UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D\A
Under the Securities Exchange Act of 1934
(Amendment No. 1)
Name of Issuer: MULTICOM PUBLISHING, INC.
Title of Class of Securities: Common stock, par value $.01 per share
CUSIP Number: 625437 10 8
Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications:
Thomas L. Slaughter
Vice President-General Counsel and Secretary
Meredith Corporation
1716 Locust Street
Des Moines, Iowa 50309-3023
(515) 284-3056
Date of Event which Requires Filing of this Statement: February 7, 1997
If the filing person has previously filed a statement on
Schedule 13G to report the acquisition which is the subject of this Schedule
13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the
following box [ ].
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Check the following box if a fee is being paid with the
statement [ ]. (A fee is not required only if the reporting person: (1) has
a previous statement on file reporting beneficial ownership of more than five
percent of the class of securities described in Item 1; and (2) has filed no
amendment subsequent thereto reporting beneficial ownership of five percent or
less of such class.) (See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits,
should be filed with the Commission. See Rule 13d-1(a) for other parties to
whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
1. NAME OF REPORTING PERSON: Meredith Corporation
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: 42-0410230
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ]
3. SEC USE ONLY
4. SOURCE OF FUNDS: PF
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2 (E) [ ]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION: Iowa
NUMBER OF 7. SOLE VOTING POWER: 1,337,931 *
SHARES
BENEFICIALLY 8. SHARED VOTING POWER: - 0 -
OWNED BY
EACH 9. SOLE DISPOSITIVE POWER: 1,337,931 *
REPORTING
PERSON 10. SHARED DISPOSITIVE POWER: - 0 -
WITH
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 1,337,931*
* Does not include shares accrued as interest but not yet issued, and
which will be issued quarterly under an Issuer promissory note dated July 31,
1995, nor anti-dilution rights which grant Meredith Corporation the right to
purchase a proportionate number of shares when certain employee options and
other warrants are exercised. The purchase price in each case is the same
price per share as the affected employee options and other warrants. The
exercise prices range from $.25 per share to $6.07 per share. The anti-
dilution right expires on the date (a) the affected employee option or other
warrant expires without exercise, or (b) ten days after Meredith has received
notice of the exercise of the affected employee option or other warrant.
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[ ]
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 20.9%
14. TYPE OF REPORTING PERSON: CO
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Item 1. Security and Issuer.
Item 1 is amended and supplemented to read as follows:
This Amendment No. 1 amends and supplements the Schedule 13D filed
with the Securities and Exchange Commission on July 5, 1996 on behalf of
Meredith Corporation (hereinafter "Meredith") and relates to the common
stock of Multicom Publishing, Inc. (hereinafter "Multicom").
The executive officers of Multicom and their business addresses are:
Tamara L. Attard, Chief Executive Officer and Chairman of the Board,
188 Embarcadero, 5th Floor, San Francisco, CA 94105
Paul G. Attard, President, Chief Operating Officer and Director,
188 Embarcadero, 5th Floor, San Francisco, CA 94105
Ellen R. M. Boyer, Vice President of Finance and Administration and
Chief Financial Officer,
1100 Olive Way, Suite 1250, Seattle, WA 98101
Item 3.
Item 3 is amended and supplemented by adding the following to the
end thereof:
The funds used by Meredith to purchase the shares reported in this
Amendment No. 1 were Meredith's personal funds.
Item 4. Purpose of Transaction.
The first and second paragraphs of Section (a) of Item 4 are amended to
read as follows:
On January 1, 1997, Meredith acquired 1,977 shares of common stock
of Multicom as interest payable upon the balance of the loaned
indebtedness, as described in Item 3 of the Schedule 13D. Meredith may
acquire additional common stock of Multicom as interest upon the balance
of such indebtedness.
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Meredith may also acquire additional shares of Multicom by
virtue of certain antidilution rights granted Meredith by Multicom
pursuant to the Stock Purchase Agreement of June 4, 1994, under which
Meredith purchased shares of Multicom Series B Stock (see discussion under
Item 3 in Schedule 13D). Such antidilution rights entitle Meredith to
purchase up to 359,536 additional shares of Multicom common stock.
Item 5. Interest in Securities of the Issuer.
The first and second paragraphs of Section (a) of Item 5 are hereby
amended to read as follows:
Meredith has beneficial ownership of 1,337,931 shares of the
common stock of Multicom, and holds antidilution rights which entitle
Meredith to obtain up to 359,536 additional shares. The number of shares
which Meredith may be entitled to obtain by reason of its antidilution
rights was incorrectly stated as 216,420 in the Schedule 13D and is being
corrected in this Amendment No. 1.
The sum of the shares beneficially owned and the shares Meredith
is entitled to obtain is 1,697,467. Based upon information supplied by
Multicom to Meredith, Multicom had 6,415,991 shares of Common Stock
outstanding as of February 7, 1997. Accordingly, Meredith beneficially
owns and is entitled to obtain a total of 26.5% of the outstanding common
stock of Multicom.
(c) Section (c) of Item 5 is hereby amended and supplemented by
adding the following to the end thereof:
Set forth below are descriptions of the descriptions of
transactions in Multicom Common Stock effected by Meredith
during the past 60 days:
Date of Number of Shares Description of
Transaction Of Common Stock Price Per Share Transaction
----------- ---------------- --------------- --------------
1-1-97 1,977 $6.07 for interest on
indebtedness
2-7-97 75,438 $2.28 Private Placement
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Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer.
