........................ -- 3,000,000 3,185,837
Ticketmaster Ticketing Company, Inc.
("Ticketmaster").................... -- -- 4,000,000
Disney Online........................ -- -- 833,334
AOL Bertelsmann Online............... -- -- 825,000
Infoseek Corporation ("Infoseek").... -- -- 250,000
Other.................................. 703,657 340,035 1,178,858
-------- ----------- ------------
703,657 19,415,035 27,348,029
Less--Accumulated amortization of
marketing advances.................... -- (2,769,741) (17,696,193)
-------- ----------- ------------
$703,657 $16,645,294 $ 9,651,836
======== =========== ============
</TABLE>
F-47 Financial Statements
<PAGE>
The Company is amortizing the costs associated with its marketing advances over
the contractual terms of the strategic alliance which is primarily one to three
years and the amortization method is primarily on a straight-line basis or as
impressions are received. Amortization expense for the year ended December 31,
1997 and the nine months ended September 30, 1997 and 1998 was $2,769,741,
$158,000 and $14,926,452, respectively. These amounts are included in sales and
marketing expenses in the accompanying financial statements. The Company
continually evaluates the realizability of the marketing advances, and if
necessary, will write-down the asset to its net realizable value based on
estimates of undiscounted future cash flows from each advance over the
remaining useful life of the asset. As of September 30, 1998, no such write-
down was required.
As of September 30, 1998, the net book value of the marketing advances relating
to Ticketmaster is approximately $2,387,000. In November 1998, a legal action
was filed which may affect the realizability of this net asset (see legal
proceedings elsewhere in this Joint Proxy/Prospectus and Note 10). As a result,
the Company may be required to write down the net book value relating to the
Ticketmaster marketing advance in the fourth quarter of 1998.
As of September 30, 1998, long-term marketing advances were $814,163 and are
classified as other assets on the accompanying consolidated balance sheet.
5. OTHER ACCRUED LIABILITIES:
Other accrued liabilities as of December 31, 1996 and 1997 and September 30,
1998 consist of the following:
<TABLE>
<CAPTION>
December 31
--------------------- September 30,
1996 1997 1998
---------- ---------- -------------
<S> <C> <C> <C>
Accrued advertising.................... $ -- $ 652,138 $3,769,484
Accrued discontinued operations
disposal costs (Note 3)............... -- 671,407 65,778
Other.................................. 1,571,012 865,646 2,435,898
---------- ---------- ----------
$1,571,012 $2,189,191 $6,271,160
========== ========== ==========
</TABLE>
6. CREDIT AGREEMENTS:
The Company had a line of credit with a bank of $2,000,000 which expired on
June 30, 1998. The Company currently does not have a line of credit. There were
no borrowings on the line of credit during 1998. For the years ended December
31, 1995, 1996 and 1997 and the nine months ended September 30, 1997, the
maximum amount outstanding was $400,000, $600,000, $850,000 and $850,000,
respectively. For the years ended December 31, 1995, 1996 and 1997 and the nine
months ended September 30, 1997, the weighted average interest rate was 8.7%,
8.7%, 8.5% and 8.5%, respectively. Interest expense for the years ended
December 31, 1995, 1996 and 1997 and the nine months ended September 30, 1997
was $7,360, $14,992, $54,711 and $48,672, respectively.
Financial Statements F-48
<PAGE>
7. PREFERRED STOCK:
At December 31, 1996, Preferred stock consisted of the following:
Preferred stock, $.001 par value, 40,000,000 shares authorized and designated
as follows--
<TABLE>
<S> <C>
Series A, 500,000 shares authorized, 488,838 shares issued and
outstanding..................................................... $ 489
Series B, 625,000 shares authorized, issued and outstanding...... 625
Series C, 2,857,143 shares authorized, 2,142,857 shares issued
and outstanding................................................. 2,143
Series D, 1,000,000 shares authorized, 800,000 shares issued and
outstanding..................................................... 800
Series E, 6,007,060 shares authorized, issued and outstanding.... 6,007
Series F, 5,333,333 shares authorized, issued and outstanding.... 5,333
Series G, 15,000,000 shares authorized in 1997................... --
-------
$15,397
=======
</TABLE>
In January 1988, the Company issued 488,838 shares of Series A Preferred stock
at $1.25 per share upon the conversion of certain liabilities. The Series A
Preferred shares were converted into 171,276 shares of Common stock upon the
consummation of the initial public offering.
In March 1988, the Company sold 625,000 shares of Series B Preferred stock for
$1,000,000. In August 1988, the Company sold 2,142,857 shares of Series C
Preferred stock for $3,000,000. In 1993, the Series C Preferred stockholder
sold all of its shares to various outside investors, as well as to certain
officers of the Company. In June 1997, certain officers converted 120,000
shares of their Series C Preferred shares into 33,600 shares of Common stock.
The Series B and Series C Preferred shares were converted into 178,569 and
566,399 shares of Common stock, respectively, upon the consummation of the
initial public offering.
In September 1994, the Company sold 800,000 shares of Series D Preferred stock
at $2 per share and received net proceeds of $1,559,084. The Series D Preferred
shares were converted into 615,381 shares of Common stock upon the consummation
of the initial public offering.
On February 13, 1996, the Company issued 1,347,860 shares of Series E Preferred
stock in connection with the acquisition of New York N2K (see Note 2). Also, on
February 13, 1996, the Company sold 3,750,000 shares of Series E Preferred
stock for $.80 per share and received proceeds of $3,000,000. In April and May
1996, the Company sold 909,200 shares of Series E Preferred stock at $.80 per
share and received proceeds of $727,360. The number of shares of Series E
Preferred stock sold to certain officers and directors of the Company at $.80
per share was 3,299,992. The Series E Preferred shares were converted into
1,501,755 shares of Common stock upon the consummation of the initial public
offering. In May and June 1996, the Company sold 5,333,333 shares of Series F
Preferred stock at $3 per share and received net proceeds of $15,268,284. The
Series F Preferred shares were converted into 1,333,321 shares of Common stock
upon the consummation of the initial public offering.
In April 1997, the Company sold 2,480,329 shares of Series G Preferred stock at
$3 per share, including 17,000 shares issued as a finder's fee, and received
gross proceeds of $7,389,987 and net proceeds of $7,215,531. The Series G
Preferred shares were converted into 620,077 shares of Common stock upon the
consummation of the initial public offering. The number of shares of Series G
Preferred stock sold to certain officers and directors of the Company at $3 per
share was 333,333.
F-49 Financial Statements
<PAGE>
Additionally, the Company issued warrants to purchase 48,555 shares of Common
stock at an exercise price of $12 per share as a placement fee relating to this
transaction.
8. STOCKHOLDERS' EQUITY:
Common Stock Options
Under the Company's 1987 Incentive Stock Option Plan, options to purchase
775,000 shares of Common stock could have been granted to certain officers,
directors and employees. The options expire ten years from the date of grant
and vest over four years. Expiration dates range from 1998 to 2005. As of
September 30, 1998, there are 162,273 options outstanding and no additional
grants will be made under this plan.
Additionally, the Company has 24,132 nonqualified stock options outstanding as
of September 30, 1998, with expiration dates ranging from March 2001 to January
2005. Currently, these options are fully vested.
In February 1996, the Company established the 1996 Stock Option Plan, which
authorized options to purchase 1,650,000 shares of Common stock, as amended and
restated on June 20, 1996. On May 7, 1998, the Company increased the number of
shares available to 2,150,000. Under the 1996 Stock Option Plan, options may be
granted to officers, directors and other key employees. The options expire ten
years from the date of grant and vest over four years, unless specifically
agreed to otherwise. The exercise price is fixed at the grant date and equals
at least 100% of the fair market value of the Common stock on the date of
grant. As of September 30, 1998, there were 1,067,940 options outstanding and
498,272 options available for grant under the 1996 Stock Option Plan.
Subsequent to September 30, 1998, under the 1996 Stock Option Plan, 47,200
options were granted, no options were exercised and 10,572 options were
terminated.
In July 1997, the Company granted 324,999 stock options to Lawrence L. Rosen,
Jonathan V. Diamond and Robert David Grusin. The options expire seven years
from the date of grant and vest over four years. The exercise price is equal to
the fair market value of the Common stock on the date of grant. These options
were not granted under any of the Company's plans.
In December 1996, the Company granted 4,050 nonqualified stock options to
individuals who were neither employees or directors of the Company. The options
expire ten years from the date of grant and vested immediately upon grant. The
exercise price is equal to the fair market value of the Common stock on the
date of grant. These options were not granted under any of the Company's plans.
In April 1997, the Company's Board of Directors approved the issuance of
options to purchase 15,000 shares of Common stock, which were not granted
pursuant to any of the Company's option plans, to nonemployees of the Company.
These options were granted at the time of the initial public offering and at an
exercise price equal to the price for shares sold in the initial public
offering ($19.00 per share). In accordance with SFAS No. 123, the Company
recorded a charge for the fair value of these options in the accompanying
consolidated statement of operations.
In April 1997, the Board of Directors adopted and the stockholders of the
Company approved, the 1997 Directors' Stock Option Plan (the "Directors' Plan")
pursuant to which each member of the Board of Directors, who is not an employee
of the Company, who is elected or continues as a member of the Board of
Directors is entitled to receive annually, options to purchase 12,500 shares
Financial Statements F-50
<PAGE>
of Common stock at an exercise price equal to fair market value; provided,
however, that no director may receive under the Directors' Plan, options to
purchase an aggregate of more than 125,000 shares of Common stock. Each option
grant under the Directors' Plan vests after the first anniversary of the date
of grant and expires three years thereafter. The maximum number of shares of
Common stock reserved for issuance under the Directors' Plan is 500,000 shares
(subject to adjustment for certain events such as stock splits and stock
dividends). In April 1997, the Board of Directors authorized the issuance of
25,000 options under the Directors' Plan at an exercise price equal to the
price for shares sold in the initial public offering ($19.00 per share).
Additionally, in May 1998, the Board of Directors authorized the issuance of
25,000 options under the Directors' Plan at an exercise price per share equal
to $23.38.
Information relative to all of the Company's stock option activity is as
follows:
<TABLE>
<CAPTION>
Weighted
Average
Exercise Exercise
Price Price Aggregate
Options (Per Share) (Per Share) Proceeds
--------- ------------- ----------- -----------
<S> <C> <C> <C> <C>
Balance as of December 31,
1994....................... 396,891 $ 2.50-$ 5.00 $ 3.52 $ 1,398,884
Granted................... 231,375 2.60- 3.20 2.63 608,325
Exercised................. (25) 3.20 3.20 (80)
Terminated................ (5,850) 3.20 3.20 (18,720)
--------- ------------- ------ -----------
Balance as of December 31,
1995....................... 622,391 2.50- 5.00 3.19 1,988,409
Granted................... 1,020,169 3.20- 12,00 4.83 4,922,483
Exercised................. (2,145) 2.60- 3.20 2.80 (6,006)
Terminated................ (102,363) 2.50- 5.00 3.05 (311,994)
--------- ------------- ------ -----------
Balance as of December 31,
1996....................... 1,538,052 2.50- 12.00 4.29 6,592,892
Granted................... 866,194 12.00- 21.00 16.59 14,374,381
Exercised................. (242,417) 2.60- 12.00 3.30 (798,770)
Terminated................ (102,463) 2.60- 21.00 6.89 (706,120)
--------- ------------- ------ -----------
Balance as of December 31,
1997....................... 2,059,366 2.50- 21.00 9.45 19,462,383
Granted................... 378,900 9.94- 32.50 21.10 7,996,089
Exercised................. (60,794) 2.60- 12.00 4.05 (246,515)
Terminated................ (148,367) 2.60- 32.50 21.69 (3,217,581)
--------- ------------- ------ -----------
Balance as of September 30,
1998....................... 2,229,105 $ 2.50- 32.50 $10.76 $23,994,376
========= ============= ====== ===========
</TABLE>
The following table summarizes information relating to all of the Company's
stock option activity based upon each exercise price.
<TABLE>
<CAPTION>
Weighted Weighted
Weighted Average Average
Average Exercise Exercise
Range of Options Remaining Price of Options Price of
Exercise Outstanding Contractual Outstanding Exercisable Exercisable
Prices at September 30, Life Options at September 30, Options
(Per Share) 1998 (Years) (Per Share) 1998 (Per Share)
----------- ---------------- ----------- ----------- ---------------- -----------
<S> <C> <C> <C> <C> <C>
$ 2.50-$ 3.52........... 988,152 7.1 $ 3.29 552,314 $ 3.26
5.00............ 3,000 3.2 5.00 3,000 5.00
9.94- 14.63........... 510,077 6.1 11.83 380,900 12.00
19.00- 21.00........... 658,176 9.1 19.60 32,500 19.00
23.58- 32.50........... 69,700 7.7 25.73 15,000 25.00
--------- --- ------- ------
2,229,105 7.5 983,714 $ 7.45
========= === ======= ======
</TABLE>
F-51 Financial Statements
<PAGE>
The Company accounts for all of its option plans under APB Opinion No. 25,
"Accounting for Stock Issued to Employees," under which no compensation cost
has been recognized. In 1995, the Financial Accounting Standards Board issued
SFAS No. 123, "Accounting for Stock-Based Compensation". SFAS No. 123
establishes a fair value based method of accounting for stock-based
compensation plans. This statement also applies to transactions in which an
entity issues its equity instruments to acquire goods or services from
nonemployees. SFAS No. 123 requires that an employer's financial statements
include certain disclosures about stock-based employee compensation
arrangements regardless of the method used to account for the plan. Had the
Company recognized compensation cost for its stock option plans consistent with
the provisions of SFAS No. 123, the Company's net loss in 1995, 1996 and 1997
and the basic and diluted net loss per Common share in 1995, 1996 and 1997
would have been increased to the following pro forma amounts:
<TABLE>
<CAPTION>
1995 1996 1997
----------- ------------ ------------
<S> <C> <C> <C>
Net Loss:
As reported..................... $(1,594,800) $(18,907,909) $(28,736,236)
=========== ============ ============
Pro Forma....................... $(2,218,800) $(21,681,909) $(32,061,236)
=========== ============ ============
Basic and Diluted Net Loss per
Common share:
As reported..................... $ (1.02) $ (6.85) $ (5.88)
=========== ============ ============
Pro forma....................... $ (1.42) $ (7.85) $ (6.56)
=========== ============ ============
</TABLE>
Since the SFAS No. 123 method of accounting has not been applied to options
granted prior to January 1, 1995, the pro forma compensation cost disclosed
above may not be representative of that to be expected in future years.
The weighted average fair value of the stock options granted during 1995, 1996
and 1997 was $9.93, $8.62 and $8.40, respectively. The fair value of each
option grant is estimated on the date of grant using the Black-Scholes option
pricing model with the following weighted average assumptions:
<TABLE>
<CAPTION>
1995 1996 1997
------- ------- -------
<S> <C> <C> <C>
Risk-free interest rate........................... 6.5% 5.5% 6.1%
Expected dividend yield........................... 0.0% 0.0% 0.0%
Expected life..................................... 6 Years 6 Years 6 Years
Expected volatility............................... 0.0% 0.0% 33.1%
</TABLE>
Common Stock Warrants
In February 1996, the Company issued warrants to purchase 37,500 shares of
Common stock at an exercise price of $3.20 per share. In January 1998, these
warrants were exercised. In May and June 1996, the Company issued warrants to
purchase 66,999 shares of Common stock at an exercise price of $12 per share.
These warrants expire in 2003. In April 1997, the Company issued warrants to
purchase 48,555 shares of Common stock at an exercise price of $12 per share in
connection with the Series G Preferred stock financing. These warrants expire
in April 2004. In July and August 1997, the Company issued warrants to purchase
an aggregate of 299,264 shares of Common stock at an exercise price of $12 per
share in connection with the issuance of the Management Notes and Senior Notes
(see Note 1). Additionally, in connection with the AOL agreements, discussed in
Note 1, the Company granted AOL a warrant for the future purchase of up to
184,736 shares of Common stock
Financial Statements F-52
<PAGE>
at an exercise price equal to the initial public offering price per share,
which was $19.00 per share. The AOL Warrant is exercisable as to one-half of
the total number of shares on the first anniversary of the date of issuance and
as to the balance of the shares on the second anniversary of the date of
issuance. The AOL Warrant expires in October 2004.
Employee Stock Purchase Plan
In June 1996, the Company established the 1996 Employee Stock Purchase Plan
(the "ESP Plan"). The number of shares available to purchase under the ESP Plan
is 1,500,000 shares of Common stock. The ESP Plan was effective on February 1,
1998. As of September 30, 1998, the Company has issued 9,861 shares under the
ESP Plan. The employee's purchase price is the lower of (a) 85% of the fair
market value of a share of the Company's Common stock on the first day of the
Purchase period (as defined) and (b) 85% of the fair market value of a share of
the Company's Common stock on the last day of the Purchase period (as defined).
9. INCOME TAXES:
The Company accounts for income taxes in accordance with SFAS No. 109,
"Accounting for Income Taxes". SFAS No. 109 requires an asset-and-liability
approach in accounting for income taxes. Under this method, deferred income
taxes are computed based on the differences between financial reporting and
income tax reporting of assets and liabilities using enacted tax rates.
As of December 31, 1997, the Company had net operating loss carryforwards for
federal income tax purposes of approximately $40,225,000, which begin to expire
in 2001. Significant components of deferred income taxes consist of the
following:
<TABLE>
<CAPTION>
Year Ended
December 31
-------------------------
1996 1997
----------- ------------
<S> <C> <C>
Gross deferred tax assets:
Net operating loss carryforwards.............. $ 8,534,000 $ 16,238,000
Depreciation and amortization................. 13,000 --
Research and development expenses not
currently deductible......................... -- 2,463,000
Accruals not currently deductible............. 413,000 1,503,000
----------- ------------
8,960,000 20,204,000
----------- ------------
Gross deferred tax liabilities:
Depreciation and amortization................. -- (183,000)
Other deferred tax liabilities................ (17,000) (1,000)
----------- ------------
(17,000) (184,000)
----------- ------------
Less-Valuation allowance........................ (8,943,000) (20,020,000)
----------- ------------
$ -- $ --
=========== ============
</TABLE>
The net deferred tax asset increased $11,077,000 during 1997 due principally to
net operating loss carryforwards and research and development expenses which
will be deductible in future years. Based on changes in ownership of the
Company, utilization of the net operating loss carryforwards may be subject to
annual limitations. The Company has recorded a valuation allowance for the net
deferred tax asset as the Company concluded that the net deferred tax asset did
not meet the recognition criteria under SFAS No. 109.
F-53 Financial Statements
<PAGE>
10. COMMITMENTS AND CONTINGENCIES:
The Company has entered into various operating and capital leases for office
space, computer equipment and office equipment. Assets acquired under capital
leases at a cost of $868,436, $1,591,387 and $1,591,387, less accumulated
amortization of $477,535, $707,587 and $967,570, are included in property and
equipment in the accompanying consolidated balance sheets as of December 31,
1996 and 1997 and September 30, 1998, respectively. Certain capital leases are
secured by certificates of deposit totaling $167,000, which are shown as
restricted cash in other assets in the accompanying consolidated balance
sheets. Interest rates on these capital leases range from 6.0% to 19.0%. Future
minimum lease payments under operating and capital leases as of September 30,
1998, are as follows:
<TABLE>
<CAPTION>
Operating Capital
---------- --------
<S> <C> <C>
1998.................................................... $ 307,469 $107,104
1999.................................................... 1,222,406 293,291
2000.................................................... 1,202,269 206,321
2001.................................................... 1,023,501 48,290
2002.................................................... 558,476 8,048
---------- --------
Total minimum lease payments............................ $4,314,121 663,054
==========
Less--Amount representing interest...................... (48,179)
--------
Present value of minimum capital lease payments......... $614,875
========
</TABLE>
Rent expense under the operating leases for the years ended December 31, 1995,
1996 and 1997 and the nine months ended September 30, 1997 and 1998, was
$100,870, $529,186, $654,595, $557,738 and $852,461, respectively.
The Company has entered into agreements with various content providers, vendors
and recording artists. The remaining terms of these agreements range from one
to five years. These agreements provide for the payment of royalties, bounties
and certain guaranteed amounts. Other than the payments that the Company is
required to make for its strategic alliances (discussed below), minimum
guaranteed payments required under such agreements are insignificant. The
Company has entered into a number of strategic alliance agreements, including
agreements with AOL, Excite, Netscape, Infoseek, Ticketmaster, AOL Bertelsmann
Online, Disney Online and Microsoft Corporation. The Company's commitments, as
of September 30, 1998, under all of its strategic alliance agreements include
cash payments of approximately $8,900,000, $14,400,000, $10,000,000 and
$6,500,000 for the remaining three months of 1998, and the years ending
December 31, 1999, 2000 and 2001, respectively. Payments totaling $7,900,000
were made under the Company's strategic alliances during the nine months ended
September 30, 1998. Subsequent to September 30, 1998, $4,500,000 was paid under
the Company's strategic alliances.
The Company has employment agreements with certain officers that provide for,
among other things, salary, bonus, severance and change in control provisions.
Upon closing of the merger with CDnow, several executives will be entitled to
certain payments and benefits based upon change of control provisions in their
employment agreements. These entitlements are approximately $1,300,000.
The Company is party to various claims arising in the ordinary course of
business. Although the ultimate outcome of these matters is presently not
determinable, management believes that the
Financial Statements F-54
<PAGE>
resolution of these matters will not have a material adverse effect on the
Company's financial position or results of operations.
The Company and its directors are defendants in a consolidated purported class
action in the U.S. District Court for the Southern District of New York
entitled In re N2K Inc. Securities Litigation (Docket No. 98 CIV 3304 (HB))
(the "Consolidated Action"). The Consolidated Action consolidates two purported
class actions, entitled Kuhn v. N2K Inc. et al. (Docket No. 98 CIV 4360 (HB))
and Bender v. Rosen et al. (Docket No. 98 CIV 3304 (HB)) that were previously
discussed in the Company's Quarterly Report on Form 10-Q for the quarterly
period ended June 30, 1998 and March 31, 1998, respectively. The Consolidated
Action is a purported class action on behalf of Common stockholders and seeks
to recover unspecified damages and other relief, as well as recovery of costs
and expenses, stemming from alleged violations of the Securities Act of 1933,
as amended, in connection with the public offering of the shares of the
Company's Common stock in April 1998. The Consolidated Action alleges that,
among other things, the defendants failed to disclose N2K's first quarter
financial results in the registration statement for the April 1998 public
offering. The Company believes that the claims in the Consolidated Action are
without merit and is vigorously defending the action. The defendants moved to
dismiss the compliant on August 31, 1998 for failure to state a claim and/or
for failure to plead fraud with the requisite particularity. The motion to
dismiss has been fully briefed and is awaiting decision.
On or about October 27, 1998, an action entitled Rubin v. Rosen et al. (Docket
No. 16743NC) was filed against the Company, the Company's directors and CDnow
Inc. ("CDnow") in the Chancery Court of Delaware for the County of New Castle.
The Rubin action is a purported class action on behalf of all Common
stockholders of N2K, alleging, inter alia, that the consideration to be
received by the purported class in connection with the proposed merger
transaction between the Company and CDnow (the "Merger") is unfair and grossly
inadequate and that the individual defendants breached their fiduciary duties
in connection with the Merger. The Rubin action alleges that the consideration
for the Company's stockholders is inadequate because (1) the value of the
Company's stock materially exceeds the consideration to be received by the
Company's stockholders in the Merger, (2) the individual defendants did not
value the Company through a bidding or "market check" mechanism, and (3) the
merger agreement does not protect the Company's stockholders from a decline in
the price of CDnow stock. Plaintiffs seek, inter alia, injunctive relief, and
unspecified damages, as well as costs and expenses. The Company believes that
the claims are without merit and intends to defend the action vigorously. The
Company and its directors moved to dismiss the complaint on December 30, 1998,
for failure to state a claim. No briefing schedule on the motion has been set.
On or about November 4, 1998, an action entitled Ticketmaster Ticketing Co. v.
N2K Inc. (Docket No. BC200194) was filed against the Company in California
Superior Court for the County of Los Angeles. The Ticketmaster action alleges
that the Company breached a marketing and advertising contract dated April 23,
1998 between Ticketmaster and the Company, which the Company terminated
effective October 31, 1998, based on alleged breaches of the agreement by
Ticketmaster as well as other tortious conduct. Ticketmaster seeks damages in
an amount not less than $8,000,000, plus pre- and post-judgment interest, as
well as fees and costs. The Company has not yet answered the complaint. The
Company believes that it has substantial defenses to the claim asserted,
intends to defend the action vigorously and intends to file a cross-compliant
for affirmative relief.
F-55 Financial Statements
<PAGE>
On or about November 12, 1998, an action entitled Metallica v. N2K Inc. et
al. (Docket No. 98-9122 GHK (ANx)) was filed in the United States District
Court for the Central District of California against N2K, Metro Independent
Records, Richard Driscoll, Dutch East India Trading, and ten unnamed persons or
entities. The Metallica action alleges that N2K and the other defendants have
infringed copyrights and trademarks owned by Metallica and the other plaintiff,
Creeping Death Music, and have violated California state law by manufacturing,
distributing, advertising and selling a compact disc entitled "Metallica, Bay
Area Thrashers, The Early Years." Plaintiffs seek, inter alia, injunctive
relief including, but not limited to, an order requiring defendants to cease
their alleged copyright and trademark infringements, damages, including but not
limited to treble plaintiffs' damages and defendants' profits attributable to
the alleged infringements, other damages and injunctive relief, as well as fees
and costs. N2K has not yet answered or responded to the complaint. N2K believes
that the claims against it are without merit and expects such claims will be
resolved through negotiation with plaintiffs and without material adverse
effect to N2K.
N2K and 17 other entities have been named as defendants in a civil action
captioned Interactive Gift Express v. Compuserve, Inc., et al., which is
pending n the U.S. District Court, Southern District of New York, Docket 95 CV
6871 (BSJ). N2K has also been named as defendant in a civil action captioned
Parsec Sight/Sound, Inc. v. N2K Inc., which is pending in the U.S. District.
Court of Pennsylvania, Western District, Docket 98 CV 0118. The plaintiffs in
each of these actions allege infringement of certain intellectual property
rights, and each seeks treble damages and costs in an unspecified amount, as
well as other declaratory and injunctive relief. In the Interactive Gift
action, the court has issued a preliminary ruling favorable to defendants.
Plaintiffs have stated that they will consent to entry of judgment against them
in order to speed their appeal of the court's ruling. In the Parsec action, N2K
has answered the complaint and discovery is ongoing. N2K believes that the
claims against it in each action are without merit and intends to vigorously
defend against each of them. Moreover, N2K believes that these lawsuits, even
if adversely determined, will not have a material adverse effect on N2K's
business, financial condition or results of operations.
Due to the fact that material may be downloaded from websites and may be
subsequently distributed to others, there is potential that claims will be made
against the Company for defamation, negligence, copyright or trademark
infringement or other theories based on the nature and content of such
material. Although the Company carries general liability insurance, the
Company's insurance may not cover potential claims of this type or may not be
adequate to cover all costs incurred in defense of potential claims or to
indemnify the Company for all liability that may be imposed. Any costs or
imposition of liability that is not covered by insurance or in excess of
insurance coverage could have a material adverse effect on the Company's
business, results of operations and financial condition. The Company is
currently not aware of any such claims.
11. DEFINED CONTRIBUTION PLAN:
The Company maintains a Matched Savings Plan (the "Plan") in accordance with
the provisions of Section 401(k) of the Internal Revenue Code. The Plan covers
substantially all fulltime employees of the Company. Participants may
contribute up to 15% of their total compensation to the Plan, with the Company
matching 30% of the participant's contribution, limited to 6% of the
participant's total compensation. For the years ended December 31, 1995, 1996
and 1997 and the nine months ended September 30, 1997 and 1998, the Company
contributed $18,200, $52,400, $70,927, $65,234 and $97,173 , respectively, to
the Plan.
Financial Statements F-56
<PAGE>
INDEPENDENT AUDITORS' REPORT
To the Board of Directors
N2K Inc.
New York, New York
We have audited the balance sheet of N2K Inc. (a New York corporation) as of
December 31, 1995, and the related statements of operations, stockholders'
equity and cash flows for the period beginning March 7, 1995 (date of
inception) through December 31, 1995. These financial statements are the
responsibility of the Company's management. Our responsibility is to express an
opinion on these financial statements based on our audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audit provides a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of N2K Inc. as of December 31,
1995 and the results of its operations and its cash flows for the period
beginning March 7, 1995 through December 31, 1995 in conformity with generally
accepted accounting principles.
As described in Note F, on February 13, 1996, the Company effected a business
combination in which it merged with a company formerly known as Telebase
Systems, Inc.
New York, New York
January 31, 1996
With respect to Note F
February 13, 1996
RICHARD A. EISNER & COMPANY, LLP
F-57 Financial Statements
<PAGE>
N2K INC.
BALANCE SHEET
DECEMBER 31, 1995
<TABLE>
<S> <C>
ASSETS
CURRENT ASSETS:
Cash and cash equivalents.......................................... $245,423
Accounts receivable................................................ 57,281
Prepaid expenses................................................... 2,057
--------
Total current assets............................................. 304,761
Property and equipment, net........................................ 311,812
Goodwill........................................................... 4,467
Deposits........................................................... 101,621
--------
TOTAL............................................................ $722,661
========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Current maturities of capital lease obligations.................... $ 57,407
Accounts payable and accrued expenses.............................. 207,144
--------
Total current liabilities........................................ 264,551
Capital lease obligations.......................................... 136,184
Deferred rent payable.............................................. 20,038
--------
Total liabilities................................................ 420,773
--------
Commitments and contingencies
Stockholders' equity:
Common stock, $.01 par value, 2,000,000 authorized, 1,000,000
shares issued and outstanding..................................... 10,000
Additional paid-in capital......................................... 990,000
Accumulated (deficit).............................................. (698,112)
--------
Total stockholders' equity....................................... 301,888
--------
TOTAL............................................................ $722,661
========
</TABLE>
The accompanying notes to financial statements are an integral part hereof.
Financial Statements F-58
<PAGE>
N2K INC.
STATEMENT OF OPERATIONS
FOR THE PERIOD BEGINNING MARCH 7, 1995
(DATE OF INCEPTION) THROUGH DECEMBER 31, 1995
<TABLE>
<CAPTION>
Revenues:
<S> <C>
Consulting revenue................................................ $ 132,626
Network revenue................................................... 11,000
---------
Total revenue................................................... 143,626
---------
Expenses:
Selling, general and administrative expenses...................... 767,628
Purchased research and development................................ 56,262
Depreciation and amortization..................................... 16,575
---------
Total expense................................................... 840,465
---------
Operating loss...................................................... (696,839)
Interest expense, net of interest income of $185.................... (1,273)
---------
Net loss............................................................ $(698,112)
=========
</TABLE>
The accompanying notes to financial statements are an integral part hereof.
F-59 Financial Statements
<PAGE>
N2K INC.
STATEMENT OF STOCKHOLDERS' EQUITY
FOR THE PERIOD BEGINNING MARCH 7, 1995
(DATE OF INCEPTION) THROUGH DECEMBER 31, 1995
<TABLE>
<CAPTION>
Additional
Common Paid in Accumulated
Stock Capital Deficit Total
-------- ---------- ----------- ----------
<S> <C> <C> <C> <C>
Sale of common stock............... $ 10,000 $990,000 -- $1,000,000
Net loss........................... -- -- $(698,112) $ (698,112)
-------- -------- --------- ----------
Balance--December 31, 1995......... $ 10,000 $990,000 $(698,112) $ 301,888
======== ======== ========= ==========
</TABLE>
The accompanying notes to financial statements are an integral part hereof.
Financial Statements F-60
<PAGE>
N2K INC.
STATEMENT OF CASH FLOWS
FOR THE PERIOD BEGINNING MARCH 7, 1995
(DATE OF INCEPTION) THROUGH DECEMBER 31, 1995
<TABLE>
<S> <C>
Cash flows from operating activities:
Net loss.......................................................... $(698,112)
Adjustments to reconcile net loss to net cash used in operating
activities:
Depreciation and amortization................................... 16,575
Changes in assets and liabilities:
Increase in:
Accounts receivable......................................... (48,543)
Prepaid expenses............................................ (2,057)
Deposits.................................................... (101,621)
Accounts payable and accrued expenses....................... 207,144
Deferred rent payable....................................... 20,038
---------
Net cash used in operating activities...................... (606,576)
---------
Cash flows from investing activities:
Assets acquired in purchase transaction........................... (43,738)
Purchase of property and equipment................................ (101,612)
---------
Net cash used in investing activities......................... (145,350)
---------
Cash flows from financing activities:
Principal payments on capital lease obligations................... (2,651)
Sale of common stock.............................................. 1,000,000
---------
Net cash provided by financing activities....................... 997,349
---------
Increase in cash and cash equivalents............................... 245,423
Cash and cash equivalents, beginning of period...................... --
---------
Cash and cash equivalents, end of period............................ $ 245,423
=========
Supplemental disclosures of cash flow information:
Cash paid during the period for interest........................ $ 1,458
Noncash investing and financing activity:
The Company entered into capital leases for equipment valued at
$196,242.......................................................
</TABLE>
The accompanying notes to financial statements are an integral part hereof.
F-61 Financial Statements
<PAGE>
N2K INC.
NOTES TO FINANCIAL STATEMENTS
NOTE A--Organization and Acquisition:
N2K Multimedia Company, Inc. (the "Company") was incorporated on March 7, 1995
for the purpose of developing interactive on-line web sites and technology,
with 200 shares of authorized common stock of which 100 shares were issued in
exchange for $100,000 paid in cash. On October 10, 1995 the authorized common
stock was increased to 2,000,000 shares of $.01 par value and the outstanding
shares were split 10,000 for 1. All references to shares in these financial
statements give retroactive effect to the stock split. On June 13, 1995 the
Company purchased substantially all the assets of N2K Inc. a company engaged
primarily in computer systems consulting and its name was changed to N2K Inc.
The purchase price was $100,000 which was allocated in accordance with fair
values as follows: Fixed Assets $30,000; Accounts Receivable $8,738; Research
and Development Costs $56,262, and Goodwill $5,000. Because computer systems
consulting is not the focus of the Company, the acquiree is not a predecessor
company.
After the acquisition the Company developed an on-line site called Jazz Central
Station that provides a comprehensive history of Jazz. The site was launched on
the Microsoft Network on August 24, 1995 and is in beta testing on the World
Wide Web.
NOTE B--Summary of Significant Accounting Policies:
[1] Use of estimates:
These financial statements were prepared by management using generally accepted
accounting principles which require the use of estimates.
[2] Property and equipment:
Property and equipment are stated at cost. Depreciation is calculated on a
straight-line basis over estimated useful lives of the assets, primarily 5
years. Upon retirement or disposition, the applicable property amounts are
relieved from the accounts, and any gain or loss is recorded in the statement
of operations. When assets become fully depreciated, the applicable asset and
accumulated depreciation amounts are relieved.
[3] Goodwill:
Goodwill, which represents the excess purchase price of N2K Inc. over the fair
value of the identifiable assets acquired, is being amortized on a straight-
line basis over five years.
[4] Statement of Cash Flows:
Highly liquid investments with an original maturity of three months or less are
considered cash equivalents for purposes of the statement of cash flows.
Financial Statements F-62
<PAGE>
[5] Capital Leases:
The Company capitalizes assets acquired under capital leases and records the
related capital lease obligations.
[6] Income Taxes:
The Company is an S corporation for Federal and State income tax purposes. No
provision for these taxes is required.
NOTE C--Property and Equipment:
Property and equipment consists of the following:
<TABLE>
<S> <C>
Computer equipment............................................. $249,726
Furniture and fixtures......................................... 16,796
Leasehold improvements......................................... 61,332
--------
327,854
Less accumulated depreciation.................................. (16,042)
--------
$311,812
========
</TABLE>
Included in property and equipment is property acquired under capital leases
with an aggregate cost of $196,242 and accumulated depreciation of $9,569.
NOTE D--Equipment Lease Financing:
The Company has a line of credit to finance its acquisition of furniture,
office and computer equipment in the amount of $350,000. Under the terms of the
master agreement, acquired assets are financed pursuant to capital leases with
a three year term and interest rate of 8.75%. At December 31, 1995 $175,424 of
the line of credit was available. The Company is also obligated under two other
capital leases with interest rates of approximately 14% and aggregating $18,167
at December 31, 1995.
NOTE E--Commitments, Contingencies and Risks:
The Company is obligated under operating and capital leases for office space,
computers and office equipment. Future annual minimum lease payments under
leases in effect at December 31, 1995 are as follows:
<TABLE>
<CAPTION>
Operating Capital
--------- --------
<S> <C> <C>
1996................................................... $120,456 $ 72,233
1997................................................... 196,088 75,795
1998................................................... 195,356 68,132
1999................................................... 219,550 5,522
2000................................................... 213,155 0
--------
221,682
Less amount representing interest........................ 28,091
--------
Present value of capital lease obligations............... $193,591
========
</TABLE>
F-63 Financial Statements
<PAGE>
The Company maintains its accounts at one institution insured by the Federal
Deposit Insurance Corporation up to a maximum of $100,000.
The Company is committed to purchase furniture and equipment aggregating
approximately $125,000 which it expects to finance under the equipment lease
financing commitment described in Note D.
Two of the Company's consulting customers individually accounted for 59% and
27% of the Company's consulting revenues for the period ended December 31,
1995 and 76% and 22% of the accounts receivable at December 31, 1995.
NOTE F--Subsequent Event:
The Company merged with Telebase Systems, Inc. on February 13, 1996. Pursuant
to the merger the Company's shares were exchanged for common and preferred
shares of Telebase Systems, Inc. which changed its name to N2K Inc.
Financial Statements F-64
<PAGE>
APPENDIX I
AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
DATED AS OF JANUARY 29, 1999
AMONG
N2K INC.,
CDNOW, INC.
AND
EXIT 8 HOLDING COMPANY
APPENDIX I - AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE I.
THE MERGERS............................................................. I-2
Section 1.1. Articles of Incorporation and Bylaws of NewCo............. I-2
Section 1.2. The N2K Merger............................................ I-2
Section 1.3. The CDnow Merger.......................................... I-2
Section 1.4. Effective Time of the Mergers............................. I-2
Section 1.5. Closing................................................... I-2
Section 1.6. Effect of the Mergers..................................... I-2
Section 1.7. Certificate of Incorporation and Bylaws of the Surviving
Corporations........................................................... I-3
Section 1.8. Directors and Officers of the Surviving Corporations...... I-3
ARTICLE II.
CONVERSION OF SECURITIES................................................ I-3
Section 2.1. Conversion of N2K Capital Stock........................... I-4
Section 2.2. Conversion of CDnow Capital Stock......................... I-4
Section 2.3. Cancellation of NewCo Stock............................... I-4
Section 2.4. Exchange of Certificates.................................. I-4
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF N2K................................... I-7
Section 3.1. Organization of N2K....................................... I-7
Section 3.2. N2K Capital Structure..................................... I-7
Section 3.3. Authority; No Conflict; Required Filings and Consents..... I-8
Section 3.4. SEC Filings; Financial Statements......................... I-9
Section 3.5. No Undisclosed Liabilities................................ I-9
Section 3.6. Absence of Certain Changes or Events...................... I-9
Section 3.7. Taxes..................................................... I-9
Section 3.8. Properties................................................ I-10
Section 3.9. Intellectual Property..................................... I-11
Section 3.10. Agreements, Contracts and Commitments..................... I-11
Section 3.11. Litigation................................................ I-11
Section 3.12. Environmental Matters..................................... I-12
Section 3.13. Employee Benefit Plans.................................... I-12
Section 3.14. Compliance With Laws...................................... I-14
Section 3.15. Tax Matters............................................... I-14
Section 3.16. Registration Statement; Joint Proxy Statement/Prospectus.. I-14
Section 3.17. Labor Matters............................................. I-14
Section 3.18. Insurance................................................. I-14
Section 3.19. Opinion of Financial Advisor.............................. I-15
Section 3.20. No Existing Discussions................................... I-15
Section 3.21. Section 203 of the DGCL Not Applicable.................... I-15
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF CDnow................................. I-15
Section 4.1. Organization of CDnow..................................... I-15
Section 4.2. CDnow Capital Structure................................... I-15
Section 4.3. Authority; No Conflict; Required Filings and Consents..... I-16
Section 4.4. SEC Filings; Financial Statements......................... I-17
Section 4.5. No Undisclosed Liabilities................................ I-17
</TABLE>
APPENDIX I - AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
i
<PAGE>
<TABLE>
<S> <C>
Section 4.6. Absence
of Certain Changes or
Events................ I-17
Section 4.7. Taxes.... I-18
Section
4.8. Properties...... I-18
Section
4.9. Intellectual
Property.............. I-19
Section
4.10. Agreements;
Contracts and
Commitments........... I-19
Section
4.11. Litigation...... I-19
Section
4.12. Environmental
Matters............... I-19
Section 4.13. Employee
Benefit Plans......... I-20
Section
4.14. Compliance With
Laws.................. I-21
Section 4.15. Tax
Matters............... I-21
Section
4.16. Registration
Statement; Joint Proxy
Statement/Prospectus.. I-22
Section 4.17. Labor
Matters............... I-22
Section
4.18. Insurance....... I-22
Section 4.19. Opinion
of Financial Advisor.. I-22
Section 4.20. No
Existing Discussions.. I-22
Section 4.21. Section
1715 of the PBCL Not
Applicable............ I-22
ARTICLE V.
