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Employee Retention Agreement

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AFFINION GROUP HOLDINGS, INC. | Delaware Corporation | Affinion Group, Inc.

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Title: WHEREAS
Governing Law: Delaware     Date: 5/8/2006

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Subscription Agreement dated as of January 2, 2006

Exhibit 10.17

 

 

 

 

 

    

SUBSCRIPTION AGREEMENT (this “Agreement”), dated as of January 2, 2006 between AFFINION GROUP HOLDINGS, INC., a Delaware Corporation, (the “Company”) and MAUREEN O’CONNELL (“Investor”).

WHEREAS, Investor has entered into an Employment Agreement dated as of December 1, 2005 with Affinion Group, Inc.;

WHEREAS, Investor desires to purchase certain shares of the Company’s common stock; and

WHEREAS, the Company is willing to sell the Company’s common stock to Investor on the terms and conditions provided below.

NOW, THEREFORE, in consideration of the promises and of the mutual covenants contained in this Agreement, the parties hereby agree as follows.

1. Subscription. Investor hereby subscribes for and offers to purchase 25,000 shares of the Company’s common stock, par value $0.01 per share, (the “Shares”) at the purchase price of $10 per Share for the aggregate amount indicated in Section 2 of this Agreement.

2. Tender of Consideration. Investor hereby irrevocably tenders this Agreement, and agrees to pay $250,000 in immediately available funds as aggregate consideration for the Shares.

3. Representations and Warranties of Investor. Investor hereby represents and warrants to the Company as follows:

(a) Investor is a “United States Person” within the meaning of Section 7701(a)(30) of the Internal Revenue Code, meaning that Investor is a citizen or resident of the United States;

(b) Investor understands that the Shares have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), and that this sale is being made in reliance on one or more exemptions for private offerings;

(c) The Shares for which Investor hereby subscribes are being acquired solely for Investor’s own account and for investment only. Investor is not purchasing the Shares with a view to or for the resale, distribution, subdivision or fractionalization thereof and Investor has no plans to enter into any contract, undertaking, agreement or arrangement for any such purpose. Investor understands and agrees that the Company shall have no obligation to recognize the ownership, beneficial or otherwise, of such Shares of anyone other than Investor and that no such Shares shall be transferable except upon the conditions set forth in the Management Investor Rights Agreement by and among the Company and its stockholders, dated as of October 17, 2005, a copy of which previously has been reviewed by Investor with counsel of her choice prior to becoming a party thereto (the “Management Investor Rights Agreement”);


(d) Investor (i) has adequate means of providing for Investor’s current needs and possible contingencies, and Investor has no need for liquidity in her investment in the Company, (ii) can bear the economic risk of losing her entire investment in the Company, (iii) has, alone or together with a Purchaser Representative (as defined in Rule 501(h) of the Securities Act), such knowledge and experience in financial and business matters that Investor is capable of evaluating the relative risks and merits of this investment; and (iv) is an “Accredited Investor” within the meaning of Section 5(i).

(e) Investor acknowledges that she has been provided with such information as she deems necessary to evaluate the merits and risks of investing in the Shares and has been afforded the opportunity to ask such questions as she deemed necessary, and to receive answers from, representatives of the Company concerning the merits and risk of investing in the Shares;

(f) In making the decision to invest in the Company, Investor has relied solely upon independent investigations made by Investor. No representations or warranties, oral or otherwise, have been made to Investor or any party acting on Investor’s behalf that are inconsistent with the written materials which have been supplied to Investor by the Company;

(g) Investor understands that the Shares cannot be sold unless (i) registered or qualified under the Securities Act or applicable state securities laws or (ii) an exemption from such registration or qualification is available; and

(h) Investor understands that the Company will rely upon the accuracy and truth of the representations and warranties made by Investor herein and Investor consents to such reliance.

(i) To qualify as an Accredited Investor, Investor must satisfy at least one of the following alternative criteria:

(i) Investor is a natural person whose individual net worth (or joint net worth with Investor’s spouse) is in excess of $1,000,000 (net worth or joint net worth includes the equity in one’s home); or

(ii) Investor is a natural person whose individual income (not joint income with Investor’s spouse) in each of the prior two years was in excess of $200,000 or whose joint income with Investor’s spouse in each of the prior two years was in excess of $300,000, and who has a reasonable expectation of reaching at least the same income level in the current year; or

(iii) Investor is a trust with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the Shares, whose purchase is directed by a person with such knowledge and experience in financial and business matters that she is capable of evaluating the merits and risks of an investment in the Shares; or

(iv) Investor is one of our directors or executive officers; or

 

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(v) Investor is an entity in which all of the equity owners are Accredited Investors.

4. Transferability. Investor agrees not to transfer or assign this Agreement or any of Investor’s interest in this Agreement or in the Company except as allowed by the terms of the Management Investor Rights Agreement, and further agrees that the assignment and transferability of the Shares acquired pursuant hereto shall be allowed only in accordance with applicable law and the terms of the Management Investor Rights Agreement.

5. Revocation. Investor agrees that Investor will not cancel, terminate or revoke this Agreement or any agreement made in connection with this Agreement.

6. Further Representations and Warranties of Investor.

(a) Authority. Investor has full power, legal right and authority to execute, deliver and perform the terms of this Agreement and to consummate the transactions contemplated by this Agreement and no consent of any third party not previously obtained is required to do so. The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement have been duly and validly authorized by all requisite action and no other proceedings on the part of Investor are necessary to authorize this Agreement or to consummate the transactions so contemplated. This Agreement has been duly and validly executed and delivered by Investor and, assuming this Agreement has been duly authorized, executed and delivered by the other parties hereto, constitutes a valid and binding agreement of Investor, enforceable against Investor in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity).

(b) No Conflicts. The execution, delivery and performance by Investor of this Agreement and any other agreement, certificate or document executed by Investor in connection with this Agreement, and the transactions (and the consummation of the transactions) contemplated by this Agreement and any related agreements will not: (i) violate or conflict with any laws, rules or regulations of any government authority having jurisdiction; or (ii) result in the breach of, or constitute a default (with or without notice or lapse of time, or both) under, or require any consent under, any provision of (x) any debt instrument, indenture, mortgage agreement or other instrument or arrangement to which Investor is a party or (y) any judgment, order or decree by which Investor is bound.

7. Representations and Warranties of the Company.

(a) Authority. The Company has full power, legal right and authority to execute, deliver and perform the terms of this Agreement, to issue the Shares in accordance with the terms and subject to the conditions of this Agreement, to consummate the transactions contemplated by this Agreement and no consent of any third party not previously obtained is required to do so. The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement have been duly and validly authorized by all

 

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requisite action and no other proceedings on the part of the Company are necessary to authorize this Agreement or to consummate the transactions contemplated by this Agreement. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement has been duly authorized, executed and delivered by the other parties hereto, constitutes a valid and binding agreement of the Company, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity).

(b) No Conflicts. The execution, delivery and performance by the Company of this Agreement and any other agreement executed by the Company in connection herewith, and the transactions (and the consummation of the transactions) contemplated by this Agreement and any related agreements will not: (i) violate or conflict with any laws, rules or regulations of any government authority having jurisdiction; or (ii) result in the breach of, or constitute a default (with or without notice or lapse of time, or both) under, or require any consent under, any provision of (x) any debt instrument, indenture, mortgage agreement or other instrument or arrangement to which the Company is a party or (y) any judgment, order or decree by which the Company is bound.

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