1
Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
BY AND BETWEEN
EMP ACQUISITION CORP.
AND
AMERICAN MEDIA, INC.
DATED
February 16, 1999
2
TABLE OF CONTENTS
PAGE
----
ARTICLE I. THE MERGER 2
SECTION 1.1. The Merger 2
SECTION 1.2. Closing 2
SECTION 1.3. Effective Time 2
SECTION 1.4. Effects of the Merger 3
SECTION 1.5. Certificate of Incorporation and By-Laws of
the Surviving Corporation 3
SECTION 1.6. Directors 3
SECTION 1.7. Officers 3
ARTICLE II. EFFECT OF THE MERGER ON THE CAPITAL STOCK
OF THE CONSTITUENT CORPORATIONS 3
SECTION 2.1. Effect On Capital Stock 3
SECTION 2.2. Company Option Plan 4
SECTION 2.3. Consent Statement; Action by Written Consent 5
SECTION 2.4. Releases 6
ARTICLE III. DISSENTING SHARES; PAYMENT FOR SHARES 7
SECTION 3.1. Dissenting Shares 7
SECTION 3.2. Payment for Shares 7
SECTION 3.3. The Debt Offer 10
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF THE COMPANY 11
SECTION 4.1. Organization and Qualification; Subsidiaries 11
SECTION 4.2. Certificate of Incorporation and By-laws 12
SECTION 4.3. Capitalization 12
SECTION 4.4. Authority Relative to this Agreement 13
SECTION 4.5. No Conflict; Required Filings and Consents 14
SECTION 4.6. SEC Reports and Financial Statements 15
SECTION 4.7. Information 16
SECTION 4.8. Litigation 17
SECTION 4.9. Compliance with Applicable Laws 17
SECTION 4.10. Employee Benefit Plans 17
SECTION 4.11. Intellectual Property 19
SECTION 4.12. Environmental Matters 20
SECTION 4.13. Material Adverse Change 22
SECTION 4.14. Certain Approvals 22
SECTION 4.15. Opinion of Financial Advisor 23
SECTION 4.15.1. Brokers 23
SECTION 4.16. Contracts, Etc. 23
SECTION 4.17. Labor Matters 25
SECTION 4.18. Tax Matters 25
SECTION 4.19. Make Goods; Advertising Credits 26
SECTION 4.20. Insurance 26
SECTION 4.21. Year 2000 26
SECTION 4.22. Soap Opera Sale 26
(2)
3
ARTICLE V. REPRESENTATIONS AND WARRANTIES OF NEWCO 27
SECTION 5.1. Organization and Qualification 27
SECTION 5.2. Authority Relative to this Agreement 27
SECTION 5.3. No Conflict; Required Filings and Consents 28
SECTION 5.4. Information 28
SECTION 5.5. Financing 29
SECTION 5.6. Newco Not an Interested Stockholder or an Acquiring Person 29
SECTION 5.7. Newco 29
SECTION 5.8. Brokers 30
ARTICLE VI. COVENANTS 30
SECTION 6.1. Conduct of Business of the Company 30
SECTION 6.2. Access to Information; Interim Financials 34
SECTION 6.3. Reasonable Best Efforts 35
SECTION 6.4. Consents 36
SECTION 6.5. Public Announcements 36
SECTION 6.6. Employee Benefits Matters 36
SECTION 6.7. Indemnification 37
SECTION 6.8. No Solicitation 38
SECTION 6.9. Notification of Certain Matters 39
SECTION 6.10. State Takeover Laws 39
SECTION 6.11. Disposition of Litigation 39
SECTION 6.12. Stop Transfer Order 39
SECTION 6.13. Financing 39
SECTION 6.14. Newco Action 40
ARTICLE VII. CONDITIONS TO CONSUMMATION OF THE MERGER 40
SECTION 7.1. Conditions of Each Party's Obligation to Consummate
the Merger 40
SECTION 7.2. Conditions to Obligation of Newco 41
SECTION 7.3. Conditions to Obligation of the Company 42
ARTICLE VIII. TERMINATION; AMENDMENT; WAIVER 43
SECTION 8.1. Termination 43
SECTION 8.2. Effect of Termination 44
SECTION 8.3. Expenses 44
SECTION 8.4. Amendment 45
SECTION 8.5. Extension; Waiver 45
ARTICLE IX. MISCELLANEOUS 46
SECTION 9.1. Non-Survival of Representations and Warranties 46
SECTION 9.2. Entire Agreement; Assignment 46
SECTION 9.3. Validity 46
SECTION 9.4. Notices 46
SECTION 9.5. Governing Law; Jurisdiction 47
SECTION 9.6. Waiver of Jury Trial 48
SECTION 9.7. Descriptive Headings 48
SECTION 9.8. Counterparts 48
-3-
4
SECTION 9.9. Parties in Interest 48
SECTION 9.10. Certain Definitions 48
SECTION 9.11. Specific Performance 52
DISCLOSURE SCHEDULE
-4-
5
EXHIBITS
EXHIBIT A Form of Certificate of Incorporation of Company immediately
after the Effective Time.