Item 6 is hereby amended and supplemented by adding the following to the
end thereof:
On February 7, 1997 Multicom issued to Meredith 175,438 shares of its
Common Stock for a purchase price of $2.28/share. The shares were issued
as part of a private placement ("Private Placement") and pursuant to a
Common Stock Purchase Agreement ("Purchase Agreement"). The shares
purchased by Meredith in the Private Placement are restricted within the
meaning of Rule 144 of the Securities Act of 1933 and certificates
representing such shares are required to carry a legend to that effect.
Pursuant to limitations in the Purchase Agreement, Meredith has the right
(i) to demand registration of these restricted shares at any time after
the date which is nine months from the date of the closing of the Purchase
Agreement and (ii) to demand that its restricted shares be included in any
registration of securities undertaken by Multicom. By the terms of the
Purchase Agreement, Meredith has agreed not to sell or otherwise dispose
of any securities of Multicom (other than securities included in an
applicable registration statement)up to a 180-day period following the
effective date of any Multicom underwritten public offering, provided that
a majority of the officers and directors of Multicom agree to be similarly
bound.
Item 7. Material to be Filed as Exhibits.
Item 7 is hereby amended and supplemented by adding the following
to the end thereof:
Common Stock Purchase Agreement dated as of February 7, 1997
Signature
February 19, 1997 /s/ Thomas L. Slaughter
- ---------------------------- --------------------------------------------
Date Signature
Thomas L. Slaughter
Vice President-General Counsel and Secretary
--------------------------------------------
Name/Title
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EXHIBIT INDEX
to Schedule 13 D\A
Filer: Meredith Corporation (MDP)
Schedule A page 8 of 29
Exhibit 1 page 10 of 29
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Schedule A is amended to read as follows:
SCHEDULE A
The name and principal occupation or employment of each executive officer of
Meredith are set forth below. The business address of each person is 1716
Locust Street, Des Moines, Iowa 50309-3023, and the address of the corporation
or organization in which such employment is conducted is the same as his
business address. All of the persons listed below are U.S. citizens.
NAME POSITION WITH MEREDITH
Leo R. Armatis Vice President-Corporate Relations
Larry D. Hartsook Vice President-Finance
Philip A. Jones President-Broadcasting Group
William T. Kerr President and Chief Executive Officer
Christopher M. Little President-Publishing Group
E. T. Meredith III Chairman of the Executive Committee
Jack D. Rehm Chairman of the Board
Allen L. Sabbag President-Real Estate Group
Thomas L. Slaughter Vice President-General Counsel and Secretary
The name, principal occupation or employment, and address of the corporation or
organization in which such employment is conducted of each director of Meredith
are set forth below. All of the persons listed below are U.S. citizens.
Herbert M. Baum Chairman and CEO, Quaker State Corporation
225 E. John Carpenter Freeway, Irving, TX 75062
Robert A. Burnett Chairman and CEO (Retired), Meredith Corporation
1716 Locust St., Des Moines, IA 50309-3023
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Pierson M. Grieve Chairman and CEO (Retired), Ecolab, Inc.
4900 IDS Center, 80 S. 8th St., Minneapolis, MN 55402
Frederick B. Henry President, The Bohen Foundation
1657 Art School Rd., Chester Springs, PA 19425
Joel W. Johnson Chairman, President and CEO, Hormel Foods Corporation
One Hormel Place, Austin, MN 55912-3680
William T. Kerr President and Chief Executive Officer
Meredith Corporation
1716 Locust St., Des Moines, IA 50309-3023
Robert E. Lee Executive Director, The Denver Foundation
455 Sherman St., Suite 220, Denver, CO 80203
Richard S. Levitt Chairman and CEO, Nellis Corporation
6001 Montrose Rd., Suite 600, Rockville, MD 20852
E.T. Meredith III Chairman of the Executive Committee, Meredith Corp.
1716 Locust St., Des Moines, IA 50309-3023
Nicholas L. Reding Vice Chairman, Monsanto Company
800 N. Lindbergh Blvd., St. Louis, MO 63167
Jack D. Rehm Chairman of the Board
Meredith Corporation
1716 Locust St., Des Moines, IA 50309-3023
(Dr.) Barbara S. Executive Director of the Business-Higher
Uehling Education Forum
1 DuPont Circle N.W., Suite 800
Washington, DC 20036-1193
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EXHIBIT 1
TO 13 D\A
MULTICOM PUBLISHING, INC.
COMMON STOCK PURCHASE AGREEMENT
This Agreement is entered into as of February 7, 1997 by and among
Multicom Publishing, Inc., a Washington corporation (the "Company") and each of
the undersigned purchasers of Common Stock of the Company (collectively the
"Purchasers" and individually a "Purchaser") listed on the Schedule of
Purchasers attached hereto as Exhibit A.
In consideration of the mutual promises, covenants and conditions set
forth below, the parties mutually agree as follows:
1. Authorization and Sale of the Shares.
1.1 Authorization. The Company has authorized the issuance and sale
of up to $1,600,000 worth of shares of its Common Stock pursuant to the terms
and conditions of this Agreement. The term "Common Shares" means shares of
Common Stock which equal a value of $1,600,000.
