EXHIBIT 3.12
AGREEMENT OF MERGER
This Agreement of Merger (the "Agreement") is dated as of April 30, 1998,
by and between CIGAM Merger Corp., a California corporation ("Merger Sub") and
Men's Apparel Guild in California, Inc., a California corporation ("MAGIC")
(MAGIC and Merger Sub being hereinafter collectively referred to as the
"Constituent Corporations").
RECITALS
A. Merger Sub's authorized stock consists of 1,000 shares of common stock,
no par value per share, all of which shares are issued and outstanding.
B. Advanstar Communications Inc., a New York corporation ("Advanstar"), is
the owner of all of the issued and outstanding capital stock of Merger Sub.
C. Advanstar, Merger Sub and MAGIC have entered into an Agreement and Plan
of Merger, dated March 6, 1998, as amended (the "Merger Agreement"), which
contemplates the merger of Merger Sub with and into MAGIC (the "Merger") in
accordance with this Agreement.
D. The respective Boards of Directors of Merger Sub and MAGIC deem it
advisable and in the best interest of each such corporation and their respective
shareholders that Merger Sub be merged with and into MAGIC as provided herein
and in the Merger Agreement, and they have accordingly adopted resolutions
approving the Merger Agreement and this Agreement.
E. Advanstar, as the sole shareholder of Merger Sub, has approved this
Agreement in accordance with the laws of California, and the shareholders of
MAGIC have approved this Agreement in accordance with the laws of California and
the Articles of Incorporation of MAGIC at a special meeting of the shareholders
of MAGIC.
Capitalized terms not otherwise defined herein shall have the meanings
given them in the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements set forth herein, the parties hereto agree as follows:
ARTICLE I
THE MERGER
At the Effective Time (as defined below) and subject to the applicable
provisions of the Corporations code of California ("California Law"), Merger Sub
shall be merged with and into MAGIC, the separate corporate existence of Merger
Sub shall cease, and MAGIC shall continue at the surviving corporation and as a
wholly-owned subsidiary of Advanstar. MAGIC as the surviving corporation after
the Merger is hereinafter sometimes referred to as the "Surviving Corporation".
At the Effective Time, the effect of the Merger shall be as provided in the
applicable provisions of California Law. Without limiting the generality of the
foregoing and
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subject thereto, at the Effective Time, all the property, rights, privileges,
powers and franchises of Merger Sub and MAGIC shall vest in the Surviving
Corporation, and all debts, liabilities and duties of Merger Sub and MAGIC shall
become the debts, liabilities and duties of the Surviving Corporation. If at any
time after the Effective Time any further action is necessary or desirable to
carry out the purposes of this Agreement or to vest the Surviving Corporation
with the full right, title and possession to all assets, property, rights,
privileges, immunities, powers and franchises of Merger Sub, the officers and
directors of the Surviving Corporation are fully authorized in the name of
either or both of the Constituent corporations or otherwise to take all such
action. As of the Effective Time, the Articles of Incorporation of the Surviving
Corporation shall be amended and restated to read as set forth in Exhibit A
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attached hereto.
ARTICLE II
EFFECTIVE TIME
As used in this Agreement, the term "Effective Time" shall mean the time
Secretary of State of the State of California files this Agreement and the
officers' certificates required by California Law with the Secretary of State of
the State of California.
ARTICLE III
MANNER AND BASIS OF EXCHANGING SHARES
A. Exchange Terms of MAGIC Common Stock. Subject to the terms and
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conditions of this Agreement, by virtue of the Merger and without any action on
the part of MAGIC or the holder of any shares (the "MAGIC Shareholders") of the
common stock, no par value, of MAGIC (the "MAGIC Common Stock"), each share of
MAGIC Common Stock issued and outstanding immediately prior to the Effective
Time (other than shares in the treasury of MAGIC, all of which shall be
canceled, and Dissenting Shares, as defined below) shall, as of the Effective
Time and pursuant to the Merger Agreement, be canceled and extinguished and be
converted automatically into a right to receive a pro-rata share of $230,200,000
from which they shall pay on a pro-rata basis all costs, fees and expenses of
MAGIC's accountants, investment bankers and lawyers and payments to certain
MAGIC executives and employees, and shall deposit $3,000,000 in escrow (the
"Escrow Fund") in accordance with the Merger Agreement and the Adjustment Escrow
Agreement (the amount remaining after such payments and deposit in escrow is
herein referred to as the "Aggregate merger Consideration"). Each of such
shares of MAGIC Common Stock shall also have the right to receive a pro-rata
share of the Net Worth Surplus, if any, as defined and in accordance with the
Merger Agreement. Shares of MAGIC Common Stock held by MAGIC Shareholders who
(1) have not voted such shares in favor of the Merger, (2) shall have delivered
a written demand for appraisal of such shares in the manner provided by
California Law and (3) shall not have effectively withdrawn or lost such right
to appraisal as of the Effective Time ("Dissenting Shares") shall not be
converted automatically into a right to receive a pro-rata share of the merger
consideration, but the holders of Dissenting Shares shall be entitled only to
such rights as are granted by California Law. If a holder of Dissenting Shares
shall withdraw his or her demand for such payment and appraisal or shall become
ineligible for such payment and appraisal under California Law, then, as of the
occurrence of such event of withdrawal or ineligibility, such holder's
Dissenting Shares shall cease to be Dissenting Shares and shall be converted
into the right to receive, and shall be
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exchangeable for, the merger consideration, without interest thereon, into which
such Dissenting Shares would have been converted pursuant to this paragraph A of
Article III.