COVENANTS.............. I-23
Section 5.1. Conduct
of Business........... I-23
Section
5.2. Cooperation;
Notice; Cure.......... I-24
Section 5.3. No
Solicitation.......... I-25
Section 5.4. Joint
Proxy
Statement/Prospectus;
Registration
Statement............. I-26
Section 5.5. Nasdaq
Quotation............. I-26
Section 5.6. Access to
Information........... I-26
Section
5.7. Stockholders'
Meetings.............. I-26
Section 5.8. Legal
Conditions to Merge... I-27
Section 5.9. Public
Disclosure............ I-27
Section
5.10. Nonrecognition
Exchange.............. I-27
Section 5.11. Pooling
Accounting............ I-28
Section 5.12. Affiliate
Agreements............ I-28
Section 5.13. Nasdaq
Listing............... I-28
Section 5.14. Stock
Plans................. I-28
Section 5.15. Brokers
or Finders............ I-29
Section
5.16. Indemnification.. I-29
Section 5.17. Letter of
CDnow's Accountants... I-30
Section 5.18. Letter of
N2K's Accountants..... I-30
Section 5.19. Stock
Option Agreements..... I-30
Section
5.20. Transition
Planning.............. I-30
Section 5.21. Post-
Merger Corporate
Governance; Employment
Arrangements.......... I-30
Section 5.22. Name of
NewCo................. I-31
Section 5.23. Warrants;
Registration Rights
Agreement............. I-32
Section
5.24. Conveyance
Taxes................. I-32
Section 5.25. Transfer
Taxes................. I-32
Section
5.26. Stockholder
Litigation............ I-32
Section 5.27. Employee
Benefits; Severance... I-33
Section
5.28. Subsequent
Financial Statements.. I-33
Section 5.29. Control
of Operations......... I-33
Section 5.30. Certain
Modifications;
Restructuring
Charges............... I-33
</TABLE>
APPENDIX I - AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
ii
<PAGE>
<TABLE>
<S> <C>
ARTICLE VI.
CONDITIONS TO MERGERS................................................... I-34
Section 6.1. Conditions to Each Party's Obligation to Effect the
Mergers................................................................ I-34
Section 6.2. Additional Conditions to Obligations of N2K............... I-34
Section 6.3. Additional Conditions to Obligations of CDnow............. I-35
ARTICLE VII.
TERMINATION AND AMENDMENT............................................... I-36
Section 7.1. Termination............................................... I-36
Section 7.2. Effect of Termination..................................... I-37
Section 7.3. Fees and Expenses......................................... I-37
Section 7.4. Amendment................................................. I-39
Section 7.5. Extension; Waiver......................................... I-39
ARTICLE VIII.
MISCELLANEOUS........................................................... I-40
Section 8.1. Nonsurvival of Representations, Warranties and
Agreements............................................................. I-40
Section 8.2. Notices................................................... I-40
Section 8.3. Interpretation............................................ I-41
Section 8.4. Counterparts.............................................. I-41
Section 8.5. Entire Agreement; No Third Party Beneficiaries............ I-41
Section 8.6. Governing Law............................................. I-41
Section 8.7. Assignment................................................ I-41
EXHIBITS
Exhibit A Stock Option Agreement (N2K)
Exhibit B Stock Option Agreement (CDnow)
Exhibit C Stockholder Support Agreement (N2K)
Exhibit D Shareholder Support Agreement (CDnow)
Exhibit E Form of Articles of Incorporation of NewCo
Exhibit F Form of Bylaws of NewCo
Exhibit G Form of N2K Affiliate Agreement
Exhibit H Form of CDnow Affiliate Agreement
Exhibit I Employment Agreement for Jason Olim
Exhibit J Employment Agreement for Jonathan Diamond
</TABLE>
APPENDIX I - AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
iii
<PAGE>
TABLES OF DEFINED TERMS
<TABLE>
<S> <C>
Acquisition Proposal........................................................ 25
Affiliate................................................................... 28
Affiliate Agreement......................................................... 28
Affiliate Agreements........................................................ 28
Agreement................................................................... 1
Alternative Transaction..................................................... 38
Bankruptcy and Equity Exception............................................. 8
CDnow....................................................................... 1
CDnow Balance Sheet......................................................... 17
CDnow Common Stock.......................................................... 4
CDnow Director.............................................................. 29
CDnow Disclosure Schedule................................................... 15
CDnow Employees............................................................. 33
CDnow Exchange Ratio........................................................ 4
CDnow Material Adverse Effect............................................... 15
CDnow Material Contracts.................................................... 19
CDnow Merger................................................................ 2
CDnow SEC Reports........................................................... 17
CDnow Stock Option.......................................................... 28
CDnow Stock Option Agreement................................................ 1
CDnow Stock Plans........................................................... 16
CDnow Stockholder Support Agreement......................................... 1
CDnow Stockholders' Meeting................................................. 14
CDnow Sub................................................................... 2
CDnow Surviving Corporation................................................. 2
Certificate of Merger....................................................... 2
Certificates................................................................ 5
Certificates of Merger...................................................... 2
Closing..................................................................... 2
Closing Date................................................................ 2
Code........................................................................ 1
Confidentiality Agreements.................................................. 25
DGCL........................................................................ 2
Effective Time.............................................................. 2
Environmental Law........................................................... 12
Exchange Act................................................................ 8
Exchange Agent.............................................................. 4
Exchange Fund............................................................... 4
Fee Payment Date............................................................ 38
Governmental Entity......................................................... 8
Hazardous Substance......................................................... 12
HSR Act..................................................................... 8
Indemnified Parties......................................................... 29
IRS......................................................................... 10
Joint Proxy Statement/Prospectus............................................ 14
Material Contract........................................................... 11
Mergers..................................................................... 2
N2K......................................................................... 1
N2K Balance Sheet........................................................... 9
N2K Common Stock............................................................ 3
</TABLE>
APPENDIX I - AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
iv
<PAGE>
<TABLE>
<S> <C>
N2K Director................................................................ 29
N2K Disclosure Schedule..................................................... 7
N2K Employees............................................................... 33
N2K Exchange Ratio.......................................................... 3
N2K Material Adverse Effect................................................. 7
N2K Material Contracts...................................................... 11
N2K Merger.................................................................. 2
N2K Preferred Stock......................................................... 7
N2K SEC Reports............................................................. 9
N2K Stock Option............................................................ 28
N2K Stock Option Agreement.................................................. 1
N2K Stock Plans............................................................. 7
N2K Stockholder Support Agreement........................................... 2
N2K Stockholders' Meeting................................................... 14
N2K Sub..................................................................... 2
N2K Surviving Corporation................................................... 2
Nasdaq...................................................................... 6
NewCo....................................................................... 1
NewCo Common Stock.......................................................... 3
Order....................................................................... 27
Outside Date................................................................ 35
PBCL........................................................................ 2
Registration Statement...................................................... 14
SEC......................................................................... 8
Securities Act.............................................................. 6
Stock Option Agreements..................................................... 1
Superior Proposal........................................................... 25
Surviving Corporations...................................................... 2
Tax......................................................................... 9
Taxes....................................................................... 9
Taxes....................................................................... 9
Third Party................................................................. 25
Transfer Taxes.............................................................. 32
</TABLE>
APPENDIX I - AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
v
<PAGE>
AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER (the "Agreement"), dated as
of January 29, 1999, by and among N2K Inc., a Delaware corporation ("N2K"),
CDnow, Inc., a Pennsylvania corporation ("CDnow"), and Exit 8 Holding Company,
a newly-formed Pennsylvania corporation with nominal capitalization, one-half
of the issued and outstanding capital stock of which is owned by each of N2K
and CDnow ("Newco"), amending and restating in its entirety the Agreement and
Plan of Merger, dated as of October 22, 1998 among, N2K, CDnow and Newco.
WHEREAS, the Boards of Directors of N2K and CDnow deem it advisable and in the
best interests of each corporation and its respective stockholders that N2K and
CDnow combine in a "merger of equals" in order to advance the interests of N2K
and CDnow and their respective stockholders;
WHEREAS, the combination of N2K and CDnow shall be effected by the terms of
this Agreement through (i) a merger of a wholly-owned subsidiary of Newco with
and into N2K and (ii) a merger of another wholly-owned subsidiary of Newco with
and into CDnow, such that N2K and CDnow become wholly-owned subsidiaries of
Newco and the stockholders of N2K and CDnow become stockholders of Newco;
WHEREAS, concurrently with the execution and delivery of this Agreement and as
a condition and inducement to each of N2K's and CDnow's willingness to enter
into this Agreement, N2K and CDnow have entered into (i) a Stock Option
Agreement dated as of the date of this Agreement and attached hereto as Exhibit
A (the "N2K Stock Option Agreement"), pursuant to which CDnow has granted N2K
an option to purchase shares of common stock of CDnow under certain
circumstances, and (ii) a Stock Option Agreement dated as of the date of this
Agreement and attached hereto as Exhibit B (the "CDnow Stock Option Agreement"
and, together with the N2K Stock Option Agreement, the "Stock Option
Agreements"), pursuant to which N2K has granted CDnow an option to purchase
shares of common stock of N2K under certain circumstances;
WHEREAS, concurrently with the execution and delivery of this Agreement and as
a condition and inducement to N2K's willingness to enter into this Agreement, a
stockholder of CDnow has entered into a Stockholder Support Agreement with N2K,
dated as of the date of this Agreement and attached hereto as Exhibit C (the
"CDnow Stockholder Support Agreement"), pursuant to which such stockholder has
agreed, among other things, to vote all voting securities of CDnow beneficially
owned by him in favor of approval and adoption of the Agreement and the CDnow
Merger (as defined in Section 1.3);
WHEREAS, concurrently with the execution and delivery of this Agreement and as
a condition and inducement to CDnow's willingness to enter into this Agreement,
certain stockholders of N2K have entered into a Stockholder Support Agreement
with CDnow, dated as of the date of this Agreement and attached hereto as
Exhibit D (the "N2K Stockholder Support Agreement"), pursuant to which such
stockholders have agreed, among other things, to vote all voting securities of
N2K beneficially owned by them in favor of approval and adoption of the
Agreement and the N2K Merger (as defined in Section 1.2);
WHEREAS, for Federal income tax purposes, it is intended that (i) the N2K
Merger (as defined in Section 1.2) shall qualify as a reorganization described
in Section 368(a) of the Internal Revenue Code of 1986, as amended (the
"Code"), and/or, taken together with the CDnow Merger (as defined in Section
1.3), as a transfer of property to Newco by holders of N2K Common Stock (as
defined in Section 2.1) described in Section 351 of the Code and (ii) the CDnow
Merger shall qualify as a reorganization described in Section 368(a) of the
Code and/or, taken together with the N2K Merger, as a transfer of property to
Newco by holders of CDnow Common Stock described in Section 351 of the Code;
and
WHEREAS, the Boards of Directors of N2K and CDnow have approved this Agreement,
the Stock Option Agreements and the Stockholder Support Agreements.
APPENDIX I - AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
I-1
<PAGE>
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth below, and
intending to be legally bound hereby, the parties agree as follows:
ARTICLE I.
THE MERGERS
Section 1.1. Articles of Incorporation and Bylaws of Newco. N2K and CDnow shall
cause the Articles of Incorporation and Bylaws of Newco to be amended prior to
the Effective Time (as defined in Section 1.4) to be substantially in the forms
of Exhibit E and Exhibit F hereto, respectively. From the date hereof until the
Effective Time, N2K and CDnow shall consult with each other prior to causing or
permitting Newco to take any action and neither shall cause or permit Newco to
take any action inconsistent with the provisions of this Agreement without the
written consent of the other.
Section 1.2. The N2K Merger. N2K and CDnow shall cause Newco to form a wholly-
owned subsidiary named N2K Acquisition Corp. ("N2K Sub") under the laws of the
State of Delaware. N2K and CDnow will cause Newco to cause N2K Sub to execute
and deliver a joinder to this Agreement. Upon the terms and subject to the
provisions of this Agreement, and in accordance with the General Corporation
Law of the State of Delaware (the "DGCL"), N2K Sub will merge with and into N2K
(the "N2K Merger") at the Effective Time (as defined in Section 1.4). N2K Sub
will be formed solely to facilitate the N2K Merger and will conduct no business
or activity other than in connection with the N2K Merger.
Section 1.3. The CDnow Merger. N2K and CDnow shall cause Newco to form a
wholly-owned subsidiary named CDnow Acquisition Corp. ("CDnow Sub") under the
laws of the Commonwealth of Pennsylvania. N2K and CDnow will cause Newco to
cause CDnow Sub to execute and deliver a joinder to this Agreement. Upon the
terms and subject to the provisions of this Agreement, and in accordance with
the Pennsylvania Business Corporation Law of 1988, as amended (the "PBCL"),
CDnow Sub will merge with and into CDnow (the "CDnow Merger" and together with
the N2K Merger, the "Mergers") at the Effective Time (as defined in Section
1.4). CDnow Sub will be formed solely to facilitate the CDnow Merger and will
conduct no business or activity other than in connection with the CDnow Merger.
Section 1.4. Effective Time of the Mergers. Subject to the provisions of this
Agreement, a certificate or articles of merger with respect to each Merger in
such form as is required by the relevant provisions of the DGCL and the PBCL,
as the case may be, (individually, a "Certificate of Merger" with respect to
one of the Mergers, and collectively with respect to both Mergers, the
"Certificates of Merger") shall be duly prepared, executed and acknowledged and
thereafter delivered to the secretaries of state of the State of Delaware and
the Commonwealth of Pennsylvania, as the case may be, for filing, as provided
in the DGCL and the PBCL, as early as practicable on the Closing Date (as
defined in Section 1.5). Each Merger shall become effective at such time as is
specified in the Certificate of Merger (the time at which both Mergers have
become fully effective being hereinafter referred to as the "Effective Time").
Section 1.5. Closing. The closing of the Mergers (the "Closing") will take
place at such time and place to be agreed upon by the parties hereto, on a date
to be specified by CDnow and N2K, which shall be no later than the second
business day after satisfaction or, if permissible, waiver of the conditions
set forth in Article VI (the "Closing Date"), unless another date is agreed to
in writing by CDnow and N2K.
Section 1.6. Effect of the Mergers. As a result of the N2K Merger, the separate
corporate existence of N2K Sub shall cease and N2K shall continue as the
surviving corporation (the "N2K Surviving Corporation"). As a result of the
CDnow Merger, the separate corporate existence of CDnow Sub shall cease and
CDnow shall continue as the surviving corporation (the "CDnow Surviving
Corporation" and together with the N2K Surviving Corporation, the "Surviving
Corporations"). Upon becoming effective, the Mergers shall have the effects set
forth in the DGCL and the PBCL. Without limiting the generality of the
foregoing,
APPENDIX I - AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
I-2
<PAGE>
and subject thereto, at the Effective Time, (i) all properties, rights,
privileges, powers and franchises of N2K and N2K Sub shall vest in the N2K
Surviving Corporation, and all debts, liabilities and duties of N2K and N2K Sub
shall become the debts, liabilities and duties of the N2K Surviving Corporation
and (ii) all properties, rights, privileges, powers and franchises of CDnow and
CDnow Sub shall vest in the CDnow Surviving Corporation, and all debts,
liabilities and duties of CDnow and CDnow Sub shall become the debts,
liabilities and duties of the CDnow Surviving Corporation.
Section 1.7. Certificate of Incorporation and Bylaws of the Surviving
Corporations. At the Effective Time, (i) the Certificate of Incorporation and
Bylaws of the N2K Surviving Corporation shall be amended to be identical to the
Certificate of Incorporation and Bylaws, respectively, of N2K Sub as in effect
immediately prior to the Effective Time (except that the name of the N2K
Surviving Corporation shall be N2K Inc.), in each case until duly amended in
accordance with applicable law, and (ii) the Articles of Incorporation and
Bylaws of the CDnow Surviving Corporation shall be amended to be identical to
the Articles of Incorporation and Bylaws, respectively, of CDnow Sub as in
effect immediately prior to the Effective Time (except that the name of the
CDnow Surviving Corporation shall be CDnow Inc.), in each case until duly
amended in accordance with applicable law.
Section 1.8. Directors and Officers of the Surviving Corporations.
(a) N2K Surviving Corporation. The directors of N2K Sub immediately prior to
the Effective Time shall be the initial directors of the N2K Surviving
Corporation, each to hold office in accordance with the Certificate of
Incorporation and Bylaws of the N2K Surviving Corporation. The officers of N2K
immediately prior to the Effective Time shall be the initial officers of the
N2K Surviving Corporation, each to hold office in accordance with the
Certificate of Incorporation and Bylaws of the N2K Surviving Corporation.
(b) CDnow Surviving Corporation. The directors of CDnow Sub immediately prior
to the Effective Time shall be the initial directors of the CDnow Surviving
Corporation, each to hold office in accordance with the Articles of
Incorporation and Bylaws of the CDnow Surviving Corporation. The officers of
CDnow immediately prior to the Effective Time shall be the initial officers of
the CDnow Surviving Corporation, each to hold office in accordance with the
Articles of Incorporation and Bylaws of the CDnow Surviving Corporation.
ARTICLE II.
CONVERSION OF SECURITIES
Section 2.1. Conversion of N2K Capital Stock. At the Effective Time, by virtue
of the N2K Merger and without any action on the part of any of the parties
hereto or the holders of any shares of Common Stock, par value $.001 per share,
of N2K ("N2K Common Stock") or common stock of N2K Sub:
(a) Capital Stock of N2K Sub. Each issued and outstanding share of the common
stock, par value $.01 per share, of N2K Sub shall be converted into and become
one fully paid and nonassessable share of Common Stock, par value $.01 per
share, of the N2K Surviving Corporation.
(b) Cancellation of Treasury Stock and CDnow-Owned Stock. All shares of N2K
Common Stock that are owned by N2K as treasury stock and any shares of N2K
Common Stock owned by CDnow or any wholly-owned Subsidiary (as defined in
Section 3.1) of CDnow shall be canceled and retired and shall cease to exist
and no stock of Newco or other consideration shall be delivered in exchange
therefor.
(c) Exchange Ratio for N2K Common Stock. Subject to Section 2.4(e), each issued
and outstanding share of N2K Common Stock (other than shares to be canceled in
accordance with Section 2.1(b)) shall be converted into the right to receive
0.83 of a share (the "N2K Exchange Ratio") of Common Stock, no par value per
share, of Newco ("Newco Common Stock"). All such shares of N2K Common Stock,
when so converted, shall no longer be outstanding and shall automatically be
canceled and retired and shall cease to
APPENDIX I - AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
I-3
<PAGE>
exist, and each holder of a certificate representing any such shares shall
cease to have any ownership or other rights with respect thereto, except the
right to receive the shares of Newco Common Stock and any cash in lieu of
fractional shares of Newco Common Stock to be issued or paid in consideration
therefor, in each case upon the surrender of such certificate in accordance
with Section 2.4 and without interest.
Section 2.2. Conversion of CDnow Capital Stock. At the Effective Time, by
virtue of the CDnow Merger and without any action on the part of any of the
parties hereto or the holders of any shares of Common Stock, no par value per
share, of CDnow ("CDnow Common Stock") or common stock of CDnow Sub:
(a) Capital Stock of CDnow Sub. Each issued and outstanding share of the common
stock, no par value, of CDnow Sub shall be converted into and become one fully
paid and nonassessable share of Common Stock, no par value, of the CDnow
Surviving Corporation.
(b) Cancellation of Treasury Stock and N2K-Owned Stock. All shares of CDnow
Common Stock that are owned by CDnow as treasury stock and any shares of CDnow
Common Stock owned by N2K or any wholly-owned Subsidiary (as defined in Section
3.1) of N2K shall be canceled and retired and shall cease to exist and no stock
of Newco or other consideration shall be delivered in exchange therefor.
(c) Exchange Ratio for CDnow Common Stock. Subject to Section 2.4(e), each
issued and outstanding share of CDnow Common Stock (other than shares to be
canceled in accordance with Section 2.2(b) and shares held by holders who
exercise dissenters' rights as described below) shall be converted into the
right to receive one share (the "CDnow Exchange Ratio") of Newco Common Stock.
All such shares of CDnow Common Stock, when so converted, shall no longer be
outstanding and shall automatically be canceled and retired and shall cease to
exist, and each holder of a certificate representing any such shares shall
cease to have any ownership or other rights with respect thereto, except the
right to receive the shares of Newco Common Stock, in each case upon the
surrender of such certificate in accordance with Section 2.4 and without
interest.
(d) Dissenters' Rights. To the extent of holders of shares of CDnow Common
Stock exercise dissenters' rights pursuant to applicable provisions of the
PBCL, the shares of CDnow Common Stock of such holder shall not be converted
into the right to receive the CDnow Exchange Ratio but the Newco shares such
holder would be entitled to shall be held by Newco subject to the provisions of
such law. If any such holder fails to protect or withdraws or loses its
dissenters' rights, such shares of Newco Common Stock shall then be treated as
if they had been converted as of the Effective Time into a right to receive
Newco Common Stock.
Section 2.3. Cancellation of Newco Stock. At the Effective Time, by virtue of
the Mergers and without any action on the part of any holder of any capital
stock of N2K, CDnow or Newco, each share of Newco Common Stock issued and
outstanding immediately prior to the Effective Time shall be surrendered and
canceled, and the amount paid by N2K and CDnow for the shares of Newco Common
Stock held by them shall be returned by Newco to them.
Section 2.4. Exchange of Certificates. The procedures for exchanging
certificates which prior to the Effective Time represented shares of N2K Common
Stock and CDnow Common Stock for certificates representing Newco Common Stock
pursuant to the Mergers are as follows:
(a) Exchange Agent. As of the Effective Time, Newco shall deposit with a bank
or trust company designated by CDnow and N2K (the "Exchange Agent"), for the
benefit of the holders of shares of N2K Common Stock and shares of CDnow Common
Stock outstanding immediately prior to the Effective Time, for exchange in
accordance with this Section 2.4, through the Exchange Agent, certificates
representing the shares of Newco Common Stock and, with respect to shares of
N2K Common Stock, cash in lieu of fractional shares (such shares of Newco
Common Stock and cash in lieu of fractional shares, together with any dividends
or distributions with respect thereto, being hereinafter referred to as the
"Exchange Fund"), issuable pursuant to Sections 2.1 and 2.2 in exchange for
shares of N2K Common Stock and CDnow Common Stock, respectively, outstanding
immediately prior to the Effective Time.
APPENDIX I - AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
I-4
<PAGE>
(b) Exchange Procedures. As soon as reasonably practicable after the Effective
Time, the Exchange Agent shall mail to each holder of record of a certificate
or certificates which immediately prior to the Effective Time represented
outstanding shares of N2K Common Stock or CDnow Common Stock (collectively, the
"Certificates") whose shares were converted pursuant to Section 2.1 or Section
2.2 into the right to receive shares of Newco Common Stock (i) a letter of
transmittal (which shall specify that delivery shall be effected, and risk of
loss and title to the Certificates shall pass, only upon delivery of the
Certificates to the Exchange Agent and shall be in such form and have such
other provisions as N2K and CDnow may reasonably specify) and (ii) instructions
for effecting the surrender of the Certificates in exchange for certificates
representing shares of Newco Common Stock (plus cash in lieu of fractional
shares, if any, of Newco Common Stock as provided below). Upon surrender of a
Certificate for cancellation to the Exchange Agent or to such other agent or
agents as may be appointed by Newco, together with such letter of transmittal,
duly executed, the holder of such Certificate shall be entitled to receive in
exchange therefor a certificate representing that number of whole shares of
Newco Common Stock, the amount of any cash payable in lieu of fractional shares
of Newco Common Stock (with respect to shares of N2K Common Stock), and the
Certificate so surrendered shall immediately be canceled. In the event of a
transfer of ownership of N2K Common Stock or CDnow Common Stock prior to the
Effective Time which is not registered in the transfer records of N2K or CDnow,
respectively, a certificate representing the number of shares of Newco Common
Stock issuable and any amounts payable in accordance with this Agreement may be
issued and paid to a transferee if the Certificate representing such N2K Common
Stock or CDnow Common Stock is presented to the Exchange Agent, accompanied by
all documents required to evidence and effect such transfer and by evidence
that any applicable stock transfer taxes have been paid.
(c) Distributions With Respect to Unexchanged Shares. No amount in respect of
dividends or other distributions declared or made after the Effective Time with
respect to Newco Common Stock with a record date after the Effective Time shall
be paid to the holder of any unsurrendered Certificate with respect to the
shares of Newco Common Stock the holder thereof is entitled to receive in
respect thereof and no cash payment in lieu of fractional shares shall be paid
to any such holder pursuant to subsection (e) below until the holder of record
of such Certificate shall surrender such Certificate to Newco in accordance
herewith. Subject to the effect of applicable laws, following surrender of any
such Certificate, there shall be paid to the record holder of the certificates
representing whole shares of Newco Common Stock issued in exchange therefor,
without interest, (i) at the time of such surrender, the amount of any cash
payable in lieu of a fractional share of Newco Common Stock to which such
holder is entitled pursuant to subsection (e) below.
(d) No Further Ownership Rights in N2K Common Stock and CDnow Common Stock. All
shares of Newco Common Stock issued upon the surrender for exchange of
Certificates in accordance with the terms hereof (including any cash paid
pursuant to subsection (c) or (e) of this Section 2.4) shall be deemed to have
been issued in full satisfaction of all rights pertaining to the shares of N2K
Common Stock or CDnow Common Stock theretofore represented by such
Certificates. Immediately prior to and all times after the Effective Time there
shall be no further registration of transfers on the stock transfer books of
the N2K Surviving Corporation or the CDnow Surviving Corporation, as the case
may be, of the shares of N2K Common Stock or CDnow Common Stock, respectively,
which were outstanding immediately prior to the Effective Time. If, after the
Effective Time, Certificates are presented to one of the Surviving Corporations
or Newco for any reason, such Certificates shall be canceled and exchanged as
provided in this Section 2.4.
(e) No Fractional Shares. No certificate or scrip representing fractional
shares of Newco Common Stock shall be issued upon the surrender for exchange of
Certificates representing shares of N2K Common Stock, and such fractional share
interests will not entitle the owner thereof to vote or to any other rights of
a stockholder of Newco. Notwithstanding any other provision of this Agreement,
each record holder of shares of N2K Common Stock outstanding immediately prior
to the Effective Time exchanged pursuant to the N2K Merger who would otherwise
have been entitled to receive a fraction of a share of Newco Common Stock
(after taking into account all Certificates delivered by such holder) shall
receive, in lieu thereof, cash (without interest) in an amount equal to such
fractional part of a share of Newco Common Stock multiplied by
APPENDIX I - AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
I-5
<PAGE>
the last per share sales price of Newco Common Stock (as reported on the Nasdaq
National Market (the "Nasdaq")) on the closing of the first day of regular-way
trading of Newco Common Stock on the Nasdaq after the Effective Time.
(f) Termination of Exchange Fund. Any portion of the Exchange Fund which
remains undistributed to the former stockholders of N2K or CDnow for 180 days
after the Effective Time shall be delivered to Newco upon demand, and any
former stockholder of N2K or CDnow who has not previously complied with this
Section 2.4 shall thereafter look only to Newco for payment of such former
stockholder's claim for Newco Common Stock, any cash in lieu of fractional
shares of Newco Common Stock and any amounts in respect of dividends or
distributions with respect to Newco Common Stock.
(g) No Liability. None of N2K, CDnow, Newco or the Exchange Agent shall be
liable to any holder of shares of N2K Common Stock or CDnow Common Stock, as
the case may be, for any shares of Newco Common Stock (or cash in lieu of
fractional shares of Newco Common Stock) delivered to a public official
pursuant to any applicable abandoned property, escheat or similar law.
(h) Withholding Rights. Newco and each of the Surviving Corporations shall be
entitled to deduct and withhold from the consideration otherwise payable
pursuant to this Agreement to any holder of Certificates which prior to the
Effective Time represented shares of N2K Common Stock or CDnow Common Stock
such amounts as it is required to deduct and withhold with respect to the
making of such payment under the Code, or any provision of state, local or
foreign tax law. To the extent that amounts are so withheld by Newco or one of
the Surviving Corporations, as the case may be, such withheld amounts shall be
treated for all purposes of this Agreement as having been paid to the holder of
the shares of N2K Common Stock or CDnow Common Stock, as the case may be, in
respect of which such deduction and withholding was made.
(i) Lost Certificates. If any Certificate shall have been lost, stolen or
destroyed, upon the making of an affidavit of that fact in form and substance
satisfactory to Newco and the Exchange Act by the person claiming such
Certificate to be lost, stolen or destroyed and, if required by Newco or one of
the Surviving Corporations, the posting by such person of a bond in such
reasonable amount as Newco or such Surviving Corporation may direct as
indemnity against any claim that may be made against it with respect to such
Certificate, the Exchange Agent will issue in exchange for such lost, stolen or
destroyed Certificate the shares of Newco Common Stock and any cash in lieu of
fractional shares, and unpaid dividends and distributions on shares of Newco
Common Stock deliverable in respect thereof pursuant to this Agreement.
(j) Affiliates. Notwithstanding anything herein to the contrary, Certificates
surrendered for exchange by any Affiliate (as defined in Section 5.12) of N2K
or CDnow shall not be exchanged until (i) Newco has received an Affiliate
Agreement (as defined in Section 5.12) from such Affiliate or (ii) until the
date as such shares of Newco Common Stock are freely tradable without violating
the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder (collectively, the "Securities Act").
APPENDIX I - AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
I-6
<PAGE>
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF N2K
N2K represents and warrants to CDnow that the statements contained in this
Article III are true and correct except as set forth herein and in the
disclosure schedule delivered by N2K to CDnow on or before the date of this
Agreement (the "N2K Disclosure Schedule").
Section 3.1. Organization of N2K. Each of N2K and its Subsidiaries (as defined
below) is duly organized, validly existing and in good standing under the laws
of the jurisdiction of its organization, has all requisite power to own, lease
and operate its property and to carry on its business as now being conducted
and as proposed to be conducted, and is duly qualified to do business and is in
good standing as a foreign corporation or other entity in each jurisdiction in
which the failure to be so qualified would have a material adverse effect on
the business, properties, financial condition or results of operations of N2K
and its Subsidiaries, taken as a whole (a "N2K Material Adverse Effect"). A
true and correct copy of the Certificate of Incorporation and Bylaws of N2K and
each of its Subsidiaries has been delivered to CDnow. Except as set forth in
N2K SEC Reports (as defined in Section 3.4) filed prior to the date hereof,
neither N2K nor any of its Subsidiaries directly or indirectly owns (other than
ownership interests in N2K or in one or more of its Subsidiaries) any equity or
similar interest in, or any interest convertible into or exchangeable or
exercisable for, any corporation, partnership, joint venture or other business
association or entity, excluding (i) securities in any publicly traded company
held for investment by N2K and comprising less than five percent (5%) of the
outstanding stock of such company and (ii) any investment or series of related
investments with a book value of less than $1 million. As used in this
Agreement, the word "Subsidiary" means, with respect to any party, any
corporation or other organization, whether incorporated or unincorporated, of
which (i) such party or any other Subsidiary of such party is a general partner
(excluding partnerships the general partnership interests of which held by such
party or any Subsidiary of such party do not have a majority of the economic
interests in such partnership) or (ii) at least a majority of the securities or
other interests having by their terms ordinary voting power to elect a majority
of the Board of Directors or others performing similar functions with respect
to such corporation or other organization is directly or indirectly owned or
controlled by such party or by any one or more of its Subsidiaries, or by such
party and one or more of its Subsidiaries.
Section 3.2. N2K Capital Structure.
(a) The authorized capital stock of N2K consists of 100,000,000 shares of N2K
Common Stock and 40,000,000 shares of preferred stock, par value $.001 per
share ("N2K Preferred Stock"). As of the date hereof, (i) 14,207,179 shares of
N2K Common Stock were issued and outstanding, all of which are validly issued,
fully paid and nonassessable, (ii) no shares of N2K Common Stock were held in
the treasury of N2K or by Subsidiaries of N2K and (iii) no shares of N2K
Preferred Stock were issued and outstanding. Section 3.2(a) of the N2K
Disclosure Schedule shows the number of shares of N2K Common Stock reserved for
future issuance pursuant to stock options granted and outstanding as of the
date hereof and the plans under which such options were granted (collectively,
the "N2K Stock Plans"). There are no obligations, contingent or otherwise, of
N2K or any of its Subsidiaries to repurchase, redeem or otherwise acquire any
shares of N2K Common Stock or the capital stock of any Subsidiary or to provide
funds to or make any material investment (in the form of a loan, capital
contribution or otherwise) in any such Subsidiary or any other entity other
than guarantees of bank obligations or indebtedness for borrowed money of
Subsidiaries entered into in the ordinary course of business and other than any
obligation the failure of which to perform or satisfy would not have a N2K
Material Adverse Effect. All of the outstanding shares of capital stock or
other ownership interests of each of N2K's Subsidiaries are duly authorized,
validly issued, fully paid and nonassessable and all such shares (other than
directors' qualifying shares in the case of foreign Subsidiaries) are owned by
N2K or another Subsidiary of N2K free and clear of all security interests,
liens, claims, pledges, agreements, limitations in N2K's voting rights, charges
or other encumbrances of any nature.
(b) Except as set forth in this Section 3.2 or as reserved for future grants of
options under the N2K Stock Plans or the CDnow Stock Option Agreement and the
options and warrants described in Section
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3.2(b) of the N2K Disclosure Schedule, (i) there are no shares of capital stock
of any class of N2K, or any security exchangeable into or exercisable for such
equity securities, issued, reserved for issuance or outstanding; (ii) there are
no options, warrants, equity securities, calls, rights, commitments or
agreements of any character to which N2K or any of its Subsidiaries is a party
or by which it is bound obligating N2K or any of its Subsidiaries to issue,
deliver or sell, or cause to be issued, delivered or sold, additional shares of
capital stock or other ownership interests of N2K or any of its Subsidiaries or
obligating N2K or any of its Subsidiaries to grant, extend, accelerate the
vesting of, or enter into any such option, warrant, equity security, call,
right, commitment or agreement; and (iii) to the best knowledge of N2K, there
are no voting trusts, proxies or other voting agreements or understandings with
respect to the shares of capital stock of N2K. All shares of N2K Common Stock
subject to issuance as specified in this Section 3.2 are duly authorized and,
upon issuance on the terms and conditions specified in the instruments pursuant
to which they are issuable, shall be validly issued, fully paid and
nonassessable.
Section 3.3. Authority; No Conflict; Required Filings and Consents.
(a) N2K has all requisite corporate power and authority to enter into this
Agreement and the Stock Option Agreements and, subject to obtaining any
necessary stockholder approval of this Agreement, to consummate the
transactions contemplated by this Agreement and the Stock Option Agreements.
The execution and delivery of this Agreement and the Stock Option Agreements
and the consummation of the transactions contemplated by this Agreement and the
Stock Option Agreements by N2K have been duly authorized by all necessary
corporate action on the part of N2K, subject only to the approval and adoption
of this Agreement and the N2K Merger by N2K's stockholders under the DGCL. This
Agreement and the Stock Option Agreements have been duly executed and delivered
by N2K and constitute the valid and binding obligations of N2K, enforceable in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles
(the "Bankruptcy and Equity Exception").
(b) The execution and delivery of this Agreement and the Stock Option
Agreements by N2K does not, and the consummation of the transactions
contemplated by this Agreement and the Stock Option Agreements will not, (i)
conflict with, or result in any violation or breach of, any provision of the
Certificate of Incorporation or Bylaws of N2K or any of its Subsidiaries, (ii)
result in any violation or breach of, or constitute (with or without notice or
lapse of time, or both) a default (or give rise to a right of termination,
cancellation or acceleration of any obligation or loss of any material benefit)
under, or require a consent or waiver under, any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, lease, contract or other
agreement, instrument or obligation to which N2K or any of its Subsidiaries is
a party or by which any of them or any of their properties or assets may be
bound or (iii) conflict with or violate any permit, concession, franchise,
license, judgment, order, decree, statute, law, ordinance, rule or regulation
applicable to N2K or any of its Subsidiaries or any of its or their properties
or assets, except in the case of (ii) and (iii) for any such conflicts,
violations, defaults, terminations, cancellations or accelerations which (x)
are not, individually or in the aggregate, reasonably likely to have a N2K
Material Adverse Effect or (y) would not substantially impair or delay the
consummation of the N2K Merger.
(c) No consent, approval, order or authorization of, or registration,
declaration or filing with, any court, administrative agency or commission or
other governmental authority or instrumentality ("Governmental Entity") is
required by or with respect to N2K or any of its Subsidiaries in connection
with the execution and delivery of this Agreement and the Stock Option
Agreements or the consummation of the transactions contemplated hereby or
thereby, except for (i) any required filing of a pre-merger notification report
under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the
"HSR Act"), (ii) the expiration or termination of any applicable waiting period
under the HSR Act, (iii) the filing of a Certificate of Merger with respect to
the N2K Merger with the Delaware Secretary of State, (iv) the filing of the
Joint Proxy Statement/Prospectus (as defined in Section 3.16 below) with the
Securities and Exchange Commission (the "SEC") in accordance with the
Securities Exchange Act of 1934, as amended and the rules and regulations
promulgated thereunder (collectively, the "Exchange Act"), and the Securities
Act, (v) such consents,
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approvals, orders, authorizations, registrations, declarations and filings as
may be required under applicable state securities laws and the laws of any
foreign country and (vi) such other consents, authorizations, filings,
approvals and registrations which, if not obtained or made, would not (x) be
reasonably likely to have a N2K Material Adverse Effect or (y) substantially
impair or delay the consummation of the N2K Merger.
Section 3.4. SEC Filings; Financial Statements.
(a) N2K has filed and made available to CDnow all forms, reports and documents
required to be filed by N2K with the SEC since October 17, 1997 (collectively,
the "N2K SEC Reports"). The N2K SEC Reports (i) at the time filed, complied in
all material respects with the applicable requirements of the Securities Act
and the Exchange Act, as the case may be, and (ii) did not at the time they
were filed (or if amended or superseded by a filing prior to the date of this
Agreement, then on the date of such filing) contain any untrue statement of a
material fact or omit to state a material fact required to be stated in such
N2K SEC Reports or necessary in order to make the statements in such N2K SEC
Reports, in the light of the circumstances under which they were made, not
misleading. None of N2K's Subsidiaries is required to file any forms, reports
or other documents with the SEC.
(b) Each of the consolidated financial statements (including, in each case, any
related notes) of N2K contained in the N2K SEC Reports complied as to form in
all material respects with the applicable published rules and regulations of
the SEC with respect thereto, was prepared in accordance with generally
accepted accounting principles applied on a consistent basis throughout the
periods involved (except as may be indicated in the notes to such financial
statements or, in the case of unaudited statements, as permitted by Form 10-Q
under the Exchange Act) and fairly presented the consolidated financial
position of N2K and its Subsidiaries as of the dates and the consolidated
results of its operations and cash flows for the periods indicated, except that
the unaudited interim financial statements were or are subject to normal and
recurring year-end adjustments which were not or are not expected to be
material in amount. The balance sheet of N2K as of June 30, 1998 is referred to
herein as the "N2K Balance Sheet."
Section 3.5. No Undisclosed Liabilities. Except as disclosed in the N2K SEC
Reports filed prior to the date hereof, and except for normal or recurring
liabilities incurred since June 30, 1998 in the ordinary course of business
consistent with past practices, N2K and its Subsidiaries do not have any
liabilities, either accrued, contingent or otherwise, of the type required to
be reflected in financial statements in accordance with generally accepted
accounting principles, and whether due or to become due, which individually or
in the aggregate are reasonably likely to have a N2K Material Adverse Effect.