-5-
6
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated as of February 16, 1999, by
and between EMP ACQUISITION CORP., a Delaware corporation ("NEWCO"), and
AMERICAN MEDIA, INC., a Delaware corporation (the "COMPANY").
WHEREAS, the respective Boards of Directors of Newco and the
Company have declared this Agreement to be advisable and determined that the
merger of Newco with and into the Company (the "MERGER"), in accordance with the
General Corporation Law of the State of Delaware (the "GCL") and upon the terms
and subject to the conditions set forth in this Agreement, would be fair to and
in the best interests of their respective stockholders, and such Boards of
Directors have approved such Merger, pursuant to which each share of Class A
Common Stock, par value $.01 per share (the "CLASS A SHARES"), and each share of
Class C Common Stock, par value $.01 per share (the "CLASS C SHARES" and,
collectively with the Class A Shares, the "SHARES"), in each case which is
issued and outstanding immediately prior to the Effective Time (as defined in
Section 1.3) and not owned directly or indirectly by Newco or the Company will
be converted into the right to receive $7.00 in cash;
WHEREAS, all of the issued and outstanding Common Stock, par
value $.01 per share (the "NEWCO SHARES"), of Newco is owned by EMP Group LLC
or an affiliate thereof;
WHEREAS, the adoption of this Agreement requires the approval
of a majority of the voting power of the outstanding Shares, voting as a single
class (with each Class A Share having one vote per share and each Class C Share
having three votes per share) (the "COMPANY STOCKHOLDER APPROVAL");
WHEREAS, as a condition to their willingness to enter into
this Agreement and consummate the transactions contemplated hereby, Newco has
required that Boston Ventures Limited Partnership III, Boston Ventures Limited
Partnership IIIA, Boston Ventures Company Limited Partnership III, Pemima,
L.P. and Michael J. Boylan (each, a "PRINCIPAL STOCKHOLDER") agree, among
other things, to execute a written consent in favor of adoption of this
Agreement on the date hereof in accordance with the provisions of Section 228
of the GCL, vote the Shares beneficially owned by each of them in accordance
with the Voting Agreement and comply with the other provisions of such Voting
Agreement; and in order to induce Newco to enter into this Agreement, each
Principal Stockholder has executed and delivered the Voting Agreement, dated
as of the date hereof, with Newco (the "Voting Agreement");
WHEREAS, Newco and the Company desire to make certain
7
representations, warranties, covenants and agreements in connection with the
Merger and also to prescribe various conditions to the Merger;
WHEREAS, certain capitalized terms used herein are defined or
cross-referenced in Section 9.10.
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements set forth
herein, Newco and the Company agree as follows:
ARTICLE I.
THE MERGER
SECTION 1.1. THE MERGER. Upon the terms and subject to the
satisfaction or waiver of the conditions hereof, and in accordance with the
applicable provisions of this Agreement and the GCL, at the Effective Time (as
defined in Section 1.3) Newco shall be merged with and into the Company.