B. Exchange Procedures
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1. MAGIC Common Stock. At or after the Effective Time, each MAGIC
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Shareholder shall surrender to the Exchange Agent all certificate(s)
representing shares of MAGIC Common Stock (the "MAGIC Stock Certificates") in
accordance with the requirements of the Merger Agreement, the Exchange Agent
Agreement and the Exchange Agent, if any. At or immediately prior to the
Effective Time, Advanstar will, or will cause Merger Sub to, deliver (a) the
Aggregate Merger Consideration to the Exchange Agent, who will make appropriate
payments to the MAGIC Shareholders as soon as practicable after the Effective
Time, and (b) the Escrow Fund to the Escrow Agent. Within five (5) days of the
Determination Date, Advanstar will, or will cause the Surviving Corporation to,
deliver the Net Worth Surplus, if any, and the Escrow Agent will deliver the
amount of the Escrow Fund payable to the MAGIC Shareholders, each to the
Exchange Agent, who will make appropriate payments to the MAGIC Shareholders as
soon as practicable thereafter in accordance with the Exchange Agent Agreement.
2. Merger Sub Common Stock. Each share of common stock of the Merger
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Sub issued and outstanding immediately prior to the Effective Time shall, by
virtue of the Merger and without any action on the part of the holder thereof,
be converted into and represent the right to receive one share of common stock
of the Surviving Corporation.
3. Transfers. If payment is to be made to a person other than the
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person in whose name the surrendered MAGIC Stock Certificate is registered, it
shall be a condition of payment that the MAGIC Stock Certificate so surrendered
shall be properly endorsed or otherwise in proper form for transfer and that the
person requesting such payment shall pay any transfer or other taxes required by
reason of the payment to a person other than the registered holder of the MAGIC
Stock Certificate surrendered or establish to the satisfaction of the Surviving
Corporation that such tax has been paid or is not applicable.
4. No Liability. Notwithstanding anything to the contrary in this
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Article III, neither Advanstar nor any party to this Agreement shall be liable
to the MAGIC Shareholders for any amount of the merger consideration if such
holder fails to present his or her MAGIC Stock Certificate to the Exchange
Agent.
C. Instructions to Exchange Agent. At or prior to the Closing, MAGIC
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shall deliver to the Exchange Agent instructions, which may be amended from time
to time thereafter (the "MAGIC Instructions"), identifying each of the holders
of MAGIC Common Stock and the portion of the merger consideration that each such
holder is entitled to receive in the Merger. The Exchange Agent shall be
entitled to rely without investigation on the information set forth in the MAGIC
Instructions in delivering the merger consideration to the MAGIC Shareholders.
Notwithstanding anything to the contrary in this Agreement of Merger, neither
the Exchange Agent nor any successor thereto shall be obligated to deliver any
portion of the merger
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consideration to the MAGIC Shareholders unless and until MAGIC shall have
delivered the MAGIC Instructions.
D. No Further Rights in MAGIC Common Stock. The Aggregate Merger
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Consideration delivered upon the surrender for exchange of shares of MAGIC
Common Stock in accordance with the terms hereof, and the right to receive, in
accordance with the terms of the Exchange Agent Agreement, a share of the Escrow
Fund, if payable, and the Net Worth Surplus, if any, shall be deemed to been
issued in full satisfaction of all rights pertaining to such shares of MAGIC
Common Stock and there shall be no further registration of transfers on the
records of the Surviving Corporation of shares of MAGIC Common Stock which were
outstanding immediately prior to the Effective Time.
E. Lost, Stolen or Destroyed MAGIC Stock Certificates. In the event any
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MAGIC Stock Certificates shall have been lost, stolen or destroyed, the Exchange
Agent shall distribute the appropriate pro-rata share of the merger
consideration to the holder of such MAGIC Stock Certificate only upon the
making, and delivery to the Exchange Agent, of an affidavit of that fact by such
holder.
ARTICLE IV
ABANDONMENT OF MERGER
This Agreement shall be terminated and abandoned without further action by
the parties hereto in the event that the Merger Agreement is terminated in
accordance with its terms, and in such event this Agreement of Merger shall have
no further force and there shall be no liability on the part of the parties
hereto to each other, except to the extent otherwise provided in the Merger
Agreement.