Section 3.6. Absence of Certain Changes or Events. Except as disclosed in the
N2K SEC Reports filed prior to the date hereof, since the date of the N2K
Balance Sheet, N2K and its Subsidiaries have conducted their businesses only in
the ordinary course and in a manner consistent with past practice and, since
such date, there has not been (i) any event, development, state of affairs or
condition, or series or combination of events, developments, states of affairs
or conditions, which, individually or in the aggregate, has had or is
reasonably likely to have a N2K Material Adverse Effect (other than events,
developments, states of affairs or conditions that are the effect or result of
actions taken by CDnow or economic factors affecting the economy as a whole or
the industry in which N2K competes); (ii) any damage, destruction or loss
(whether or not covered by insurance) with respect to N2K or any of its
Subsidiaries which is reasonably likely to have a N2K Material Adverse Effect;
(iii) any material change by N2K in its accounting methods, principles or
practices to which CDnow has not previously consented in writing; (iv) any
revaluation by N2K of any of its assets which is reasonably likely to have a
N2K Material Adverse Effect; or (v) any other action or event that would have
required the consent of CDnow pursuant to Section 5.1 of this Agreement had
such action or event occurred after the date of this Agreement other than such
actions or events that, individually or in the aggregate, have not had or are
not reasonably likely to have a N2K Material Adverse Effect.
Section 3.7. Taxes.
(a) For the purposes of this Agreement, a "Tax" or, collectively, "Taxes,"
means any and all federal, state, local and foreign taxes, assessments and
other governmental charges, duties, impositions and
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liabilities, including taxes based upon or measured by gross receipts, income,
profits, sales, use and occupation, and value added, ad valorem, transfer,
gains, franchise, withholding, payroll, recapture, employment, excise,
unemployment insurance, social security, business license, occupation, business
organization, stamp, environmental and property taxes, together with all
interest, penalties and additions imposed with respect to such amounts. For
purposes of this Agreement, "Taxes" also includes any obligations under any
agreements or arrangements with any other person with respect to Taxes of such
other person (including pursuant to Treas. Reg. (S) 1.1502-6 or comparable
provisions of state, local or foreign tax law) and including any liability for
Taxes of any predecessor entity.
(b) N2K and each of its Subsidiaries have (i) filed all federal, state, local
and foreign Tax returns and reports required to be filed by them prior to the
date of this Agreement (taking into account all applicable extensions), (ii)
paid or accrued all Taxes due and payable, and (iii) paid or accrued all Taxes
for which a notice of assessment or collection has been received (other than
amounts being contested in good faith by appropriate proceedings), except in
the case of clauses (i), (ii) or (iii) for any such filings, payments or
accruals that are not reasonably likely, individually or in the aggregate, to
have a N2K Material Adverse Effect. Neither the Internal Revenue Service (the
"IRS") nor any other taxing authority has asserted any claim for Taxes, or to
the actual knowledge of the executive officers of N2K, is threatening to assert
any claims for Taxes, which claims, individually or in the aggregate, are
reasonably likely to have a N2K Material Adverse Effect. N2K and each of its
Subsidiaries have withheld or collected and paid over to the appropriate
governmental authorities (or are properly holding for such payment) all Taxes
required by law to be withheld or collected, except for amounts that are not
reasonably likely, individually or in the aggregate, to have a N2K Material
Adverse Effect. Neither N2K nor any of its Subsidiaries has made an election
under Section 341(f) of the Code, except for any such election that shall not
have a N2K Material Adverse Effect. There are no liens for Taxes upon the
assets of N2K or any of its Subsidiaries (other than liens for Taxes that are
not yet due or delinquent or that are being contested in good faith by
appropriate proceedings), except for liens that are not reasonably likely,
individually or in the aggregate, to have a N2K Material Adverse Effect.
(c) Neither N2K nor any of its Subsidiaries is or has been a member of an
affiliated group of corporations filing a consolidated federal income tax
return (or a group of corporations filing a consolidated, combined or unitary
income tax return under comparable provisions of state, local or foreign tax
law) other than a group the common parent of which is or was N2K or any
Subsidiary of N2K.
(d) Neither N2K nor any of its Subsidiaries has any obligation under any
agreement or arrangement with any other person with respect to Taxes of such
other person (including pursuant to Treas. Reg. (S) 1.1502-6 or comparable
provisions of state, local or foreign tax law) and including any liability for
Taxes of any predecessor entity, except for obligations that are not reasonably
likely, individually or in the aggregate, to have a N2K Material Adverse
Effect.
(e) Neither N2K nor any of its subsidiaries (i) has agreed to or is required to
make any adjustments pursuant to Section 481 of the Code; (ii) has knowledge
that the IRS has proposed any such adjustment or a change in accounting method
with respect to such entity; or (iii) has an application pending with the IRS
or any other taxing authority requesting permission for any change in
accounting method.
(f) Neither N2K nor any of its subsidiaries was, at any time during the period
specified in Section 897(c)(1)(A)(ii) of the Code, a United States real
property holding corporation within the meaning of Section 897(c)(2) of the
Code.
Section 3.8. Properties.
(a) Neither N2K nor any of its Subsidiaries is in default under any leases for
real property leased by N2K or any of its Subsidiaries, except where the
existence of such defaults, individually or in the aggregate, is not reasonably
likely to have a N2K Material Adverse Effect.
(b) With respect to each item of real property that N2K or any of its
Subsidiaries owns, except for such matters that, individually or in the
aggregate, are not reasonably likely to have a N2K Material
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Adverse Effect: (i) N2K or its Subsidiary has good and clear record and
marketable title to such property, insurable by a recognized national title
insurance company at standard rates, free and clear of any security interest,
easement, covenant or other restriction, except for recorded easements,
covenants and other restrictions which do not materially impair the current
uses or occupancy of such property; and (ii) the improvements constructed on
such property are in good condition, and all mechanical and utility systems
servicing such improvements are in good condition, free in each case of
material defects.
Section 3.9. Intellectual Property. N2K (or one or more of its Subsidiaries)
owns, or is licensed or otherwise possesses legally enforceable rights to use,
all trademarks, trade names, service marks, copyrights, and any applications
for such trademarks, trade names, service marks and copyrights, know-how,
computer software programs or applications and tangible or intangible
proprietary information or material that are presently employed by N2K or
necessary to conduct the business of N2K as currently conducted, subject to
such exceptions that, individually and in the aggregate, would not be
reasonably likely to have a N2K Material Adverse Effect. Neither N2K nor any of
its Subsidiaries has received any written notice or otherwise has actual
knowledge of any infringement of or conflict with asserted rights of others or
any other claims with respect to any patent and proprietary rights, or of any
basis for rendering any patent and proprietary rights invalid or inadequate to
protect the interest of N2K or any of its Subsidiaries.
Section 3.10. Agreements, Contracts and Commitments.
(a) Neither N2K nor any of its Subsidiaries has breached, or received in
writing any claim or notice that it has breached, any of the terms or
conditions of any Material Contract ("N2K Material Contracts") in such a manner
as, individually or in the aggregate, are reasonably likely to have a N2K
Material Adverse Effect. Each N2K Material Contract that has not expired by its
terms is in full force and effect. For purposes of this Agreement, the term
"Material Contract" means, in the case of N2K or CDnow, any contract, agreement
or commitment that (i) provides for the cash payment, equivalent equity outlay
or provision of services (A) in an amount greater than $50,000 per annum (or,
in the case of contracts, agreements or commitments related to N2K's Encoded
Music Business, $10,000) or (B) $150,000 over the term of the agreement or (ii)
establishes any form of exclusivity restriction on such party for the calendar
year 1999 and/or thereafter. Each N2K Material Contract is listed on Section
3.10 of the N2K Disclosure Schedule and each N2K Material Contract that relates
to N2K's Encoded Music business is separately identified on Section 3.10 of the
N2K Disclosure Schedule.
(b) Without limiting Section 3.10(a), each of the N2K Material Contracts to
which N2K or any of its Subsidiaries is a party (i) is valid and binding in
accordance with its terms and is in full force and effect, (ii) neither N2K nor
any of its Subsidiaries is in default in any material respect thereof, nor does
any condition exist that with notice or lapses of time or both would constitute
a material default thereunder, and (iii) no party has given any written or (to
the knowledge of N2K) oral notice of termination or cancellation thereof or
that such party intends to assert a breach thereof, or seek to terminate or
cancel, any such agreement, contract or lease, in each case as a result of the
transactions contemplated hereby, subject to such exceptions that, individually
and in the aggregate, would not be reasonably likely to have a N2K Material
Adverse Effect.
(c) The execution and delivery of this Agreement by N2K does not, and the
consummation of the transactions contemplated by this Agreement will not,
result in any violation or breach of, or constitute (with or without notice or
lapse of time, or both) a default (or give rise to a right of termination,
cancellation or acceleration of any obligation or loss of any material benefit)
under, or require the consent or waiver under, any of the material terms,
conditions or provisions of the N2K Material Contracts identified on Section
3.10(c) of the N2K Disclosure Schedule.
Section 3.11. Litigation.
(a) Except as described in the N2K SEC Reports filed prior to the date hereof,
there is no action, suit or proceeding, claim, arbitration or investigation
against N2K or any of its Subsidiaries pending or as to which N2K or any of its
Subsidiaries has received any written notice of assertion, which, individually
or in the
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aggregate, is reasonably likely to have a N2K Material Adverse Effect or a
material adverse effect on the ability of N2K to consummate the transactions
contemplated by this Agreement.
(b) The litigation referred to on Section 3.11(b) of the N2K Disclosure
Schedule is covered (subject to deductibles, limitations, retentions and
restrictions contained therein) by N2K's director and officer insurance
policies. N2K has provided to CDnow copies of all correspondence with the
insurance carriers with respect to such litigation.
Section 3.12. Environmental Matters.
(a) To the knowledge of N2K and except as disclosed in the N2K SEC Reports
filed prior to the date hereof and except for such matters that, individually
or in the aggregate, are not reasonably likely to have a N2K Material Adverse
Effect: (i) N2K and its Subsidiaries have complied with all applicable
Environmental Laws (as defined in Section 3.12(b)); (ii) the properties
currently owned or operated by N2K and its Subsidiaries (including soils,
groundwater, surface water, buildings or other structures) are not contaminated
with any Hazardous Substances (as defined in Section 3.12(c)); (iii) the
properties formerly owned or operated by N2K or any of its Subsidiaries were
not contaminated with Hazardous Substances during the period of ownership or
operation by N2K or any of its Subsidiaries; (iv) neither N2K nor its
Subsidiaries are subject to liability for any Hazardous Substance disposal or
contamination on any third party property; (v) neither N2K nor any of its
Subsidiaries has been associated with any release or threat of release of any
Hazardous Substance; (vi) neither N2K nor any of its Subsidiaries has received
any notice, demand, letter, claim or request for information alleging that N2K
or any of its Subsidiaries may be in violation of or liable under any
Environmental Law; (vii) neither N2K nor any of its Subsidiaries is subject to
any orders, decrees, injunctions or other arrangements with any Governmental
Entity or is subject to any indemnity or other agreement with any third party
relating to liability under any Environmental Law or relating to Hazardous
Substances; and (viii) there are no circumstances or conditions involving N2K
or any of its Subsidiaries that could reasonably be expected to result in any
claims, liability, investigations, costs or restrictions on the ownership, use
or transfer of any property of N2K or any of its Subsidiaries pursuant to any
Environmental Law.
(b) As used herein, the term "Environmental Law" means any federal, state,
local or foreign law, regulation, order, decree, permit, authorization,
opinion, common law or agency requirement relating to: (A) the protection,
investigation or restoration of the environment, health and safety, or natural
resources, (B) the handling, use, presence, disposal, release or threatened
release of any Hazardous Substance or (C) noise, odor, wetlands, pollution,
contamination or any injury or threat of injury to persons or property.
(c) As used herein, the term "Hazardous Substance" means any substance that is:
(A) listed, classified or regulated pursuant to any Environmental Law; (B) any
petroleum product or by-product, asbestos-containing material, lead-containing
paint or plumbing, polychlorinated biphenyls, radioactive materials or radon;
or (C) any other substance which is the subject of regulatory action by any
Governmental Entity pursuant to any Environmental Law.
Section 3.13. Employee Benefit Plans.
(a) Section 3.13 of the N2K Disclosure Schedule contains a complete list of all
employee benefit plans (as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA")), all employment and
severance agreements, and all bonus, stock option, stock purchase, incentive,
deferred compensation, supplemental retirement, severance and other similar
employee benefit plans, programs, policies and agreements, written or
otherwise, in each case that is sponsored, maintained, contributed to or
required to be contributed to by N2K or any of its Subsidiaries or any trade or
business (whether or not incorporated) which, together with N2K or any of its
Subsidiaries, would be deemed a "single employer" under Section 4001(b) of
ERISA (an "ERISA Affiliate"), or to which N2K, any of its Subsidiaries or any
ERISA Affiliate is a party for the benefit of any current or former employee,
consultant, director or independent contractor of N2K or any of its
Subsidiaries (together, the "N2K Employee Plans").
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(b) N2K has delivered or made available to CDnow: (i) accurate and complete
copies of all N2K Employee Plan documents and any summary plan descriptions,
summary annual reports and insurance contracts relating thereto, (ii) accurate
and complete detailed summaries of all unwritten N2K Employee Plans, (iii)
accurate and complete copies of the most recent financial statements and
actuarial reports with respect to all N2K Employee Plans for which financial
statements or actuarial reports are required or have been prepared and (iv)
accurate and complete copies of all annual reports for all N2K Employee Plans
(for which annual reports are required) prepared within the last two years.
(c) All N2K Employee Plans conform in all material respects to, and are being
administered and operated in all material respects in compliance with, the
requirements of ERISA, the Code and all other applicable laws, including
applicable laws of foreign jurisdictions. There have not been any "prohibited
transactions," as such term is defined in Section 4975 of the Code or Section
406 of ERISA, involving any of the N2K Employee Plans that could subject N2K or
any of its Subsidiaries to any penalties or taxes imposed under the Code or
ERISA.
(d) Except as set forth in the N2K Disclosure Schedule, any N2K Employee Plan
that is intended to be qualified under Section 401(a) of the Code and exempt
from tax under Section 501(a) of the Code has been determined by the Internal
Revenue Service to be so qualified, and such determination remains in effect
and has not been revoked. Nothing has occurred since the date of any such
determination that is reasonably likely to affect adversely such qualification
or exemption in any material respect, or result in the imposition of material
excise taxes or income taxes on unrelated business income under the Code or
ERISA with respect to any N2K Employee Plan.
(e) Except as set forth in the N2K Disclosure Schedule, neither N2K, any of its
Subsidiaries nor any ERISA Affiliate (i) has or at any time in the past has had
a current or contingent obligation to contribute to any multiemployer plan (as
defined in Section 3(37) of ERISA) or (ii) has or at any time in the past has
had any liability, contingent or otherwise, under Title IV of ERISA or Section
412 of the Code.
(f) There are no pending or, to the knowledge of N2K or any of its
Subsidiaries, threatened claims by or on behalf of any N2K Employee Plan, or by
or on behalf of any individual participants or beneficiaries of any N2K
Employee Plan, alleging any breach of fiduciary duty on the part of N2K or any
of its Subsidiaries or any of the officers, directors or employees of N2K or
any of its Subsidiaries under ERISA or any other applicable Regulations, or
claiming benefit payments other than those made in the ordinary operation of
such plans, or alleging any violation of any other applicable Laws. To the
knowledge of N2K or any of its Subsidiaries, the N2K Employee Plans are not the
subject of any investigation, audit or action by the Internal Revenue Service,
the Department of Labor or the Pension Benefit Guaranty Corporation ("PBGC").
(g) With respect to any N2K Employee Plan that is an employee welfare benefit
plan (within the meaning of Section 3(1) of ERISA) (a "N2K Welfare Plan"), (i)
each N2K Welfare Plan for which contributions are claimed as deductions under
any provision of the Code is in compliance in all material respects with all
applicable requirements pertaining to such deduction and (ii) any N2K Employee
Plan that is a group health plan (within the meaning of Section 4980B(g)(2) of
the Code) complies, and in each and every case has complied in all material
respects, with all of the requirements of ERISA and Section 4980B of the Code.
No welfare benefit fund (within the meaning of Section 419(e)(1) of the Code)
or voluntary employees' beneficiary association (within the meaning of
501(c)(9) of the Code) has been established or maintained in connection with a
N2K Welfare Plan.
(h) Except as disclosed in the N2K Disclosure Schedule or N2K SEC Reports
filed prior to the date of this Agreement, and except as provided for in this
Agreement, the execution of this Agreement and the performance of the
transactions contemplated hereunder will not (either alone or in combination
with the occurrence of any additional or subsequent events) constitute an event
under any N2K Employee Plan that will or may result in any payment (whether of
severance pay or otherwise), acceleration, forgiveness of indebtedness,
vesting, distribution, increase in benefits or obligation to fund benefits with
respect to any current or former employee, director or consultant of N2K or any
of its Subsidiaries. No payments or benefits under any N2K Employee Plan or
other agreement of N2K would result in an "excess parachute payment" under
Section 280G of the Code that would cause a loss of tax deduction that would be
material.
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Section 3.14. Compliance With Laws. N2K has complied with, is not in violation
of, and has not received any notices of violation with respect to, any federal,
state or local statute, law or regulation with respect to the conduct of its
business, or the ownership or operation of its business, except for failures to
comply or violations which, individually or in the aggregate, have not had and
are not reasonably likely to have a N2K Material Adverse Effect.
Section 3.15. Tax Matters.
(a) To the best knowledge of N2K, after consulting with its tax advisors,
neither N2K nor any of its Affiliates (as defined in Section 5.12) has taken or
agreed to take any action which would prevent the N2K Merger from qualifying as
a reorganization described in Section 368(a) of the Code and/or, taken together
with the CDnow Merger, as a transfer of property to Newco by holders of N2K
Common Stock described in Section 351 of the Code. Except as contemplated by
the N2K Option Agreement, neither N2K nor any of its Subsidiaries owns any
shares of CDnow Common Stock or other securities convertible into shares of
CDnow Common Stock (exclusive of any shares owned by N2K's employee benefit
plans).
(b) To the best knowledge of N2K, the stockholders of N2K as a group have no
present plan, intention or arrangement to sell or otherwise dispose of such
number of the shares of Newco Common Stock received in the N2K Merger as would
reduce their ownership in Newco Common Stock to a number of shares having a
value, as of the date of the N2K Merger, of less than eighty percent (80%) of
the value of all the formerly outstanding stock of N2K as of the same date.
Section 3.16. Registration Statement; Joint Proxy Statement/Prospectus. The
information to be supplied by N2K for inclusion or incorporation by reference
in the registration statement on Form S-4 pursuant to which shares of Newco
Common Stock issued in the Mergers will be registered under the Securities Act
(the "Registration Statement"), shall not at the time the Registration
Statement is declared effective by the SEC contain any untrue statement of a
material fact or omit to state any material fact required to be stated in the
Registration Statement or necessary in order to make the statements in the
Registration Statement, in light of the circumstances under which they were
made, not misleading. The information supplied by N2K for inclusion or
incorporation by reference in the joint proxy statement/prospectus to be sent
to the stockholders of CDnow and N2K in connection with the meeting of N2K's
stockholders (the "N2K Stockholders' Meeting") and the meeting of CDnow's
stockholders (the "CDnow Stockholders' Meeting") to consider this Agreement and
the Mergers (the "Joint Proxy Statement/Prospectus") shall not, on the date the
Joint Proxy Statement/Prospectus is first mailed to stockholders of N2K or
CDnow, at the time of the N2K Stockholders' Meeting and the CDnow Stockholders'
Meeting and at the Effective Time, contain any statement which, at such time
and in light of the circumstances under which it shall be made, is false or
misleading with respect to any material fact, omit to state any material fact
necessary in order to make the statements made in the Joint Proxy
Statement/Prospectus not false or misleading, or omit to state any material
fact necessary to correct any statement in any earlier communication with
respect to the solicitation of proxies for the N2K Stockholders' Meeting or the
CDnow Stockholders' Meeting which has become false or misleading.
Section 3.17. Labor Matters. Except as disclosed in the N2K SEC Reports filed
prior to the date hereof, neither N2K nor any of its Subsidiaries is a party to
or otherwise bound by any collective bargaining agreement, contract or other
agreement or understanding with a labor union or labor organization, nor, as of
the date hereof, is N2K or any of its Subsidiaries the subject of any material
proceeding asserting that N2K or any of its Subsidiaries has committed an
unfair labor practice or is seeking to compel it to bargain with any labor
union or labor organization nor, as of the date of this Agreement, is there
pending or, to the knowledge of the executive officers of N2K, threatened, any
material labor strike, dispute, walkout, work stoppage, slow-down or lockout
involving N2K or any of its Subsidiaries.
Section 3.18. Insurance. All material fire and casualty, general liability,
business interruption, product liability, and sprinkler and water damage
insurance policies maintained by N2K or any of its Subsidiaries are with
reputable insurance carriers, provide full and adequate coverage for all normal
risks
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incident to the business of N2K and its Subsidiaries and their respective
properties and assets, and are in character and amount at least equivalent to
that carried by persons engaged in similar businesses and subject to the same
or similar perils or hazards, except for any such failures to maintain
insurance policies that, individually or in the aggregate, are not reasonably
likely to have a N2K Material Adverse Effect. N2K has maintained such policies
on a continuous basis since January 1996.
Section 3.19. Opinion of Financial Advisor. The financial advisor of N2K, Allen
& Company, Incorporated, has delivered to N2K an opinion dated the date of this
Agreement to the effect that the N2K Exchange Ratio is fair to the holders of
N2K Common Stock from a financial point of view.
Section 3.20. No Existing Discussions. As of the date hereof, N2K is not
engaged, directly or indirectly, in any discussions or negotiations with any
other party with respect to an Acquisition Proposal (as defined in Section
5.3).
Section 3.21. Section 203 of the DGCL Not Applicable. The restrictions
contained in Section 203 of the DGCL applicable to a "business combination" (as
defined in DGCL Section 203) will not apply to the authorization, execution,
delivery and performance of this Agreement or the Stock Option Agreements by
N2K or the Stockholder Support Agreement by the parties thereto or the
consummation of the N2K Merger by N2K. No other "fair price," "moratorium,"
"control share acquisition" or other similar anti-takeover statute or
regulation is applicable to N2K or (by reason of N2K's participation therein)
the N2K Merger or the other transactions contemplated by this Agreement.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF CDNOW
CDnow represents and warrants to N2K that the statements contained in this
Article IV are true and correct, except as set forth in the disclosure schedule
delivered by CDnow to N2K on or before the date of this Agreement (the "CDnow
Disclosure Schedule").
Section 4.1. Organization of CDnow. Each of CDnow and its Subsidiaries is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, has all requisite power to own, lease and
operate its property and to carry on its business as now being conducted and as
proposed to be conducted, and is duly qualified to do business and is in good
standing as a foreign corporation or other entity in each jurisdiction in which
the failure to be so qualified would have a material adverse effect on the
business, properties, financial condition or results of operations of CDnow and
its Subsidiaries, taken as a whole (a "CDnow Material Adverse Effect"). A true
and correct copy of the Certificate of Incorporation and Bylaws of CDnow and
each of its Subsidiaries has been delivered to N2K. Except as set forth in the
CDnow SEC Reports (as defined in Section 4.4) filed prior to the date hereof,
neither CDnow nor any of its Subsidiaries directly or indirectly owns (other
than ownership interests in CDnow or in one or more of its Subsidiaries) any
equity or similar interest in, or any interest convertible into or exchangeable
or exercisable for, any corporation, partnership, joint venture or other
business association or entity, excluding (i) securities in any publicly traded
company held for investment by CDnow and comprising less than five percent (5%)
of the outstanding stock of such company and (ii) any investment or series of
related investments with a book value of less than $1 million.
Section 4.2. CDnow Capital Structure.
(a) The authorized capital stock of CDnow consists of 50,000,000 shares of
CDnow Common Stock and 20,000,000 shares of preferred stock, no par value
("CDnow Preferred Stock"). As of the date hereof, (i) 17,674,405 shares of
CDnow Common Stock were issued and outstanding, all of which are validly
issued, fully paid and nonassessable, (ii) no shares of CDnow Common Stock were
held in the treasury of CDnow or by Subsidiaries of CDnow and (iii) no shares
of CDnow Preferred Stock were issued and
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outstanding. Section 4.2(a) of the CDnow Disclosure Schedule shows the number
of shares of CDnow Common Stock reserved for future issuance pursuant to stock
options granted and outstanding as of the date hereof and the plans under which
such options were granted (collectively, the "CDnow Stock Plans"). There are no
obligations, contingent or otherwise, of CDnow or any of its Subsidiaries to
repurchase, redeem or otherwise acquire any shares of CDnow Common Stock or the
capital stock of any Subsidiary or to provide funds to or make any material
investment (in the form of a loan, capital contribution or otherwise) in any
such Subsidiary or any other entity other than guarantees of bank obligations
or indebtedness for borrowed money of Subsidiaries entered into in the ordinary
course of business and other than any obligation the failure of which to
perform or satisfy would not have a CDnow Material Adverse Effect. All of the
outstanding shares of capital stock or other ownership interests of each of
CDnow's Subsidiaries are duly authorized, validly issued, fully paid and
nonassessable and all such shares (other than directors' qualifying shares in
the case of foreign Subsidiaries) are owned by CDnow or another Subsidiary of
CDnow free and clear of all security interests, liens, claims, pledges,
agreements, limitations in CDnow's voting rights, charges or other encumbrances
of any nature.
(b) Except as set forth in this Section 4.2 or as reserved for future grants of
options under the CDnow Stock Plans or the N2K Stock Option Agreement and the
options and warrants described in Section 4.2(b) of the CDnow Disclosure
Schedule, (i) there are no shares of capital stock of any class of CDnow, or
any security exchangeable into or exercisable for such equity securities,
issued, reserved for issuance or outstanding; (ii) there are no options,
warrants, equity securities, calls, rights, commitments or agreements of any
character to which CDnow or any of its Subsidiaries is a party or by which it
is bound obligating CDnow or any of its Subsidiaries to issue, deliver or sell,
or cause to be issued, delivered or sold, additional shares of capital stock or
other ownership interests of CDnow or any of its Subsidiaries or obligating
CDnow or any of its Subsidiaries to grant, extend, accelerate the vesting of or
enter into any such option, warrant, equity security, call, right, commitment
or agreement; and (iii) to the best knowledge of CDnow, there are no voting
trusts, proxies or other voting agreements or understandings with respect to
the shares of capital stock of CDnow. All shares of CDnow Common Stock subject
to issuance as specified in this Section 4.2 are duly authorized and, upon
issuance on the terms and conditions specified in the instruments pursuant to
which they are issuable, shall be validly issued, fully paid and nonassessable.
Section 4.3. Authority; No Conflict; Required Filings and Consents.
(a) CDnow has all requisite corporate power and authority to enter into this
Agreement, the Stock Option Agreements and, subject to obtaining any necessary
stockholder approval of this agreement to consummate the transactions
contemplated by this Agreement, the Stock Option Agreements. The execution and
delivery of this Agreement, the Stock Option Agreements and the consummation of
the transactions contemplated by this Agreement, the Stock Option Agreements by
CDnow have been duly authorized by all necessary corporate action on the part
of CDnow, subject only to the approval and adoption of this Agreement and the
CDnow Merger by CDnow's stockholders under the PBCL and the DGCL. This
Agreement, the Stock Option Agreements and the Stockholder Support Agreement
have been duly executed and delivered by CDnow and constitute the valid and
binding obligations of CDnow, enforceable in accordance with their terms,
subject to the Bankruptcy and Equity Exception.
(b) The execution and delivery of this Agreement and the Stock Option
Agreements by CDnow does not, and the consummation of the transactions
contemplated by this Agreement, the Stock Option Agreements and the Stockholder
Support Agreement will not, (i) conflict with, or result in any violation or
breach of, any provision of the Certificate of Incorporation or Bylaws of CDnow
or any of its Subsidiaries, (ii) result in any violation or breach of, or
constitute (with or without notice or lapse of time, or both) a default (or
give rise to a right of termination, cancellation or acceleration of any
obligation or loss of any material benefit) under, or require a consent or
waiver under, any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, lease, contract or other agreement, instrument or
obligation to which CDnow or any of its Subsidiaries is a party or by which any
of them or any of their properties or assets may be bound or (iii) conflict
with or violate any permit, concession, franchise, license, judgment, order,
decree, statute, law, ordinance, rule or regulation applicable to CDnow or any
of its Subsidiaries or any of its or their properties or
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assets, except in the case of (ii) and (iii) for any such conflicts,
violations, defaults, terminations, cancellations or accelerations which (x)
are not, individually or in the aggregate, reasonably likely to have a CDnow
Material Adverse Effect or (y) would not substantially impair or delay the
consummation of the CDnow Merger.
(c) No consent, approval, order or authorization of, or registration,
declaration or filing with, any Governmental Entity is required by or with
respect to CDnow or any of its Subsidiaries in connection with the execution
and delivery of this Agreement and the Stock Option Agreements or the
consummation of the transactions contemplated hereby or thereby, except for (i)
the filing of the pre-merger notification report under the HSR Act, (ii) the
expiration or termination of the waiting period under the HSR Act, (iii) the
filing of Articles of Merger with respect to the CDnow Merger with the
Pennsylvania Secretary of State, (iv) the filing of the Joint Proxy
Statement/Prospectus with the SEC in accordance with the Exchange Act and the
Securities Act, (v) such consents, approvals, orders, authorizations,
registrations, declarations and filings as may be required under applicable
state securities laws and the laws of any foreign country and (vi) such other
consents, authorizations, filings, approvals and registrations which, if not
obtained or made, would not (x) be reasonably likely to have a CDnow Material
Adverse Effect or (y) substantially impair or delay the consummation of the
CDnow Merger.
Section 4.4. SEC Filings; Financial Statements.
(a) CDnow has filed and made available to N2K all forms, reports and documents
required to be filed by CDnow with the SEC since February 9, 1998
(collectively, the "CDnow SEC Reports"). The CDnow SEC Reports (i) at the time
filed, complied in all material respects with the applicable requirements of
the Securities Act and the Exchange Act, as the case may be, and (ii) did not
at the time they were filed (or if amended or superseded by a filing prior to
the date of this Agreement, then on the date of such filing) contain any untrue
statement of a material fact or omit to state a material fact required to be
stated in such CDnow SEC Reports or necessary in order to make the statements
in such CDnow SEC Reports, in the light of the circumstances under which they
were made, not misleading. None of CDnow's Subsidiaries is required to file any
forms, reports or other documents with the SEC.
(b) Each of the consolidated financial statements (including, in each case, any
related notes) of CDnow contained in the CDnow SEC Reports complied as to form
in all material respects with the applicable published rules and regulations of
the SEC with respect thereto, was prepared in accordance with generally
accepted accounting principles applied on a consistent basis throughout the
periods involved (except as may be indicated in the notes to such financial
statements or, in the case of unaudited statements, as permitted by Form 10-Q
under the Exchange Act) and fairly presented the consolidated financial
position of CDnow and its Subsidiaries as of the dates and the consolidated
results of its operations and cash flows for the periods indicated, except that
the unaudited interim financial statements were or are subject to normal and
recurring year-end adjustments which were not or are not expected to be
material in amount. The balance sheet of CDnow as of June 30, 1998 is referred
to herein as the "CDnow Balance Sheet."
Section 4.5. No Undisclosed Liabilities. Except as disclosed in the CDnow SEC
Reports filed prior to the date hereof, and except for normal or recurring
liabilities incurred since June 30, 1998 in the ordinary course of business
consistent with past practices, CDnow and its Subsidiaries do not have any
liabilities, either accrued, contingent or otherwise, of the type required to
be reflected in financial statements in accordance with generally accepted
accounting principles, and whether due or to become due, which individually or
in the aggregate, are reasonably likely to have a CDnow Material Adverse
Effect.
Section 4.6. Absence of Certain Changes or Events. Except as disclosed in the
CDnow SEC Reports filed prior to the date hereof, since the date of the CDnow
Balance Sheet, CDnow and its Subsidiaries have conducted their businesses only
in the ordinary course and in a manner consistent with past practice and, since
such date, there has not been (i) any event, development, state of affairs or
condition, or series or combination of events, developments, states of affairs
or conditions, which, individually or in the aggregate, has had or which is
reasonably likely to have a CDnow Material Adverse Effect (other than events,
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developments, states of affairs or conditions that are the effect or result of
actions taken by N2K or economic factors affecting the economy as a whole or
the industry in which CDnow competes); (ii) any damage, destruction or loss
(whether or not covered by insurance) with respect to CDnow or any of its
Subsidiaries which is reasonably likely to have a CDnow Material Adverse
Effect; (iii) any material change by CDnow in its accounting methods,
principles or practices to which N2K has not previously consented in writing;
(iv) any revaluation by CDnow of any of its assets which is reasonably likely
to have a CDnow Material Adverse Effect; or (v) any other action or event that
would have required the consent of N2K pursuant to Section 5.1 of this
Agreement had such action or event occurred after the date of this Agreement,
other than such actions or events that, individually or in the aggregate, have
not had or are not reasonably likely to have a CDnow Material Adverse Effect.
Section 4.7. Taxes.
(a) CDnow and each of its Subsidiaries have (i) filed all federal, state, local
and foreign Tax returns and reports, required to be filed by them prior to the
date of this Agreement (taking into account all applicable extensions), (ii)
paid or accrued all Taxes due and payable, and (iii) paid or accrued all Taxes
for which a notice of assessment or collection has been received (other than
amounts being contested in good faith by appropriate proceedings), except in
the case of clauses (i), (ii) or (iii) for any such filings, payments or
accruals that are not reasonably likely, individually or in the aggregate, to
have a CDnow Material Adverse Effect. Neither the IRS nor any other taxing
authority has asserted any claim for Taxes, or to the actual knowledge of the
executive officers of CDnow, is threatening to assert any claims for Taxes,
which claims, individually or in the aggregate, are reasonably likely to have a
CDnow Material Adverse Effect. CDnow and each of its Subsidiaries have withheld
or collected and paid over to the appropriate governmental authorities (or are
properly holding for such payment) all Taxes required by law to be withheld or
collected, except for amounts that are not reasonably likely, individually or
in the aggregate, to have a CDnow Material Adverse Effect. Neither CDnow nor
any of its Subsidiaries has made an election under Section 341(f) of the Code,
except for any such election that shall not have a CDnow Material Adverse
Effect. There are no liens for Taxes upon the assets of CDnow or any of its
Subsidiaries (other than liens for Taxes that are not yet due or delinquent or
that are being contested in good faith by appropriate proceedings), except for
liens that are not reasonably likely, individually or in the aggregate, to have
a CDnow Material Adverse Effect.
(b) Neither CDnow nor any of its Subsidiaries is or has been a member of an
affiliated group of corporations filing a consolidated federal income tax
return (or a group of corporations filing a consolidated, combined or unitary
income tax return under comparable provisions of state, local or foreign tax
law) other than a group the common parent of which is or was CDnow or any
Subsidiary of CDnow.
(c) Neither CDnow nor any of its Subsidiaries has any obligation under any
agreement or arrangement with any other person with respect to Taxes of such
other person (including pursuant to Treas. Reg. (S) 1.1502-6 or comparable
provisions of state, local or foreign tax law) and including any liability for
Taxes of any predecessor entity, except for obligations that are not reasonably
likely, individually or in the aggregate, to have an CDnow Material Adverse
Effect.
(d) Neither CDnow nor any of its subsidiaries (i) has agreed to or is required
to make any adjustments pursuant to Section 481 of the Code; (ii) has knowledge
that the IRS has proposed any such adjustment or a change in accounting method
with respect to such entity; or (iii) has an application pending with the IRS
or any other taxing authority requesting permission for any change in
accounting method.
(e) Neither CDnow nor any of its subsidiaries was, at any time during the
period specified in Section 897(c)(1)(A)(ii) of the Code, a United States real
property holding corporation within the meaning of Section 897(c)(2) of the
Code.
Section 4.8. Properties.
(a) Neither CDnow nor any of its Subsidiaries is in default under any leases
for real property leased by CDnow or any of its Subsidiaries, except where the
existence of such defaults, individually or in the aggregate, is not reasonably
likely to have a CDnow Material Adverse Effect.
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(b) With respect to each item of real property that CDnow or any of its
Subsidiaries owns, except for such matters that, individually or in the
aggregate, are not reasonably likely to have a CDnow Material Adverse Effect:
(i) CDnow or its Subsidiary has good and clear record and marketable title to
such property, insurable by a recognized national title insurance company at
standard rates, free and clear of any security interest, easement, covenant or
other restriction, except for recorded easements, covenants and other
restrictions which do not materially impair the current uses or occupancy of
such property; and (ii) the improvements constructed on such property are in
good condition, and all mechanical and utility systems servicing such
improvements are in good condition, free in each case of material defects.
Section 4.9. Intellectual Property. CDnow (or one or more of its Subsidiaries)
owns, or is licensed or otherwise possesses legally enforceable rights to use,
all trademarks, trade names, service marks, copyrights, and any applications
for such trademarks, trade names, service marks and copyrights, know-how,
computer software programs or applications, and tangible or intangible
proprietary information or material that are necessary to conduct the business
of CDnow as currently conducted, subject to such exceptions that, individually
and in the aggregate, would not be reasonably likely to have a CDnow Material
Adverse Effect. Neither CDnow nor any of its Subsidiaries has received any
written notice or otherwise has actual knowledge of any infringement of or
conflict with asserted rights of others or any other claims with respect to any
patent and proprietary rights, or of any basis for rendering any patent and
proprietary rights invalid or inadequate to protect the interest of CDnow or
any of its Subsidiaries.
Section 4.10. Agreements; Contracts and Commitments.
(a) Neither CDnow nor any of its Subsidiaries has breached, or received in
writing any claim or notice that it has breached, any of the terms or
conditions of any Material Contract ("CDnow Material Contracts") in such a
manner as, individually or in the aggregate, are reasonably likely to have a
CDnow Material Adverse Effect. Each CDnow Material Contract that has not
expired by its terms is in full force and effect. Each CDnow Material Contract
is listed on Section 4.10 of the CDnow Disclosure Schedule.
(b) Without limiting Section 4.10(a), each of the CDnow Material Contracts to
which CDnow is a party (i) is valid and binding in accordance with its terms
and is in full force and effect, (ii) neither CDnow nor any of its Subsidiaries
is in default in any material respect thereof, nor does any condition exist
that with notice or lapses of time or both would constitute a material default
thereunder, and (iii) no party has given any written or (to the knowledge of
CDnow) oral notice of termination or cancellation thereof or that such party
intends to assert a breach thereof, or seek to terminate or cancel, any such
agreement, contract or lease, in each case as a result of the transactions
contemplated hereby, subject to such exceptions that, individually and in the
aggregate, would not be reasonably likely to have a CDnow Material Adverse
Effect.
(c) The execution and delivery of this Agreement by CDnow does not, and the
consummation of the transactions contemplated by this Agreement will not,
result in any violation or breach of, or constitute (with or without notice or
lapse of time, or both) a default (or give rise to a right of termination,
cancellation or acceleration of any obligation or loss of any material benefit)
under, or require the consent or waiver under, any of the material terms,
conditions or provisions of the CDnow Material Contracts identified on Section
4.10(c) of the CDnow Disclosure Schedule.
Section 4.11. Litigation. Except as described in the CDnow SEC Reports filed
prior to the date hereof, there is no action, suit or proceeding, claim,
arbitration or investigation against CDnow pending or as to which CDnow has
received any written notice of assertion, which, individually or in the
aggregate, is reasonably likely to have a CDnow Material Adverse Effect or a
material adverse effect on the ability of CDnow to consummate the transactions
contemplated by this Agreement.
Section 4.12. Environmental Matters. To the knowledge of CDnow and except as
disclosed in the CDnow SEC Reports filed prior to the date hereof and except
for such matters that, individually or in the aggregate, are not reasonably
likely to have a CDnow Material Adverse Effect: (i) CDnow and its Subsidiaries
have complied with all applicable Environmental Laws; (ii) the properties
currently owned or operated by
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CDnow and its Subsidiaries (including soils, groundwater, surface water,
buildings or other structures) are not contaminated with any Hazardous
Substances; (iii) the properties formerly owned or operated by CDnow or any of
its Subsidiaries were not contaminated with Hazardous Substances during the
period of ownership or operation by CDnow or any of its Subsidiaries; (iv)
neither CDnow nor its Subsidiaries are subject to liability for any Hazardous
Substance disposal or contamination on any third party property; (v) neither
CDnow nor any of its Subsidiaries has been associated with any release or
threat of release of any Hazardous Substance; (vi) neither CDnow nor any of its
Subsidiaries has received any notice, demand, letter, claim or request for
information alleging that CDnow or any of its Subsidiaries may be in violation
of or liable under any Environmental Law; (vii) neither CDnow nor any of its
Subsidiaries is subject to any orders, decrees, injunctions or other
arrangements with any Governmental Entity or is subject to any indemnity or
other agreement with any third party relating to liability under any
Environmental Law or relating to Hazardous Substances; and (viii) there are no
circumstances or conditions involving CDnow or any of its Subsidiaries that
could reasonably be expected to result in any claims, liability,
investigations, costs or restrictions on the ownership, use or transfer of any
property of CDnow or any of its Subsidiaries pursuant to any Environmental Law.