Following the Merger, the separate corporate existence of Newco shall cease and
the Company shall continue as the surviving corporation (the "SURVIVING
CORPORATION").
SECTION 1.2. CLOSING. Unless this Agreement shall have been
terminated and the transactions herein contemplated shall have been abandoned
pursuant to Section 8.1 and subject to the satisfaction or waiver of the
conditions set forth in Article VII, the closing of the Merger (the "CLOSING")
will take place at 10:00 am. on the second business day after satisfaction or
waiver of the conditions set forth in Article VII (the "CLOSING DATE"), at the
offices of Simpson Thacher & Bartlett, 425 Lexington Avenue, New York, New York
10017, unless another date, time or place is agreed to in writing by the parties
hereto; PROVIDED that Newco may, upon written notice given to the Company no
later than one business day before the date on which the Closing would otherwise
occur, as contemplated by this Section 1.2 cause the Closing to be postponed to
a date specified in such notice so long as such date is not more than 85 days
after the date hereof, Newco states in such notice that such delay is necessary
to permit completion of the offering of Senior Subordinated Notes (as defined in
and contemplated by the Commitment Letters) and such notice is accompanied by a
letter from the initial purchaser in respect of such offering and addressed to
the Company to the effect that such initial purchaser agrees with the aforesaid
statement.
SECTION 1.3. EFFECTIVE TIME . As soon as practicable after the
satisfaction or waiver of the conditions set forth in Article VII, the Company
shall execute in the manner required by the GCL and deliver to the Secretary of
State of the State of Delaware
-7-
8
a duly executed certificate of merger, and the parties shall take such other and
further actions as may be required by law to make the Merger effective. The time
the Merger becomes effective in accordance with applicable law is referred to as
the "EFFECTIVE TIME."
SECTION 1.4. EFFECTS OF THE MERGER. The Merger shall have the
effects set forth in Section 259 of the GCL.
SECTION 1.5. CERTIFICATE OF INCORPORATION AND BY-LAWS OF THE
SURVIVING CORPORATION.
(a) The certificate of incorporation of the Company,
as in effect immediately prior to the Effective Time, shall be amended in the
Merger so as to read in its entirety in the form set forth as Exhibit A hereto
and, as so amended, shall be the certificate of incorporation of the Surviving
Corporation, until thereafter amended in accordance with the provisions thereof
and applicable law.
(b) Subject to the provisions of Section 6.7, the
by-laws of Newco in effect at the Effective Time shall be the by-laws of the
Surviving Corporation, until thereafter amended in accordance with the
provisions thereof and applicable law.
SECTION 1.6. DIRECTORS. Subject to applicable law, the
directors of Newco immediately prior to the Effective Time shall be the initial
directors of the Surviving Corporation and shall hold office until their
respective successors are duly elected and qualified, or their earlier death,
resignation or removal.
SECTION 1.7. OFFICERS. The officers of the Company immediately
prior to the Effective Time shall be the initial officers of the Surviving
Corporation and shall hold office until their respective successors are duly
elected and qualified, or their earlier death, resignation or removal.
ARTICLE II.
EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS
SECTION 2.1. EFFECT ON CAPITAL STOCK. As of the Effective
Time, by virtue of the Merger and without any action on the part of the Company,
Newco or the holders of Shares or Newco Shares:
(a) CONVERSION OF SHARES. Each Share issued and
outstanding immediately prior to the Effective Time (other than any Shares held
by Newco or any wholly-owned subsidiary of Newco, in the treasury of the Company
or by any wholly-owned subsidiary of the Company), which Shares, by virtue of
the Merger and without any action on the part of the holder thereof, shall be
-8-
9
canceled and retired and shall cease to exist with no payment being made with
respect thereto, and other than Dissenting Shares (as defined in Section 3.1)
shall be converted into the right to receive following the Merger an amount in
cash equal to $7.00 (the "MERGER PRICE").