1.2 Issuance and Sale. Subject to the terms and conditions of this
Agreement, at the Closing (as defined below), the Company will issue and sell
to the Purchasers and the Purchasers will purchase from the Company, up to
$1,600,000 worth of shares of Common Stock, at a price per share equal to the
average of the closing sale prices of the Company's Common Stock as reported in
the Wall Street Journal based upon information provided by the Nasdaq SmallCap
Market for each of the 20 consecutive trading days ending on the business day
immediately preceding the Initial Closing Date. The Company's agreement with
each Purchaser hereunder is a separate agreement, and the sale of Common Shares
to each of the Purchasers is a separate sale.
2. Closing Date; Delivery.
2.1 Initial Closing Date. The closing (the "Closing") of the purchase
and sale of certain of the Common Shares (as shown on Exhibit A) of Common
Stock to the Purchasers will be held at the offices of Multicom Publishing,
Inc., 188 Embarcadero, 5th Floor, San Francisco, California 94105. The Closing
shall be held on February 7, 1997 at 10:00 a.m., or at such other time and
place as the Company and the Purchasers may agree.
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2.2 Delivery. Subject to the terms of this Agreement, at the Closing,
the Company will deliver to the Purchasers stock certificate(s) representing
the number of Common Shares set forth in the applicable provision of Section 1
above, against delivery to the Company by each Purchaser at Closing of a check
or wire transfer for the purchase price therefor, as shown on Exhibit "A".
3. Representations and Warranties of the Company. Except as set
forth on a Schedule of Exceptions attached to this Agreement as Exhibit B
("Schedule of Exceptions to Representations and Warranties of Company"), the
Company represents and warrants to the Purchasers as follows:
3.1 Organization and Standing; Articles and Bylaws. The Company is a
corporation duly organized and validly existing and in good standing under the
laws of the State of Washington and has full right, power, authority and
capacity to enter into this Agreement and to consummate the transactions
contemplated hereby.
3.2 Capitalization. As of the date of the Closing, the authorized
capital stock of the Company will consist of 40,000,000 shares of Common Stock
and 300,000 shares of Preferred Stock. Immediately prior to the Closing there
will be issued and outstanding approximately 5,600,000 shares of Common Stock
and no shares of Preferred Stock. As of the Closing, there will be no
outstanding rights, plans, options, warrants, conversion rights or agreements
for the purchase or acquisition from the Company of any shares of its capital
stock, except that an aggregate of 204,991 warrants are outstanding and an
aggregate of 1,249,400 shares of Common Stock have been reserved for issuance
upon exercise of outstanding options.
3.3 Authorization.
(a) All corporate action on the part of the Company, its officers,
directors and shareholders necessary for (i)the sale and issuance of the Common
Shares pursuant hereto, and (ii) the execution, performance and delivery by the
Company of the Agreement has been taken or will be taken prior to the Closing.
The Agreement is a valid and binding obligation of the Company, enforceable
against it in accordance with its terms except as limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws of general
application relating to or affecting enforcement of creditors' rights and rules
or laws concerning equitable remedies.
(b) The Common Shares, when issued in compliance with the provisions
of this Agreement, will be validly issued, fully paid and nonassessable, and
will be free of any liens or encumbrances; provided, however, that the Common
Shares may be subject to restrictions on transfer under state and/or federal
securities laws as set forth herein or otherwise required by such laws at the
time a transfer is proposed.
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(c) The outstanding shares of Common Stock are all duly and validly
authorized and issued, fully paid and nonassessable, and were issued in
compliance with all applicable federal and state securities laws.
(d) No shareholder of the Company has any right of first refusal or
any preemptive rights in connection with the issuance of the Common Shares.
3.4 No Conflict. The execution and delivery by the Company of this
Agreement, and the performance of the Company's duties hereunder and of all
other acts necessary or appropriate for the consummation of the transaction
contemplated hereunder, will not violate the Company's Articles of
Incorporation or Bylaws, or any material contract, agreement, understanding,
arrangement or instrument by which the Company is bound or to which the Company
is a party.
3.5 Securities and Exchange Commission Filings; Financial Statements.
The company has made available to the Purchasers a true and complete copy of
its Annual Report on Form 10-K for the year ended June 30, 1996 (the "Form
10-K") and its Quarterly Report on Form 10-Q for the quarter ended September
30, 1996 (the "Form 10-Q"). The financial statements contained in the Form
10-K and the Form 1O-Q were prepared in accordance with generally accepted
accounting principles, consistently applied throughout the periods covered
thereby.
3.6 Governmental Consent, etc. No consent, approval or authorization
of or designation, declaration or filing with any governmental authority on the
part of the Company is required in connection with the valid execution and
delivery of the Agreement, or the offer, sale or issuance of the Common Shares
or the consummation of any other transaction contemplated hereby, except, if
required, qualifications or filings under the Securities Act of 1933 (the
"Securities Act"), the California Corporate Securities Law of 1968 (the
"California Law") and other applicable blue sky laws, which qualifications or
filings, if required, will be obtained or made and will be effective within the
period required by law.
4. Representations and Warranties of Purchasers; Indemnity by
Purchasers; Restrictions on Transfer.
4.1 Investor Representations and Warranties by Each Purchaser. Each
Purchaser represents and warrants to the Company as follows:
(a) Purchaser realizes that the purchase of Common Shares is a highly
speculative investment.
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(b) Purchaser is able, without impairing Purchaser's financial
condition, to bear the economic risk of the purchase of the Common Shares
pursuant to the terms of this Agreement, to hold the Common Shares for an
indefinite period of time and to suffer a complete loss of Purchaser's
investment.