Section 4.13. Employee Benefit Plans.
(a) Section 4.13 of the CDnow Disclosure Schedule contains a complete list of
all employee benefit plans (as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA")), all employment
and severance agreements, and all bonus, stock option, stock purchase,
incentive, deferred compensation, supplemental retirement, severance and other
similar employee benefit plans, programs, policies and agreements, written or
otherwise, in each case that is sponsored, maintained, contributed to or
required to be contributed to by CDnow or any of its Subsidiaries or any trade
or business (whether or not incorporated) which, together with CDnow or any of
its Subsidiaries, would be deemed a "single employer" under Section 4001(b) of
ERISA (an "ERISA Affiliate"), or to which CDnow, any of its Subsidiaries or any
ERISA Affiliate is a party for the benefit of any current or former employee,
consultant, director or independent contractor of CDnow or any of its
Subsidiaries (together, the "CDnow Employee Plans").
(b) CDnow has delivered or made available to N2K: (i) accurate and complete
copies of all CDnow Employee Plan documents and any summary plan descriptions,
summary annual reports and insurance contracts relating thereto, (ii) accurate
and complete detailed summaries of all unwritten CDnow Employee Plans, (iii)
accurate and complete copies of the most recent financial statements and
actuarial reports with respect to all CDnow Employee Plans for which financial
statements or actuarial reports are required or have been prepared and (iv)
accurate and complete copies of all annual reports for all CDnow Employee Plans
(for which annual reports are required) prepared within the last two years.
(c) All CDnow Employee Plans conform in all material respects to, and are being
administered and operated in all material respects in compliance with, the
requirements of ERISA, the Code and all other applicable laws, including
applicable laws of foreign jurisdictions. There have not been any "prohibited
transactions," as such term is defined in Section 4975 of the Code or Section
406 of ERISA, involving any of the CDnow Employee Plans that could subject
CDnow or any of its Subsidiaries to any penalties or taxes imposed under the
Code or ERISA.
(d) Except as set forth in the CDnow Disclosure Schedule, any CDnow Employee
Plan that is intended to be qualified under Section 401(a) of the Code and
exempt from tax under Section 501(a) of the Code has been determined by the
Internal Revenue Service to be so qualified, and such determination remains in
effect and has not been revoked. Nothing has occurred since the date of any
such determination that is reasonably likely to affect adversely such
qualification or exemption in any material respect, or result in the imposition
of excise taxes or income taxes on unrelated business income under the Code or
ERISA with respect to any CDnow Employee Plan.
(e) Except as set forth in the CDnow Disclosure Schedule, neither CDnow, any of
its Subsidiaries nor any ERISA Affiliate (i) has or at any time in the past has
had a current or contingent
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obligation to contribute to any multiemployer plan (as defined in Section 3(37)
of ERISA) or (ii) has or at any time in the past has had any liability,
contingent or otherwise, under Title IV of ERISA or Section 412 of the Code.
(f) There are no pending or, to the knowledge of CDnow or any of its
Subsidiaries, threatened claims by or on behalf of any CDnow Employee Plan, or
by or on behalf of any individual participants or beneficiaries of any CDnow
Employee Plan, alleging any breach of fiduciary duty on the part of CDnow or
any of its Subsidiaries or any of the officers, directors or employees of CDnow
or any of its Subsidiaries under ERISA or any other applicable Regulations, or
claiming benefit payments other than those made in the ordinary operation of
such plans, or alleging any violation of any other applicable Laws. To the
knowledge of CDnow or any of its Subsidiaries, the CDnow Employee Plans are not
the subject of any investigation, audit or action by the Internal Revenue
Service, the Department of Labor or the PBGC.
(g) With respect to any CDnow Employee Plan that is an employee welfare benefit
plan (within the meaning of Section 3(1) of ERISA) (a "CDnow Welfare Plan"),
(i) each CDnow Welfare Plan for which contributions are claimed as deductions
under any provision of the Code is in compliance in all material respects with
all applicable requirements pertaining to such deduction and (ii) any CDnow
Employee Plan that is a group health plan (within the meaning of Section
4980B(g)(2) of the Code) complies, and in each and every case has complied in
all material respects, with all of the requirements of ERISA and Section 4980B
of the Code. No welfare benefit fund (within the meaning of Section 419(e)(1)
of the Code) or voluntary employees' beneficiary association (within the
meaning of 501(c)(9) of the Code) has been established or maintained in
connection with a CDnow Welfare Plan.
(h) Except as disclosed in the CDnow Disclosure Schedule or CDnow SEC Reports
filed prior to the date of this Agreement, and except as provided for in this
Agreement, the execution of this Agreement and the performance of the
transactions contemplated hereunder will not (either alone or in combination
with the occurrence of any additional or subsequent events) constitute an event
under any CDnow Employee Plan that will or may result in any payment (whether
of severance pay or otherwise), acceleration, forgiveness of indebtedness,
vesting, distribution, increase in benefits or obligation to fund benefits with
respect to any current or former employee, director or consultant of CDnow or
any of its Subsidiaries. No payments or benefits under any CDnow Employee Plan
or other agreement of CDnow would result in an "excess parachute payment" under
Section 280G of the Code that would cause a loss of tax deduction that would be
material.
Section 4.14. Compliance With Laws. CDnow has complied with, is not in
violation of, and has not received any notices of violation with respect to,
any federal, state or local statute, law or regulation with respect to the
conduct of its business, or the ownership or operation of its business, except
for failures to comply or violations which, individually or in the aggregate,
have not had and are not reasonably likely to have a CDnow Material Adverse
Effect.
Section 4.15. Tax Matters.
(a) To the best knowledge of CDnow, after consulting with tax advisors, neither
CDnow nor any of its Affiliates (as defined in Section 5.12) has taken or
agreed to take any action which would prevent the CDnow Merger from qualifying
as a reorganization described in Section 368(a) of the Code and/or, taken
together with the N2K Merger, as a transfer of property to Newco by holders of
CDnow Common Stock described in Section 351 of the Code. Except as contemplated
by the CDnow Option Agreement, neither CDnow nor any of its Subsidiaries owns
any shares of N2K Common Stock or other securities convertible into shares of
N2K Common Stock (exclusive of any shares owned by CDnow's employee benefit
plans).
(b) To the best knowledge of CDnow, the stockholders of CDnow as a group have
no present plan, intention or arrangement to sell or otherwise dispose of such
number of the shares of Newco Common Stock received in the CDnow Merger as
would reduce their ownership in Newco Common Stock to a number of shares having
a value, as of the date of the CDnow Merger, of less than eighty percent (80%)
of the value of all the formerly outstanding stock of CDnow as of the same
date.
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Section 4.16. Registration Statement; Joint Proxy Statement/Prospectus. The
information to be supplied by CDnow for inclusion or incorporation by reference
in the Registration Statement shall not at the time the Registration Statement
is declared effective by the SEC contain any untrue statement of a material
fact or omit to state any material fact required to be stated in the
Registration Statement or necessary in order to make the statements in the
Registration Statement, in light of the circumstances under which they were
made, not misleading. The information to be supplied by CDnow for inclusion or
incorporation by reference in the Joint Proxy Statement/Prospectus shall not,
on the date the Joint Proxy Statement/Prospectus is first mailed to
stockholders of CDnow or N2K, at the time of the CDnow Stockholders' Meeting
and the N2K Stockholder's Meeting and at the Effective Time, contain any
statement which, at such time and in light of the circumstances under which it
shall be made, is false or misleading with respect to any material fact, omit
to state any material fact necessary in order to make the statements made in
the Joint Proxy Statement/Prospectus not false or misleading, or omit to state
any material fact necessary to correct any statement in any earlier
communication with respect to the solicitation of proxies for the CDnow
Stockholders' Meeting or the N2K Stockholders' Meeting which has become false
or misleading.
Section 4.17. Labor Matters. Except as disclosed in the CDnow SEC Reports filed
prior to the date hereof, neither CDnow nor any of its Subsidiaries is a party
to or otherwise bound by any collective bargaining agreement, contract or other
agreement or understanding with a labor union or labor organization, nor, as of
the date hereof, is CDnow or any of its Subsidiaries the subject of any
material proceeding asserting that CDnow or any of its Subsidiaries has
committed an unfair labor practice or is seeking to compel it to bargain with
any labor union or labor organization nor, as of the date of this Agreement, is
there pending or, to the knowledge of the executive officers of CDnow,
threatened, any material labor strike, dispute, walkout, work stoppage, slow-
down or lockout involving CDnow or any of its Subsidiaries.
Section 4.18. Insurance. All material fire and casualty, general liability,
business interruption, product liability, and sprinkler and water damage
insurance policies maintained by CDnow or any of its Subsidiaries are with
reputable insurance carriers, provide full and adequate coverage for all normal
risks incident to the business of CDnow and its Subsidiaries and their
respective properties and assets, and are in character and amount at least
equivalent to that carried by persons engaged in similar businesses and subject
to the same or similar perils or hazards, except for any such failures to
maintain insurance policies that, individually or in the aggregate, are not
reasonably likely to have a CDnow Material Adverse Effect. CDnow has maintained
such policies on a continuous basis since January 1996.
Section 4.19. Opinion of Financial Advisor. The financial advisor of CDnow, BT
Alex. Brown Incorporated, has delivered to CDnow an opinion dated the date of
this Agreement to the effect that the CDnow Exchange Ratio is fair to holders
of CDnow Common Stock from a financial point of view.
Section 4.20. No Existing Discussions. As of the date hereof, CDnow is not
engaged, directly or indirectly, in any discussions or negotiations with any
other party with respect to an Acquisition Proposal.
Section 4.21. Section 1715 of the PBCL Not Applicable. Other than with respect
to the "shareholder constituency" provision of Section 1715 of the PBCL, the
restrictions contained in Section 1715 of the PBCL applicable to acquisitions
or proposed acquisitions of corporate control will not apply to the
authorization, execution, delivery or performance of this Agreement or the
Stock Option Agreements by CDnow or the consummation of the CDnow Merger by
CDnow. No other "fair price," "moratorium," "control share acquisition" or
other similar anti-takeover statute or regulation is applicable to CDnow or (by
reason of CDnow's participation therein) the CDnow Merger or the other
transactions contemplated by this Agreement.
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ARTICLE V.
COVENANTS
Section 5.1. Conduct of Business. During the period from the date of this
Agreement and continuing until the earlier of the termination of this Agreement
or the Effective Time, except as permitted pursuant to Section 5.30 hereof, N2K
and CDnow each agrees as to itself and its respective Subsidiaries (except to
the extent that the other party shall otherwise consent in writing) to carry on
its business in the usual, regular and ordinary course in substantially the
same manner as previously conducted, to pay its debts and taxes when due
subject to good faith disputes over such debts or taxes, to pay or perform its
other obligations when due, and, to the extent consistent with such business,
use all commercially reasonable efforts consistent with past practices and
policies to preserve intact its present business organization, keep available
the services of its present officers and key employees and preserve its
relationships with customers, suppliers, distributors, and others having
business dealings with it. Without limiting the foregoing, except as expressly
contemplated by this Agreement or the Stock Option Agreements or as set forth
in Section 5.1 of the Disclosure Schedule, during the period from the date of
this Agreement and continuing until the earlier of the termination of this
Agreement or the Effective Time, N2K and CDnow each shall not (and shall not
permit any of its respective Subsidiaries to), without the written consent of
the other party:
(a) Accelerate, amend or change the period of exercisability of options or
restricted stock granted under any employee stock plan of such party or
authorize cash payments in exchange for any options granted under any of such
plans except as required by the terms of such plans or any related agreements
(including severance agreements) in effect as of the date of this Agreement;
(b) Declare or pay any dividends on or make any other distributions (whether in
cash, stock or property) in respect of any of its capital stock, or split,
combine or reclassify any of its capital stock or issue or authorize the
issuance of any other securities in respect of, in lieu of or in substitution
for shares of its capital stock, or purchase or otherwise acquire, directly or
indirectly, any shares of its capital stock except from former employees,
directors and consultants in accordance with agreements providing for the
repurchase of shares in connection with any termination of service to such
party;
(c) Issue, deliver or sell, or authorize or propose the issuance, delivery or
sale of, any shares of its capital stock or securities convertible into shares
of its capital stock, or subscriptions, rights, warrants or options to acquire,
or other agreements or commitments of any character obligating it to issue any
such shares or other convertible securities, other than (i) the grant of
options consistent with past practices to employees (other than senior
officers) or directors, which options represent in the aggregate the right to
acquire no more than 100,000 shares (net of cancellations) of N2K Common Stock
or 100,000 shares (net of cancellation) CDnow Common Stock, as the case may be
and (ii) the issuance of shares of N2K Common Stock or CDnow Common Stock, as
the case may be, pursuant to the exercise of options or warrants outstanding on
the date of this Agreement or granted pursuant to (i) above; provided, however,
that in the event N2K and CDnow shall agree to treat the Mergers as a pooling
of interests for accounting purposes, neither N2K nor CDnow shall take any
action that would be reasonably likely to jeopardize such accounting treatment;
(d) Acquire or agree to acquire by merging or consolidating with, or by
purchasing a substantial equity interest in or substantial portion of the
assets of, or by any other manner, any business or any corporation, partnership
or other business organization or division, or otherwise acquire or agree to
acquire any assets (other than assets acquired in the ordinary course of
business);
(e) Sell, lease, sell/leaseback, license or otherwise dispose of any of its
material properties or assets, except in the ordinary course of business;
(f) (i) Increase or agree to increase the compensation payable or to become
payable to its officers or employees, except for increases in salary or wages
of employees (other than officers) in accordance with past practices, (ii)
grant any additional severance or termination pay to, or enter into or amend
any employment or severance agreements with, any employees or officers, (iii)
establish, adopt, enter into or amend any bonus,
APPENDIX I - AMENDED AND RESTATED
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profit sharing, thrift, compensation, stock option, restricted stock, pension,
retirement, deferred compensation, employment, termination, severance or other
plan, trust, fund, policy or arrangement for the benefit of any directors,
officers or employees;
(g) Amend or propose to amend its Certificate or Articles of Incorporation or
Bylaws except as contemplated by this Agreement;
(h) Incur any indebtedness for borrowed money;
(i) Take any action that would, or is reasonably likely to, result in a
material breach of any provision of this Agreement or the Stock Option
Agreements or in any of its representations or warranties set forth in this
Agreement or Stock Option Agreements being untrue on and as of the Closing
Date;
(j) Make or rescind any material express or deemed election relating to Taxes,
settle or compromise any material claim, action, suit, litigation, proceeding,
arbitration, investigation, audit or controversy relating to Taxes, or make any
material change to any of its methods of reporting income or deductions for
federal income tax purposes from those employed in the preparation of its
federal income tax return for the taxable year ending December 31, 1997, except
as may be required by applicable law;
(k) Settle any litigation relating to the transactions contemplated hereby
other than any settlement which would not (i) have a N2K Material Adverse
Effect (if settled by N2K), a CDnow Material Adverse Effect (if settled by
CDnow) or a material adverse effect on the business, properties, financial
condition or results of operations of Newco following consummation of the
Mergers (if settled by either N2K or CDnow) or (ii) adversely effect the
consummation of the transactions contemplated hereby;
(l) Settle any litigation referred to on Schedule 5.1(l) if such settlement
would obligate the party to pay more than $50,000 over and above the amount
covered by insurance (excluding any deductible on such insurance policy);
(m) Enter into any agreement, contract or commitment which involves an amount
in excess of $250,000 individually or as part of a series of related
transactions;
(n) Authorize or make capital expenditures which are in excess of $250,000
individually or as part of a series of related transactions;
(o) Change in any material respect its accounting policies, methods or
procedures except as required by generally accepted accounting principles;
(p) Take or omit to take any action that is reasonably likely to result in a
breach of any contract, commitment or obligation if the result would,
individually or in the aggregate, have a Material Adverse Effect;
(q) Take any action which could reasonably be expected to adversely affect or
delay the ability of any of the parties to obtain any approval of any
governmental or regulatory body required to consummate the transactions
contemplated hereby; or
(r) Permit its working capital to be less than the amounts set forth on
Schedule 5.1(r).
(s) Take, or agree in writing or otherwise to take or have any affiliate,
director, officer, employee, agent, consultant or other third party take or
otherwise agree to take, any of the actions described in Sections (a) through
(r) above. N2K and CDnow agree that any written approval obtained under this
Section 5.1 may be relied upon by the other party if signed by the Chairman or
President of the other party providing such written approval.
Section 5.2. Cooperation; Notice; Cure. Subject to compliance with applicable
law, from the date hereof until the Effective Time, each of N2K and CDnow shall
confer on a regular and frequent basis with one or more representatives of the
other party to report on the general status of ongoing operations and shall
24APPENDIX I - AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
I-24
<PAGE>
promptly provide the other party or its counsel with copies of all filings made
by such party with any Governmental Entity in connection with this Agreement,
the Mergers and the transactions contemplated hereby and thereby. Each of N2K
and CDnow shall promptly notify the other in writing of, and will use all
commercially reasonable efforts to cure before the Closing Date, any event,
transaction or circumstance, as soon as practical after it becomes known to
such party, that causes or will cause any covenant or agreement of N2K or CDnow
under this Agreement to be breached or that renders or will render untrue any
representation or warranty of N2K or CDnow contained in this Agreement. No
notice given pursuant to this paragraph shall have any effect on the
representations, warranties, covenants or agreements contained in this
Agreement for purposes of determining satisfaction of any condition contained
herein. If at any time prior to the Effective Time any event relating to N2K or
any of its Affiliates, officers or directors should be discovered by N2K which
should be set forth in an amendment to the Registration Statement or a
supplement to the Joint Proxy Statement/Prospectus, N2K shall promptly inform
CDnow. If at any time prior to the Effective Time any event relating to CDnow
or any of its Affiliates, officers or directors should be discovered by CDnow
which should be set forth in an amendment to the Registration Statement or a
supplement to the Joint Proxy Statement/Prospectus, CDnow shall promptly inform
N2K.
Section 5.3. No Solicitation.
(a) From and after the date hereof, neither N2K nor CDnow shall, directly or
indirectly, through any officer, director, employee, financial advisor,
representative or agent of such party (i) solicit, initiate, or encourage
(including by way of furnishing information) or take any other action to
facilitate knowingly any inquiries or proposals that constitute, or could
reasonably be expected to lead to, a proposal or offer for a merger,
consolidation, business combination, sale of substantial assets, sale of shares
of capital stock (including without limitation by way of a tender or exchange
offer) or similar transaction involving such party or any of its Subsidiaries,
other than the transactions contemplated by this Agreement (any of the
foregoing inquiries or proposals being referred to in this Agreement as an
"Acquisition Proposal"), (ii) engage in negotiations or discussions with any
person (or group of persons) other than N2K or CDnow or their respective
affiliates (a "Third Party") concerning, or provide any non-public information
to any person or entity relating to, any Acquisition Proposal, or (iii) agree
to or recommend any Acquisition Proposal; provided, however, that nothing
contained in this Agreement shall prevent N2K or CDnow, or their respective
Board of Directors, from (A) furnishing non-public information to, or entering
into discussions or negotiations with, any person or entity in connection with
an unsolicited bona fide written Acquisition Proposal by such person or entity
or modifying or withdrawing its recommendation with respect to the transactions
contemplated hereby or recommending an unsolicited bona fide written
Acquisition Proposal to the stockholders of such party, if and only to the
extent that (1) the Board of Directors of such party believes in good faith
(after consultation with its financial advisor) that such Acquisition Proposal
is reasonably capable of being completed on the terms proposed and, after
taking into account the strategic benefits anticipated to be derived from the
Mergers and the prospects of N2K and CDnow as a combined company, would, if
consummated, result in a transaction more favorable to the stockholders of such
party over the long term than the transaction contemplated by this Agreement (a
"Superior Proposal") and the Board of Directors of such party determines in
good faith after consultation with outside legal counsel that such action is
required for such Board of Directors to comply with its fiduciary duties to
stockholders under applicable law and (2) prior to furnishing such non-public
information to, or entering into discussions or negotiations with, such person
or entity, such Board of Directors receives from such person or entity an
executed confidentiality and standstill agreement with terms no less favorable
to such party than those contained in the Confidentiality and Standstill
Agreement, dated August 17, 1998 between CDnow and N2K, as amended by Amendment
No. 1 dated September 25, 1998 (the "Confidentiality Agreement"); or (B)
complying with Rule 14e-2 promulgated under the Exchange Act with regard to an
Acquisition Proposal. Each of N2K and CDnow agrees not to release any third
party from, or waive any provision of, any standstill agreement to which it is
a party or any confidentiality agreement between it and another person who has
made, or who may reasonably be considered likely to make, an Acquisition
Proposal, unless its Board of Directors determines in good faith after
consultation with outside legal counsel that such action is required for such
Board of Directors to comply with its fiduciary duties to stockholders under
applicable law.
APPENDIX I - AMENDED AND RESTATED
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(b) N2K and CDnow shall each notify the other party within 24 hours after
receipt by N2K or CDnow (or any of their advisors) of any Acquisition Proposal
or any request for nonpublic information in connection with an Acquisition
Proposal or for access to the properties, books or records of such party by any
person or entity that informs such party that it is considering making, or has
made, an Acquisition Proposal. Such notice shall be made orally and in writing
and shall indicate in reasonable detail the identity of the offeror and the
terms and conditions of such proposal, inquiry or contact. Such party shall
continue to keep the other party hereto informed, on a current basis, of the
status of any such discussions or negotiations and the terms being discussed or
negotiated.
Section 5.4. Joint Proxy Statement/Prospectus; Registration Statement.
(a) As promptly as practical after the execution of this Agreement, N2K and
CDnow shall prepare and file with the SEC the Joint Proxy Statement/Prospectus
and the Registration Statement in which the Joint Proxy Statement/Prospectus
will be included as a prospectus, provided that N2K and CDnow may delay the
filing of the Registration Statement until approval of the Joint Proxy
Statement/Prospectus by the SEC. N2K and CDnow shall use all reasonable efforts
to cause the Registration Statement to become effective as soon after such
filing as practical. The Joint Proxy Statement/Prospectus shall include the
recommendation of the Board of Directors of N2K in favor of adoption of this
Agreement and the N2K Merger and the recommendation of the Board of Directors
of CDnow in favor of adoption of this Agreement and the CDnow Merger; provided,
that the Board of Directors of either party may modify or withdraw such
recommendation if such Board of Directors believes in good faith after
consultation with outside legal counsel that the modification or withdrawal of
such recommendation is required for such Board of Directors to comply with its
fiduciary duties under applicable law.
(b) N2K and CDnow shall make all necessary filings with respect to the Mergers
under the Securities Act, the Exchange Act, applicable state blue sky laws and
the rules and regulations thereunder.
Section 5.5. Nasdaq Quotation. Each of N2K and CDnow agrees to continue the
quotation and listing of N2K Common Stock and CDnow Common Stock, respectively,
on Nasdaq during the term of this Agreement and remain in compliance with all
applicable rules and regulations of Nasdaq.
Section 5.6. Access to Information. Upon reasonable notice, N2K and CDnow shall
each (and shall cause each of their respective Subsidiaries to) afford to the
officers, employees, accountants, counsel and other representatives of the
other, access, during normal business hours during the period prior to the
Effective Time, to all its management, properties, books, contracts,
commitments and records and, during such period, each of N2K and CDnow shall,
and shall cause each of their respective Subsidiaries to, furnish promptly to
the other (a) copies of monthly financial reports and development reports, (b)
a copy of each report, schedule, registration statement and other document
filed or received by it during such period pursuant to the requirements of
federal securities laws and (c) all other information concerning its business,
properties and personnel as such other party may reasonably request. The
parties will hold any such information which is nonpublic in confidence in
accordance with the Confidentiality Agreements. No information or knowledge
obtained in any investigation pursuant to this Section 5.6 shall affect or be
deemed to modify any representation or warranty contained in this Agreement or
the conditions to the obligations of the parties to consummate the Mergers.
Section 5.7. Stockholders' Meetings. N2K and CDnow each shall call a meeting of
its respective stockholders to be held as promptly as practicable for the
purpose of voting, in the case of N2K, upon this Agreement and the N2K Merger
and, in the case of CDnow, upon this Agreement and the CDnow Merger. Subject to
Sections 5.3 and 5.4, N2K and CDnow shall, through their respective Boards of
Directors, recommend to their respective stockholders adoption of this
Agreement and approval of such matters and shall coordinate and cooperate with
respect to the timing of such meetings and shall use their best efforts to hold
such meetings on the same day and as soon as practicable after the date hereof.
Unless otherwise required to comply with the applicable fiduciary duties of the
respective directors of N2K and CDnow, as determined by such directors in good
faith after consultation with outside legal counsel, each party shall use all
reasonable efforts to solicit from stockholders of such party proxies in favor
of such matters.
APPENDIX I - AMENDED AND RESTATED
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Section 5.8. Legal Conditions to Merge.
(a) N2K and CDnow shall each use all reasonable efforts to (i) take, or cause
to be taken, all appropriate action, and do, or cause to be done, all things
necessary and proper under applicable law to consummate and make effective the
transactions contemplated hereby as promptly as practicable, (ii) obtain from
any Governmental Entity or any other third party any consents, licenses,
permits, waivers, approvals, authorizations, or orders required to be obtained
or made by N2K or CDnow or any of their Subsidiaries in connection with the
authorization, execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby including, without limitation, the
Mergers, and (iii) as promptly as practicable, make all necessary filings, and
thereafter make any other required submissions, with respect to this Agreement
and the Mergers required under (A) the Securities Act and the Exchange Act, and
any other applicable federal or state securities laws, (B) if applicable, the
HSR Act and any related governmental request thereunder, and (C) any other
applicable law. N2K and CDnow shall cooperate with each other in connection
with the making of all such filings, including providing copies of all such
documents to the non-filing party and its advisors prior to filing and, if
requested, to accept all reasonable additions, deletions or changes suggested
in connection therewith. N2K and CDnow shall use their reasonable efforts to
furnish to each other all information required for any application or other
filing to be made pursuant to the rules and regulations of any applicable law
(including all information required to be included in the Joint Proxy
Statement/Prospectus and the Registration Statement) in connection with the
transactions contemplated by this Agreement.
(b) N2K and CDnow agree, and shall cause each of their respective Subsidiaries,
to cooperate and to use their respective reasonable efforts to obtain any
government clearances required for Closing
(including through compliance with the HSR Act and any applicable foreign
government reporting requirements), to respond to any government requests for
information, and to contest and resist any action, including any legislative,
administrative or judicial action, and to have vacated, lifted, reversed or
overturned any decree, judgment, injunction or other order (whether temporary,
preliminary or permanent) (an "Order") that restricts, prevents or prohibits
the consummation of the Mergers or any other transactions contemplated by this
Agreement. The parties hereto will consult and cooperate with one another, and
consider in good faith the views of one another, in connection with any
analyses, appearances, presentations, memoranda, briefs, arguments, opinions
and proposals made or submitted by or on behalf of any party hereto in
connection with proceedings under or relating to the HSR Act or any other
federal, state or foreign antitrust or fair trade law. N2K and CDnow shall
cooperate and work together in any proceedings or negotiations with any
Governmental Entity relating to any of the foregoing. Notwithstanding anything
to the contrary in this Section 5.8, neither N2K nor CDnow, nor any of their
respective Subsidiaries, shall be required to take any action that would
reasonably be expected to substantially impair the overall benefits expected,
as of the date hereof, to be realized from the consummation of the Mergers.
(c) Each of N2K and CDnow shall give (or shall cause their respective
Subsidiaries to give) any notices to third parties, and use, and cause their
respective Subsidiaries to use, all reasonable efforts to obtain any third
party consents related to or required in connection with the Mergers.
Section 5.9. Public Disclosure. N2K and CDnow shall agree on the form and
content of the initial joint press release regarding the transactions
contemplated hereby and thereafter shall receive approval from the General
Counsel or Vice Chairman (in the case of N2K) and the General Counsel or Chief
Executive Officer (in the case of CDnow) before issuing, and use all reasonable
efforts to agree upon, any press release or other public statement with respect
to any of the transactions contemplated hereby and shall not issue any such
press release or make any such public statement prior to such consultation,
except as may be required by law.
Section 5.10. Nonrecognition Exchange. From and after the date hereof and until
the Effective Time, neither N2K nor CDnow, nor any of their respective
Subsidiaries or other Affiliates shall knowingly take any action, or knowingly
fail to take any action, that is reasonably likely to jeopardize the treatment
of either of the Mergers as a reorganization described in Section 368(a) of the
Code and/or, taken together with the other of the Mergers, as a transfer of
property to Newco by holders of N2K Common Stock or CDnow Common Stock, as
applicable, described in Section 351 of the Code.
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Section 5.11. Pooling Accounting. N2K and CDnow agree to use their reasonable
best efforts to account for the Mergers as a pooling of interests unless N2K
and CDnow mutually agree to account for the Mergers other than as a pooling of
interest. The parties hereto agree that it shall not be a condition to the
consummation of the transactions contemplated by this Agreement that the
transactions be accounted for as a pooling of interests. From and after the
date hereof and until the earlier of the Effective Time or such time as the
parties hereto agree to account for the transaction other than as a pooling of
interests, neither N2K nor CDnow, nor any of their respective Subsidiaries or
other Affiliates shall, without the consent of the other party, knowingly take
any action that is reasonably likely to jeopardize the treatment of the Mergers
as a pooling of interests for accounting purposes, or knowingly fail to take
any commercially reasonable action that is necessary to permit the treatment of
the Mergers as a pooling of interest for accounting purposes.
Section 5.12. Affiliate Agreements. Upon the execution of this Agreement, N2K
and CDnow will provide each other with a list of those persons who are, in
N2K's or CDnow's respective reasonable judgment, "affiliates" of N2K or CDnow,
respectively, within the meaning of Rule 145 promulgated under the Securities
Act ("Rule 145") (each such person who is an "affiliate" of N2K or CDnow within
the meaning of Rule 145 is referred to as an "Affiliate"). N2K and CDnow shall
provide each other such information and documents as the other party shall
reasonably request for purposes of reviewing such list and shall notify the
other party in writing regarding any change in the identity of its Affiliates
prior to the Closing Date. N2K and CDnow shall each use all reasonable efforts
to deliver or cause to be delivered to each other by November 30, 1998 (and in
any case prior to the Effective Time) from each of its Affiliates, an executed
Affiliate Agreement, in substantially the form of Exhibit G (with respect to
affiliates of N2K) or Exhibit H (with respect to affiliates of CDnow) attached
hereto (each, an "Affiliate Agreement," and together, the "Affiliate
Agreements").
Section 5.13. Nasdaq Listing. N2K and CDnow shall cause Newco to promptly
prepare and submit to the Nasdaq a listing application covering the shares of
Newco Common Stock to be issued in the Mergers and upon exercise of N2K Stock
Options and CDnow Stock Options, and shall use all reasonable efforts to cause
such shares to be approved for listing on the Nasdaq, prior to the Effective
Time, subject to official notice of issuance.
Section 5.14. Stock Plans.
(a) At the Effective Time, each outstanding option to purchase shares of N2K
Common Stock (an "N2K Stock Option") under the N2K Stock Plans and each
outstanding option to purchase shares of CDnow Common Stock (a "CDnow Stock
Option") under the CDnow Stock Plans, in each case whether vested or unvested,
shall be deemed to constitute an option to acquire, on the same terms and
conditions as were applicable under such N2K Stock Option or CDnow Stock
Option, as the case may be, the same number of shares of Newco Common Stock as
the holder of such N2K Stock Option or CDnow Stock Option, as the case may be,
would have been entitled to receive pursuant to the N2K Merger or the CDnow
Merger, respectively, had such holder exercised such option in full immediately
prior to the Effective Time (rounded downward to the nearest whole number), at
a price per share (rounded upward to the nearest whole cent) equal to (y) the
aggregate exercise price for the shares of N2K Common Stock or CDnow Common
Stock, as the case may be, purchasable pursuant to such N2K Stock Option or
such CDnow Stock Option immediately prior to the Effective Time divided by (z)
the number of full shares of Newco Common Stock deemed purchasable pursuant to
such N2K Stock Option or CDnow Stock Option, as the case may be, in accordance
with the foregoing; provided, however, that the foregoing adjustment for any
N2K Stock Option or CDnow Stock Option which is intended to qualify as an
"incentive stock option" (as defined under Section 422 of the Code) shall be
affected in a manner consistent with Section 424(a) of the Code.
(b) As soon as practicable after the Effective Time, Newco shall deliver to the
participants in the N2K Stock Plans and the CDnow Stock Plans appropriate
notice setting forth such participants' rights pursuant thereto and the grants
pursuant to N2K Stock Plans or CDnow Stock Plans, as the case may be, shall
continue in effect on the same terms and conditions (subject to the adjustments
required by this Section 5.14 after giving effect to the Mergers).
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(c) Newco shall take all corporate action necessary to reserve for issuance a
sufficient number of shares of Newco Common Stock for delivery under N2K Stock
Plans and CDnow Stock Plans assumed in accordance with this Section 5.14. As
soon as practicable after the Effective Time, Newco shall file a registration
statement on Form S-8 (or any successor or other appropriate forms), or another
appropriate form with respect to the shares of Newco Common Stock subject to
such options and shall use its reasonable efforts to maintain the effectiveness
of such registration statement or registration statements (and maintain the
current status of the prospectus or prospectuses contained therein) for so long
as such options remain outstanding.
(d) The Board of Directors of each of N2K and CDnow shall, prior to or as of
the Effective Time, take all necessary actions, pursuant to and in accordance
with the terms of the N2K Stock Plans and the instruments evidencing the N2K
Stock Options, or the CDnow Stock Plans and the instruments evidencing the
CDnow Stock Options, as the case may be, to provide for the conversion of the
N2K Stock Options and the CDnow Stock Options into options to acquire Newco
Common Stock in accordance with this Section 5.14 without obtaining consent of
the holders of the N2K Stock Options or CDnow Stock Options in connection with
such conversion.
(e) The Board of Directors of each of N2K and CDnow shall, prior to or as of
the Effective Time, take appropriate action to approve the deemed cancellation
of the N2K Stock Options or CDnow Stock Options, as the case may be, for
purposes of Section 16(b) of the Exchange Act. The Board of Directors of Newco
shall, prior to or as of the Effective Time, take appropriate action to approve
the deemed grant of options to purchase Newco Common Stock under the N2K Stock
Options and the CDnow Stock Options (as converted pursuant to this Section
5.14) for purposes of Section 16(b) of the Exchange Act.
Section 5.15. Brokers or Finders. Each of N2K and CDnow represents, as to
itself, its Subsidiaries and its Affiliates, that no agent, broker, investment
banker, financial advisor or other firm or person is or will be entitled to any
broker's or finder's fee or any other commission or similar fee in connection
with any of the transactions contemplated by this Agreement except Allen &
Company, Incorporated and PaineWebber Incorporated, each of whose fees and
expenses will be paid by N2K in accordance with N2K's agreements with such
firms (a copy of which has been delivered by N2K to CDnow prior to the date of
this Agreement), and BT Alex. Brown, whose fees and expenses will be paid by
CDnow in accordance with CDnow's agreement with such firm (a copy of which has
been delivered by CDnow prior to the date of this Agreement). Each of CDnow and
N2K agrees to indemnify and hold the other harmless from and against any and
all claims, liabilities or obligations with respect to any such fees,
commissions or expenses asserted by any person on the basis of any act or
statement alleged to have been made by such party or any of its Affiliates.
Section 5.16. Indemnification.
(a) From and after the Effective Time, Newco agrees that it will, and will
cause the Surviving Corporations to, indemnify and hold harmless each present
and former director and officer of N2K and CDnow (the "Indemnified Parties"),
against any costs or expenses (including attorneys' fees), judgments, fines,
losses, claims, damages, liabilities or amounts paid in settlement incurred in
connection with any claim, action, suit, proceeding or investigation, whether
civil, criminal, administrative or investigative, arising out of or pertaining
to matters existing or occurring at or prior to the Effective Time, whether
asserted or claimed prior to, at or after the Effective Time, to the fullest
extent that N2K or CDnow, as the case may be, would have been permitted under
Delaware or Pennsylvania law and its certificate or articles of incorporation
or bylaws in effect on the date hereof to indemnify such Indemnified Party (and
Newco and the Surviving Corporation shall also advance expenses as incurred to
the fullest extent permitted under applicable law, provided the Indemnified
Party to whom expenses are advanced provides an undertaking to repay such
advances if it is ultimately determined that such Indemnified Party is not
entitled to indemnification).
(b) For a period of six years after the Effective Time, Newco shall maintain or
shall cause the Surviving Corporations to maintain (to the extent available in
the market) in effect a directors' and officers' liability insurance policy
covering those persons who are currently covered by N2K's or CDnow's directors'
and officers' liability insurance policy (copies of which have been heretofore
delivered by N2K and CDnow to
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each other) with coverage in amount and scope at least as favorable as N2K's or
CDnow's existing coverage; provided, that, in no event shall Newco or the
Surviving Corporations be required to expend in the aggregate in excess of 200%
of the annual premium currently paid by N2K and CDnow for such coverage; and if
such premium would at any time exceed 200% of the such amount, then the Newco
or the Surviving Corporations shall maintain insurance policies which provide
the maximum and best coverage available at an annual premium equal to 200% of
such amount.
(c) The provisions of this Section 5.16 are intended to be an addition to the
rights otherwise available to the current officers and directors of N2K and
CDnow by law, charter, statute, bylaw or agreement, and shall operate for the
benefit of, and shall be enforceable by, each of the Indemnified Parties, their
heirs and their representatives.
Section 5.17. Letter of CDnow's Accountants. CDnow shall use all reasonable
efforts to cause to be delivered to N2K and CDnow a letter of Arthur Andersen
LLP, CDnow's independent auditors, dated a date within two business days before
the date on which the Registration Statement shall become effective and
addressed to N2K, in form reasonably satisfactory to N2K and customary in scope
and substance for letters delivered by independent public accountants in
connection with registration statements similar to the Registration Statement.
Section 5.18. Letter of N2K's Accountants. N2K shall use all reasonable efforts
to cause to be delivered to CDnow and N2K a letter of Arthur Andersen LLP,
N2K's independent auditors, dated a date within two business days before the
date on which the Registration Statement shall become effective and addressed
to CDnow, in form reasonably satisfactory to CDnow and customary in scope and
substance for letters delivered by independent public accountants in connection
with registration statements similar to the Registration Statement.
Section 5.19. Stock Option Agreements. CDnow and N2K each agree to fully
perform their respective obligations under the Stock Option Agreements.
Section 5.20. Transition Planning. N2K and CDnow agree that they shall work
together to coordinate all aspects of transition planning and implementation
relating to the Mergers and the other transactions contemplated hereby. During
the period between the date hereof and the Effective Time, N2K and CDnow shall
jointly examine various alternatives regarding the manner in which to best
organize and manage the businesses of N2K and CDnow after the Effective Time.
The members of the joint transition planning team are identified on Schedule
5.20 (the "Transition Planning Committee").
Section 5.21. Post-Merger Corporate Governance; Employment Arrangements.