ARTICLE V
AMENDMENT
Subject to applicable law, this Agreement may be amended or modified or
supplemented only by written agreement of Merger Sub and MAGIC, duly authorized
by each of their respective Boards of Directors, at any time prior to the filing
of the officers' certificates required by California law with respect to the
Merger with the Secretary of State of the State of California; provided,
however, that no such amendment, modification or supplement shall change the
amount or the form of the consideration to be furnished to the MAGIC
Shareholders in accordance with Article III hereof or change any principle terms
without obtaining shareholder approval as required by law.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
MEN'S APPAREL GUILD IN
CALIFORNIA, INC.
/s/ Joseph Loggia
By:______________________________
Joseph Loggia
President
/s/ Carol Maller
By:______________________________
Carol Maller
Secretary
CIGAM MERGER CORP.
/s/ James M. Alic
By:______________________________
James M. Alic
Vice President
/s/ Martin C. (Skip) Farber
By:______________________________
Martin C. (Skip) Farber
Assistant Secretary
Exhibit A
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AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
MEN'S APPAREL GUILD IN CALIFORNIA, INC.
FIRST: The name of this corporation is Men's Apparel Guild In California,
Inc.
SECOND: The Purpose of this corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General
Corporation Law of California other than the banking business, the
trust company business or the practice of a profession permitted to be
incorporated by the California Corporations Code.
THIRD: This Corporation is authorized to issue only one class of shares, all
of which shall be known as Common Stock, without par value. The total
number of shares which this corporation is authorized to issue is
1,000.
FOURTH: The liability of the directors of this corporation for monetary
damages shall be eliminated to the fullest extent permissible under
California law. This corporation is also authorized, to the fullest
extent permissible under California law, to indemnify its agents (as
defined in Section 317 of the California Corporations Code), whether
by by-law, agreement or otherwise, for breach of duty to this
corporation and its shareholders in excess of that expressly permitted
by Section 317 and to advance defense expenses to its agents in
connection with such matters as they are incurred, subject to the
limits on such excess indemnification set forth in Section 204 of the
California Corporations Code. If, after the effective date of this
Article, California law is amended in a manner which permits a
corporation to limit the monetary or other liability of its directors
or to authorize indemnification of, or advancement of such defense
expenses to, its directors or other persons, in any such case to a
greater extent than is permitted on such effective date, the
references in this Article to "California law" shall to that extent be
deemed to refer to California law as so amended.
OFFICERS' CERTIFICATE
OF
MEN'S APPAREL GUILD IN CALIFORNIA, INC.
Joseph Loggia and Carol Maller hereby certify that:
1. They are the President and Secretary, respectively, of Men's Apparel
Guild in California, Inc., a California corporation (the "Corporation").
2. This certificate is attached to the Agreement of Merger dated as of
April 30, 1998, providing for the merger of CIGAM Merger Corp. with and into
this Corporation.
3. The Agreement of Merger in the form attached hereto has been approved
by the board of directors of the Corporation.
4. The principal terms of the Agreement of Merger in the form attached
hereto were approved by the holders of the requisite number of shares of the
Corporation in accordance with the California General Corporation Law; the total
number of outstanding shares of stock entitled to vote with respect thereto was
33,523 shares of Common Stock. The number of such shares voting in favor of the
principal terms of the Agreement equaled or exceeded the vote required, such
required vote being a majority of the outstanding shares of Common Stock.
We further declare under penalty of perjury under the laws of the State of
California that the matters set forth in this Certificate are true and correct
of our own knowledge.
Dated: April 26, 1998
/s/ Joseph Loggia
_______________________________
Joseph Loggia
President
/s/ Carol Maller
_______________________________
Carol Maller
Secretary
OFFICERS' CERTIFICATE
OF
CIGAM MERGER CORP.
James M. Alic and Martin C. (Skip) Farber hereby certify that:
1. They are the President and Assistant Secretary, respectively, of CIGAM
Merger Corp., a California corporation (the "Corporation").
2. This certificate is attached to the Agreement of Merger dated as of
April 30, 1998, providing for the merger of this Corporation with and into Men's
Apparel Guild in California, Inc.
3. The Agreement of Merger in the form attached hereto has been approved
by the board of directors of the Corporation.
4. The principal terms of the Agreement of Merger in the form attached
hereto were approved by the holders of the requisite number of shares of the
Corporation in accordance with the California General Corporation Law; the total
number of outstanding shares of each class entitled to vote with respect thereto
was 1,000 shares of Common Stock. The number of such shares voting in favor of
the principal terms of the Agreement equaled or exceeded the vote required, such
required vote being a majority of the outstanding shares of Common Stock.
We further declare under penalty of perjury under the laws of the State of
California that the matters set forth in this Certificate are true and correct
of our own knowledge.
Dated: April 26, 1998
/s/ James M. Alic
_______________________________
James M. Alic
Vice President
/s/ Martin C. (Skip) Farber
_______________________________
Martin C. (Skip) Farber
Assistant Secretary