(c) The Purchaser has such knowledge and experience in financial and
business matters that the Purchaser is capable of (i)evaluating the merits and
risks of the purchase of the Common Shares pursuant to the terms of this
Agreement and (ii)protecting the Purchaser's interests in connection therewith.
(d) The Purchaser and the Purchaser's representatives have been solely
responsible for such Purchaser's own "due diligence" investigation of the
Company and its management and business, for such Purchaser's own analysis of
the merits and risks of this investment, and for such Purchaser's own analysis
of the fairness and desirability of the terms of the investment; in taking any
action or performing any role relative to the arranging of the proposed
investment, the Purchaser has acted solely in the Purchaser's own interest.
(e) The Purchaser and its representatives and legal counsel have been
afforded full and free access to corporate books, financial statements,
records, contracts, documents, other information concerning the Company and its
offices and facilities, have been afforded an opportunity to ask such questions
of the Company's officers, employees, agents, accountants and representatives
concerning the Company's business, operations, financial condition, assets,
liabilities and other relevant matters as they have deemed necessary or
desirable, and have been given all such information as has been requested, in
order to evaluate the merits and risks of the prospective investments
contemplated herein.
(f) The Common Shares are being acquired for the Purchaser's own
account, in each case for investment and not with a view to, or for resale in
connection with, any distribution or public offering thereof within the meaning
of the Securities Act.
(g) The Purchaser understands that the Common Shares have not been
registered under the Securities Act by reason of their issuance in a
transaction exempt from the registration and prospectus delivery requirements
of the Securities Act pursuant to Section 4(2) of the Securities Act and/or
Regulation D promulgated under the Securities Act, that the Company has no
present intention of registering the Common Shares, that the Common Shares must
be held by the Purchaser indefinitely, and that the Purchaser must therefore
bear the economic risk of such investment indefinitely, unless a subsequent
disposition thereof is registered under the Securities Act or is exempt from
registration. The Purchaser understands that the Common Shares are restricted
Common Shares within the meaning of Rule 144 under the Securities Act, which
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allows limited resale of such Common Shares under certain conditions; that, in
any event, such exemption from registration under Rule 144 will not be
available for at least two years, and even then will not be available unless
the other conditions of Rule 144 are complied with.
(h) Purchaser (i)represents and warrants that Purchaser has retained
no finder or broker in connection with the transactions contemplated by this
Agreement and (ii)hereby agrees to indemnify and to hold the Company harmless
of and from any liability for any commission or compensation in the nature of a
finder's fee to any broker or other person or firm (and the costs and expenses
of defending against such liability or asserted liability) for which Purchaser,
or any of Purchaser's employees or representatives, are responsible.
4.2 Legends. Each certificate or instrument representing the Common
Shares will be endorsed with the following legends:
(a) THE COMMON SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT COVERING SUCH COMMON SHARES, THE TRANSFER IS MADE IN
COMPLIANCE WITH RULE 144 PROMULGATED UNDER SUCH ACT OR THE COMPANY RECEIVES AN
OPINION OF COUNSEL FOR THE HOLDER OF THESE COMMON SHARES WHICH IS REASONABLY
SATISFACTORY TO THE COMPANY, STATING THAT SUCH SALE, TRANSFER, ASSIGNMENT OR
HYPOTHECATION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY
REQUIREMENTS OF SUCH ACT.
(b) Any other legends required by California law, Washington law or
other applicable state blue sky laws.
The Company need not register a transfer of any Common Shares, and may also
instruct its transfer agent not to register the transfer of the Common Shares,
unless the conditions specified in this Agreement are satisfied.
4.3 Removal of Legend and Transfer Restrictions.
(a) Any legend endorsed on a certificate pursuant to Section 4.2 and
any stop transfer instructions applicable to such certificate regarding the
restrictions set forth in such legend will be removed and the Company will
issue a certificate without such legend to the holder thereof if such Common
Shares are registered under the Securities Act and a prospectus meeting the
requirements of Section 10 of the Securities Act is available, if such legend
may be properly removed under the terms of Rule 144 promulgated under the
Securities Act, or if such holder provides the Company with an opinion of
counsel for such holder which opinion is reasonably satisfactory to legal
counsel for the Company, to the effect that a public sale, transfer or
assignment of such Common Shares may be made without registration.
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(b) Any legend endorsed on a certificate pursuant to Section 4.2 and
the stop transfer instructions with respect to such Common Shares will be
removed upon receipt by the Company of an order of the California Department of
Corporations or other appropriate blue sky authority authorizing such removal.
5. Registration Rights.
5.1 Definitions. As used in this Agreement, the following terms shall
have the following respective meanings:
(a) The terms "register", "Registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
(b) The term "Registrable Securities" means (i) the Common Shares
issued and sold by the company pursuant to this Agreement; (ii) stock issued in
lieu thereof in any reorganization, which has not been sold to the public; or
(iii) stock issued in respect of the stock referred to in (i) and (ii) as a
result of a stock split, stock dividend, recapitalization or the like, which
has not been sold to the public.
(c) The terms "Holder" or "Holders" means any person or persons to
whom Registrable Securities were originally issued or qualifying transferees
under Section 5.7 hereof who hold Registrable Securities.
(d) The term "SEC" means the Securities and Exchange Commission.
(e) The term "Registration Expenses" shall mean all expenses incurred
by the Company in complying with Sections 5.2 and 5.3 hereof, including,
without limitation, all accounting fees and expenses, all registration,
qualification and filing fees, printing expenses, escrow fees, fees and
disbursements of counsel for the company, blue sky fees and expenses, and the
expense of any special audits incident to or required by any such registration
(but excluding the compensation of regular employees of the Company which shall
be paid in any event by the Company.)