(a) At the Effective Time, the total number of persons serving on the Board of
Directors of Newco shall be nine (unless otherwise agreed in writing by N2K and
CDnow prior to the Effective Time), four of whom shall be CDnow Directors,
three of whom shall be N2K Directors and two of whom shall be Independent
Directors (as such terms are defined below). The persons to serve initially on
the Board of Directors of Newco at the Effective Time who are N2K Directors and
the persons to serve initially on the Board of Directors of Newco at the
Effective Time who are CDnow Directors shall be the persons identified on
Schedule 5.21(a). The persons to serve initially on the Board of Directors of
Newco at the Effective Time who are Independent Directors shall be selected by
the Board of Directors of both CDnow and N2K and shall be mutually acceptable
to both CDnow and N2K. In the event that, prior to the Effective Time, any
person so selected to serve on the Board of Directors of Newco after the
Effective Time is unable or unwilling to serve in such position, the Board or
Boards of Directors which selected such person shall designate another person
to serve in such person's stead in accordance with the provisions of the
immediately preceding sentence. From and after the Effective Time and until
December 31, 2001, (a) the Board of Directors of Newco shall consist of four
CDnow Directors, three N2K Directors and two Independent Directors and (b) the
size of the Board of Directors of Newco and each Committee of the Board of
Directors of Newco shall not be increased unless such
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increase is approved by 80% of the members thereof. If, at any time during the
period referenced in the second preceding sentence, the number of CDnow
Directors and N2K Directors serving, or that would be serving following the
next stockholders' meeting at which Directors are to be elected, as Directors
of Newco, would fall below four and three, respectively, then, subject to the
fiduciary duties of the Directors of Newco, the Board of Directors and the
Nominating Committee thereof shall nominate for election at the next
stockholders' meeting at which Directors are to be elected, such person or
persons as may be requested by the remaining CDnow Directors (if the number of
CDnow Directors is, or would otherwise become, less than four) or by the
remaining N2K Directors (if the number of N2K Directors is, or would otherwise
become, less than three) to ensure that there shall be four CDnow Directors and
three N2K Directors. The provisions of the preceding sentence shall not apply
in respect of any stockholders' meeting which takes place after December 31,
2001. The term "N2K Director" means (i) any person serving as a Director of N2K
or any of its Subsidiaries on the date hereof who becomes a Director of Newco
at the Effective Time and (ii) any person who becomes a Director of Newco
pursuant to the second preceding sentence and who is designated by the N2K
Directors; the term "CDnow Director" means (i) any person serving as a Director
of CDnow or any of its Subsidiaries on the date hereof who becomes a Director
of Newco at the Effective Time and (ii) any person who becomes a Director of
Newco pursuant to the second preceding sentence and who is designated by the
CDnow Directors; and the term "Independent Director" means a person who becomes
a Director of Newco who does not have on the date hereof or on the date such
person is elected to become a Director, and who has not had within the three
year period prior to the date of his election, any material employment,
business affiliation or association, or immediate family relationship with
either CDnow or N2K, any of their directors or officers, any Subsidiaries or
predecessors of CDnow or N2K, or any other person or entity controlling,
controlled by or under common control with either N2K or CDnow.
(b) At the Effective Time, pursuant to the terms of the employment contracts
referred to in Section 5.21(c) hereof, (i) Jason Olim shall hold the position
of President and Chief Executive Officer of Newco and (ii) Jon Diamond shall
hold the position of Chairman of Newco. If any of the persons identified above
in this Section 5.21(b) is unable or unwilling to hold such offices as set
forth above, his successor shall be selected by the Board of Directors of Newco
in accordance with the Bylaws of Newco. The authority, duties and
responsibilities of the Chairman and the President and Chief Executive Officer
shall be as set forth in Bylaws of Newco and the employment contracts entered
into pursuant to Section 5.21(c) hereof, which employment contracts shall also
set forth in their entirety the rights and remedies of Messrs. Olim and Diamond
with respect to employment by Newco, and none of them shall have any right,
remedy or cause of action under this Section 5.21, nor shall they be third
party beneficiaries of this Section 5.21.
(c) Prior to the Closing, Newco shall offer to enter into employment agreements
with Jason Olim and Jon Diamond in the forms attached hereto as Exhibits I and
J.
(d) From and after the Effective Time, until successors are duly elected or
appointed and qualified in accordance with applicable law, the officers of
Newco shall be as designated in accordance with Schedule 5.21(d). If any
officer set forth or designated in accordance with Schedule 5.21(d) ceases to
be a full-time employee of either N2K or CDnow at or before the Effective Time,
then the parties will agree upon another person to serve in such person's
stead.
(e) From and after the Effective Time, until successors are duly elected or
appointed and qualified in accordance with applicable law, the members of the
Executive, Audit, Compensation and Nominating committees of the Board of
Directors of Newco shall be as designated in accordance with Schedule 5.21(e),
subject to such persons being members of the Board of Directors of Newco at the
Effective Time.
(f) Each of N2K and CDnow shall cause Newco to incorporate the provisions
contained in Section 5.21(a), (b), (e) and (f) into the Bylaws of Newco in
effect at the Effective Time, which provisions shall thereafter be amended only
with the approval of 80% of the members of the Board of Directors of Newco.
Section 5.22. Name of Newco. At the Effective Time, Newco shall change its
corporate name to CDnow/N2K, Inc.
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Section 5.23. Warrants; Registration Rights Agreement. (a) At the Effective
Time, Newco shall assume all obligations under the warrants set forth in
Section 3.2(b) to the N2K Disclosure Schedule and Section 4.2 (b) to the CDnow
Disclosure Schedule (the "Warrants"), and the holders of the Warrants
thereafter shall have the right to acquire, on the same pricing and payment
terms and conditions as are currently applicable under the Warrants, the same
number of shares of Newco Common Stock as the holder(s) of the Warrants would
have been entitled to receive pursuant to the N2K Merger or the CDnow Merger,
as the case may be, had each such holder exercised such holder's Warrant in
full immediately prior to the Effective Time (rounded downward to the nearest
whole number), at the price per share (rounded downward to the nearest whole
cent) equal to (i) the aggregate exercise price for the shares of N2K Common
Stock or CDnow Common Stock, as the case may be, purchasable pursuant to such
Warrant immediately prior to the Effective Time divided by (ii) the number of
full shares of Newco Common Stock deemed purchasable pursuant to such Warrant
in accordance with the foregoing.
(b) At the Effective Time, N2K and CDnow shall cause Newco to offer to enter
into registration rights agreements (the "Newco Registration Rights
Agreements") with the various parties listed on Section 5.23(b) of the N2K
Disclosure Schedule or, in lieu thereof, with any parties who are entitled to
benefit from the registration rights created in such agreements as a result of
transfers from the initial or listed holders. The various Newco Registration
Rights Agreements to be entered into with such parties shall be substantially
similar (to the extent practicable) in effect to those provisions of the
agreements which are identified on Section 5.23(b) of the N2K Disclosure
Schedule and which relate to registration rights affecting the N2K Common Stock
of such parties. Pursuant to the Newco Registration Rights Agreements, Newco
will provide registration rights to the shareholders who are parties to such
agreements with respect to all shares of Newco issued in the N2K Merger on
account of the shares of N2K Common Stock covered by registration rights
immediately prior to the N2K Merger.
(c) At the Effective Time, CDnow and N2K shall cause Newco to enter into a
Registration Rights Agreement (the "Newco Registration Rights Agreement")
substantially similar (to the extent practicable) to the Investor Rights
Agreement dated as of July 15, 1997 by and among CDnow and certain CDnow
shareholders who are parties thereto (the "CDnow Registration Rights
Agreement") pursuant to which Newco will provide registration rights to parties
to the CDnow Registration Rights Agreement (other than CDnow) with respect to
all shares of Newco issued in the CDnow Merger on account of the shares of
CDnow Common Stock covered by the CDnow Registration Rights Agreement.
Section 5.24. Conveyance Taxes. N2K and CDnow shall cooperate in the
preparation, execution and filing of all returns, questionnaires, applications
or other documents regarding any real property transfer or gains, sales, use,
transfer, value added, stock transfer and stamp taxes, any transfer, recording,
registration and other fees or any similar taxes which become payable in
connection with the transactions contemplated by this Agreement that are
required or permitted to be filed on or before the Effective Time.
Section 5.25. Transfer Taxes. Newco shall pay any New York State Real Estate
Transfer Tax, New York City Real Property Transfer Tax, New York State Stock
Transfer Tax and any similar taxes imposed on the stockholders of N2K and
CDnow, respectively, by any other State of the United States (and any interest
with respect to such taxes) (the "Transfer Taxes"), which become payable in
connection with the transactions contemplated by this Agreement. N2K and CDnow
shall cooperate in the preparation, execution and filing of any required
returns with respect to such Transfer Taxes (including returns on behalf of the
stockholders of N2K and CDnow) and in the determination of the portion of the
consideration allocable to the real property of N2K and the N2K Subsidiaries
and CDnow and the CDnow Subsidiaries in New York State and City (or in any
other jurisdiction, if applicable).
Section 5.26. Stockholder Litigation. Each of N2K and CDnow shall give the
other the reasonable opportunity to participate in the defense of any
stockholder litigation against N2K or CDnow, as applicable, and its directors
relating to the transactions contemplated hereby.
APPENDIX I - AMENDED AND RESTATED
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Section 5.27. Employee Benefits; Severance.
(a) Newco shall cause to continue to be maintained the N2K and CDnow annual
bonus plans for management employees for the 1998 fiscal year and shall
calculate the amounts payable to participants thereunder on a basis consistent
with the terms of each such plan and the past practice of N2K or CDnow, as
applicable.
(b) For purposes of determining eligibility to participate, vesting,
entitlement to benefits and in all other respects where length of service is
relevant (except for pension benefit accruals) under any employee benefit plan
or arrangement covering employees of N2K and its Subsidiaries ("N2K Employees")
or employees of CDnow and its Subsidiaries ("CDnow Employees") following the
Effective Time, Newco shall cause such plans or arrangements to recognize
service with N2K or CDnow (as applicable) and any of their respective
Subsidiaries to the same extent such service was recognized under the
applicable employee benefit plans immediately prior to the Effective Time.
(c) At the Effective Time, Newco shall assume and honor in accordance with
their terms the employment agreements, severance agreements and severance pay
policies identified in Sections 5.1 or 5.27 of the N2K Disclosure Schedule and
Sections 5.1 or 5.27 of the CDnow Disclosure Schedule.
Section 5.28. Subsequent Financial Statements. Prior to the Effective Time,
each of N2K and CDnow (a) will consult with the other prior to making publicly
available its financial results for any period and (b) will consult with the
other prior to the filing of, and will timely file with the SEC, each Annual
Report on Form 10-K, Quarterly Report on Form 10-Q and Current Report on Form
8-K required to be filed by such Party under the Exchange Act and will promptly
deliver to the other copies of each such report filed with the SEC. As of their
respective dates, none of such reports shall contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. The respective audited financial
statements and unaudited interim financial statements of each of N2K and CDnow,
as the case may be, included in such reports will fairly present the financial
position of such party and its subsidiaries as at the dates thereof and the
results of their operations and cash flows for the periods then ended in
accordance with generally accepted accounting principles applied on a
consistent basis and, subject, in the case of unaudited interim financial
statements, to normal year-end adjustments and any other adjustments described
therein.
Section 5.29. Control of Operations. Nothing contained in this Agreement shall
give N2K, directly or indirectly, the right to control or direct CDnow's
operations prior to the Effective Time. Nothing contained in this Agreement
shall give CDnow, directly or indirectly, the right to control or direct N2K's
operations prior to the Effective Time. Prior to the Effective Time, each of
N2K and CDnow shall exercise, consistent with the terms and conditions of this
Agreement, complete control and supervision over its respective operations.
Section 5.30. Certain Modifications; Restructuring Charges. N2K and CDnow shall
consult with respect to business practices and policies and shall make such
modifications or changes to its practices or policies, if any, and at such date
prior to the Effective Time, as may be mutually agreed upon and approved by the
Transition Planning Committee. N2K and CDnow shall also consult with respect to
the character, amount and timing of restructuring charges to be taken by each
of them in connection with the transactions contemplated hereby and shall take
such charges in accordance with generally accepted accounting principles, as
may be mutually agreed upon and approved by the Transition Planning Committee.
No party's representations, warranties and covenants contained in this
Agreement shall be deemed to be untrue or breached in any respect for any
purpose as a consequence of any modifications or changes to such policies or
practices which may be undertaken in accordance with this Section 5.30.
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ARTICLE VI.
CONDITIONS TO MERGERS
Section 6.1. Conditions to Each Party's Obligation to Effect the Mergers. The
respective obligations of each party to this Agreement to effect the Mergers
shall be subject to the satisfaction or waiver by each party prior to the
Effective Time of the following conditions:
(a) Stockholder Approval. This Agreement, the N2K Merger and the CDnow Merger
shall have been approved in the manner required under the DGCL and the PBCL, by
the respective holders of the issued and outstanding shares of capital stock of
N2K and CDnow.
(b) HSR Act. Any applicable waiting period applicable to the consummation of
the Mergers under the HSR Act shall have expired or been terminated.
(c) Approvals. Other than the filing provided for by Section 1.4, all
authorizations, consents, orders or approvals of, or declarations or filings
with, or expirations of waiting periods imposed by, any Governmental Entity the
failure of which to file, obtain or occur is reasonably likely to have a N2K
Material Adverse Effect or a CDnow Material Adverse Effect shall have been
filed, been obtained or occurred.
(d) Registration Statement. The Registration Statement shall have become
effective under the Securities Act and shall not be the subject of any stop
order or proceedings seeking a stop order.
(e) No Injunctions. No Governmental Entity shall have enacted, issued,
promulgated, enforced or entered any order, executive order, stay, decree,
judgment or injunction or statute, rule, regulation which is in effect and
which has the effect of making the Mergers illegal or otherwise prohibiting
consummation of the Mergers.
(f) Nasdaq Listing. The shares of Newco Common Stock to be issued in the Merger
and upon exercise of N2K Options and CDnow Options shall have been approved for
listing on the Nasdaq, subject to official notice of issuance.
(g) Corporate Governance. N2K and CDnow shall have taken all actions necessary
so that (i) not later than the Effective Time, the Articles of Incorporation
and Bylaws of Newco shall have been amended to be substantially in the form of
Exhibit E and Exhibit F hereto; and (ii) at the Effective Time, the composition
of the Board of Directors of Newco and of each Committee of the Board of
Directors of Newco shall comply with Section 5.21 hereof (assuming N2K has
designated the N2K Directors, CDnow has designated the CDnow Directors, and N2K
and CDnow together have designated the Independent Directors, in each case as
contemplated by Section 5.21(a) hereof).
Section 6.2. Additional Conditions to Obligations of N2K. The obligation of N2K
to effect the N2K Merger is subject to the satisfaction of each of the
following conditions prior to the Effective Time, any of which may be waived in
writing exclusively by N2K:
(a) Representations and Warranties. The representations and warranties of CDnow
set forth in this Agreement shall be true and correct as of the date of this
Agreement and (except to the extent such representations and warranties speak
as of an earlier date) as of the Closing Date as though made on and as of the
Closing Date, except for, (i) changes contemplated by this Agreement and (ii)
inaccuracies which, individually or in the aggregate, have not had and are not
reasonably likely to have a CDnow Material Adverse Effect, as such term is
defined in Section 6.2(d), or a material adverse effect upon the consummation
of the transactions contemplated hereby; and N2K shall have received a
certificate signed on behalf of CDnow by the chief executive officer and the
chief financial officer of CDnow to such effect.
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(b) Performance of Obligations of CDnow. CDnow shall have performed in all
materials respects (and with respect to Section 5.1(r) in all respects) all
obligations required to be performed by it under this Agreement at or prior to
the Closing Date shall have received a certificate signed on behalf of CDnow by
the chief executive officer and the chief financial officer of CDnow to such
effect.
(c) Tax Opinion. N2K shall have received the opinion of Dewey Ballantine LLP,
counsel to N2K, based upon reasonably requested representation letters and
dated the Closing Date, to the effect that the N2K Merger will be treated as a
reorganization described in Section 368(a) of the Code and/or, taken together
with the CDnow Merger, as a transfer of property to Newco by holders of N2K
Common Stock described in Section 351 of the Code.
(d) CDnow Material Adverse Effect. From the date of this Agreement through the
Effective Time there shall not have occurred a CDnow Material Adverse Effect.
For the purposes of this Section 6.2(d), a CDnow Material Adverse Effect shall
not include the effect of any changes (i) resulting from general conditions
applicable to the online music retailing industry and not specifically relating
to CDnow, or from general business or United States economic conditions which
do not have a disproportionate effect on CDnow, or (ii) caused by (a) the
transactions contemplated by this Agreement and the public announcement
thereof, (b) any steps taken or proposed to be taken in connection with Section
5.30 or (c) any actions taken or omissions by CDnow with the prior written
consent of N2K in contemplation of the transactions contemplated hereby.
Section 6.3. Additional Conditions to Obligations of CDnow. The obligations of
CDnow to effect the CDnow Merger are subject to the satisfaction of each of the
following conditions prior to the Effective Time, any of which may be waived in
writing exclusively by CDnow:
(a) Representations and Warranties. The representations and warranties of N2K
set forth in this Agreement shall be true and correct as of the date of this
Agreement and (except to the extent such representations and warranties speak
as of an earlier date) as of the Closing Date as though made on and as of the
Closing Date, except for, (i) changes contemplated by this Agreement and (ii)
inaccuracies which, individually or in the aggregate, have not had and are not
reasonably likely to have a N2K Material Adverse Effect, as such term is
defined in Section 6.3(d), or a material adverse effect upon the consummation
of the transactions contemplated hereby; and CDnow shall have received a
certificate signed on behalf of N2K by the chief executive officer and the
chief financial officer of N2K to such effect.
(b) Performance of Obligations of N2K. N2K shall have performed in all material
respects (and with respect to Section 5.1(r) in all respects) all obligations
required to be performed by it under this Agreement at or prior to the Closing
Date; and CDnow shall have received a certificate signed on behalf of N2K by
the chief executive officer and the chief financial officer of N2K to such
effect.
(c) Tax Opinion. CDnow shall have received the opinion of Morgan, Lewis &
Bockius LLP, counsel to CDnow, based upon reasonably requested representation
letters and dated the Closing Date, to the effect that the CDnow Merger will be
treated as a reorganization described in Section 368(a) of the Code and/or,
taken together with the N2K Merger, as a transfer of property to Newco by
holders of CDnow Common Stock described in Section 351 of the Code.
(d) N2K Material Adverse Effect. From the date of this Agreement through the
Effective Time there shall not have occurred an N2K Material Adverse Effect.
For the purposes of this Section 6.3(d), a N2K Material Adverse Effect shall
not include the effect of any changes resulting from (i) general conditions
applicable to the online music retailing industry and not specifically relating
to N2K, or from general business or United States economic conditions which do
not have a disproportionate effect on N2K, or (ii) (a) the transactions
contemplated by this Agreement and the public announcement thereof, (b) any
steps taken or proposed to be taken in connection with Section 5.30 or (c) any
actions taken or omissions by N2K with the prior written consent of CDnow in
contemplation of the transactions contemplated hereby.
APPENDIX I - AMENDED AND RESTATED
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<PAGE>
ARTICLE VII.
TERMINATION AND AMENDMENT
Section 7.1. Termination. This Agreement may be terminated at any time prior to
the Effective Time (with respect to Sections 7.1(b) through 7.1(h), by written
notice by the terminating party to the other party), whether before or after
approval of the matters presented in connection with the Mergers by the
stockholders of N2K or CDnow:
(a) by mutual written consent of N2K and CDnow; or
(b) by either N2K or CDnow if the Mergers shall not have been consummated by
March 31, 1999 (the "Outside Date") (provided that the right to terminate this
Agreement under this Section 7.1(b) shall not be available to any party whose
failure to fulfill any obligation under this Agreement has been the cause of or
resulted in the failure of the Mergers to occur on or before such date); or
(c) by either N2K or CDnow if a court of competent jurisdiction or other
Governmental Entity shall have issued a nonappealable final order, decree or
ruling or taken any other nonappealable final action, in each case having the
effect of permanently restraining, enjoining or otherwise prohibiting the
Mergers; or
(d) (i) by N2K or CDnow, if, at the CDnow Stockholders' Meeting (including any
adjournment or postponement), the requisite vote of the stockholders of
CDnow in favor of the approval and adoption of this Agreement and the CDnow
Merger shall not have been obtained; or (ii) by CDnow or N2K if, at the N2K
Stockholders' Meeting (including any adjournment or postponement), the
requisite vote of the stockholders of N2K in favor of the approval and adoption
of this Agreement and the N2K Merger shall not have been obtained; or
(e) by N2K, if (i) the Board of Directors of CDnow shall have withdrawn or
modified its recommendation of this Agreement or the CDnow Merger (provided
that N2K's right to terminate this Agreement under such clause (i) shall not be
available if at such time CDnow would be entitled to terminate this Agreement
under Section 7.1(h) without giving effect to the cure period); (ii) after the
receipt by CDnow of an Acquisition Proposal, N2K requests in writing that the
Board of Directors of CDnow reconfirm its recommendation of this Agreement and
the CDnow Merger to the stockholders of CDnow and the Board of Directors of
CDnow fails to do so within 10 business days after its receipt of N2K's
request; (iii) the Board of Directors of CDnow shall have recommended to the
stockholders of CDnow an Alternative Transaction (as defined in Section
7.3(e)); (iv) a tender offer or exchange offer for 20% or more of the
outstanding shares of CDnow Common Stock is commenced (other than by N2K or an
Affiliate of N2K) and the Board of Directors of CDnow recommends that the
stockholders of CDnow tender their shares in such tender or exchange offer; or
(v) for any reason CDnow fails to call and hold the CDnow Stockholders' Meeting
by the Outside Date (provided that N2K's right to terminate this Agreement
under such clause (v) shall not be available if at such time CDnow would be
entitled to terminate this Agreement under Section 7.1(h) without giving effect
to the cure period); or
(f) by CDnow, if (i) the Board of Directors of N2K shall have withdrawn or
modified its recommendation of this Agreement or the N2K Merger (provided that
CDnow's right to terminate this Agreement under such clause (i) shall not be
available if at such time N2K would be entitled to terminate this Agreement
under Section 7.1(h) without giving effect to the cure period); (ii) after the
receipt by N2K of an Acquisition Proposal, CDnow requests in writing that the
Board of Directors of N2K reconfirm its recommendation of this Agreement and
the N2K Merger to the stockholders of CDnow and the Board of Directors of N2K
fails to do so within 10 business days after its receipt of CDnow's request;
(iii) the Board of Directors of N2K shall have recommended to the stockholders
of N2K an Alternative Transaction (as defined in Section 7.3(e)); (iv) a tender
offer or exchange offer for 20% or more of the outstanding shares of N2K Common
Stock is commenced (other than by CDnow or an Affiliate of CDnow) and the Board
of Directors of
APPENDIX I - AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
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<PAGE>
N2K recommends that the stockholders of N2K tender their shares in such tender
or exchange offer; or (v) for any reason N2K fails to call and hold the N2K
Stockholders' Meeting by the Outside Date (provided that CDnow's right to
terminate this Agreement under such clause (v) shall not be available if at
such time N2K would be entitled to terminate this Agreement under Section
7.1(h) without giving effect to the cure period); or
(g) by N2K or CDnow, prior to the approval of this Agreement by the
stockholders of such party, if, as a result of a Superior Proposal received by
such party from a Third Party, the Board of Directors of such party determines
in good faith after consultation with outside legal counsel that accepting such
Superior Proposal is required for such Board of Directors to comply with its
fiduciary duties to stockholders under applicable law; provided, however, that
no termination shall be effective pursuant to this Section 7.1(g) under
circumstances in which a termination fee is payable by the terminating party
pursuant to Section 7.3(b)(iii) or (c)(iii), unless concurrently with such
termination, such termination fee is paid in full by the terminating party in
accordance with Section 7.3(b)(iii) or (c)(iii), as applicable; or
(h) by N2K or CDnow, if (A) there has been a breach of any representation,
warranty, covenant or agreement on the part of the other party set forth in
this Agreement, which breach (i) will cause the conditions set forth in Section
6.2(a) or (b) (in the case of termination by N2K) or 6.3(a) or (b) (in the case
of termination by CDnow) not to be satisfied, and (ii) shall not have been
cured within 20 business days following receipt by the breaching party of
written notice of such breach from the other party; or (B) any event shall have
occurred which makes it impossible for the conditions set forth in Article VI
hereof (other than Section 6.1(a), 6.1(e), 6.2(a), 6.2(b), 6.2(d), 6.3(a),
6.3(b) and 6.3(d)) to be satisfied, provided that any termination pursuant to
this clause (B) shall not be effective until 20 business days after notice
thereof is delivered by the party seeking to terminate to the other party, and
shall be automatically rescinded if (1) such condition is solely for the
benefit of the party receiving such notice and (2) such party, prior to such
20th business day, irrevocably waives satisfaction of such condition based on
such event; (C) there has been a breach of the representation, warranty,
covenant or agreement set forth in Section 3.10(c), 3.11(b) or 5.1(l) (in the
case of a termination by CDnow) which would have a N2K Material Adverse Effect
or in Section 4.10(c) (in the case of a termination by N2K) which would have a
CDnow Material Adverse Effect; or (D) by CDnow if there has been a N2K Material
Adverse Effect under Section 6.3(d), or by N2K if there has been a CDnow
Material Adverse Effect under Section 6.2(d), in either case which shall not
have been cured within 20 business days following receipt by the breaching
party of written notice of such breach from the other party.
Section 7.2. Effect of Termination. In the event of termination of this
Agreement as provided in Section 7.1, this Agreement shall immediately become
void and there shall be no liability or obligation on the part of N2K, CDnow,
Newco or their respective officers, directors, stockholders or Affiliates,
except as set forth in Sections 5.15 and 7.3 and except that such termination
shall not limit liability for a willful breach of this Agreement; provided
that, the provisions of Sections 5.15 and 7.3 of this Agreement, the Stock
Option Agreements and the Confidentiality Agreement shall remain in full force
and effect and survive any termination of this Agreement.
Section 7.3. Fees and Expenses.
(a) Except as set forth in this Section 7.3, all fees and expenses incurred in
connection with this Agreement and the transactions contemplated hereby shall
be paid by the party incurring such expenses, whether or not the Mergers are
consummated.
(b) N2K shall pay CDnow a termination fee of $3.75 million upon the earliest to
occur of the following events:
(i) the termination of this Agreement by either CDnow or N2K pursuant
to Section 7.1(d)(ii), if a proposal for an Alternative Transaction (as
defined below) involving N2K shall have been publicly announced prior
to the N2K Stockholders' Meeting and either a definitive agreement
APPENDIX I - AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
I-37
<PAGE>
for an Alternative Transaction is entered into, or an Alternative
Transaction is consummated, within eighteen months of such termination;
(ii) the termination of this Agreement by CDnow pursuant to Section
7.1(f); or
(iii) the termination of this Agreement by N2K pursuant to Section
7.1(g).
If and to the extent that CDnow has purchased shares of N2K Common Stock
pursuant to the CDnow Stock Option Agreement prior to the payment of the $3.75
million fee provided for herein (the "Fee Payment Date"), the amount payable to
CDnow under this Section 7.3(b), together with (i)(x) the net cash amount
received by CDnow prior to the Fee Payment Date pursuant to N2K's repurchase of
Shares (as defined in the CDnow Stock Option Agreement) pursuant to Section 7
of the CDnow Stock Option Agreement, less (y) CDnow's purchase price for such
Shares, and (ii)(x) the amounts received by CDnow prior to the Fee Payment Date
pursuant to the sale of Shares (or any other securities into which such Shares
are converted or exchanged), less (y) CDnow's purchase price for such Shares,
shall not exceed $3.75 million. N2K's payment of a termination fee pursuant to
this subsection and any applicable payments under the CDnow Stock Option
Agreement shall be the sole and exclusive remedy of CDnow against N2K and any
of its Subsidiaries and their respective directors, officers, employees,
agents, advisors or other representatives with respect to the occurrences
giving rise to such payments; provided that this limitation shall not apply in
the event of a willful breach of this Agreement by N2K.
(c) CDnow shall pay N2K a termination fee of $3.75 million upon the earliest to
occur of the following events:
(i) the termination of this Agreement by either N2K or CDnow pursuant
to Section 7.1(d)(i), if a proposal for an Alternative Transaction (as
defined below) involving CDnow shall have been publicly announced prior
to the CDnow Stockholders' Meeting and either an Alternative
Transaction is entered into, or an Alternative Transaction is
consummated, within eighteen months of such termination;
(ii) the termination of this Agreement by N2K pursuant to Section
7.1(e); or
(iii) the termination of this Agreement by CDnow pursuant to Section
7.1(g).
If and to the extent that N2K has purchased shares of CDnow Common Stock
pursuant to the N2K Stock Option Agreement prior to the Fee Payment Date, the
amount payable to N2K under this Section 7.3(c), together with (i)(x) the net
cash amount received by N2K prior to the Fee Payment Date pursuant to CDnow's
repurchase of Shares (as defined in the N2K Stock Option Agreement) pursuant to
Section 7 of the N2K Stock Option Agreement, less (y) N2K's purchase price for
such Shares, and (ii)(x) the amounts received by N2K prior to the Fee Payment
Date pursuant to the sale of Shares (or any other securities into which such
Shares are converted or exchanged), less (y) N2K's purchase price for such
Shares, shall not exceed $3.75 million. CDnow's payment of a termination fee
pursuant to this subsection and any applicable payments under the N2K Stock
Option Agreement shall be the sole and exclusive remedy of N2K against CDnow
and any of its Subsidiaries and their respective directors, officers,
employees, agents, advisors or other representatives with respect to the
occurrences giving rise to such payments; provided that this limitation shall
not apply in the event of a willful breach of this Agreement by CDnow.
(d) The fees payable pursuant to Section 7.3(b) or 7.3(c) shall be paid
concurrently with the first to occur of the events described in Section
7.3(b)(i), (ii) or (iii) of 7.3(c)(i), (ii) or (iii), respectively.
(e) As used in this Agreement, "Alternative Transaction" means either (i) a
transaction pursuant to which any Third Party acquires more than 20% of the
outstanding shares of N2K Common Stock or CDnow Common Stock, as the case may
be, pursuant to a tender offer or exchange offer or otherwise, (ii) a merger or
other business combination involving N2K or CDnow pursuant to which any Third
Party (or the stockholders of a Third Party) acquires more than 20% of the
outstanding shares of N2K Common Stock or CDnow Common Stock, as the case may
be, or the entity surviving such merger or business combination, (iii) any
other
APPENDIX I - AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
I-38
<PAGE>
transaction pursuant to which any Third Party acquires control of assets
(including for this purpose the outstanding equity securities of Subsidiaries
of N2K or CDnow, and the entity surviving any merger or business combination
including any of them) of N2K or CDnow having a fair market value (as
determined by the Board of Directors of N2K or CDnow, as the case may be, in
good faith) equal to more than 20% of the fair market value of all the assets
of N2K or CDnow, as the case may be, and their respective Subsidiaries, taken
as a whole, immediately prior to such transaction, or (iv) any public
announcement of a proposal, plan or intention to do any of the foregoing or any
agreement to engage in any of the foregoing.
(f) N2K and CDnow shall share equally (i) the filing fees in connection with
the filing of the Registration Statement and the Joint Proxy
Statement/Prospectus, (ii) the expenses incurred in connection with printing
and mailing the Registration Statement and the Joint Proxy
Statement/Prospectus, and (iii) any expenses incurred in connection with the
formation of Newco.
Section 7.4. Amendment. This Agreement may be amended by the parties hereto, by
action taken or authorized by their respective Boards of Directors, at any time
before or after approval of the matters presented in connection with the
Mergers by the stockholders of N2K or CDnow, but, after any such approval, no
amendment shall be made which by law requires further approval by such
stockholders without such further approval. This Agreement may not be amended
except by an instrument in writing signed on behalf of each of the parties
hereto; provided, however, that this Agreement may be amended in writing
without obtaining the signatures of N2K, CDnow or Newco solely for the purpose
of adding N2K Sub and CDnow Sub as parties to this Agreement.
Section 7.5. Extension; Waiver. At any time prior to the Effective Time, the
parties hereto, by action taken or authorized by their respective Boards of
Directors, may, to the extent legally allowed, (i) extend the time for the
performance of any of the obligations or other acts of the other parties
hereto, (ii) waive any inaccuracies in the representations and warranties
contained herein or in any document delivered pursuant hereto and (iii) waive
compliance with any of the agreements or conditions contained here. Any
agreement on the part of a party hereto to any such extension or waiver shall
be valid only if set forth in a written instrument signed on behalf of such
party.
APPENDIX I - AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
I-39
<PAGE>
ARTICLE VIII.
MISCELLANEOUS
Section 8.1. Nonsurvival of Representations, Warranties and Agreements. None of
the representations, warranties and agreements in this Agreement or in any
instrument delivered pursuant to this Agreement shall survive the Effective
Time, except for the agreements contained in Sections 1.6, 2.1, 2.2, 2.4, 5.14,
5.16, 5.19, 5.21 and 5.26 and Article VIII, and the agreements of the
Affiliates delivered pursuant to Section 5.12. The Confidentiality Agreements
shall survive the execution and delivery of this Agreement.
Section 8.2. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally, telecopied (which
is confirmed) or mailed by registered or certified mail (return receipt
requested) to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice):
(a) if to N2K, to
N2K Inc.
55 Broad Street, 26th Floor
New York, NY 10004
Attn: General Counsel
Telecopy: (212) 742-1778
with a copy to
Dewey Ballantine LLP
1301 Avenue of the Americas
New York, NY 10019-6092
Attn: Frank E. Morgan, II, Esq.
Telecopy: (212) 295-6333
(b) if to CDnow, to
CDnow, Inc.
Jenkins Court, Suite 300
610 Old York Road
Jenkinstown, PA 19046
Attn: David Capozzi, General Counsel
Telecopy: (215) 517-5745
*485 Delaware Ave.
Fort Washington, PA
(effective 11/6/98)
with a copy to:
Morgan, Lewis & Bockius LLP
2000 One Logan Square
Philadelphia, PA 19103-6993
Attn: James W. McKenzie, Jr., Esq.
Telecopy: (215) 963-5299
*1701 Market Street
Philadelphia, PA 19103-2921
(effective 11/23/98)
APPENDIX I - AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
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<PAGE>
Section 8.3. Interpretation. When a reference is made in this Agreement to
Sections, such reference shall be to a Section of this Agreement unless
otherwise indicated. The table of contents and headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Whenever the words "include,"
"includes" or "including" are used in this Agreement they shall be deemed to be
followed by the words "without limitation." The phrase "made available" in this
Agreement shall mean that the information referred to has been made available
if requested by the party to whom such information is to be made available. The
phrases "the date of this Agreement", "the date hereof," and terms of similar
import, unless the context otherwise requires, shall be deemed to refer to
October 22, 1998.
Section 8.4. Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when two or more counterparts have been signed by each
of the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
Section 8.5. Entire Agreement; No Third Party Beneficiaries. This Agreement and
all documents and instruments referred to herein (a) constitute the entire
agreement and supersedes all prior agreements and understandings, both written
and oral, among the parties with respect to the subject matter hereof, and (b)
except as provided in Section 5.16 are not intended to confer upon any person
other than the parties hereto any rights or remedies hereunder; provided that
the Confidentiality Agreements shall remain in full force and effect until the
Effective Time. Each party hereto agrees that, except for the representations
and warranties contained in this Agreement, neither N2K nor CDnow, makes any
other representations or warranties, and each hereby disclaims any other
representations and warranties made by itself or any of its officers,
directors, employees, agents, financial and legal advisors or other
representatives, with respect to the execution and delivery of this Agreement
or the transactions contemplated hereby, notwithstanding the delivery or
disclosure to the other or the other's representatives of any documentation or
other information with respect to any one or more of the foregoing.
Section 8.6. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware without regard to any
applicable conflicts of law.
Section 8.7. Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other parties. Subject to the preceding sentence, this Agreement
will be binding upon, inure to the benefit of and be enforceable by the parties
and their respective successors and assigns.
APPENDIX I - AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
I-41
<PAGE>
IN WITNESS WHEREOF, N2K, CDnow and Newco have caused this agreement to be
signed by their respective duly authorized officers as of the date first
written above.
N2K INC.
/s/ Jonathan V. Diamond
By:__________________________________
Name: Jonathan V. Diamond
Title: Vice Chairman and Chief
Executive Officer
CDnow, INC.
/s/ Jason Olim
By:__________________________________
Name: Jason Olim
Title: Chairman and Chief
Executive Officer
EXIT 8 HOLDING COMPANY
/s/ Jonathan V. Diamond
By:__________________________________
Name: Jonathan V. Diamond
Title: Vice President, Treasurer
and Secretary
APPENDIX I - AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
I-42
<PAGE>
APPENDIX II
FORM OF
RESTATED ARTICLES OF INCORPORATION
OF
CDNOW/N2K, INC.
1.The name of the corporation is CDnow/N2K, Inc. (the "Corporation").
2.The name of the Commercial Registered Office Provider is Corporation Service
Company.
3. The Corporation is incorporated under the provisions of the Business
Corporation Law of 1988, as amended.
4.Capital Stock.
The aggregate number of shares which the Corporation shall have authority to
issue is 200,000,000 common shares, no par value (the "Common Shares"), and
50,000,000 preferred shares, no par value (the "Preferred Shares"). The
Corporation's Board of Directors (the "Board of Directors") may authorize the
issuance from time to time of Preferred Shares in one or more classes or
series and with designations, voting rights, preferences, and special rights,
if any, as the Board of Directors may fix by resolution. Without limiting the
foregoing, the Board of Directors is authorized to fix with respect to each
series:
(a) the number of shares which shall constitute the series and
the name of the series;
(b) the rate and times at which, and the preferences and
conditions under which, dividends shall be payable on shares
of the series, and the status of such dividends as cumulative
or non-cumulative and as participating or non-participating;
(c) the prices, times and terms, if any, at or upon which shares
of the series shall be subject to redemption;
(d) the rights, if any, of holders of shares of the series to
convert such shares into, or to exchange such shares for,
shares of any other class of stock of the Corporation;
(e) the rights and preferences, if any, of the holders of shares
of the series upon any liquidation, dissolution or winding up
of the affairs of, or upon any distribution of the assets of,
the Corporation;
(f) the limitations, if any, applicable while such series is
outstanding, on the payment of dividends or making of
distributions on, or the acquisition of, the Common Stock or
any other class of stock which does not rank senior to the
shares of the series; and
(g) the voting rights, if any, to be provided for shares of the
series.
5.Duties and Liabilities of Directors and Officers.
(a)Directors and officers as fiduciaries. A director or officer of the
Corporation shall stand in a fiduciary relation to the Corporation and
shall perform his or her duties as a director or officer, including his
or her duties as a member of any committee of the Board of Directors
upon which he or she may serve, in good faith, in a manner he or she
reasonably believes to be in the best interests of the Corporation, and
with such care, including reasonable inquiry, skill and diligence, as a
person of ordinary prudence would use under similar circumstances. In
performing his or her duties, a director or officer shall be entitled to
rely in good faith on information, opinions, reports or statements,
including financial statements and other financial data, in each case
prepared or presented by: (a) one or more officers or employees of the
Corporation whom the director or officer reasonably believes to be
reliable and competent with respect to the matters presented, (b)
counsel, public accountants or
APPENDIX II - AMENDED AND RESTATED
ARTICLES OF INCORPORATION OF NEWCO
II-1
<PAGE>
other persons as to matters that the director or officer reasonably
believes to be within the professional or expert competence of such
person, or (c) a committee of the Board of Directors upon which the
director or officer does not serve, duly designated in accordance with
law, as to matters within its designated authority, which committee the
director or officer reasonably believes to merit confidence. A director
or officer shall not be considered to be acting in good faith if he or
she has knowledge concerning the matter in question that would cause his
or her reliance to be unwarranted. Absent breach of fiduciary duty, lack
of good faith or self-dealing, actions taken as a director or officer of
the Corporation or any failure to take any action shall be presumed to
be in the best interests of the Corporation.
(b)Personal liability of directors. A director of the Corporation shall
not be personally liable for monetary damages as such (including,
without limitation, any judgment, amount paid in settlement, penalty,
punitive damages or expense of any nature (including, without
limitation, attorneys' fees and disbursements)) for any action taken, or
any failure to take any action, unless the director has breached or
failed to perform the duties of his or her office under these Articles
of Incorporation, the By-laws of the Corporation or applicable
provisions of law and the breach or failure to perform constitutes self-
dealing, willful misconduct or recklessness.
(c)Personal liability of officers. An officer of the Corporation shall
not be personally liable, as such, to the Corporation or its
shareholders for monetary damages (including, without limitation, any
judgment, amount paid in settlement, penalty, punitive damages or
expense of any nature (including, without limitation, attorneys' fees
and disbursements)) for any action taken, or any failure to take any
action, unless the officer has breached or failed to perform the duties
of his or her office under these Articles of Incorporation, the By-laws
of the Corporation or applicable provisions of law and the breach or
failure to perform constitutes self-dealing, willful misconduct or
recklessness.
6. The shareholders of the Corporation shall not have the right to cumulate
their votes for the election of directors of the Corporation.
7. An action may not be authorized by the shareholders without a meeting by
less than unanimous written consent.
8. Subchapters E, G, H, I and J of Section 25 of the Business Corporation
Law of 1988, as amended, shall not be applicable to the Corporation.
9. The Corporation reserves the right, from time to time, to amend, alter or
repeal any provision contained in these Articles of Incorporation in the
manner now or hereafter provided by statute for the amendment of Articles
of Incorporation.
APPENDIX II - AMENDED AND RESTATED
ARTICLES OF INCORPORATION OF NEWCO
II-2
<PAGE>
APPENDIX III
FORM OF
AMENDED AND RESTATED BYLAWS
OF
CDNOW/N2K, INC.
ARTICLE I
Name and Seal
Section 1.01. Name. The name of the corporation is CDnow/N2K, Inc.
Section 1.02. State of Incorporation. The Corporation is incorporated under the
laws of the Commonwealth of Pennsylvania.
Section 1.03. Seal. The corporate seal of the Corporation shall have inscribed
thereon the name of the Corporation, the year of its organization, the words
"Corporate Seal," and the name of the State of Incorporation. The seal may be
used by any person authorized by the Corporation's board of directors (the
"Board of Directors") or by these bylaws by causing the seal or a facsimile
thereof to be impressed or affixed, or in any manner reproduced.
ARTICLE II
Offices and Fiscal Year
Section 2.01. Registered Office. The registered office of the Corporation in
the Commonwealth of Pennsylvania shall be at c/o Corporation Service Company,
319 Market Street, Harrisburg, PA 17101 until otherwise established by an
amendment of the Articles of Incorporation (the "Articles") or by the Board of
Directors and a record of such change is filed with the Pennsylvania Department
of State in the manner provided by law.
Section 2.02. Other Offices. The Corporation may also have offices at such
other places within or without the Commonwealth of Pennsylvania as the Board of
Directors may from time to time appoint or the business of the Corporation may
require.
Section 2.03. Fiscal Year. The fiscal year of the Corporation shall begin on
the first day of January in each year.
ARTICLE III
Notice--Waivers--Meetings Generally
Section 3.01. Manner of Giving Notice.
(a) General Rule. Whenever written notice is required to be given to any person
under the provisions of the Pennsylvania Business Corporation Law of 1988, as
amended (the "BCL"), or by the Articles or these bylaws, it may be given to the
person either personally or by sending a copy thereof by first class or express
mail, postage prepaid, or by telegram (with messenger service specified), telex
or TWX (with answer back received) or courier service, charges prepaid, or by
facsimile transmission, to the address (or to the telex, TWX, facsimile or
telephone number) of the person appearing on the books of the Corporation or,
in the case of directors, supplied by the director to the Corporation for the
purpose of notice. If the notice is sent by mail, telegraph or courier service,
it shall be deemed to have been given to the person entitled thereto when
deposited in the United States mail or with a telegraph office or courier
service for delivery to that person or, in
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the case of telex or TWX, when dispatched or, in the case of facsimile
transmission, when received. A notice of meeting shall specify the place, day
and hour of the meeting and any other information required by any other
provision of the BCL, the Articles or these bylaws.
(b) Bulk Mail. If the Corporation has more than 30 shareholders, notice of any
regular or special meeting of the shareholders, or any other notice required by
the BCL or by the Articles or these bylaws to be given to all shareholders or
to all holders of a class or series of shares, may be given by any class of
postpaid mail if the notice is deposited in the United States mail at least 20
days prior to the day named for the meeting or any corporate or shareholder
action specified in the notice.
(c) Adjourned Shareholder Meetings. When a meeting of shareholders is
adjourned, it shall not be necessary to give any notice of the adjourned
meeting or of the business to be transacted at an adjourned meeting, other than
by announcement at the meeting at which the adjournment is taken, unless the
Board of Directors fixes a new record date for the adjourned meeting in which
event notice shall be given in accordance with Section 3.03.
Section 3.02. Notice of Meetings of Board of Directors. Notice of a regular
meeting of the Board of Directors need not be given. Notice of every special
meeting of the Board of Directors shall be given to each director by telephone
or in writing at least 24 hours (in the case of notice by telephone, telex, TWX
or facsimile transmission) or 48 hours (in the case of notice by telegraph,
courier service or express mail) or five days (in the case of notice by first
class mail) before the time at which the meeting is to be held. Every such
notice shall state the time and place of the meeting. Neither the business to
be transacted at, nor the purpose of, any regular or special meeting of the
Board of Directors need be specified in a notice of the meeting.
Section 3.03. Notice of Meetings of Shareholders.
(a) General Rule. Except as otherwise provided in Section 3.01(b), written
notice of every meeting of the shareholders shall be given by, or at the
direction of, the secretary or other authorized person to each shareholder of
record entitled to vote at the meeting at least (i) ten days prior to the day
named for a meeting (and, in case of a meeting called to consider a merger,
consolidation, share exchange or division, to each shareholder of record not
entitled to vote at the meeting) called to consider a fundamental change under
15 Pa.C.S. Chapter 19 or (ii) five days prior to the day named for the meeting
in any other case. If the secretary neglects or refuses to give notice of a
meeting, the person or persons calling the meeting may do so. In the case of a
special meeting of shareholders, the notice shall specify the general nature of
the business to be transacted.
(b) Notice of Action by Shareholders on Bylaws. In the case of a meeting of
shareholders that has as one of its purposes action on the bylaws, written
notice shall be given to each shareholder that the purpose, or one of the
purposes, of the meeting is to consider the adoption, amendment or repeal of
the bylaws. There shall be included in, or enclosed with, the notice a copy of
the proposed amendment or a summary of the changes to be effected thereby.
(c) Notice of Action by Shareholders on Fundamental Change. In the case of a
meeting of the shareholders that has as one of its purposes action with respect
to any fundamental change under 15 Pa.C.S. Chapter 19, each shareholder shall
be given, together with written notice of the meeting, a copy or summary of the
amendment or plan to be considered at the meeting in compliance with the
provisions of Chapter 19.
(d) Notice of Action by Shareholders Giving Rise to Dissenters Rights. In the
case of a meeting of the shareholders that has as one of its purposes action
that would give rise to dissenters rights under the provisions of 15 Pa.C.S.
Subchapter 15D, each shareholder shall be given, together with written notice
of the meeting:
(1) statement that the shareholders have a right to dissent and obtain
payment of the fair value of their shares by complying with the
provisions of Subchapter 15D (relating to dissenters rights); and
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(2) copy of Subchapter 15D.
Section 3.04. Waiver of Notice.
(a) Written Waiver. Whenever any written notice is required to be given under
the provisions of the BCL, the Articles or these bylaws, a waiver thereof in
writing, signed by the person or persons entitled to the notice, whether before
or after the time stated therein, shall be deemed equivalent to the giving of
the notice. Neither the business to be transacted at, nor the purpose of, a
meeting need be specified in the waiver of notice of the meeting.
(b) Waiver by Attendance. Attendance of a person at any meeting shall
constitute a waiver of notice of the meeting except where a person attends a
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting was not lawfully called
or convened.
Section 3.05. Modification of Proposal Contained in Notice. Whenever the
language of a proposed resolution is included in a written notice of a meeting
required to be given under the provisions of the BCL or the Articles or these
bylaws, the meeting considering the resolution may without further notice adopt
it with such clarifying or other amendments as do not enlarge its original
purpose.
Section 3.06. Exception to Requirement of Notice.
(a) General Rule. Whenever any notice or communication is required to be given
to any person under the provisions of the BCL or by the Articles or these
bylaws or by the terms of any agreement or other instrument or as a condition
precedent to taking any corporate action and communication with that person is
then unlawful, the giving of the notice or communication to that person shall
not be required.
(b) Shareholders Without Forwarding Addresses. Notice or other communications
need not be sent to any shareholder with whom the Corporation has been unable
to communicate for more than 24 consecutive months because communications to
the shareholder are returned unclaimed or the shareholder has otherwise failed
to provide the Corporation with a current address. Whenever the shareholder
provides the Corporation with a current address, the Corporation shall commence
sending notices and other communications to the shareholder in the same manner
as to other shareholders.
Section 3.07. Use of Conference Telephone and Similar Equipment. Any director
may participate in any meeting of the Board of Directors, and the Board of
Directors may provide by resolution with respect to a specific meeting or with
respect to a class of meetings that one or more persons may participate in a
meeting of the shareholders of the Corporation, by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other. Participation in a meeting
pursuant to this section shall constitute presence in person at the meeting.
ARTICLE IV
Shareholders
Section 4.01. Place of Meeting. All meetings of the shareholders of the
Corporation shall be held at such place, within or without the Commonwealth of
Pennsylvania, as shall be determined by the Board of Directors from time to
time.
Section 4.02. Annual Meeting. The Board of Directors may fix and designate the
date and time of the annual meeting of the shareholders, but if no such date
and time is fixed and designated by the Board of Directors, the meeting for any
calendar year shall be held on the third Tuesday in May in such year, if not a
legal holiday under the laws of Pennsylvania, and, if a legal holiday, then on
the next succeeding business day,
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not a Saturday, at 10 o'clock A.M. and at said meeting the shareholders then
entitled to vote shall elect directors and shall transact such other business
as may properly be brought before the meeting. If the annual meeting shall not
have been called and held within six months after the designated time, any
shareholder may call the meeting at any time thereafter.
Section 4.03. Special Meetings. Special meetings of the shareholders may be
called at any time by the Chief Executive Officer or a majority of the board of
directors. At any time, upon the written request of any person or persons who
have duly called a special meeting, which written request shall state the
purpose or purposes of the meeting, it shall be the duty of the secretary to
fix the date of the meeting which shall be held at such date and time as the
secretary may fix, not less than 10 or more than 60 days after the receipt of
the request, and to give due notice thereof. If the secretary shall neglect or
refuse to fix the time and date of such meeting and give notice thereof, the
person or persons calling the meeting may do so.
Section 4.04. Quorum and Adjournment.
(a) General Rule. A meeting of shareholders of the Corporation duly called
shall not be organized for the transaction of business unless a quorum is
present. The presence of shareholders entitled to cast at least a majority of
the votes that all shareholders are entitled to cast on a particular matter to
be acted upon at the meeting shall constitute a quorum for the purposes of
consideration and action on the matter. Shares of the Corporation owned,
directly or indirectly, by it and controlled, directly or indirectly, by the
Board of Directors of this Corporation, as such, shall not be counted in
determining the total number of outstanding shares for quorum purposes at any
given time.
(b) Withdrawal of a Quorum. The shareholders present at a duly organized
meeting can continue to do business until adjournment notwithstanding the
withdrawal of enough shareholders to leave less than a quorum.
(c) Adjournments Generally. Any regular or special meeting of the shareholders,
including one at which directors are to be elected and one which cannot be
organized because a quorum has not attended, may be adjourned for such period
and to such place as the shareholders present and entitled to vote shall
direct.
(d) Electing Directors at Adjourned Meeting. Those shareholders entitled to
vote who attend a meeting called for the election of directors that has been
previously adjourned for lack of a quorum, although less than a quorum as fixed
in this section, shall nevertheless constitute a quorum for the purpose of
electing directors.
(e) Other Action in Absence of Quorum. Those shareholders entitled to vote who
attend a meeting of shareholders that has been previously adjourned for one or
more periods aggregating at least 15 days because of an absence of a quorum,
although less than a quorum as fixed in this section, shall nevertheless
constitute a quorum for the purpose of acting upon any matter set forth in the
notice of the meeting if the notice states that those shareholders who attend
the adjourned meeting shall nevertheless constitute a quorum for the purpose of
acting upon the matter.
Section 4.05. Action by Shareholders. Any action required or permitted to be
taken at a meeting of the shareholders or a class of shareholders of the
Corporation may be taken without a meeting if, prior or subsequent to the
action, a consent or consents thereto by all of the shareholders who would be
entitled to vote at a meeting for such purpose shall be filed with the
secretary of the Corporation.
Section 4.06. Shareholder Proposals. Nominations by shareholders of persons for
election to the board of directors of the Corporation may be made at an annual
meeting in compliance with Section 5.02(b) hereof. The proposal of other
business to be considered by the shareholders at an annual meeting of
shareholders may be made (i) pursuant to the Corporation's notice of meeting,
(ii) by or at the direction of the board of directors, or (iii) by any
shareholder of the Corporation pursuant to timely notice in writing to the
secretary of the Corporation. To be timely, a shareholder's notice shall be
delivered to or mailed and received
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at the principal executive offices of the Corporation not less than 60 days
prior to the meeting; provided, however, that in the event that less than 75
days' notice or prior public disclosure of the date of the meeting is given or
made to shareholders, notice by the shareholder to be timely must be so
received not later than the close of business on the 15th day following the day
on which such notice of the date of the meeting was mailed or such public
disclosure was made. Such shareholder's notice to the secretary shall set forth
(a) as to the shareholder giving notice and the beneficial owner, if any on
whose behalf the proposal is made, (i) their name and record address, and (ii)
the class and number of shares of capital stock of the Corporation which are
beneficially owned by each of them, and (b) a brief description of the business
desired to be brought before the meeting, the reasons for conducting such
business at the meeting and any material interest in such business of such
shareholder giving notice and the beneficial owner, if any, on whose behalf the
proposal is made. Only such business shall be conducted at a special meeting of
shareholders as shall have been brought before the meeting pursuant to the
Corporation's notice of meeting. Only such business shall be conducted at a
meeting of shareholders as shall have been brought before the meeting in
accordance with the procedures set forth in this section. The chairman of the
meeting may, if the facts warrant, determine and declare to the meeting that
any nomination made at the meeting was not made in accordance with the
foregoing procedures and, in such event, the nomination shall be disregarded.
Any decision by the chairman of the meeting shall be conclusive and binding
upon all shareholders of the Corporation for any purpose.
Section 4.07. Organization. At every meeting of the shareholders, the chairman
of the Board of Directors, if there be one, or, in the case of vacancy in
office or absence of the chairman of the Board of Directors, one of the
following persons present in the order stated: the vice chairman of the Board
of Directors, if there be one, the chief executive officer, the president, the
vice presidents in their order of rank and seniority, or a person chosen by
vote of the shareholders present, shall act as chairman of the meeting. The
secretary or, in the absence of the secretary, an assistant secretary, or, in
the absence of both the secretary and assistant secretaries, a person appointed
by the chairman of the meeting, shall act as secretary of the meeting.
Section 4.07. Voting Rights of Shareholders. Unless otherwise provided in the
Articles, every shareholder of the Corporation shall be entitled to one vote
for each full share having voting power standing in the name of the shareholder
on the books of the Corporation.
Section 4.08. Voting and Other Action by Proxy.
(a) General Rule.
(1) every shareholder entitled to vote at a meeting of shareholders may
authorize another person to act for the shareholder by proxy.
(2) The presence of, or vote or other action at a meeting of
shareholders by a proxy of a shareholder shall constitute the presence
of, or vote or action by the shareholder.
(3) Where two or more proxies of a shareholder are present, the
Corporation shall, unless otherwise expressly provided in the proxy,
accept as the vote of all shares represented thereby the vote cast by a
majority of them and, if a majority of the proxies cannot agree whether
the shares represented shall be voted or upon the manner of voting the
shares, the voting of the shares shall be divided equally among those
persons.
(b) Execution and Filing. Every proxy shall be executed in writing by the
shareholder or by the duly authorized attorney-in-fact of the shareholder and
filed with the secretary of the Corporation. A telegram, telex, cablegram,
datagram or similar transmission from a shareholder or attorney-in-fact, or a
photographic, facsimile or similar reproduction of a writing executed by a
shareholder or attorney-in-fact:
(1) may be treated as properly executed for purposes of this subsection;
and
(2) shall be so treated if it sets forth a confidential and unique
identification number or other mark furnished by the Corporation to the
shareholder for the purposes of a particular meeting or transaction.
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(c) Revocation. A proxy, unless coupled with an interest, shall be revocable at
will, notwithstanding any other agreement or any provision in the proxy to the
contrary, but the revocation of a proxy shall not be effective until written
notice thereof has been given to the secretary of the Corporation. An unrevoked
proxy shall not be valid after three years from the date of its execution
unless a longer time is expressly provided therein. A proxy shall not be
revoked by the death or incapacity of the maker unless, before the vote is
counted or the authority is exercised, written notice of the death or
incapacity is given to the secretary of the Corporation.
(d) Expenses. The Corporation shall pay the reasonable expenses of solicitation
of votes, proxies or consents of shareholders by or on behalf of the Board of
Directors or its nominees for election to the Board of Directors, including
solicitation by professional proxy solicitors and otherwise.
Section 4.09. Voting by Fiduciaries and Pledgees. Shares of the Corporation
standing in the name of a trustee or other fiduciary and shares held by an
assignee for the benefit of creditors or by a receiver may be voted by the
trustee, fiduciary, assignee or receiver. A shareholder whose shares are
pledged shall be entitled to vote the shares until the shares have been
transferred into the name of the pledgee, or a nominee of the pledgee, but
nothing in this section shall affect the validity of a proxy given to a pledgee
or nominee.
Section 4.10. Voting by Joint Holders of Shares.
(a) General Rule. Where shares of the Corporation are held jointly or as
tenants in common by two or more persons, as fiduciaries or otherwise:
(1) if only one or more of such persons is present in person or by proxy,
all of the shares standing in the names of such persons shall be deemed to
be represented for the purpose of determining a quorum and the Corporation
shall accept as the vote of all the shares the vote cast by a joint owner
or a majority of them; and
(2) if the persons are equally divided upon whether the shares held by them
shall be voted or upon the manner of voting the shares, the voting of the
shares shall be divided equally among the persons without prejudice to the
rights of the joint owners or the beneficial owners thereof among
themselves.
(b) Exception. If there has been filed with the secretary of the Corporation a
copy, certified by an attorney at law to be correct, of the relevant portions
of the agreement under which the shares are held or the instrument by which the
trust or estate was created or the order of court appointing them or of an
order of court directing the voting of the shares, the persons specified as
having such voting power in the document latest in date of operative effect so
filed, and only those persons, shall be entitled to vote the shares but only in
accordance therewith.
Section 4.11. Voting by Corporations.
(a) Voting by Corporate Shareholders. Any Corporation that is a shareholder of
this Corporation may vote at meetings of shareholders of this Corporation by
any of its officers or agents, or by proxy appointed by any officer or agent,
unless some other person, by resolution of the Board of Directors of the other
Corporation or a provision of its Articles or bylaws, a copy of which
resolution or provision certified to be correct by one of its officers has been
filed with the secretary of this Corporation, is appointed its general or
special proxy in which case that person shall be entitled to vote the shares.
(b) Controlled Shares. Shares of this Corporation owned, directly or
indirectly, by it and controlled, directly or indirectly, by the Board of
Directors of this Corporation, as such, shall not be voted at any meeting and
shall not be counted in determining the total number of outstanding shares for
voting purposes at any given time.
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Section 4.12. Determination of Shareholders of Record.
(a) Fixing Record Date. The Board of Directors may fix a time prior to the date
of any meeting of shareholders as a record date for the determination of the
shareholders entitled to notice of, or to vote at, the meeting, which time,
except in the case of an adjourned meeting, shall be not more than 90 days
prior to the date of the meeting of shareholders. Only shareholders of record
on the date fixed shall be so entitled notwithstanding any transfer of shares
on the books of the Corporation after any record date fixed as provided in this
subsection. The Board of Directors may similarly fix a record date for the
determination of shareholders of record for any other purpose. When a
determination of shareholders of record has been made as provided in this
section for purposes of a meeting, the determination shall apply to any
adjournment thereof unless the Board of Directors fixes a new record date for
the adjourned meeting.
(b) Determination When a Record Date is Not Fixed. If a record date is not
fixed:
(1) The record date for determining shareholders entitled to notice of or
to vote at a meeting of shareholders shall be at the close of business on
the day next preceding the day on which notice is given.
(2) The record date for determining shareholders for any other purpose
shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
(c) Certification by Nominee. The Board of Directors may adopt a procedure
whereby a shareholder of the Corporation may certify in writing to the
Corporation that all or a portion of the shares registered in the name of the
shareholder are held for the account of a specified person or persons. Upon
receipt by the Corporation of a certification complying with the procedure, the
persons specified in the certification shall be deemed, for the purposes set
forth in the certification, to be the holders of record of the number of shares
specified in place of the shareholder making the certification.
Section 4.13. Voting Lists.
(a) General Rule. The officer or agent having charge of the transfer books for
shares of the Corporation shall make a complete list of the shareholders
entitled to vote at any meeting of shareholders, arranged in alphabetical
order, with the address of and the number of shares held by each. The list
shall be produced and kept open at the time and place of the meeting and shall
be subject to the inspection of any shareholder during the whole time of the
meeting for the purposes thereof except that, if the Corporation has 5,000 or
more shareholders, in lieu of the making of the list the Corporation may make
the information therein available at the meeting by any other means.
(b) Effect of List. Failure to comply with the requirements of this section
shall not affect the validity of any action taken at a meeting prior to a
demand at the meeting by any shareholder entitled to vote thereat to examine
the list. The original share register or transfer book, or a duplicate thereof
kept in the Commonwealth of Pennsylvania, shall be prima facie evidence as to
who are the shareholders entitled to examine the list or share register or
transfer book or to vote at any meeting of shareholders.
Section 4.14. Judges of Election.
(a) Appointment. In advance of any meeting of shareholders of the Corporation,
the Board of Directors may appoint judges of election, who need not be
shareholders, to act at the meeting or any adjournment thereof. If judges of
election are not so appointed, the presiding officer of the meeting may, and on
the request of any shareholder shall, appoint judges of election at the
meeting. The number of judges shall be one or three. A person who is a
candidate for an office to be filled at the meeting shall not act as a judge.
(b) Vacancies. In case any person appointed as a judge fails to appear or fails
or refuses to act, the vacancy may be filled by appointment made by the Board
of Directors in advance of the convening of the meeting or at the meeting by
the presiding officer thereof.
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(c) Duties. The judges of election shall determine the number of shares
outstanding and the voting power of each, the shares represented at the
meeting, the existence of a quorum, and the authenticity, validity and effect
of proxies, receive votes or ballots, hear and determine all challenges and
questions in any way arising in connection with nominations by shareholders or
the right to vote, count and tabulate all votes, determine the result and do
such acts as may be proper to conduct the election or vote with fairness to all
shareholders. The judges of election shall perform their duties impartially, in
good faith, to the best of their ability and as expeditiously as is practical.
If there are three judges of election, the decision, act or certificate of a
majority shall be effective in all respects as the decision, act or certificate
of all.
(d) Report. On request of the presiding officer of the meeting or of any
shareholder, the judges shall make a report in writing of any challenge or
question or matter determined by them, and execute a certificate of any fact
found by them. Any report or certificate made by them shall be prima facie
evidence of the facts stated therein.
Section 4.15. Minors as Security Holders. The Corporation may treat a minor who
holds shares or obligations of the Corporation as having capacity to receive
and to empower others to receive dividends, interest, principal and other
payments or distributions, to vote or express consent or dissent and to make
elections and exercise rights relating to such shares or obligations unless, in
the case of payments or distributions on shares, the corporate officer
responsible for maintaining the list of shareholders or the transfer agent of
the Corporation or, in the case of payments or distributions on obligations,
the treasurer or paying officer or agent has received written notice that the
holder is a minor.
ARTICLE V
Board of Directors
Section 5.01. Powers.
(a) General Rule. Unless otherwise provided by statute, all powers vested by
law in the Corporation shall be exercised by or under the authority of, and the
business and affairs of the Corporation shall be managed under the direction
of, the Board of Directors.
(b) Notation of Dissent. A director of the Corporation who is present at a
meeting of the Board of Directors, or of a committee of the Board of Directors,
at which action on any corporate matter is taken on which the director is
generally competent to act, shall be presumed to have assented to the action
taken unless his or her dissent is entered in the minutes of the meeting or
unless the director files his or her written dissent to the action with the
secretary of the meeting before the adjournment thereof or transmits the
dissent in writing to the secretary of the Corporation immediately after the
adjournment of the meeting. The right to dissent shall not apply to a director
who voted in favor of the action. Nothing in this section shall bar a director
from asserting that minutes of the meeting incorrectly omitted his or her
dissent if, promptly upon receipt of a copy of such minutes, the director
notifies the secretary, in writing, of the asserted omission or inaccuracy.
Section 5.02. Qualifications, Nomination and Election of Directors.
(a) Qualifications. Each director of the Corporation shall be a natural person
of full age who need not be a resident of the Commonwealth of Pennsylvania or a
shareholder of the Corporation.
(b) Nomination. Nominations of persons for election to the board of directors
of the corporation may be made at a meeting of shareholders by or at the
direction of the board of directors, which shall, until December 31, 2001,
follow the method for the selection of directors set forth in Section 5.13 of
the Bylaws. Nominations of persons for election to the board of directors of
the Corporation may also be made by any shareholder of the Corporation entitled
to vote for the election of directors at the meeting who complies with the
notice procedures set forth in this Section 5.02 (b). Such nominations, other
than those made by or at the direction of the board, shall be made pursuant to
timely notice in writing to the secretary of the Corporation. To
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be timely, a shareholder's notice shall be delivered to or mailed and received
at the principal executive offices of the Corporation not less than 60 days
prior to the meeting; provided, however, that in the event that less than 75
days' notice or prior public disclosure of the date of the meeting is given or
made to shareholders, notice by the shareholder to be timely must be so
received not later than the close of business on the 15th day following the day
on which such notice of the date of the meeting was mailed or such public
disclosure was made. Such shareholder's notice to the secretary shall set forth
(a) as to each person whom the shareholder proposes to nominate for election or
re-election as a director, (i) the name, age, business address and residence
address of the person, (ii) the principal occupation or employment of the
person, (iii) the class and number of shares of capital stock of the
Corporation which are beneficially owned by the person, and (iv) any other
information relating to the person that is required to be disclosed in
solicitations for proxies for election of directors pursuant to the rules and
regulations promulgated under the Securities Exchange Act of 1934, as amended;
and (b) as to the shareholder giving the notice (i) the name and record address
of the shareholder and (ii) the class and number of shares of capital stock of
the Corporation which are beneficially owned by the shareholder. The
Corporation may require any proposed nominee to furnish such other information
as may reasonably be required by the Corporation to determine the eligibility
of such proposed nominee to serve as a director of the Corporation. No person
shall be eligible for election as a director by the shareholders of the
Corporation unless nominated in accordance with the procedures set forth
herein. The chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that any nomination made at the meeting was not made in
accordance with the foregoing procedures and, in such event, the nomination
shall be disregarded. Any decision by the chairman of the meeting shall be
conclusive and binding upon all shareholders of the Corporation for any
purpose.
(b) Election of Directors. In elections for directors, voting need not be by
ballot, unless required by vote of the shareholders before the voting for the
election of directors begins. The nominees receiving the highest number of
votes shall be elected to the Board of Directors.
Section 5.03. Number and Term of Office.
(a) Number. Subject to the provisions of Section 5.13 of these Bylaws, the
board of directors and any class of the board of directors shall consist of
such number of directors as may be determined from time to time by resolution
adopted by a vote of a majority of the entire board of directors.
(b) Term of Office. The directors shall be divided into three classes, each of
which shall serve for a three year term. The Class I directors shall hold
office initially for a term expiring at the 1999 annual meeting of
shareholders, the Class II directors shall hold office initially for a term
expiring at the 2000 annual meeting of shareholders and the Class III directors
shall hold office initially for a term expiring at the 2001 annual meeting of
shareholders. At each annual meeting of shareholders, the successors to the
class of directors whose term expires at that meeting shall be elected to hold
office for a term expiring at the annual meeting of shareholders held in the
third year following the year of their election and until their successors have
been duly elected and qualified, unless sooner removed as provided in Section
5.05. Each class of directors shall be as nearly equal in number as possible.
(c) Resignation. Any director may resign at any time upon written notice to the
Corporation. The resignation shall be effective upon receipt thereof by the
Corporation or at such subsequent time as shall be specified in the notice of
resignation and, unless otherwise specified in the notice, the acceptance of
the resignation shall not be necessary to make it effective.
Section 5.04. Vacancies
(a) Subject to the provisions of Section 5.13 hereto, vacancies and newly
created directorships resulting from any increase in the authorized number of
directors may be filled by a majority of the directors then in office, though
less than a quorum, or by a sole remaining director, and a director so chosen
shall hold office until the next annual election of any class of directors and
until a successor is duly elected and qualified. If there are no directors in
office, then an election of directors may be held in the manner provided by
statute.
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(b) Subject to the provisions of Section 5.13 hereto, whenever the holders of
any class or classes of stock or series thereof are entitled to elect one or
more directors by the provisions of the Articles, vacancies and newly created
directorships of such class or classes or series may be filled by a majority of
the directors elected by such class or classes or series thereof then in
office, or by a sole remaining director so elected.
Section 5.05. Removal of Directors.
(a) Removal by the Shareholders. Subject to the provisions of Section 5.13
hereto, the entire Board of Directors, an entire class of the Board of
Directors or any individual director may be removed from office only for cause
by vote of a majority of the shareholders entitled to vote thereon. In case the
Board of Directors, an entire class of the Board of Directors or any one or
more directors are so removed, new directors may be elected at the same
meeting. The repeal of a provision of the Articles or bylaws prohibiting, or
the addition of a provision to the Articles or bylaws permitting, the removal
by the shareholders of the Board of Directors or any individual director
without assigning any cause shall not apply to any incumbent director during
the balance of the term for which the director was selected.
(b) Removal by the Board of Directors. The Board of Directors may declare
vacant the office of a director who has been judicially declared of unsound
mind or who has been convicted of an offense punishable by imprisonment for a
term of more than one year or if, within 60 days after notice of his or her
selection, the director does not accept the office either in writing or by
attending a meeting of the Board of Directors.
Section 5.06. Place of Meetings. Meetings of the Board of Directors may be held
at such place within or without the Commonwealth of Pennsylvania as the Board
of Directors may from time to time appoint or as may be designated in the
notice of the meeting.
Section 5.07. Organization of Meetings. At every meeting of the Board of
Directors, the chairman of the Board of Directors, if there be one, or, in the
case of a vacancy in the office or absence of the chairman of the Board of
Directors, one of the following officers present in the order stated: the vice
chairman of the Board of Directors, if there be one, the chief executive
officer, the president, the vice presidents in their order of rank and
seniority, or a person chosen by a majority of the directors present, shall act
as chairman of the meeting. The secretary or, in the absence of the secretary,
an assistant secretary, or, in the absence of the secretary and the assistant
secretaries, any person appointed by the chairman of the meeting, shall act as
secretary of the meeting.
Section 5.08. Regular Meetings. Regular meetings of the Board of Directors
shall be held at such time and place as shall be designated from time to time
by resolution of the Board of Directors.
Section 5.09. Special Meetings. Special meetings of the Board of Directors
shall be held whenever called by the chief executive officer or by a majority
of the directors.
Section 5.10. Quorum of and Action by Directors.
(a) General Rule. A majority of the board of directors of the Corporation shall
be necessary to constitute a quorum for the transaction of business and the
acts of a majority of the directors present and voting at a meeting at which a
quorum is present shall be the acts of the Board of Directors.
(b) Action by Unanimous Written Consent. Any action required or permitted to be
taken at a meeting of the directors may be taken without a meeting if, prior or
subsequent to the action, a consent or consents thereto by all of the directors
in office is filed with the secretary of the Corporation.
Section 5.11. Executive and Other Committees.
(a) Establishment and Powers. Subject to Section 5.13 the Board of Directors
may, by resolution adopted by a majority of the directors in office, establish
one or more committees to consist of one
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or more directors of the Corporation. Any committee, to the extent provided in
the resolution of the Board of Directors, shall have and may exercise all of
the powers and authority of the Board of Directors except that a committee
shall not have any power or authority as to the following:
(1) The submission to shareholders of any action requiring approval of
shareholders under the BCL.
(2) The creation or filling of vacancies in the Board of Directors.
(3) The adoption, amendment or repeal of these bylaws.
(4) The amendment or repeal of any resolution of the Board of Directors
that by its terms is amendable or repealable only by the Board of
Directors.
(5) Action on matters committed by a resolution of the Board of Directors
to another committee of the Board of Directors.
(b) Alternate Committee Members. The Board of Directors may designate one or
more directors as alternate members of any committee who may replace any absent
or disqualified member at any meeting of the committee or for the purposes of
any written action by the committee. In the absence or disqualification of a
member and alternate member or members of a committee, the member or members
thereof present at any meeting and not disqualified from voting, whether or not
constituting a quorum, may unanimously appoint another director to act at the
meeting in the place of the absent or disqualified member.
(c) Term. Each committee of the Board of Directors shall serve at the pleasure
of the Board of Directors.
(d) Committee Procedures. The term "Board of Directors," when used in any
provision of these bylaws relating to the organization or procedures of or the
manner of taking action by the Board of Directors, shall be construed to
include and refer to any executive or other committee of the Board of
Directors.
(e) Members of the Committees. Until their successors are duly elected or
appointed and qualified, the members of the Executive, Audit, Compensation and
Nomination Committees of the Board of Directors shall be as set forth on
Schedule 5.21(e) of the Agreement and Plan of Merger dated as of October 22,
1998 among N2K Inc., CDnow, Inc. and the Corporation.
Section 5.12. Compensation. The Board of Directors shall have the authority to
fix the compensation of directors for their services as directors and a
director may be a salaried officer of the Corporation.
Section 5.13. Representation on Board of Directors. Until December 31, 2001 the
total number of persons serving on the board of directors shall be nine, of
whom four shall be CDnow Directors (as defined below) and three shall be N2K
Directors (as defined below). Initially, two persons serving on the board of
directors shall be Independent Directors (as defined below) jointly selected by
the CDnow Directors and the N2K Directors. Until December 31, 2001, Class I
shall contain one CDnow Director, one N2K Director and one Independent
Director; Class II shall contain one CDnow Director, one N2K Director and one
Independent Director and; Class III shall contain two CDnow Directors and one
N2K Director. If, at any time during the period referred to in the immediately
preceding sentence, the number of CDnow Directors and N2K Directors serving, or
that would be serving following the next shareholders' meeting at which
directors are to be elected as directors, would not be equal to four in the
case CDnow Directors and three in the case of N2K Directors, then, subject to
the fiduciary duties of the directors, the board of directors and any
nominating committee thereof shall nominate for election at the next
shareholders' meeting at which directors are to be elected, such person or
persons as may be requested by the remaining CDnow Directors (if the number of
CDnow Directors is, or would otherwise become, less than four) or by the
remaining N2K Directors (if the number of N2K Directors is, or would otherwise
become, less than three) to ensure that there shall be four CDnow Directors
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and three N2K Directors. The term "CDnow Director" means (i) any person serving
as a director of CDnow, Inc., a Pennsylvania corporation ("CDnow"), on October
22, 1998 who becomes a director of the Corporation and (ii) any person who
becomes a director pursuant to the second preceding sentence and who is
designated by the CDnow Directors; the term "N2K Director" means (i) any person
serving as a Director of N2K Inc., a Delaware corporation ("N2K"), on October
22, 1998 who becomes a director of the Corporation and (ii) any person who
becomes a director pursuant to the second preceding sentence and who is
designated by the N2K Directors; and the term "Independent Director" means a
person who becomes a Director of the Corporation who did not have on October
22, 1998 or on the date such person is elected as a Director of the
Corporation, and has not had within the three year period prior to the date of
his election, any material employment, business affiliation or association, or
immediate family relationship with either CDnow or N2K, or any person or entity
controlling, controlled by or under common control with either N2K or CDnow.
Any amendment to or modification of this Section 5.13 or of any provision of
these Bylaws which refers to this Section 5.13 shall require an 80% vote of the
entire board of directors.
ARTICLE VI
Officers
Section 6.01. Officers Generally.
(a) Number, Qualifications and Designation. The officers of the Corporation
shall be a chief executive officer and/or a president, one or more vice
presidents, a secretary, a treasurer, and such other officers as may be elected
in accordance with the provisions of Section 6.03. Officers may but need not be
directors or shareholders of the Corporation. The president and secretary shall
be natural persons of full age. The treasurer may be a Corporation, but if a
natural person shall be of full age. The Board of Directors may elect from
among the members of the Board of Directors a chairman of the Board of
Directors and a vice chairman of the Board of Directors who shall be officers
of the Corporation. Any number of offices may be held by the same person.
(b) Bonding. The Corporation may secure the fidelity of any or all of its
officers by bond or otherwise.
Section 6.02. Election, Term of Office and Resignations.
(a) Election and Term of Office. The officers of the Corporation, except those
elected by delegated authority pursuant to Section 6.03, shall be elected
annually by the Board of Directors, and each such officer shall hold office for
a term of one year and until a successor has been selected and qualified or
until his or her earlier death, resignation or removal.
(b) Resignations. Any officer may resign at any time upon written notice to the
Corporation. The resignation shall be effective upon receipt thereof by the
Corporation or at such subsequent time as may be specified in the notice of
resignation.
Section 6.03. Subordinate Officers, Committees and Agents. The Board of
Directors may from time to time elect such other officers and appoint such
committees, employees or other agents as the business of the Corporation may
require, including one or more assistant secretaries, and one or more assistant
treasurers, each of whom shall hold office for such period, have such
authority, and perform such duties as are provided in these bylaws, or as the
Board of Directors may from time to time determine. The Board of Directors may
delegate to any officer or committee the power to elect subordinate officers
and to retain or appoint employees or other agents, or committees thereof, and
to prescribe the authority and duties of such subordinate officers, committees,
employees or other agents.
Section 6.04. Removal of Officers and Agents. Any officer or agent of the
Corporation may be removed by the Board of Directors with or without cause. The
removal shall be without prejudice to the
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contract rights, if any, of any person so removed. Election or appointment of
an officer or agent shall not of itself create contract rights.
Section 6.05. Vacancies. A vacancy in any office because of death, resignation,
removal, disqualification, or any other cause, may be filled by the Board of
Directors or by the officer or committee to which the power to fill such office
has been delegated pursuant to Section 6.03, as the case may be, and if the
office is one for which these bylaws prescribe a term, shall be filled for the
unexpired portion of the term.
Section 6.06. Authority. All officers of the Corporation, as between themselves
and the Corporation, shall have such authority and perform such duties in the
management of the Corporation as may be provided by or pursuant to resolutions
or orders of the Board of Directors or, in the absence of controlling
provisions in the resolutions or orders of the Board of Directors, as may be
determined by or pursuant to these bylaws.
Section 6.07. The Chairman and Vice Chairman of the Board of Directors. The
chairman of the Board of Directors or in the absence of the chairman, the vice
chairman of the Board of Directors, if there is one, or in the absence of the
chairman and the vice chairman (if any) the chief executive officer shall
preside at all meetings of the shareholders and of the Board of Directors, and
shall perform such other duties as may from time to time be requested by the
Board of Directors.
Section 6.08. The Chief Executive Officer. The chief executive officer shall be
the chief executive officer of the Corporation and shall have general
supervision over the business and operations of the Corporation, subject
however, to the control of the Board of Directors. The chief executive officer
shall sign, execute, and acknowledge, in the name of the Corporation, deeds,
mortgages, bonds, contracts or other instruments, authorized by the Board of
Directors, except in cases where the signing and execution thereof shall be
expressly delegated by the Board of Directors, or by these bylaws, to some
other officer or agent of the Corporation; and, in general, shall perform all
duties incident to the office of president and such other duties as from time
to time may be assigned by the Board of Directors. The chief executive officer
shall from time to time make such reports of the affairs of the Corporation
(including, without limitation, capital and operating budgets of the
Corporation not less than annually) as the Board of Directors may require and
shall annually present to the annual meeting of the shareholders a report of
the business of the Corporation for the preceding fiscal year.
Section 6.09. The President. The president, if a person other than the chief
executive officer, shall perform the duties of the chief executive officer in
the absence of such officer and such other duties as may from time to time be
assigned to the president by the Board of Directors or the chief executive
officer.
Section 6.10. The Vice Presidents. The vice presidents shall perform the duties
of the president in the absence of the president and such other duties as may
from time to time be assigned to them by the Board of Directors, the chief
executive officer or the president and if there is more than one vice
president, their seniority in performing such duties and exercising such powers
shall be determined by the order in which they were first elected or appointed,
or as determined by the Board of Directors.
Section 6.11. The Secretary. The secretary or an assistant secretary shall
attend all meetings of the shareholders and of the Board of Directors and all
committees thereof and shall record all the votes of the shareholders and of
the directors and the minutes of the meetings of the shareholders and of the
Board of Directors and of committees of the Board of Directors in a book or
books to be kept for that purpose; shall see that notices are given and records
and reports properly kept and filed by the Corporation as required by law;
shall be the custodian of the seal of the Corporation and see that it is
affixed to all documents to be executed on behalf of the Corporation under its
seal; and, in general, shall perform all duties incident to the office of
secretary, and such other duties as may from time to time be assigned by the
Board of Directors, the chief executive officer or the president.
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Section 6.12. The Treasurer. The treasurer shall be the chief financial officer
and shall have or provide for the custody of the funds or other property of the
Corporation; shall collect and receive or provide for the collection and
receipt of moneys earned by or in any manner due to or received by the
Corporation; shall deposit all funds in his or her custody as treasurer in such
banks or other places of deposit as the Board of Directors may from time to
time designate; shall, whenever so required by the Board of Directors, render
an account showing all transactions as treasurer, and the financial condition
of the Corporation; and, in general, shall discharge such other duties as may
from time to time be assigned by the Board of Directors, the chief executive
officer or the president.