5.2 Requested Registration.
(a) The Holders shall have the "demand" registration rights with
respect to the Registrable Securities provided in this Section 5.2. Any Holder
or Holders may exercise their demand registration rights at any time or times
after the date which is nine months from the date of the Closing. If the
Company shall receive from any Holder or Holders holding in the aggregate not
fewer than 60% of the Registrable Securities, a written request that the
Company effect any registration with respect to all or a part of the
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Registrable Securities having an aggregate offering price, net of underwriting
discounts and expenses, equal to or exceeding $500,000, the Company will, as
soon as practicable, use its best efforts to effect such registration
(including, without limitation, filing post-effective amendments, appropriate
qualifications under applicable blue sky or other state securities laws, and
appropriate compliance with the Securities Act) as would permit or facilitate
the sale and distribution of all or such portion of such Registrable Securities
as are specified in such request. The Holders shall be entitled to exercise
these demand registration rights only twice.
(b) The Company shall file a registration statement covering the
Registrable Securities so requested to be registered as soon as practicable
after receipt of the request or requests of the Holder or Holders; provided,
however, that if (i) in the good faith judgment of the Board of Directors of
the Company, such registration would be seriously detrimental to the Company
and the Board of Directors of the Company concludes, as a result, that it is
essential to defer the filing of such registration statement at such time, and
(ii) the Company shall furnish to the Holder or Holders a certificate signed by
the President of the Company stating that in the good faith judgment of the
Board of Directors of the Company, it would be seriously detrimental to the
Company for such registration statement to be filed in the near future and that
it is, therefore, essential to defer the filing of such registration statement,
then the Company shall have the right to defer such filing for the period
during which such disclosure would be seriously detrimental, provided that the
Company may not defer the filing for a period of more than 180 days after
receipt of the request of the Holder or Holders, and, provided further, that
the Company shall not defer its obligation in this manner more than once in any
twelve-month period.
The registration statement filed pursuant to the request of the Holder or
Holders may include other securities of the Company, with respect to which
registration rights have been granted, and may include securities of the
Company being sold for the account of the Company.
5.3 Company Registration.
(a) The Holders shall have the "piggyback" registration rights with
respect to the Registrable Securities provided in this Section 5. If the
Company shall determine to register any of its securities either for its own
account or the account of a security holder or holders exercising their
respective demand registration rights, the Company will:
(i) promptly give to the Holders written notice thereof, and
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(ii) include in such registration (and any related qualification under
blue sky laws or other compliance), except as set forth in Section 5.3(b)
below, and in any underwriting involved therein, all the Registrable Securities
specified in a written request or requests, made by any Holder within twenty
(20) days after the written notice from the Company described in clause (i)
above is given. Such written request may specify all or a part of the Holder's
Registrable Securities.
(b) If the registration of which the Company gives notice is for a
registered public offering involving an underwriting, the Company shall so
advise the Holders as a part of the written notice given pursuant to Section
5.3(a)(i). In such event, the right of any Holder to registration pursuant to
this Section 5.3 shall be conditioned upon the Holder's participation in such
underwriting and the inclusion of the Holder's Registrable Securities in the
underwriting to the extent provided herein. The Holder, if proposing to
distribute its securities through such underwriting shall (together with the
Company and the other holders of securities of the Company with registration
rights to participate therein distributing their securities through such
underwriting) enter into an underwriting agreement in customary form with the
representative of the underwriter or underwriters selected by the Company.
Notwithstanding any other provision of this Section 5.3, if the underwriter
determines that marketing factors require a limitation of the number of shares
to be underwritten, the underwriter may limit the amount of securities to be
included in the registration and underwriting by the Company's shareholders;
provided however, the number of Registrable Securities to be included in such
registration and underwriting under this Section 5.3(b) shall not be reduced to
less than twenty percent (20%) of the aggregate securities included in such
registration without the prior consent of at least a majority of the Holders
who have requested their shares to be included in such registration and
underwriting. The Company shall so advise all Holders of Registrable
Securities which would otherwise be registered and underwritten pursuant
hereto, and the number of shares of Registrable Securities that may be included
in the registration and underwriting shall be allocated among Holders
requesting registration in proportion, as nearly as practicable, to the
respective amounts of Registrable Securities held by each of such Holders as of
the date of the notice pursuant to this Section. If any Holder disapproves of
the terms of any such underwriting, he may elect to withdraw therefrom by
written notice to the Company and the underwriter. Any Registrable Securities
excluded or withdrawn from such underwriting shall be withdrawn from such
registration.
5.4 Registration Expenses. All Registration Expenses incurred in
connection with any registration, qualification or compliance pursuant to
Section 5.3 hereof, and the first two registrations pursuant to Section 5.2
hereof, all selling commissions and underwriter discounts on the shares sold by
the Holder or Holders, and reasonable fees of counsel for the Holder or
Holders, as selling stockholders, shall be borne by the Company.