Section 6.13. Salaries. The salaries of the officers elected by the Board of
Directors shall be fixed from time to time by the Board of Directors or by such
officer as may be designated by resolution of the Board of Directors. The
salaries or other compensation of any other officers, employees and other
agents shall be fixed from time to time by the Board of Directors, or by the
officer or committee to which the power to elect such officers or to retain or
appoint such employees or other agents has been delegated pursuant to Section
6.03. No officer shall be prevented from receiving such salary or other
compensation by reason of the fact that the officer is also a director of the
Corporation.
Section 6.14. Employment Agreements.
(a) Except as to the election to positions specifically provided for in the
employment agreements between the Corporation and Jason Olim and the
Corporation and Jonathan Diamond (each an "Employment Agreement," and
collectively, the "Employment Agreements"), which are expressly contemplated by
Section 5.21 of the Agreement and Plan of Merger dated as of October 22, 1998
by and among the Corporation, CDnow and N2K, and until December 31, 2001, (i)
the election of any other person to such positions, or (ii) the removal or
replacement of Mr. Olim and Mr. Diamond from one or more of those positions,
shall require an 80% vote of the entire board of directors. Thereafter, such
vote as is provided by Section 5.10 of these Bylaws shall be required.
(b) Any amendment to or modification of any of the Employment Agreements or of
this Section 6.14 shall require an 80% vote of the entire board of directors.
ARTICLE VII
Certificates of Stock, Transfer, Etc.
Section 7.01. Share Certificates.
(a) Form of Certificates. Certificates for shares of the Corporation shall be
in such form as approved by the Board of Directors, and shall state that the
Corporation is incorporated under the laws of the Commonwealth of Pennsylvania,
the name of the person to whom issued, and the number and class of shares and
the designation of the series (if any) that the certificate represents. If the
Corporation is authorized to issue shares of more than one class or series,
certificates for shares of the Corporation shall set forth upon the face or
back of the certificate (or shall state on the face or back of the certificate
that the Corporation will furnish to any shareholder upon request and without
charge), a full or summary statement of the designations, voting rights,
preferences, limitations and special rights, if any, of the shares of each
class or series authorized to be issued so far as they have been fixed and
determined and the authority of the Board of Directors to fix and determine the
designations, voting rights, preferences, limitations and special rights of the
classes and series of shares of the Corporation.
(b) Share Register. The share register or transfer books and blank share
certificates shall be kept by the secretary or by any transfer agent or
registrar designated by the Board of Directors for that purpose.
Section 7.02. Issuance. The share certificates of the Corporation shall be
numbered and registered in the share register or transfer books of the
Corporation as they are issued. They shall be executed in such
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manner as the Board of Directors shall determine. In case any officer, transfer
agent or registrar who has signed or authenticated, or whose facsimile
signature or authentication has been placed upon, any share certificate shall
have ceased to be such officer, transfer agent or registrar because of death,
resignation or otherwise, before the certificate is issued, the certificate may
be issued with the same effect as if the officer, transfer agent or registrar
had not ceased to be such at the date of its issue. The provisions of this
Section 7.02 shall be subject to any inconsistent or contrary agreement in
effect at the time between the Corporation and any transfer agent or registrar.
Section 7.03. Transfer. Transfers of shares shall be made on the share register
or transfer books of the Corporation upon surrender of the certificate
therefor, endorsed by the person named in the certificate or by an attorney
lawfully constituted in writing. No transfer shall be made inconsistent with
the provisions of the Uniform Commercial Code, 13 Pa.C.S. (S)(S) 8101 et seq.,
and its amendments and supplements.
Section 7.04. Record Holder of Shares. The Corporation shall be entitled to
treat the person in whose name any share or shares of the Corporation stand on
the books of the Corporation as the absolute owner thereof, and shall not be
bound to recognize any equitable or other claim to, or interest in, such share
or shares on the part of any other person.
Section 7.05. Lost, Destroyed or Mutilated Certificates. The holder of any
shares of the Corporation shall immediately notify the Corporation of any loss,
destruction or mutilation of the certificate therefor, and the Board of
Directors may, in its discretion, cause a new certificate or certificates to be
issued to such holder, in case of mutilation of the certificate, upon the
surrender of the mutilated certificate or, in case of loss or destruction of
the certificate, upon satisfactory proof of such loss or destruction and, if
the Board of Directors shall so determine, the deposit of a bond in such form
and in such sum, and with such surety or sureties, as it may direct.
Section 7.06. Agreements Restricting Transfer of Shares. The Board of
Directors may authorize the Corporation to become party to agreements with
shareholders and others relating to transfer, repurchase and issuance of shares
of stock of the Corporation; provided, however, that such agreement must be
filed with the Corporation and all share certificates affected thereby shall
have clearly imprinted thereon a legend containing such agreement or referring
thereto.
ARTICLE VIII
Indemnification of Directors, Officers and
Other Authorized Representatives
Section 8.01. Scope of Indemnification.
(a) General Rule. The Corporation shall indemnify an indemnified representative
against any liability incurred in connection with any proceeding in which the
indemnified representative may be involved as a party or otherwise by reason of
the fact that such person is or was serving in an indemnified capacity,
including, without limitation, liabilities resulting from any actual or alleged
breach or neglect of duty, error, misstatement or misleading statement,
negligence, gross negligence or act giving rise to strict or products
liability, except:
(1) where such indemnification is expressly prohibited by applicable
law;
(2) where the conduct of the indemnified representative has been finally
determined pursuant to Section 8.06 or otherwise:
(i) to constitute willful misconduct or recklessness within the
meaning of 15 Pa.C.S. (S) 1746(b) or any superseding provision of
law sufficient in the circumstances to bar indemnification against
liabilities arising from the conduct; or
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(ii) to be based upon or attributable to the receipt by the
indemnified representative from the Corporation of a personal
benefit to which the indemnified representative is not legally
entitled; or
(3) to the extent such indemnification has been finally determined in a
final adjudication pursuant to Section 8.06 to be otherwise unlawful.
(b) Partial Payment. If an indemnified representative is entitled to
indemnification in respect of a portion, but not all, of any liabilities to
which such person may be subject, the Corporation shall indemnify such
indemnified representative to the maximum extent for such portion of the
liabilities.
(c) Presumption. The termination of a proceeding by judgment, order, settlement
or conviction or upon a plea of nolo contendere or its equivalent shall not of
itself create a presumption that the indemnified representative is not entitled
to indemnification.
(d) Definitions. For purposes of this Article VIII:
(1) "indemnified capacity" means any and all past, present and future
service by an indemnified representative in one or more capacities as a
director, officer, employee or agent of the Corporation, or, at the
request of the Corporation, as a director, officer, employee, agent,
fiduciary or trustee of another Corporation, partnership, joint venture,
trust, employee benefit plan or other entity or enterprise;
(2) "indemnified representative" means any and all directors and
officers of the Corporation and any other person designated as an
indemnified representative by the Board of Directors of the Corporation
(which may, but need not, include any person serving at the request of
the Corporation, as a director, officer, employee, agent, fiduciary or
trustee of another Corporation, partnership, joint venture, trust,
employee benefit plan or other entity or enterprise);
(3) "liability" means any damage, judgment, amount paid in settlement,
fine, penalty, punitive damages, excise tax assessed with respect to an
employee benefit plan, or cost or expense of any nature (including,
without limitation, attorneys' fees and disbursements); and
(4) "proceeding" means any threatened, pending or completed action,
suit, appeal or other proceeding of any nature, whether civil, criminal,
administrative or investigative, whether formal or informal, and whether
brought by or in the right of the Corporation, a class of its security
holders or otherwise.
Section 8.02. Proceedings Initiated by Indemnified
Representatives. Notwithstanding any other provision of this Article VIII, the
Corporation shall not indemnify under this Article VIII an indemnified
representative for any liability incurred in a proceeding initiated (which
shall not be deemed to include counter claims or affirmative defenses) or
participated in as an intervenor or amicus curiae by the person seeking
indemnification unless such initiation of or participation in the proceeding is
authorized, either before or after its commencement, by the affirmative vote of
a majority of the directors in office. This section does not apply to
reimbursement of expenses incurred in successfully prosecuting or defending an
arbitration under Section 8.06 or otherwise successfully prosecuting or
defending the rights of an indemnified representative granted by or pursuant to
this Article VIII.
Section 8.03. Advancing Expenses. The Corporation shall pay the expenses
(including attorneys' fees and disbursements) incurred in good faith by an
indemnified representative in advance of the final disposition of a proceeding
described in Section 8.01 or the initiation of or participation in which is
authorized pursuant to Section 8.02 upon receipt of an undertaking by or on
behalf of the indemnified representative to repay the amount if it is
ultimately determined pursuant to Section 8.06 that such person is not entitled
to be indemnified by the Corporation pursuant to this Article VIII. The
financial ability of an indemnified representative to repay an advance shall
not be a prerequisite to the making of such advance.
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Section 8.04. Securing of Indemnification Obligations. To further effect,
satisfy or secure the indemnification obligations provided herein or otherwise,
the Corporation may maintain insurance, obtain a letter of credit, act as self-
insurer, create a reserve, trust, escrow, cash collateral or other fund or
account, enter into indemnification agreements, pledge or grant a security
interest in any assets or properties of the Corporation, or use any other
mechanism or arrangement whatsoever in such amounts, at such costs, and upon
such other terms and conditions as the Board of Directors shall deem
appropriate. Absent fraud, the determination of the Board of Directors with
respect to such amounts, costs, terms and conditions shall be conclusive
against all security holders, officers and directors and shall not be subject
to voidability.
Section 8.05. Payment of Indemnification. An indemnified representative shall
be entitled to indemnification within 30 days after a written request for
indemnification has been delivered to the secretary of the Corporation.
Section 8.06. Arbitration.
(a) General Rule. Any dispute related to the right to indemnification,
contribution or advancement of expenses as provided under this Article VIII,
except with respect to indemnification for liabilities arising under the
Securities Act of 1933 that the Corporation has undertaken to submit to a court
for adjudication, shall be decided only by arbitration in the metropolitan area
in which the principal executive offices of the Corporation are located at the
time, in accordance with the commercial arbitration rules then in effect of the
American Arbitration Association, before a panel of three arbitrators, one of
whom shall be selected by the Corporation, the second of whom shall be selected
by the indemnified representative and the third of whom shall be selected by
the other two arbitrators. In the absence of the American Arbitration
Association, or if for any reason arbitration under the arbitration rules of
the American Arbitration Association cannot be initiated, and if one of the
parties fails or refuses to select an arbitrator or the arbitrators selected by
the Corporation and the indemnified representative cannot agree on the
selection of the third arbitrator within 30 days after such time as the
Corporation and the indemnified representative have each been notified of the
selection of the other's arbitrator, the necessary arbitrator or arbitrators
shall be selected by the presiding judge of the court of general jurisdiction
in such metropolitan area.
(b) Qualifications of Arbitrators. Each arbitrator selected as provided herein
is required to be or have been a director or executive officer of a Corporation
whose shares of common stock were listed during at least one year of such
service on the New York Stock Exchange or the American Stock Exchange or quoted
on the National Association of Securities Dealers Automated Quotations System.
(c) Burden of Proof. The party or parties challenging the right of an
indemnified representative to the benefits of this Article VIII shall have the
burden of proof.
(d) Expenses. The Corporation shall reimburse an indemnified representative for
the expenses (including attorneys' fees and disbursements) incurred in
successfully prosecuting or defending such arbitration.
(e) Effect. Any award entered by the arbitrators shall be final, binding and
nonappealable and judgment may be entered thereon by any party in accordance
with applicable law in any court of competent jurisdiction, except that the
Corporation shall be entitled to interpose as a defense in any such judicial
enforcement proceeding any prior final judicial determination adverse to the
indemnified representative under Section 8.01(a)(2) in a proceeding not
directly involving indemnification under this Article VIII. This arbitration
provision shall be specifically enforceable.
Section 8.07. Contribution. If the indemnification provided for in this Article
VIII or otherwise is unavailable for any reason in respect of any liability or
portion thereof, the Corporation shall contribute to the liabilities to which
the indemnified representative may be subject in such proportion as is
appropriate to reflect the intent of this Article VIII or otherwise.
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Section 8.08. Mandatory Indemnification of Directors, Officers, etc. To the
extent that an authorized representative of the Corporation has been successful
on the merits or otherwise in defense of any action, suit or proceeding
referred to in Sections 1741 or 1742 of the BCL or in defense of any claim,
issue or matter therein, such person shall be indemnified against expenses
(including attorneys' fees and disbursements) actually and reasonably incurred
by such person in connection therewith.
Section 8.09. Contract Rights; Amendment or Repeal. All rights under this
Article VIII shall be deemed a contract between the Corporation and the
indemnified representative pursuant to which the Corporation and each
indemnified representative intend to be legally bound. Any repeal, amendment or
modification hereof shall be prospective only and shall not affect any rights
or obligations then existing.
Section 8.10. Scope of Article VIII. The rights granted by this Article VIII
shall not be deemed exclusive of any other rights to which those seeking
indemnification, contribution or advancement of expenses may be entitled under
any statute, agreement, vote of shareholders or disinterested directors or
otherwise, both as to action in an indemnified capacity and as to action in any
other capacity. The indemnification, contribution and advancement of expenses
provided by or granted pursuant to this Article VIII shall continue as to a
person who has ceased to be an indemnified representative in respect of matters
arising prior to such time, and shall inure to the benefit of the heirs,
executors, administrators and personal representatives of such a person.
Section 8.11. Reliance on Provisions. Each person who shall act as an
indemnified representative of the Corporation shall be deemed to be doing so in
reliance upon the rights of indemnification, contribution and advancement of
expenses provided by this Article VIII.
Section 8.12. Interpretation. The provisions of this Article VIII are intended
to constitute bylaws authorized by 15 Pa.C.S. (S) 1746.
Section 8.13. Changes in Pennsylvania Law. References in this Article VIII to
Pennsylvania law or to any provision thereof shall be to such law (including
without limitation to the Directors' Liability Act) as it existed on the date
this Article VIII was adopted or as such law thereafter may be changed;
provided that (a) in the case of any change which expands the liability of
directors or limits the indemnification rights or the rights to advancement of
expenses which the Corporation may provide, the rights to limited liability, to
indemnification and to the advancement of expenses provided in this Article
VIII shall continue as theretofore to the extent permitted by law; and (b) if
such change permits the Corporation without the requirement of any further
action by shareholders or Directors to limit further the liability of directors
(or limit the liability of officers) or to provide broader indemnification
rights or rights to the advancement of expenses than the Corporation was
permitted to provide prior to such change, then liability thereupon shall be so
limited and the rights to indemnification and the advancement of expenses shall
be so broadened to the extent permitted by law.
ARTICLE IX
Dividends and Other Distributions to Shareholders
Section 9.01. Dividends. Subject to applicable law of the State of
Incorporation and the Articles, and in accordance with the provisions thereof
at the pertinent applicable time, the Board of Directors of the Corporation may
from time to time declare, and the Corporation may pay, dividends on its
outstanding shares in cash or property other than its own shares, except when
the Corporation is insolvent, or when the payment thereof would render the
Corporation insolvent, or when the declaration or payment thereof would be
contrary to any restriction contained in the Articles, but:
(1) Dividends may be declared and paid in cash or property only out of
unreserved and unrestricted earned surplus of the Corporation, except as
otherwise provided by statute; and
(2) No dividends shall be paid which would reduce the remaining net
assets of the Corporation below the aggregate preferential amount
payable in the event of voluntary liquidation to the
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holders of shares having preferential rights to the assets of the
Corporation in the event of liquidation. The Board of Directors may
also, from time to time, distribute to the holders of the Corporation's
outstanding shares having a cumulative preferential right to receive
dividends in discharge of their cumulative dividend rights, dividends
payable in cash out of the unrestricted capital surplus of the
Corporation, if at the time the Corporation has no earned surplus and is
not insolvent and would not thereby be rendered insolvent. Each such
distribution, when made, shall be identified as a payment of cumulative
dividends out of capital surplus.
Section 9.02 Distributions of Shares of the Corporation. Subject to the
Articles, the Board of Directors of the Corporation may, from time to time,
distribute pro rata to holders of any class or classes of its issued shares,
treasury shares and authorized but unissued shares, but
(1) If distribution is made, in the Corporation's authorized but
unissued shares having a par value, there shall be transferred to stated
capital at the time of such distribution an amount of surplus at least
equal to the aggregate par value of the shares so issued;
(2) If a distribution is made in the Corporation's authorized but
unissued shares without par value, the Board of Directors may fix a
stated value for the shares so issued, and there shall be transferred to
stated capital, at the time of such distribution, an amount of surplus
equal to the aggregate stated value, if any, so fixed;
(3) The amount per share so transferred to stated capital, or the fact
that there was no such transfer, shall be disclosed to the shareholders
receiving such distribution concurrently with the distribution thereof;
(4) No distribution of shares of any class shall be made to holders of
shares of any other class unless the Articles so provide or such
distribution is authorized by the affirmative vote or written consent of
the holders of a majority of the outstanding shares of the class in
which the distribution is to be made.
In lieu of issuing fractional shares in any such distribution, the Corporation
may pay in cash the fair value thereof, as determined by the Board of
Directors, to shareholders entitled thereto.
Section 9.03. Reserves. Subject to the Articles, there may be set aside out of
any funds of the Corporation available for dividends such sum or sums as the
directors, from time to time, in their absolute discretion determine as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation, or for the purchase
of additional property, or for such other purpose as the Board of Directors
shall think conducive to the interests of the Corporation. The Board of
Directors may abolish or modify any such reserve.
Section 9.04 Distributions in Partial Liquidation. Subject to the Articles, the
Board of Directors of the Corporation may, from time to time, distribute to the
shareholders in partial liquidation, out of unrestricted capital surplus of the
Corporation, a portion of its assets in cash or property, subject to the
following conditions:
(1) No such distribution shall be made at a time when the Corporation is
insolvent or when such distribution would render the Corporation
insolvent;
(2) No such distribution shall be made unless such distribution shall
have been authorized by the prior affirmative vote, obtained within one
(1) year of such distribution, of the holders of at least a majority of
the outstanding shares of each class, whether or not entitled to vote
thereon by the provisions of the Articles;
(3) No such distribution shall be made to the holders of any class of
shares unless all cumulative dividends accrued on all classes of shares
entitled to preferential dividends, prior to
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dividends on the shares to the holders of which such distribution is to
be made, shall have been fully paid;
(4) No such distribution shall be made to the holders of any class of
shares which would reduce the remaining net assets of the Corporation
below the aggregate preferential amount payable in the event of
voluntary liquidation to the holders of shares having preferential
rights to the assets of the Corporation in the event of liquidation;
(5) Each such distribution, when made, shall be identified as a
distribution in partial liquidation and the amount per share disclosed
to the shareholders receiving the same concurrently with the
distribution thereof.
ARTICLE X
Miscellaneous
Section 10.01. Checks. All checks, notes, bills of exchange or other similar
orders in writing shall be signed by such one or more officers or employees of
the Corporation as the Board of Directors may from time to time designate.
Section 10.02. Contracts.
(a) General Rule. Except as otherwise provided in the BCL in the case of
transactions that require action by the shareholders, the Board of Directors
may authorize any officer or agent to enter into any contract or to execute or
deliver any instrument on behalf of the Corporation, and such authority may be
general or confined to specific instances.
(b) Statutory Form of Execution of Instruments. Any note, mortgage, evidence of
indebtedness, contract or other document, or any assignment or endorsement
thereof, executed or entered into between the Corporation and any other person,
when signed by one or more officers or agents having actual or apparent
authority to sign it, or by the president or vice president and secretary or
assistant secretary or treasurer or assistant treasurer of the Corporation,
shall be held to have been properly executed for and in behalf of the
Corporation, without prejudice to the rights of the Corporation against any
person who shall have executed the instrument in excess of his or her actual
authority.
Section 10.03. Interested Directors or Officers; Quorum.
(a) General Rule. A contract or transaction between the Corporation and one or
more of its directors or officers or between the Corporation and another
Corporation, partnership, joint venture, trust or other enterprise in which one
or more of its directors or officers are directors or officers or have a
financial or other interest, shall not be void or voidable solely for that
reason, or solely because the director or officer is present at or participates
in the meeting of the Board of Directors that authorizes the contract or
transaction, or solely because his, her or their votes are counted for that
purpose, if:
(1) the material facts as to the relationship or interest and as to the
contract or transaction are disclosed or are known to the Board of
Directors and the Board of Directors authorizes the contract or
transaction by the affirmative votes of a majority of the disinterested
directors even though the disinterested directors are less than a
quorum;
(2) the material facts as to his or her relationship or interest and as
to the contract or transaction are disclosed or are known to the
shareholders entitled to vote thereon and the contract or transaction is
specifically approved in good faith by vote of those shareholders; or
(3) the contract or transaction is fair as to the Corporation as of the
time it is authorized, approved or ratified by the Board of Directors or
the shareholders.
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(b) Quorum. Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors which authorizes a
contract or transaction specified in subsection (a).
Section 10.04. Deposits. All funds of the Corporation shall be deposited from
time to time to the credit of the Corporation in such banks, trust companies or
other depositaries as the Board of Directors may approve or designate, and all
such funds shall be withdrawn only upon checks signed by such one or more
officers or employees of the Corporation as the Board of Directors shall from
time to time designate.
Section 10.05. Corporate Records.
(a) Required Records. The Corporation shall keep complete and accurate books
and records of account, minutes of the proceedings of the incorporators,
shareholders and directors and a share register giving the names and addresses
of all shareholders and the number and class of shares held by each. The share
register shall be kept at either the registered office of the Corporation in
the Commonwealth of Pennsylvania or at its principal place of business wherever
situated or at the office of its registrar or transfer agent. Any books,
minutes or other records may be in written form or any other form capable of
being converted into written form within a reasonable time.
(b) Right of Inspection. Every shareholder shall, upon written verified demand
stating the purpose thereof, have a right to examine, in person or by agent or
attorney, during the usual hours for business for any proper purpose, the share
register, books and records of account, and records of the proceedings of the
incorporators, shareholders and directors and to make copies or extracts
therefrom. A proper purpose shall mean a purpose reasonably related to the
interest of the person as a shareholder. In every instance where an attorney or
other agent is the person who seeks the right of inspection, the demand shall
be accompanied by a verified power of attorney or other writing that authorizes
the attorney or other agent to so act on behalf of the shareholder. The demand
shall be directed to the Corporation at its registered office in the
Commonwealth of Pennsylvania or at its principal place of business wherever
situated.
Section 10.06. Amendment of Bylaws. Except as otherwise provided herein, these
bylaws may be amended or repealed, or new bylaws may be adopted, either (i) by
vote of the shareholders at any duly organized annual or special meeting of
shareholders, or (ii) with respect to those matters that are not by statute
committed expressly to the shareholders and regardless of whether the
shareholders have previously adopted or approved the bylaw being amended or
repealed, by vote of a majority of the Board of Directors of the Corporation in
office at any regular or special meeting of directors. Any change in these
bylaws shall take effect when adopted unless otherwise provided in the
resolution effecting the change. See Section 3.03(b) (relating to notice of
action by shareholders on bylaws).
ARTICLE XI
Adoption of Bylaws--Record of Amendment
Section 11.1. Adoption. These Amended and Restated Bylaws have been adopted and
filed with the undersigned on the day of , 199 , and shall be effective
as of this date.
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APPENDIX IV
PENNSYLVANIA BUSINESS CORPORATION LAW
SUBCHAPTER D: DISSENTERS RIGHTS
(S) 1571. Application and effect of subchapter.
(a)General rule. Except as otherwise provided in subsection (b), any
shareholder of a business corporation shall have the right to dissent from, and
to obtain payment of the fair value of his shares in the event of, any
corporate action, or to otherwise obtain fair value for his shares, where this
part expressly provides that a shareholder shall have the rights and remedies
provided in this subchapter. See:
Section 1906(c) (relating to dissenters rights upon special
treatment).
Section 1930 (relating to dissenters rights).
Section 1931(d) (relating to dissenters rights in share
exchanges).
Section 1932(c) (relating to dissenters rights in asset
transfers).
Section 1952(d) (relating to dissenters rights in division).
Section 1962(c) (relating to dissenters rights in conversion).
Section 2104(b) (relating to procedure).
Section 2324 (relating to corporation option where a restriction
on transfer of a security is held invalid).
Section 2325(b) (relating to minimum vote requirement).
Section 2704(c) (relating to dissenters rights upon election).
Section 2705(d) (relating to dissenters rights upon renewal of
election).
Section 2907(a) (relating to proceedings to terminate breach of
qualifying conditions).
Section 7104(b)(3) (relating to procedure).
(b)Exceptions.
(1)Except as otherwise provided in paragraph (2), the holders of the
shares of any class or series of shares that, at the record date fixed
to determine the shareholders entitled to notice of and to vote at the
meeting at which a plan specified in any of section 1930, 1931(d),
1932(c) or 1952(d) is to be voted on, are either:
(i) listed on a national securities exchange; or
(ii) held of record by more than 2,000 shareholders;
shall not have the right to obtain payment of the fair value of any
such shares under this subchapter.
(2)Paragraph (1) shall not apply to and dissenters rights shall be
available without regard to the exception provided in that paragraph in
the case of:
(i)Shares converted by a plan if the shares are not converted
solely into shares of the acquiring, surviving, new or other
corporation or solely into such shares and money in lieu of
fractional shares.
(ii)Shares of any preferred or special class unless the articles,
the plan or the terms of the transaction entitle all shareholders
of the class to vote thereon and require for the
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adoption of the plan or the effectuation of the transaction the
affirmative vote of a majority of the votes cast by all
shareholders of the class.
(iii)Shares entitled to dissenters rights under section 1906(c)
(relating to dissenters rights upon special treatment).
(3)The shareholders of a corporation that acquires by purchase, lease,
exchange or other disposition all or substantially all of the shares,
property or assets of another corporation by the issuance of shares,
obligations or otherwise, with or without assuming the liabilities of
the other corporation and with or without the intervention of another
corporation or other person, shall not be entitled to the rights and
remedies of dissenting shareholders provided in this subchapter
regardless of the fact, if it be the case, that the acquisition was
accomplished by the issuance of voting shares of the corporation to be
outstanding immediately after the acquisition sufficient to elect a
majority or more of the directors of the corporation.
(c) Grant of optional dissenters rights. The bylaws or a resolution of the
board of directors may direct that all or a part of the shareholders shall have
dissenters rights in connection with any corporate action or other transaction
that would otherwise not entitle such shareholders to dissenters rights.
(d) Notice of dissenters rights. Unless otherwise provided by statute, if a
proposed corporate action that would give rise to dissenters rights under this
subpart is submitted to a vote at a meeting of shareholders, there shall be
included in or enclosed with the notice of meeting:
(1) A statement of the proposed action and a statement that the
shareholders have a right to dissent and obtain payment of the fair
value of their shares by complying with the terms of this subchapter;
and
(2) A copy of this subchapter.
(e) Other statutes. The procedures of this subchapter shall also be applicable
to any transaction described in any statute other than this part that makes
reference to this subchapter for the purpose of granting dissenters rights.
(f) Certain provisions of articles ineffective. This subchapter may not be
relaxed by any provision of the articles.
(g) Cross references. See sections 1105 (relating to restriction on equitable
relief), 1904 (relating to de facto transaction doctrine abolished) and 2512
(relating to dissenters rights procedure).
(S) 1572. Definitions.
The following words and phrases when used in this subchapter shall have the
meanings given to them in this section unless the context clearly indicates
otherwise:
"Corporation." The issuer of the shares held or owned by the dissenter before
the corporate action or the successor by merger, consolidation, division,
conversion or otherwise of that issuer. A plan of division may designate which
of the resulting corporations is the successor corporation for the purposes of
this subchapter. The successor corporation in a division shall have the sole
responsibility for payments to dissenters and other liabilities under this
subchapter except as otherwise provided in the plan of division.
"Dissenter." A shareholder or beneficial owner who is entitled to and does
assert dissenters rights under this subchapter and who has performed every act
required up to the time involved for the assertion of those rights.
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"Fair value." The fair value of shares immediately before the effectuation of
the corporate action to which the dissenter objects taking into account all
relevant factors, but excluding any appreciation or depreciation in
anticipation of the corporate action.
"Interest." Interest from the effective date of the corporate action until the
date of payment at such rate as is fair and equitable under all the
circumstances, taking into account all relevant factors including the average
rate currently paid by the corporation on its principal bank loans.
(S) 1573. Record and beneficial holders and owners.
(a)Record holders of shares. A record holder of shares of a business
corporation may assert dissenters rights as to fewer than all of the shares
registered in his name only if he dissents with respect to all the shares of
the same class or series beneficially owned by any one person and discloses the
name and address of the person or persons on whose behalf he dissents. In that
event, his rights shall be determined as if the shares as to which he has
dissented and his other shares were registered in the names of different
shareholders.
(b)Beneficial owners of shares. A beneficial owner of shares of a business
corporation who is not the record holder may assert dissenters rights with
respect to shares held on his behalf and shall be treated as a dissenting
shareholder under the terms of this subchapter if he submits to the corporation
not later than the time of the assertion of dissenters rights a written consent
of the record holder. A beneficial owner may not dissent with respect to some
but less than all shares of the same class or series owned by the owner,
whether or not the shares so owned by him are registered in his name.
(S) 1574. Notice of intention to dissent.
If the proposed corporate action is submitted to a vote at a meeting of
shareholders of a business corporation, any person who wishes to dissent and
obtain payment of the fair value of his shares must file with the corporation,
prior to the vote, a written notice of intention to demand that he be paid the
fair value for his shares if the proposed action is effectuated, must effect no
change in the beneficial ownership of his shares from the date of such filing
continuously through the effective date of the proposed action and must refrain
from voting his shares in approval of such action. A dissenter who fails in any
respect shall not acquire any right to payment of the fair value of his shares
under this subchapter. Neither a proxy nor a vote against the proposed
corporate action shall constitute the written notice required by this section.
(S) 1575. Notice to demand payment.
(a)General rule. If the proposed corporate action is approved by the required
vote at a meeting of shareholders of a business corporation, the corporation
shall mail a further notice to all dissenters
who gave due notice of intention to demand payment of the fair value of their
shares and who refrained from voting in favor of the proposed action. If the
proposed corporate action is to be taken without a vote of shareholders, the
corporation shall send to all shareholders who are entitled to dissent and
demand payment of the fair value of their shares a notice of the adoption of
the plan or other corporate action. In either case, the notice shall:
(1)State where and when a demand for payment must be sent and
certificates for certificated shares must be deposited in order to
obtain payment.
(2)Inform holders of uncertificated shares to what extent transfer of
shares will be restricted from the time that demand for payment is
received.
(3)Supply a form for demanding payment that includes a request for
certification of the date on which the shareholder, or the person on
whose behalf the shareholder dissents, acquired beneficial ownership of
the shares.
(4)Be accompanied by a copy of this subchapter.
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(b)Time for receipt of demand for payment. The time set for receipt of the
demand and deposit of certificated shares shall be not less than 30 days from
the mailing of the notice.
(S) 1576. Failure to comply with notice to demand payment, etc.
(a)Effect of failure of shareholder to act. A shareholder who fails to timely
demand payment, or fails (in the case of certificated shares) to timely deposit
certificates, as required by a notice pursuant to section 1575 (relating to
notice to demand payment) shall not have any right under this subchapter to
receive payment of the fair value of his shares.
(b) Restriction on uncertificated shares. If the shares are not represented by
certificates, the business corporation may restrict their transfer from the
time of receipt of demand for payment until effectuation of the proposed
corporate action or the release of restrictions under the terms of section
1577(a) (relating to failure to effectuate corporate action).
(c) Rights retained by shareholder. The dissenter shall retain all other rights
of a shareholder until those rights are modified by effectuation of the
proposed corporate action.
(S) 1577. Release of restrictions or payment for shares.
(a) Failure to effectuate corporate action. Within 60 days after the date set
for demanding payment and depositing certificates, if the business corporation
has not effectuated the proposed corporate action, it shall return any
certificates that have been deposited and release uncertificated shares from
any transfer restrictions imposed by reason of the demand for payment.
(b) Renewal of notice to demand payment. When uncertificated shares have been
released from transfer restrictions and deposited certificates have been
returned, the corporation may at any later time send a new notice conforming to
the requirements of section 1575 (relating to notice to demand payment), with
like effect.
(c) Payment of fair value of shares. Promptly after effectuation of the
proposed corporate action, or upon timely receipt of demand for payment if the
corporate action has already been effectuated,
the corporation shall either remit to dissenters who have made demand and (if
their shares are certificated) have deposited their certificates the amount
that the corporation estimates to be the fair value of the shares, or give
written notice that no remittance under this section will be made. The
remittance or notice shall be accompanied by:
(1) The closing balance sheet and statement of income of the issuer of
the shares held or owned by the dissenter for a fiscal year ending not
more than 16 months before the date of remittance or notice together
with the latest available interim financial statements.
(2) A statement of the corporation's estimate of the fair market value
of the shares.
(3) A notice of the right of the dissenter to demand payment or
supplemental payment, as the case may be, accompanied by a copy of this
subchapter.
(d) Failure to make payment. If the corporation does not remit the amount of
its estimate of the fair value of the shares as provided by subsection (c), it
shall return any certificates that have been deposited and release
uncertificated shares from any transfer restrictions imposed by reason of the
demand for payment. The corporation may make a notation on any such certificate
or on the records of the corporation relating to any such uncertificated shares
that such demand has been made. If shares with respect to which notation has
been so made shall be transferred, each new certificate issued therefor or the
records relating to any transferred uncertificated shares shall bear a similar
notation, together with the name of the original dissenting holder or owner of
such shares. A transferee of such shares shall not acquire by such transfer any
rights in the
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corporation other than those that the original dissenter had after making
demand for payment of their fair value.
(S) 1578. Estimate by dissenter of fair value of shares.
(a) General rule. If the business corporation gives notice of its estimate of
the fair value of the shares, without remitting such amount, or remits payment
of its estimate of the fair value of a dissenter's shares as permitted by
section 1577(c) (relating to payment of fair value of shares) and the dissenter
believes that the amount stated or remitted is less than the fair value of his
shares, he may send to the corporation his own estimate of the fair value of
the shares, which shall be deemed a demand for payment of the amount or the
deficiency.
(b) Effect of failure to file estimate. Where the dissenter does not file his
own estimate under subsection (a) within 30 days after the mailing by the
corporation of its remittance or notice, the dissenter shall be entitled to no
more than the amount stated in the notice or remitted to him by the
corporation.
(S) 1579. Valuation proceedings generally.
(a) General rule. Within 60 days after the latest of:
(1) Effectuation of the proposed corporate action;
(2) Timely receipt of any demand for payment under section 1575
(relating to notice to demand payment); or
(3) Timely receipt of any estimates pursuant to section 1578 (relating
to estimate by dissenter of fair value of shares);
if any demands for payment remain unsettled, the business corporation may file
in court an application for relief requesting that the fair value of the shares
be determined by the court.
(b) Mandatory joinder of dissenters. All dissenters, wherever residing, whose
demands have not been settled shall be made parties to the proceeding as in an
action against their shares. A copy of the application shall be served on each
such dissenter. If a dissenter is a nonresident, the copy may be served on him
in the manner provided or prescribed by or pursuant to 42 Pa.C.S. Ch. 53
(relating to bases of jurisdiction and interstate and international procedure).
(c) Jurisdiction of the court. The jurisdiction of the court shall be plenary
and exclusive. The court may appoint an appraiser to receive evidence and
recommend a decision on the issue of fair value. The appraiser shall have such
power and authority as may be specified in the order of appointment or in any
amendment thereof.
(d) Measure of recovery. Each dissenter who is made a party shall be entitled
to recover the amount by which the fair value of his shares is found to exceed
the amount, if any, previously remitted, plus interest.
(e) Effect of corporation's failure to file application. If the corporation
fails to file an application as provided in subsection (a), any dissenter who
made a demand and who has not already settled his claim against the corporation
may do so in the name of the corporation at any time within 30 days after the
expiration of the 60-day period. If a dissenter does not file an application
within the 30-day period, each dissenter entitled to file an application shall
be paid the corporation's estimate of the fair value of the shares and no more,
and may bring an action to recover any amount not previously remitted.
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(S) 1580. Costs and expenses of valuation proceedings.
(a) General rule. The costs and expenses of any proceeding under section 1579
(relating to valuation proceedings generally), including the reasonable
compensation and expenses of the appraiser appointed by the court, shall be
determined by the court and assessed against the business corporation except
that any part of the costs and expenses may be apportioned and assessed as the
court deems appropriate against all or some of the dissenters who are parties
and whose action in demanding supplemental payment under section 1578 (relating
to estimate by dissenter of fair value of shares) the court finds to be
dilatory, obdurate, arbitrary, vexatious or in bad faith.
(b) Assessment of counsel fees and expert fees where lack of good faith
appears. Fees and expenses of counsel and of experts for the respective parties
may be assessed as the court deems appropriate against the corporation and in
favor of any or all dissenters if the corporation failed to comply
substantially with the requirements of this subchapter and may be assessed
against either the corporation or a dissenter, in favor of any other party, if
the court finds that the party against whom the fees and expenses are assessed
acted in bad faith or in a dilatory, obdurate, arbitrary or vexatious manner in
respect to the rights provided by this subchapter.
(c) Award of fees for benefits to other dissenters. If the court finds that the
services of counsel for any dissenter were of substantial benefit to other
dissenters similarly situated and should not be assessed against the
corporation, it may award to those counsel reasonable fees to be paid out of
the amounts awarded to the dissenters who were benefited.
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APPENDIX V
October 22, 1998
Board of Directors
CDNOW, Inc.
610 Old York Road, Suite 300
Jenkintown, Pennsylvania 19046
Members of the Board:
BT Alex. Brown Incorporated ("BT Alex. Brown") has acted as financial advisor
to CDNOW, Inc. a Pennsylvania corporation ("CDNW"), in connection with the
proposed merger of CDNW and N2K Inc., a Delaware corporation ("NTKI"),
pursuant to an Agreement and Plan of Merger (the "Merger Agreement") dated
October 22, 1998, by and among NTKI, CDNW and Exit 8 Holding Company, a newly-
formed Pennsylvania corporation with nominal capitalization ("NewCo"), one-
half of the issued and outstanding capital stock of which is owned by each of
CDNW and NTKI. The Merger Agreement, the implementation of which is contingent
on approval by the shareholders of CDNW and NTKI, provides, among other
things, that (i) N2K Acquisition Corp., a Delaware corporation and wholly-
owned subsidiary of NewCo, will be merged with and into NTKI (the "NTKI
Merger"), (ii) CDNOW Acquisition Corp., a Pennsylvania corporation and wholly-
owned subsidiary of NewCo, will be merged with and into CDNW (together with
the NTKI Merger, the "Merger") (iii) each outstanding share of the common
stock, par value of $0.001 per share, of NTKI (the "NTKI Common Stock") will
be converted into the right to receive 0.83 shares of the common stock, no par
value per share, of NewCo (the "NewCo Common Stock"), and (iv) each
outstanding share of the common stock, no par value per share, of CDNW (the
"CDNW Common Stock") will be converted into the right to receive 1.00 share
(the "Exchange Ratio") of NewCo Common Stock. The terms and conditions of the
Merger are more fully set forth in the Merger Agreement.
You have requested BT Alex. Brown's opinion, as investment bankers, as to
whether the Exchange Ratio is fair, from a financial point of view, to the
holders of CDNW Common Stock.
In connection with this opinion, BT Alex. Brown has reviewed certain publicly
available financial and other information concerning NTKI and CDNW and certain
internal analyses and other information furnished to it by NTKI and CDNW. BT
Alex. Brown also has held discussion with members of the senior managements of
NTKI and CDNW regarding the businesses and prospects of their respective
companies and the prospects of a combined company. In addition, BT Alex. Brown
has (i) reviewed the reported prices and trading activity for NTKI Common
Stock and CDNW Common Stock, (ii) compared certain financial and stock market
information for NTKI and CDNW with similar information for certain other
companies whose securities are publicly traded, (iii) reviewed the financial
terms of certain recent business combinations which it deemed comparable in
whole or in part, (iv) reviewed the terms of the Merger Agreement and certain
related documents, and (v) performed such other studies and analyses and
considered such other factors as it deemed appropriate.
BT Alex. Brown has not assumed responsibility for independent verification of,
and has not independently verified, any information, whether publicly
available or furnished to it, concerning NTKI or CDNW, including, without
limitation, any financial information, forecasts or projections considered in
connection with the rendering of this opinion. Accordingly, for purposes of
this opinion, BT Alex. Brown has assumed and relied upon the accuracy and
completeness of all such information, and BT Alex. Brown has not conducted a
physical inspection of any of the properties or assets, and has not prepared
or obtained any independent evaluation or appraisal of any of the assets or
liabilities of NTKI or CDNW. With respect to the financial forecasts and
projections, including the analyses and forecasts of certain cost savings,
operating efficiencies, revenue effects and financial synergies expected by
CDNW and NTKI to be achieved as a result of the Merger (collectively, the
"Synergies"), made available to BT Alex. Brown and used in its analyses, BT
Alex. Brown has assumed that such financial forecasts and projections have
been reasonably prepared on bases
APPENDIX V - OPINION OF BT ALEX, BROWN
V-1
<PAGE>
CDNOW, Inc.
October 22, 1998
Page 2
reflecting the best currently available estimates and judgments of the
management of NTKI or CDNW, as the case may be, as to the matters covered
thereby including, with your consent, any potential liability that may arise
from the litigation currently pending against NTKI. In rendering this opinion,
BT Alex. Brown expresses no view as to the reasonableness of such forecasts and
projections, including the Synergies, or the assumptions on which they are
based. This opinion is necessarily based upon economic, market and other
conditions as in effect on, and the information made available to it as of, the
date hereof. BT Alex. Brown expresses no opinion as to the price at which CDNW
Common Stock or NewCo Common Stock will trade following the announcement or the
consummation of the Merger.
For purposes of rendering this opinion, BT Alex. Brown has assumed that, in all
respects material to its analysis, the representations and warranties of CDNW
and NTKI contained in the Merger Agreement are true and correct, CDNW and NTKI
will each perform all of the covenants and agreements to be performed by it
under the Merger Agreement and all conditions to the obligations of each of
CDNW and NTKI to consummate the Merger will be satisfied without any waiver
thereof. In particular, you have informed BT Alex. Brown, and accordingly for
purposes of rendering this opinion BT Alex. Brown has assumed, that the Merger
will be free of federal tax to each of CDNW and NTKI and their respective
shareholders. BT Alex. Brown has also assumed that all material governmental,
regulatory or other approvals and consents required in connection with the
consummation of the Merger will be obtained and that in connection with
obtaining any necessary governmental, regulatory or other approvals and
consents, or any amendments, modifications or waivers to any agreements,
instruments or orders to which either CDNW or NTKI is a party or is subject or
by which it is bound, no limitations, restrictions or conditions will be
imposed or amendments, modifications or waivers made that would have a material
adverse effect on CDNW or NTKI or materially reduce the contemplated benefits
of the Merger to CDNW.
This opinion is addressed to, and for the use and benefit of, the Board of
Directors of CDNW and is not a recommendation to the shareholders of CDNW as to
how they should vote with respect to matters relating to the proposed Merger.
This opinion is limited to the fairness, from a financial point of view, to
CDNW of the Exchange Ratio, and BT Alex. Brown expresses no opinion as to the
merits of the underlying decision by CDNW to engage in the Merger.
In connection with our engagement, BT Alex. Brown was not authorized to, and
did not, solicit third party indications of interest with respect to the
acquisition of all or a part of CDNW, nor have we reviewed with CDNW or its
Board of Directors any potential transactions in lieu of the Merger.
BT Alex. Brown is a registered broker-dealer and member of the New York Stock
Exchange. BT Alex. Brown will be paid a fee for its services as financial
advisor to CDNW in connection with the Merger, a significant portion of which
is contingent upon consummation of the Merger and a portion of which is payable
upon delivery of this opinion. BT Alex. Brown has, from time to time, provided
investment banking and other financial services to CDNW or its affiliates
(including, acting as lead managing underwriter in connection with CDNW's
public offerings of CDNW Common Stock in February 1998 and in July 1998), for
which it has received customary compensation. BT Alex. Brown also currently
owns warrants to purchase 154,817 shares of CDNW Common Stock at a price of
$3.63 per share. BT Alex. Brown maintains a market in CDNW Common Stock and
regularly publishes research reports regarding the internet commerce industry
and the businesses and securities of CDNW and other publicly owned companies in
such industry. In the ordinary course of business, BT Alex. Brown and its
affiliates may actively trade or hold the securities of both CDNW and NTKI for
their
own account and the account of customers and, accordingly, may at any time hold
a long or short position in
securities of CDNW and NTKI.
APPENDIX V - OPINION OF BT ALEX, BROWN
V-2
<PAGE>
CDNOW, Inc.
October 22, 1998
Page 3
Based upon and subject to the foregoing, it is BT Alex. Brown's opinion as
investment bankers that the Exchange Ratio is fair, from a financial point of
view, to the holders of CDNW Common Stock.
Very truly yours,
/s/ BT Alex. Brown Incorporated
BT Alex. Brown Incorporated
APPENDIX V - OPINION OF BT ALEX, BROWN
V-3
<PAGE>
APPENDIX VI
October 22, 1998
Members of the Board of Directors
N2K, Inc.
55 Broad Street
New York, NY 10004
Ladies and Gentlemen:
You have requested our opinion, as of this date, as to the fairness, from a
financial point of view, to the holders of the outstanding shares of Common
Stock, par value $0.001 per share (the "Company's Common Stock"), of N2K, Inc.,
a Delaware corporation (the "Company"), of the terms of the Proposed
Transaction hereinafter referred to.
Pursuant to the Agreement and Plan of Merger (the "Merger Agreement"), to be
entered into on or about the date hereof, by and among the Company, CDnow,
Inc., a Pennsylvania corporation ("CDnow"), and a newly-formed Delaware
corporation owned by the Company and CDnow ("Newco"), the Company will enter
into a business combination transaction with CDnow. The combination of the
Company and CDnow will be effected through (i) the merger of a wholly-owned
subsidiary of Newco with and into the Company and (ii) the merger of another
wholly-owned subsidiary of Newco with and into CDnow, such that the Company and
CDnow become wholly-owned subsidiaries of Newco and the stockholders of the
Company and CDnow become stockholders of Newco (the "Proposed Transaction").
Unless otherwise specifically defined herein, all capitalized terms used herein
shall have the meanings ascribed to such terms in the Merger Agreement.
Pursuant to the terms, and subject to the conditions contained in, the Merger
Agreement, among other things, (i) each share of the Company's Common Stock
issued and outstanding as of the Effective Time will be converted into the
right to receive 0.83 shares of common stock of Newco ("Newco Common Stock")
and (ii) each share of CDnow's common stock ("CDnow's Common Stock") issued and
outstanding as of the Effective Time will be converted into the right to
receive one share of Newco Common Stock. We understand that all approvals
required for the consummation of the Proposed Transaction have been or, prior
to consummation of the Proposed Transaction, will be obtained.
As you know, Allen & Company Incorporated ("Allen") will receive a fee for
preparing and rendering this opinion pursuant to the engagement letter
agreement by and between the Company and Allen. We note that Allen and certain
of its officers, directors and affiliates beneficially own approximately
205,000 shares of the Company's Common Stock and Allen holds warrants to
acquire 196,110 shares of the Company's Common Stock. From time to time in the
ordinary course of its business as a broker-dealer, Allen may also hold
positions and trade in securities of the Company.
In arriving at our opinion, we have among other things:
(i) reviewed the terms and conditions of the Proposed Transaction,
including the draft Merger Agreement and the draft agreements
ancillary thereto (none of which prior to the delivery of our
opinion has been executed by the parties);
(ii) analyzed publicly available historical business and financial
information relating to the Company and CDnow, as presented in
documents filed with the Securities and Exchange Commission;
(iii) reviewed certain financial, operating and budgetary data provided
to us by the Company and CDnow relating to their respective
businesses;
(iv) conducted discussions with certain members of the senior
management of the Company and CDnow with respect to the financial
condition, business, operations, strategic objectives and
prospects of the Company and CDnow, respectively, as well as
industry trends prevailing in their businesses;
APPENDIX VI - OPINION OF ALLEN & COMPANY
VI-1
<PAGE>
(v) reviewed and analyzed public information, including certain stock
market data and financial information relating to selected public
companies in lines of business which we believe to be comparable
to the Company's and CDnow's, as well as analysts' reports and
estimates for the Company and CDnow;
(vi) reviewed the trading history of the Company's Common Stock and
CDnow's Common Stock, including their performance in comparison
to market indices and to selected companies in comparable
businesses;
(vii) reviewed public financial and transaction information relating to
business combination transactions we deemed to be comparable to
the Proposed Transaction; and
(viii) conducted such other financial analyses and investigations as we
deemed necessary or appropriate for the purposes of the opinion
expressed herein.
In rendering our opinion, we have assumed and relied upon the accuracy and
completeness of the financial and other information respecting the Company and
CDnow and any other information provided to us, and we have not assumed any
responsibility for any independent verification of such information or any
independent valuation or appraisal of any of the assets of the Company or
CDnow. With respect to the financial, operating and budgetary data referred to
above, we have assumed that they have been reasonably prepared on a basis
reflecting the best currently available judgments of the management of the
Company and CDnow as to the future financial performance of the Company and
CDnow, respectively.
In addition to our review and analysis of the specific information set forth
above, our opinion herein reflects and gives effect to our assessment of
general economic, monetary and market conditions existing as of the date hereof
as they may affect the business and prospects of the Company and CDnow.
We have prepared this opinion at the request and for the benefit of the Board
of Directors of the Company, and consent to its inclusion in filings the
Company may be required to make with the Securities and Exchange Commission.
The opinion rendered herein does not constitute a recommendation that the
Company pursue the Proposed Transaction or that any stockholder of the Company
vote to approve the Proposed Transaction.
Based on and subject to the foregoing, we are of the opinion that, as of this
date, the terms of the Proposed Transaction are fair to the holders of the
Company's Common Stock from a financial point of view.
Very truly yours,
ALLEN & COMPANY INCORPORATED
/s/ Nancy B. Peretsman
By: _________________________________
Nancy B. Peretsman Managing
Director
APPENDIX VI - OPINION OF ALLEN & COMPANY
VI-2
<PAGE>
APPENDIX VII
CDNOW/N2K, INC.
1999 EQUITY COMPENSATION PLAN
The purpose of the CDnow/N2K, Inc. 1999 Equity Compensation Plan (the "Plan")
is to provide (i) designated employees of CDnow/N2K, Inc. (the "Company") and
its subsidiaries, (ii) certain consultants and advisors who perform services
for the Company or its subsidiaries and (iii) non-employee members of the
Board of Directors of the Company (the "Board") with the opportunity to
receive grants of incentive stock options, nonqualified stock options and
restricted stock. The Company believes that the Plan will encourage the
participants to contribute materially to the growth of the Company, thereby
benefitting the Company's shareholders, and will align the economic interests
of the participants with those of the shareholders.
1. Administration
(a) Committee. The Plan shall be administered by a committee (the
"Committee") appointed by the Board, which may consist of "outside directors"
as defined under section 162(m) of the Internal Revenue Code of 1986, as
amended (the "Code"), and related Treasury regulations and "non-employee
directors" as defined under Rule 16b-3 under the Securities Exchange Act of
1934, as amended (the "Exchange Act"). However, the Board may ratify or
approve any grants as it deems appropriate. If the Board administers the Plan,
references in the Plan to the "Committee" shall be deemed to refer to the
Board.
(b) Committee Authority. The Committee shall have the sole authority to (i)
determine the individuals to whom grants shall be made under the Plan, (ii)
determine the type, size and terms of the grants to be made to each such
individual, (iii) determine the time when the grants will be made and the
duration of any applicable exercise or restriction period, including the
criteria for exercisability and the acceleration of exercisability and (iv)
deal with any other matters arising under the Plan.
(c) Committee Determinations. The Committee shall have full power and
authority to administer and interpret the Plan, to make factual determinations
and to adopt or amend such rules, regulations, agreements and instruments for
implementing the Plan and for the conduct of its business as it deems
necessary or advisable, in its sole discretion. The Committee's
interpretations of the Plan and all determinations made by the Committee
pursuant to the powers vested in it hereunder shall be conclusive and binding
on all persons having any interest in the Plan or in any awards granted
hereunder. All powers of the Committee shall be executed in its sole
discretion, in the best interest of the Company, not as a fiduciary, and in
keeping with the objectives of the Plan and need not be uniform as to
similarly situated individuals.
2. Grants
Awards under the Plan may consist of grants of incentive stock options as
described in Section 5 ("Incentive Stock Options"), nonqualified stock options
as described in Section 5 ("Nonqualified Stock Options") (Incentive Stock
Options and Nonqualified Stock Options are collectively referred to as
"Options") and restricted stock as described in Section 6 ("Restricted Stock")
(hereinafter collectively referred to as "Grants"). All Grants shall be
subject to the terms and conditions set forth herein and to such other terms
and conditions consistent with this Plan as the Committee deems appropriate
and as are specified in writing by the Committee to the individual in a grant
instrument or an amendment to the grant instrument (the "Grant Instrument").
The Committee shall approve the form and provisions of each Grant Instrument.
Grants under a particular Section of the Plan need not be uniform as among the
grantees.
3. Shares Subject to the Plan
(a) Shares Authorized. Subject to adjustment as described below, the
aggregate number of shares of common stock of the Company ("Company Stock")
that may be issued or transferred under the Plan is 2,500,000 shares, subject
to adjustment as described below. The maximum aggregate number of shares of
APPENDIX VII - 1999 EQUITY
COMPENSATION PLAN
VII-1
<PAGE>
Company Stock that may be subject to Grants made under the Plan to any
individual during any calendar year shall be 800,000 shares, subject to
adjustment as described below. The shares may be authorized but unissued shares
of Company Stock or reacquired shares of Company Stock, including shares
purchased by the Company on the open market for purposes of the Plan. If and to
the extent Options granted under the Plan terminate, expire, or are canceled,
forfeited, exchanged or surrendered without having been exercised or if any
shares of Restricted Stock are forfeited, the shares subject to such Grants
shall again be available for purposes of the Plan.
(b) Adjustments. If there is any change in the number or kind of shares of
Company Stock outstanding (i) by reason of a stock dividend, spinoff,
recapitalization, stock split, or combination or exchange of shares, (ii) by
reason of a merger, reorganization or consolidation in which the Company is the
surviving corporation, (iii) by reason of a reclassification or change in par
value, or (iv) by reason of any other extraordinary or unusual event affecting
the outstanding Company Stock as a class without the Company's receipt of
consideration, or if the value of outstanding shares of Company Stock is
substantially reduced as a result of a spinoff or the Company's payment of an
extraordinary dividend or distribution, the maximum number of shares of Company
Stock available for Grants, the maximum number of shares of Company Stock that
any individual participating in the Plan may be granted in any year, the number
of shares covered by outstanding Grants, the kind of shares issued under the
Plan, and the price per share or the applicable market value of such Grants may
be appropriately adjusted by the Committee to reflect any increase or decrease
in the number of, or change in the kind or value of, issued shares of Company
Stock to preclude, to the extent practicable, the enlargement or dilution of
rights and benefits under such Grants; provided, however, that any fractional
shares resulting from such adjustment shall be eliminated. Any adjustments
determined by the Committee shall be final, binding and conclusive.
4. Eligibility for Participation
(a) Eligible Persons. All employees of the Company and its subsidiaries
("Employees"), including Employees who are officers or members of the Board,
and members of the Board who are not Employees ("Non-Employee Directors") shall
be eligible to participate in the Plan. Consultants and advisors who perform
services for the Company or any of its subsidiaries ("Key Advisors") shall be
eligible to participate in the Plan if the Key Advisors render bona fide
services and such services are not in connection with the offer or sale of
securities in a capital-raising transaction.
(b) Selection of Grantees. The Committee shall select the Employees, Non-
Employee Directors and Key Advisors to receive Grants and shall determine the
number of shares of Company Stock subject to a particular Grant in such manner
as the Committee determines. Employees, Key Advisors and Non-Employee Directors
who receive Grants under this Plan shall hereinafter be referred to as
"Grantees."
5. Granting of Options
(a) Number of Shares. The Committee shall determine the number of shares of
Company Stock that will be subject to each Grant of Options to Employees, Non-
Employee Directors and Key Advisors.
(b) Type of Option and Price.
(i) The Committee may grant Incentive Stock Options that are intended to
qualify as "incentive stock options" within the meaning of section 422 of the
Code or Nonqualified Stock Options that are not intended so to qualify or any
combination of Incentive Stock Options and Nonqualified Stock Options, all in
accordance with the terms and conditions set forth herein. Incentive Stock
Options may be granted only to Employees. Nonqualified Stock Options may be
granted to Employees, Non-Employee Directors and Key Advisors.
APPENDIX VII - 1999 EQUITY
COMPENSATION PLAN
VII-2
<PAGE>
(ii) The purchase price (the "Exercise Price") of Company Stock subject to an
Option shall be determined by the Committee and may be equal to, greater than,
or less than the Fair Market Value (as defined below) of a share of Company
Stock on the date the Option is granted; provided, however, that (x) the
Exercise Price of an Incentive Stock Option shall be equal to, or greater
than, the Fair Market Value of a share of Company Stock on the date the
Incentive Stock Option is granted and (y) an Incentive Stock Option may not be
granted to an Employee who, at the time of grant, owns stock possessing more
than 10% of the total combined voting power of all classes of stock of the
Company or any parent or subsidiary of the Company, unless the Exercise Price
per share is not less than 110% of the Fair Market Value of Company Stock on
the date of grant.
(iii) If the Company Stock is publicly traded, then the Fair Market Value per
share shall be determined as follows: (x) if the principal trading market for
the Company Stock is a national securities exchange or the Nasdaq National
Market, the last reported sale price thereof on the relevant date or (if there
were no trades on that date) the latest preceding date upon which a sale was
reported, or (y) if the Company Stock is not principally traded on such
exchange or market, the mean between the last reported "bid" and "asked"
prices of Company Stock on the relevant date, as reported on Nasdaq or, if not
so reported, as reported by the National Daily Quotation Bureau, Inc. or as
reported in a customary financial reporting service, as applicable and as the
Committee determines. If the Company Stock is not publicly traded or, if
publicly traded, is not subject to reported transactions or "bid" or "asked"
quotations as set forth above, the Fair Market Value per share shall be as
determined by the Committee.
(c) Option Term. The Committee shall determine the term of each Option. The
term of any Option shall not exceed ten years from the date of grant. However,
an Incentive Stock Option that is granted to an Employee who, at the time of
grant, owns stock possessing more than 10% of the total combined voting power
of all classes of stock of the Company, or any parent or subsidiary of the
Company, may not have a term that exceeds five years from the date of grant.
(d) Exercisability of Options. Options shall become exercisable in accordance
with such terms and conditions, consistent with the Plan, as may be determined
by the Committee and specified in the Grant Instrument. The Committee may
accelerate the exercisability of any or all outstanding Options at any time
for any reason.
(e) Termination of Employment, Disability or Death.
(i) Except as provided below, an Option may only be exercised while the
Grantee is employed by, or providing service to, the Company as an Employee,
Key Advisor or member of the Board. In the event that a Grantee ceases to be
employed by, or provide service to, the Company for any reason other than a
Disability (as defined below), death, or termination for Cause (as defined
below), any Option which is otherwise exercisable by the Grantee shall
terminate unless exercised within 90 days after the date on which the Grantee
ceases to be employed by, or provide service to, the Company (or within such
other period of time as may be specified by the Committee), but in any event
no later than the date of expiration of the Option term. Except as otherwise
provided by the Committee, any of the Grantee's Options that are not otherwise
exercisable as of the date on which the Grantee ceases to be employed by, or
provide service to, the Company shall terminate as of such date.
(ii) In the event the Grantee ceases to be employed by, or provide service to,
the Company on account of a termination for Cause by the Company, any Option
held by the Grantee shall terminate as of the date the Grantee ceases to be
employed by, or provide service to, the Company. In addition, notwithstanding
any other provisions of this Section 5, if the Committee determines that the
Grantee has engaged in conduct that constitutes Cause at any time while the
Grantee is employed by, or providing service to, the Company or after the
Grantee's termination of employment or service, any Option held by the Grantee
shall immediately terminate and the Grantee shall automatically forfeit all
shares underlying any exercised portion of an Option for which the Company has
not yet delivered the share certificates, upon refund by the Company of the
Exercise Price paid by the Grantee for such shares.
APPENDIX VII - 1999 EQUITY
COMPENSATION PLAN
VII-3
<PAGE>
(iii) In the event the Grantee ceases to be employed by, or provide service to,
the Company because the Grantee is Disabled, any Option which is otherwise
exercisable by the Grantee shall terminate unless exercised within one year
after the date on which the Grantee ceases to be employed by, or provide
service to, the Company (or within such other period of time as may be
specified by the Committee), but in any event no later than the date of
expiration of the Option term. Except as otherwise provided by the Committee,
any of the Grantee's Options which are not otherwise exercisable as of the date
on which the Grantee ceases to be employed by, or provide service to, the
Company shall terminate as of such date.
(iv) If the Grantee dies while employed by, or providing service to, the
Company or within 90 days after the date on which the Grantee ceases to be
employed or provide service on account of a termination specified in Section
5(e)(i) above (or within such other period of time as may be specified by the
Committee), any Option that is otherwise exercisable by the Grantee shall
terminate unless exercised within one year after the date on which the Grantee
ceases to be employed by, or provide service to, the Company (or within such
other period of time as may be specified by the Committee), but in any event no
later than the date of expiration of the Option term. Except as otherwise
provided by the Committee, any of the Grantee's Options that are not otherwise
exercisable as of the date on which the Grantee ceases to be employed by, or
provide service to, the Company shall terminate as of such date.
(v) For purposes of this Section 5(e) and Section 6:
(A) The term "Company" shall mean the Company and its parent and
subsidiary corporations.
(B) "Employed by, or provide service to, the Company" shall mean
employment or service as an Employee, Key Advisor or member of the Board
(so that, for purposes of exercising Options and satisfying conditions
with respect to Restricted Stock, a Grantee shall not be considered to
have terminated employment or service until the Grantee ceases to be an
Employee, Key Advisor and member of the Board), unless the Committee
determines otherwise.
(C) "Disability" shall mean a Grantee's becoming disabled within the
meaning of section 22(e)(3) of the Code.
(D) "Cause" shall mean, except to the extent specified otherwise by the
Committee, a finding by the Committee that the Grantee (i) has breached
his or her employment or service contract with the Company, (ii) has
been engaged in disloyalty to the Company, including, without
limitation, fraud, embezzlement, theft, commission of a felony or proven
dishonesty in the course of his or her employment or service, (iii) has
disclosed trade secrets or confidential information of the Company to
persons not entitled to receive such information or (iv) has engaged in
such other behavior detrimental to the interests of the Company as the
Committee determines.
(f)Exercise of Options. A Grantee may exercise an Option that has become
exercisable, in whole or in part, by delivering a notice of exercise to the
Company with payment of the Exercise Price. The Grantee shall pay the Exercise
Price for an Option as specified by the Committee (x) in cash, (y) with the
approval of the Committee, by delivering shares of Company Stock owned by the
Grantee (including Company Stock acquired in connection with the exercise of an
Option, subject to such restrictions as the Committee deems appropriate) and
having a Fair Market Value on the date of exercise equal to the Exercise Price
or (z) by such other method as the Committee may approve, including payment
through a broker in accordance with procedures permitted by Regulation T of the
Federal Reserve Board. Shares of Company Stock used to exercise an Option shall
have been held by the Grantee for the requisite period of time to avoid adverse
accounting consequences to the Company with respect to the Option. The Grantee
shall pay the Exercise Price and the amount of any withholding tax due
(pursuant to Section 7) at the time of exercise.
(g)Limits on Incentive Stock Options. Each Incentive Stock Option shall provide
that, if the aggregate Fair Market Value of the stock on the date of the grant
with respect to which Incentive Stock Options are exercisable for the first
time by a Grantee during any calendar year, under the Plan or any other
APPENDIX VII - 1999 EQUITY
COMPENSATION PLAN
VII-4
<PAGE>
stock option plan of the Company or a parent or subsidiary, exceeds $100,000,
then the Option, as to the excess, shall be treated as a Nonqualified Stock
Option. An Incentive Stock Option shall not be granted to any person who is
not an Employee of the Company or a parent or subsidiary (within the meaning
of section 424(f) of the Code).
6.Restricted Stock Grants
The Committee may issue or transfer shares of Company Stock to an Employee,
Non-Employee Director or Key Advisor under a Grant of Restricted Stock, upon
such terms as the Committee deems appropriate. The following provisions are
applicable to Restricted Stock:
(a) General Requirements. Shares of Company Stock issued or transferred
pursuant to Restricted Stock Grants may be issued or transferred for
consideration or for no consideration, and may be subject to restrictions or
no restrictions, as determined by the Committee. The Committee may establish
conditions under which restrictions on shares of Restricted Stock shall lapse
over a period of time or according to such other criteria as the Committee
deems appropriate. The period of time during which the Restricted Stock will
remain subject to restrictions will be designated in the Grant Instrument as
the "Restriction Period."
(b) Number of Shares. The Committee shall determine the number of shares of
Company Stock to be issued or transferred pursuant to a Restricted Stock Grant
and the restrictions applicable to such shares.
(c) Requirement of Employment or Service. If the Grantee ceases to be
employed by, or provide service to, the Company (as defined in Section 5(e))
during a period designated in the Grant Instrument as the Restriction Period,
or if other specified conditions are not met, the Restricted Stock Grant shall
terminate as to all shares covered by the Grant as to which the restrictions
have not lapsed, and those shares of Company Stock must be immediately
returned to the Company. The Committee may, however, provide for complete or
partial exceptions to this requirement as it deems appropriate.
(d) Restrictions on Transfer and Legend on Stock Certificate. During the
Restriction Period, a Grantee may not sell, assign, transfer, pledge or
otherwise dispose of the shares of Restricted Stock except to a Successor
Grantee under Section 8(a). Each certificate for a share of Restricted Stock
shall contain a legend giving appropriate notice of the restrictions in the
Grant. The Grantee shall be entitled to have the legend removed from the stock
certificate covering the shares subject to restrictions when all restrictions
on such shares have lapsed. The Committee may determine that the Company will
not issue certificates for shares of Restricted Stock until all restrictions
on such shares have lapsed, or that the Company will retain possession of
certificates for shares of Restricted Stock until all restrictions on such
shares have lapsed.
(e) Right to Vote and to Receive Dividends. Unless the Committee determines
otherwise, during the Restriction Period, the Grantee shall have the right to
vote shares of Restricted Stock and to receive any dividends or other
distributions paid on such shares, subject to any restrictions deemed
appropriate by the Committee.
(f) Lapse of Restrictions. All restrictions imposed on Restricted Stock shall
lapse upon the expiration of the applicable Restriction Period and the
satisfaction of all conditions imposed by the Committee. The Committee may
determine, as to any or all Restricted Stock Grants, that the restrictions
shall lapse without regard to any Restriction Period.
7. Withholding of Taxes
(a) Required Withholding. All Grants under the Plan shall be subject to
applicable federal (including FICA), state and local tax withholding
requirements. The Company may require that the Grantee or other person
receiving or exercising Grants pay to the Company the amount of any federal,
state or local taxes that the Company is required to withhold with respect to
such Grants, or the Company may deduct from other wages paid by the Company
the amount of any withholding taxes due with respect to such Grants.
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(b) Election to Withhold Shares. If the Committee so permits, a Grantee may
elect to satisfy the Company's income tax withholding obligation with respect
to a Grant by having shares withheld up to an amount that does not exceed the
Grantee's minimum applicable withholding tax rate for federal (including FICA),
state and local tax liabilities. The election must be in a form and manner
prescribed by the Committee and shall be subject to the prior approval of the
Committee.
8. Transferability of Grants
(a) Nontransferability of Grants. Except as provided below, only the Grantee
may exercise rights under a Grant during the Grantee's lifetime. A Grantee may
not transfer those rights except by will or by the laws of descent and
distribution or, with respect to Grants other than Incentive Stock Options, if
permitted in any specific case by the Committee, pursuant to a domestic
relations order (as defined under the Code or Title I of the Employee
Retirement Income Security Act of 1974, as amended, or the regulations
thereunder). When a Grantee dies, the personal representative or other person
entitled to succeed to the rights of the Grantee ("Successor Grantee") may
exercise such rights. A Successor Grantee must furnish proof satisfactory to
the Company of his or her right to receive the Grant under the Grantee's will
or under the applicable laws of descent and distribution.
(b) Transfer of Nonqualified Stock Options. Notwithstanding the foregoing, the
Committee may provide, in a Grant Instrument, that a Grantee may transfer
Nonqualified Stock Options to family members, one or more trusts for the
benefit of family members, or one or more partnerships of which family members
are the only partners, according to such terms as the Committee may determine;
provided that the Grantee receives no consideration for the transfer of an
Option and the transferred Option shall continue to be subject to the same
terms and conditions as were applicable to the Option immediately before the
transfer.
9. Change of Control of the Company
As used herein, a "Change of Control" shall be deemed to have occurred if:
(a) Any person, entity or group, within the meaning of Section 13(d) or 14(d)
of the Exchange Act (excluding for this purpose (A) the Company or its
subsidiaries and (B) any employee benefit plan of the Company or its
subsidiaries which acquires beneficial ownership of voting securities of the
Company) becomes a "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company
representing 30% or more of the voting power of the then outstanding securities
of the Company; provided that a Change of Control shall not be deemed to occur
as a result of a transaction in which the Company becomes a subsidiary of
another corporation and in which the shareholders of the Company, immediately
prior to the transaction, will beneficially own, immediately after the
transaction, shares entitling such shareholders to more than 50% of all votes
to which all shareholders of the parent corporation would be entitled in the
election of directors;
(b) The shareholders of the Company approve (or, if shareholder approval is not
required, the Board approves) an agreement providing for (i) the merger or
consolidation of the Company with another corporation where the shareholders of
the Company, immediately prior to the merger or consolidation, will not
beneficially own, immediately after the merger or consolidation, shares
entitling such shareholders to more than 50% of all votes to which all
shareholders of the surviving corporation would be entitled in the election of
directors, (ii) the sale or other disposition of all or substantially all of
the assets of the Company, or (iii) a liquidation or dissolution of the
Company; or
(c) Any person has commenced a tender offer or exchange offer for 30% or more
of the voting power of the then outstanding shares of the Company.
10. Consequences of a Change of Control
(a) Assumption of Grants. Upon a Change of Control where the Company is not
the surviving corporation (or survives only as a subsidiary of another
corporation), unless the Committee determines
APPENDIX VII - 1999 EQUITY
COMPENSATION PLAN
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<PAGE>
otherwise, all outstanding Options that are not exercised shall be assumed by,
or replaced with comparable options by the surviving corporation.
(b) Other Alternatives. Notwithstanding the foregoing, subject to subsection
(c) below, in the event of a Change of Control, the Committee may take any of
the following actions with respect to any or all of the outstanding Grants:
the Committee may (i) determine that outstanding Options shall automatically
accelerate and become fully exercisable and that the restrictions and
conditions on outstanding Restricted Stock shall immediately lapse, (ii)
require that Grantees surrender their outstanding Options in exchange for a
payment by the Company, in cash or Company Stock as determined by the
Committee, in an amount equal to the amount by which the then Fair Market
Value of the shares of Company Stock subject to the Grantee's unexercised
Options exceeds the Exercise Price of the Options or (iii) after giving
Grantees an opportunity to exercise their outstanding Options, terminate any
or all unexercised Options at such time as the Committee deems appropriate.
Such surrender or termination shall take place as of the date of the Change of
Control or such other date as the Committee may specify. The Committee shall
have no obligation to take any of the foregoing actions, and, in the absence
of any such actions, outstanding Options and Restricted Stock shall continue
in effect according to their terms (subject to any assumption pursuant to
Subsection (a)).
(c) Limitations. Notwithstanding anything in the Plan to the contrary, in the
event of a Change of Control, the Committee shall not have the right to take
any actions described in the Plan (including without limitation actions
described in Subsection (b) above) that would make the Change of Control
ineligible for pooling of interests accounting treatment or that would make
the Change of Control ineligible for desired tax treatment if, in the absence
of such right, the Change of Control would qualify for such treatment and the
Company intends to use such treatment with respect to the Change of Control.
11. Requirements for Issuance or Transfer of Shares
No Company Stock shall be issued or transferred in connection with any Grant
hereunder unless and until all legal requirements applicable to the issuance
or transfer of such Company Stock have been complied with to the satisfaction
of the Committee. The Committee shall have the right to condition any Grant
made to any Grantee hereunder on such Grantee's undertaking in writing to
comply with such restrictions on his or her subsequent disposition of such
shares of Company Stock as the Committee shall deem necessary or advisable as
a result of any applicable law, regulation or official interpretation thereof,
and certificates representing such shares may be legended to reflect any such
restrictions. Certificates representing shares of Company Stock issued or
transferred under the Plan will be subject to such stop-transfer orders and
other restrictions as may be required by applicable laws, regulations and
interpretations, including any requirement that a legend be placed thereon.
12. Amendment and Termination of the Plan
(a) Amendment. The Board may amend or terminate the Plan at any time;
provided, however, that the Board shall not amend the Plan without shareholder
approval if such approval is required in order for Incentive Stock Options
granted or to be granted under the Plan to meet the requirements of section
422 of the Code or such approval is required in order to exempt compensation
under the Plan from the deduction limit under section 162(m) of the Code.
(b) Termination of Plan. The Plan shall terminate on the day immediately
preceding the tenth anniversary of its effective date, unless the Plan is
terminated earlier by the Board or is extended by the Board with the approval
of the shareholders.
(c) Termination and Amendment of Outstanding Grants. A termination or
amendment of the Plan that occurs after a Grant is made shall not materially
impair the rights of a Grantee unless the Grantee consents or unless the
Committee acts under Section 18(b). The termination of the Plan shall not
impair the power and authority of the Committee with respect to an outstanding
Grant. Whether or not the Plan has terminated, an outstanding Grant may be
terminated or amended under Section 18(b) or may be amended by agreement of
the Company and the Grantee consistent with the Plan.
APPENDIX VII - 1999 EQUITY
COMPENSATION PLAN
VII-7
<PAGE>
(d) Governing Document. The Plan shall be the controlling document. No other
statements, representations, explanatory materials or examples, oral or
written, may amend the Plan in any manner. The Plan shall be binding upon and
enforceable against the Company and its successors and assigns.
13. Funding of the Plan
This Plan shall be unfunded. The Company shall not be required to establish any
special or separate fund or to make any other segregation of assets to assure
the payment of any Grants under this Plan. In no event shall interest be paid
or accrued on any Grant, including unpaid installments of Grants.
14. Rights of Participants
Nothing in this Plan shall entitle any Employee, Key Advisor, Non-Employee
Director or other person to any claim or right to be granted a Grant under this
Plan. Neither this Plan nor any action taken hereunder shall be construed as
giving any individual any rights to be retained by or in the employ of the
Company or any other employment rights.
15. No Fractional Shares
No fractional shares of Company Stock shall be issued or delivered pursuant to
the Plan or any Grant. The Committee shall determine whether cash, other awards
or other property shall be issued or paid in lieu of such fractional shares or
whether such fractional shares or any rights thereto shall be forfeited or
otherwise eliminated.
16. Headings
Section headings are for reference only. In the event of a conflict between a
title and the content of a Section, the content of the Section shall control.
17. Effective Date of the Plan.
(a) The Plan shall be effective as of the effective date of the mergers
contemplated by the Agreement and Plan of Merger dated as of October 22, 1998
by and among N2K Inc., CDnow, Inc. and the Company, subject to approval by the
shareholders.
18. Miscellaneous
(a) Grants in Connection with Corporate Transactions and Otherwise. Nothing
contained in this Plan shall be construed to (i) limit the right of the
Committee to make Grants under this Plan in connection with the acquisition, by
purchase, lease, merger, consolidation or otherwise, of the business or assets
of any corporation, firm or association, including Grants to employees thereof
who become Employees of the Company, or for other proper corporate purposes, or
(ii) limit the right of the Company to grant stock options or make other awards
outside of this Plan. Without limiting the foregoing, the Committee may make a
Grant to an employee of another corporation who becomes an Employee by reason
of a corporate merger, consolidation, acquisition of stock or property,
reorganization or liquidation involving the Company or any of its subsidiaries
in substitution for a stock option or Restricted Stock grant made by such
corporation. The terms and conditions of the substitute grants may vary from
the terms and conditions required by the Plan and from those of the substituted
stock incentives. The Committee shall prescribe the provisions of the
substitute grants.
(b) Compliance with Law. The Plan, the exercise of Options and the obligations
of the Company to issue or transfer shares of Company Stock under Grants shall
be subject to all applicable laws and to approvals by any governmental or
regulatory agency as may be required. With respect to persons subject to
section 16 of the Exchange Act, it is the intent of the Company that the Plan
and all transactions under the Plan comply with all applicable provisions of
Rule 16b-3 or its successors under the Exchange Act. In addition, it is the
intent of the Company that the Plan and applicable Grants under the Plan comply
with the applicable provisions of section 162(m) of the Code and section 422 of
the Code. To the extent that any legal requirement
APPENDIX VII - 1999 EQUITY
COMPENSATION PLAN
VII-8
<PAGE>
of section 16 of the Exchange Act or section 162(m) or 422 of the Code as set
forth in the Plan ceases to be required under section 16 of the Exchange Act
or section 162(m) or 422 of the Code, that Plan provision shall cease to
apply. The Committee may revoke any Grant if it is contrary to law or modify a
Grant to bring it into compliance with any valid and mandatory government
regulation. The Committee may also adopt rules regarding the withholding of
taxes on payments to Grantees. The Committee may, in its sole discretion,
agree to limit its authority under this Section.
(c) Governing Law. The validity, construction, interpretation and effect of
the Plan and Grant Instruments issued under the Plan shall be governed and
construed by and determined in accordance with the laws of the Commonwealth of
Pennsylvania, without giving effect to the conflict of laws provisions
thereof.
APPENDIX VII - 1999 EQUITY
COMPENSATION PLAN
VII-9
<PAGE>
CDnow, Inc.
PROXY/VOTING INSTRUCTION CARD
- --------------------------------------------------------------------------------
THIS PROXY IS SOLICITED BY THE BOARD OF DIRECTORS for the Special Meeting of
Shareholders March 17, 1999, 9:00 a.m. Local Time, at CDnow, Inc., 1005
Virginia Drive, Fort Washington, Pennsylvania, 19034.
The undersigned hereby appoints Jason Olim and David Capozzi, and each of them,
proxies, with the powers the undersigned would possess if personally present,
and with full power of substitution, to vote all common shares held of record
by the undersigned in CDnow, Inc., upon all subjects that may properly come
before the meeting, including the matters described in the proxy statement
furnished herewith, subject to any directions indicated on the reverse side of
this card. IF NO DIRECTIONS ARE GIVEN, THE PROXIES WILL VOTE IN ACCORD WITH THE
DIRECTORS' RECOMMENDATIONS ON THE SUBJECTS LISTED ON THE REVERSE SIDE OF THIS
CARD AND AT THEIR DISCRETION ON ANY OTHER MATTER THAT MAY PROPERLY COME BEFORE
THE MEETING OR ANY ADJOURNMENT THEREOF.
IF YOU DO NOT SIGN AND RETURN A PROXY, OR ATTEND THE MEETING AND VOTE BY
BALLOT, YOUR SHARES CANNOT BE VOTED, NOR YOUR INSTRUCTIONS FOLLOWED.
PLEASE SIGN ON THE REVERSE SIDE AND
RETURN THIS PROXY IN THE ENCLOSED
ENVELOPE.
<PAGE>
Directors recommend a vote "FOR";
1. Approval of an Agreement and Plan of Merger, dated as of October
22, 1998, among N2K Inc., CDnow, Inc. and CDnow/N2K, Inc. as
amended, providing for the issuance of shares of CDnow/N2K, Inc.
Common Stock to shareholders of CDnow, Inc. and N2K Inc. in
consideration for the shares of CDnow and N2K Common Stock held by
such shareholders.
FOR [_] AGAINST [_] ABSTAIN [_]
2. Approval of the CDnow/N2K, Inc. 1999 Equity Compensation Plan.
FOR [_] AGAINST [_] ABSTAIN [_]
3. In their discretion, the Proxies are authorized to vote upon such
other business as may properly come before the Special Meeting.
Please sign exactly as name or
names appear on this proxy. If
stock is held jointly, each
holder should sign. If signing as
attorney, trustee, executor,
administrator, custodian,
guardian or corporate officer,
please give full title.
DATE ______________________ , 1999
SIGNATURE: _______________________
SIGNATURE: _______________________
Votes must be indicated (X) in Black.