Page 17 of 29
<PAGE>
5.5 Form S-3. The Company shall use its best efforts to qualify for
registration on Form S-3 or any comparable or successor form or forms. After
the Company has qualified for the use of Form S-3, in addition to the rights
contained in the foregoing provisions of this Section 5, the Holders shall have
the right to request registrations on Form S-3 (such requests shall be in
writing and shall state the number of shares of Registrable Securities to be
disposed of and the intended methods of disposition of such shares by the
Holder), provided, however, that the Company shall not be obligated to effect
any such registration if: (i) the Holder, together with the holders of any
other securities of the Company entitled to inclusion in such registration,
propose to sell Registrable Securities and such other securities (if any) on
Form S-3 at an aggregate price to the public of less than $250,000; or (ii) in
the event that the Company shall furnish the certification described in Section
5.2(b) (but subject to the limitations set forth therein); or (iii) in a given
twelve-month period, after the Company has effected one such registration in
any such period.
5.6 Registration Procedures. In the case of each registration
effected by the Company pursuant to this Section 5, the Company will keep the
Holders advised in writing as to the initiation of each registration and as to
the completion thereof. At its expense, the Company will use its best efforts
to:
(a) Keep such registration effective for a period of one hundred
twenty (120) days or until the Holder or Holders has completed the distribution
described in the registration statement relating thereto, whichever first
occurs; provided, however, in the case of any registration of Registrable
Securities on Form S-3 which are intended to be offered on a continuous or
delayed basis, such 120-day period shall be extended, if necessary, to keep the
registration statement effective until all such Registrable Securities are
sold, provided that Rule 415, or any successor rule under the Securities Act,
permits an offering on a continuous or delayed basis, and provided further that
applicable rules under the Securities Act governing the obligation to file a
post-effective amendment permit, in lieu of filing a post-effective amendment
that: (i) includes any prospectus required by Section 10(a)(3) of the
Securities Act; or (ii) reflects facts or events representing a material or
fundamental change in the information set forth in the registration statement,
the incorporation by reference of information required to be included in (i)
and (ii) above to be contained in periodic reports filed pursuant to Section 13
or 15(d) of the Exchange Act in the registration statement;
(b) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection with such registration statement as may be necessary to comply with
the provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement;
Page 18 of 29
<PAGE>
(c) Furnish such number of prospectuses and other documents incident
thereto, including any amendment of or supplement to the prospectus, as the
Holder from time to time may reasonably request;
(d) Notify the Holder, if a seller of Registrable Securities covered
by such registration statement, at any time when a prospectus relating thereto
is required to be delivered under the Securities Act of the happening of any
event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact
or omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or incomplete in the light of the
circumstances then existing, and at the request of any such seller, prepare and
furnish to such seller a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such shares, such prospectus shall not include
an 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 not
misleading or incomplete in the light of the circumstances then existing;
(e) Cause all such Registrable Securities registered pursuant
hereunder to be listed on each securities exchange and each over the counter
market on which similar securities issued by the Company are then listed or
quoted;
(f) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant to such registration statement and a CUSIP
number for all such Registrable Securities, in each case not later than the
effective date of such registration;
(g) To the extent economically feasible, use its best efforts to
comply with all applicable rules and regulations of the Commission, and make
available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve months, but not more
than eighteen months, beginning with the first month after the effective date
of the Registration Statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act; and
5.7 Indemnification.
(a) The Company will indemnify the Holders and each of its officers,
directors, legal counsel, and accountants and each person controlling each
Holder within the meaning of Section 15 of the Securities Act, with respect to
which registration, qualification, or compliance has been effected pursuant to
this Section 5, and each underwriter, if any, and each person who controls
within the meaning of Section 15 of the Securities Act any underwriter, against
all expenses, claims, losses, damages, and liabilities (or actions,
Page 19 of 29
<PAGE>
proceedings, or settlements in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) or a material fact contained in
any prospectus, offering circular, or other document (including any related
registration statement, notification, or the like) incident to any such
registration, qualification, or compliance, or based on any omission (or
alleged omission) to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, or any
violation by the Company of the Securities Act or any rule or regulation
thereunder applicable to the Company and relating to action or inaction
required of the Company in connection with any such registration,
qualification, or compliance, and will reimburse each Holder, each of its
officers, directors, legal counsel, and accountants, each such underwriter, and
each person who controls any such underwriter, for any legal and any other
expenses reasonably incurred in connection with investigating and defending or
settling any such claim, loss, damage, liability, or action, provided that the
Company will not be liable in any such case to the extent that any such claim,
loss, damage, liability, or expense arises out of or is based on any untrue
statement or omission based upon written information furnished to the Company
by the Holder and stated to be specifically for use therein. It is agreed that
the indemnity agreement contained in this Section 5.7(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability, or
action if such settlement is effected without the consent of the Company (which
consent has not been unreasonably withheld).
(b) Each Holder will, if Registrable Securities held by it are
included in the securities as to which such registration, qualification, or
compliance is being effected, indemnify the Company, each of its directors,
officers, legal counsel, and accountants and each underwriter, if any, of the
Company's securities covered by such a registration statement, each person who
controls the Company or such underwriter within the meaning of Section 15 of
the Securities Act, against all claims, losses, damages and liabilities (or
actions in respect thereof) arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any such registration
statement, prospectus, offering circular, or other document, or any omission
(or alleged omission) to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse the Company and directors, officers, legal counsel, and accountants,
persons, underwriters, or control persons for any legal or any other expenses
reasonably incurred in connection with investigating or defending any such
claim, loss, damage, liability, or action, in each case to the extent, but only
to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement,
prospectus, offering circular, or other document in reliance upon and in
conformity with written information furnished to the Company by the Holder
stated to be specifically for use therein provided, however, that the
obligations of each Holder hereunder shall not apply to amounts paid in
Page 20 of 29
<PAGE>
settlement of any such claims, losses, damages, or liabilities (or actions in
respect thereof) if such settlement is effected without the consent of the
Holder (which consent shall not be unreasonably withheld).
(c) Each party entitled to indemnification under this Section 5.7 (the
"Indemnified Party") shall give written notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified
Party has actual knowledge of any claim as to which indemnity may be sought,
and shall permit the Indemnifying Party to assume the defense of such claim or
any litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld), and the Indemnified Party may participate in such
defense at such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 5, to the extent such
failure is not prejudicial. No Indemnifying Party, in the defense of any such
claim or litigation, shall, except with the consent of each Indemnified Party,
consent to entry of any judgment or enter into any settlement that does not
include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect
to such claim or litigation. Each Indemnified Party shall furnish such
information regarding itself or the claim in question as an Indemnifying Party
may reasonably request in writing and as shall be reasonably required in
connection with defense of such claim and litigation resulting therefrom.
(d) If the indemnification provided for in this Section 5.7 is held by
a court of competent jurisdiction to be unavailable to an Indemnified Party
with respect to any loss, liability, claim, damage, or expense referred to
therein, then the Indemnifying Party, in lieu of indemnifying such Indemnified
Party hereunder, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such loss, liability, claim, damage, or
expense in such proportion as is appropriate to reflect the relative fault of
the Indemnifying Party on the one hand and of the Indemnified Party on the
other in connection with the statements or omissions that resulted in such
loss, liability, claim, damage, or expense as well as any other relevant
equitable considerations. The relative fault of the Indemnifying Party and of
the Indemnified Party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
Indemnifying Party or by the Indemnified Party and the parties' relative
intent, knowledge, access to information, and opportunity to correct or prevent
such statement or omission.
Page 21 of 29
<PAGE>
(e) Notwithstanding the foregoing, to the extent that the provisions
on indemnification and contribution contained in the underwriting agreement
entered into in connection with the underwritten public offering are in
conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
5.8 Rule 144 Reporting. With a view to making available the benefits
of certain rules and regulations of the Commission that may permit the sale of
restricted securities to the public without registration, the Company agrees to
use its best efforts to:
(a) File with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act
at any time after it has become subject to such reporting requirements;
(b) So long as any Holder owns any restricted securities, furnish to
the Holder upon request, a written statement by the Company as to its
compliance with the reporting requirements of Rule 144 and of the Securities
Act and the Exchange Act, routinely mail to each Holder a copy of the most
recent annual or quarterly report of the Company, and upon request, furnish
such other reports and documents as the Holder may reasonably request in
availing itself of any rule or regulation of the Commission allowing the Holder
to sell any such securities without registration.
5.9 Market Stand-Off. Each Holder agrees not to sell or otherwise
dispose of any securities of the Company (other than securities included in the
applicable registration statement) up to a 180-day period following the
effective date of a public offering of the Company filed under the Securities
Act that includes securities to be sold on the Company's behalf to the public
in an underwritten offering; provided that a majority of the officers and
directors on the effective date of the public offering have executed written
agreement to be similarly bound.
5.10 Transfer of Registration Rights. Holders' rights to cause the
Company to register their securities granted to them by the Company under
Section 5.2, may be assigned to a transferee or assignee of at least 50,000
shares (as adjusted for stock splits, stock dividends, recapitalization and
like events) of a Holder's Registrable Securities not sold to the public,
provided that the Company is given written notice by such Holder at the time of
or within a reasonable time after said transfer, stating the name and address
of said transferee or assignee and identifying the securities with respect to
which such registration right are being assigned. The Company may prohibit the
transfer of any Holders' rights under this Section 5.10 to any proposed
transferee or assignee who the Company reasonably believes is a competitor of
the Company.
Page 22 of 29
<PAGE>
6. Conditions to Closing.
6.1 Conditions to Obligations of the Purchasers. The obligation of
each Purchaser to purchase Common Shares at the Closing is subject to the
fulfillment of the following conditions, any of which may be waived by the
Purchasers:
(a) Representations and Warranties Correct; Performance of
Obligations. The representations and warranties made by the Company in Section
3 hereof will be true and correct in all material respects when made, and will
be true and correct in all material respects on the date of the Closing with
the same force and effect as if they had been made on and as of the date of the
Closing, and the Company will have performed all obligations and conditions
herein required to be performed or observed by it on or prior to the date of
the Closing.
(b) Corporate Proceedings; Waivers and Consents. All corporate and
other proceedings to be taken and all waivers, consents and permits necessary
or appropriate for consummation of the transactions contemplated by this
Agreement and the Exhibits attached hereto will have been taken or obtained.
(c) Compliance Certificate. The Company will have delivered to the
Purchasers a Certificate, executed by the President of the Company and dated
the date of the Closing, certifying as to the fulfillment of the conditions
specified in Sections(a) and (b) of this Section 6.1.
(d) Legal Investment. At the time of the Closing, the purchase of the
Common Shares by the Purchasers hereunder will be legally permitted by all laws
and regulations to which the Purchasers and the Company are subject.
(e) Blue Sky Matters. All consents, approvals, qualifications and/or
registrations required to be obtained or effected under any applicable state
Common Shares or blue sky laws in connection with the issuance, sale and
delivery of the Common Shares will have been obtained or effected.
6.2 Conditions to Obligations of the Company. The Company's
obligation to sell and issue the Common Shares at the Closing is subject to the
fulfillment on or prior to the date of the Closing of the following conditions,
any of which may be waived by the Company:
(a) Incorporation of Conditions. The conditions set forth in Sections
(b), (d), and (e) of Section 6.1 shall have been fulfilled.
(b) Representations and Warranties Correct; Performance of
Obligations. The representations and warranties made by the Purchasers in
Section 4 hereof will be true and correct when made, and will be true and
Page 23 of 29
<PAGE>
correct on the date of the Closing with the same force and effect as if they
had been made on and as of the date of the Closing, and the Purchasers will
have performed all obligations and conditions herein required to be performed
or observed by them on or prior to the date of the Closing.
(c) Compliance Certificate. Each Purchaser will have delivered to the
Company a Certificate, executed by the Purchaser and dated the date of the
Closing, certifying as to the fulfillment of the conditions specified in
Section 6.1(b).
7. Miscellaneous.
7.1 Waivers and Amendments. With the written consent of the Holders
of all of the Registrable Securities, the obligations of the Company and the
rights of the Holders under this Agreement may be waived (either generally or
in a particular instance, either retroactively or prospectively and either for
a specified period of time or indefinitely), and with the same consent the
Company, when authorized by resolution of its Board of Directors, may enter
into a supplementary agreement for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement;
provided, however, that no such waiver or supplemental agreement shall reduce
the aforesaid percentage of Registrable Securities the Holders of which are
required to consent to any waiver or supplemental agreement without the consent
of all of the Holders. Neither this Agreement nor any provision hereof may be
changed, waived, discharged or terminated orally, but only by a statement in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought, except to the extent provided in this
Section 7.1.
7.2 Governing Law. This Agreement will be governed in all respects by
the laws of the State of California as such laws are applied to agreements
between California residents entered into and to be performed entirely within
California.
7.3 Survival. The representations, warranties, covenants and
agreements made herein will survive the execution of this Agreement and the
Closing of the transactions contemplated hereby.
7.4 Successors and Assigns. Except as otherwise expressly provided
herein, the provisions hereof will inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto. The Purchaser may not assign its rights to purchase the Common
Shares and the Company may not assign its rights to receive the proceeds of
such purchase.
Page 24 of 29
<PAGE>
7.5 Entire Agreement. This Agreement, the exhibits to this Agreement
and the other documents delivered pursuant hereto or incorporated by reference
herein constitute the full and entire understanding and agreement among the
parties with regard to the subjects hereof and thereof and supersede all prior
oral and written understandings, agreements and commitments with regard to such
subjects by or among the parties hereto.
7.6 Notices, etc. All notices and other communications required or
permitted hereunder will be in writing and will be mailed by certified or
registered mail, postage prepaid, addressed (a) if to the Purchasers, at the
address of each Purchaser set forth on its signature page to the Agreement, or
at such other address as the Purchaser will have furnished to the Company in
writing, or (b) if to the Company, at 188 Embarcadero, 5th Floor, San
Francisco, California 94105, Attn: General Counsel, or at such other address
as the Company will have furnished to the Purchasers.
7.7 No Waivers. No failure on the part of any party to exercise or
delay in exercising any right hereunder will be deemed a waiver thereof, nor
will any such failure or delay, or any single or partial exercise of any such
right, preclude any further or other exercise of such right or any other right.
7.8 Separability. If any provision of this Agreement, or the
application thereof, is for any reason and to any extent determined by a court
of competent jurisdiction to be invalid or unenforceable, the remainder of this
Agreement and the application of such provision to other persons or
circumstances will be interpreted so as best to reasonably effect the intent of
the parties hereto. The parties agree to use their best efforts to replace
such void or unenforceable provision of this Agreement with a valid and
enforceable provision which will achieve, to the extent greatest possible, the
economic, business and other purposes of the void or unenforceable provision.
7.9 Expenses. The Company and the Purchasers shall each bear their
respective expenses and legal fees incurred with respect to this Agreement and
the transactions contemplated hereby.
7.10 Titles and Subtitles. The titles of the Sections of this
Agreement are for convenience of reference only and are not to be considered in
construing this Agreement.
7.11 Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be an original, but all of which together will
constitute one instrument.
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<PAGE>
The parties have executed this Agreement as of the day and year first
above written.
COMPANY:
Multicom Publishing, Inc.
By: /s/ Patricia E. Hart
__________________________
Patricia E. Hart
Its: General Counsel
Page 26 of 29
<PAGE>
PURCHASER'S COUNTERPART SIGNATURE PAGE
MULTICOM PUBLISHING, INC. COMMON STOCK
PURCHASE AGREEMENT
February 7, 1997
"PURCHASER"
If Purchaser is an entity:
By: /s/ Larry D. Hartsook
Title: Vice President - Finance
Signature:
If Purchaser is an individual:
(Signed Name)
Page 27 of 29
<PAGE>
Exhibit A
Schedule of Purchasers
Name Amount
-------------------------------- ----------
Tamara L. and Paul G. Attard $ 740,000
Friar, Harper & Arendt 250,000
Peter Hairston 50,000
Meredith Corporation 400,000
Henrik Vanderlip, Viking Capital 150,682
----------
Total $1,590,682
==========
Page 28 of 29
<PAGE>
Exhibit B
Schedule of Exceptions
To
Representations and Warranties of Multicom Publishing, Inc.
in Common Stock Purchase Agreement
Dated as of February 7, 1997
None
Page 29 of 29