(b) CANCELLATION AND RETIREMENT OF SHARES. As of the
Effective Time, all Shares (other than Shares referred to in Section 2.1(a)
which shall be canceled and retired in connection therewith and Dissenting
Shares) issued and outstanding immediately prior to the Effective Time shall be
converted into the right to receive the Merger Price, without interest thereon,
shall no longer be outstanding and shall automatically be canceled and shall
cease to exist, and each holder of a certificate which immediately prior to the
Effective Time represented any such Shares so converted (a "CERTIFICATE") shall
cease to have any rights with respect thereto, except the right to receive the
Merger Price, without interest thereon.
(c) CONVERSION OF NEWCO SHARES. As of the Effective
Time, each Newco Share that was issued and outstanding immediately prior to the
Effective Time shall be converted into and become one validly issued, fully paid
and nonassessable share of common stock, par value $.01 per share, of the
Surviving Corporation.
SECTION 2.2. COMPANY OPTION PLAN. (a) Newco and the Company
shall take all actions necessary so that, immediately prior to the Effective
Time, (i) each outstanding option to purchase Shares (an "OPTION") granted under
the Company's Amended and Restated Stock Option Plan (the "OPTION PLAN"),
whether or not then exercisable or vested, shall become fully exercisable and
vested, (ii) each Option which is then outstanding shall be canceled and (iii)
in consideration of such cancellation, and except to the extent that Newco and
the holder of any such Option otherwise agree, as soon as practicable following
the Effective Time, the Company shall pay to such holders of Options an amount
in respect thereof equal to the product of (A) the excess of the Merger Price
over the exercise price thereof and (B) the number of Shares subject thereto
(such payment to be net of taxes required by law to be withheld with respect
thereto).
(b) Effective as of the Effective Time, the Company
shall use its reasonable best efforts to take all such action as is necessary
prior to the Effective Time to terminate the Option Plan so that on and after
the Effective Time no current or former employee or director shall have any
Option to purchase shares of common stock or any other equity interest in the
Company under the Option Plan. The Company shall use its reasonable best efforts
to obtain any consents necessary to release the Company from any liability in
respect of any Options.
-9-
10
SECTION 2.3. CONSENT STATEMENT; ACTION BY WRITTEN CONSENT.
(a) As soon as practicable following the date of
this Agreement, the Company and Newco shall prepare and file with the SEC a
consent statement (the "CONSENT STATEMENT") in connection with the solicitation
of written consents in favor of the adoption of this Agreement (the "Consent
Solicitation"). The Company and Newco shall use their reasonable best efforts to
have the Consent Statement approved by the SEC as promptly as practicable after
such filing and the Company shall use its reasonable best efforts to cause the
Consent Statement to be mailed to its stockholders as promptly as practicable
after receipt of such approval. The Company will notify Newco of the receipt of
any comments from the SEC or its staff or of any request by the SEC or its staff
for amendments or supplements to the Consent Statement or for additional
information and will supply Newco with copies of all correspondence between the
Company or any of its representatives, on the one hand, and the SEC or its
staff, on the other hand, with respect to the Consent Statement prior to its
being filed with the SEC and shall give Newco and its counsel the reasonable
opportunity to review the Consent Statement and all amendments and supplements
thereto and all responses to requests for additional information and replies to
comments prior to their being filed with or sent to the SEC. The Company agrees
to use its reasonable best efforts, after consultation with Newco, to respond
promptly to all such comments of and requests by the SEC. The Company will cause
the Consent Statement to comply as to form in all material respects with the
applicable provisions of the Exchange Act. If at any time prior to the Effective
Time any information relating to Newco or the Company, or any of their
respective affiliates, officers or directors, should be discovered by Newco or
the Company that should be set forth in an amendment or supplement to the
Consent Statement so that such document would not include a misstatement of a
material fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, the party which discovers such information shall promptly notify
the other party hereto and an appropriate amendment or supplement describing
such information shall be promptly filed with the SEC and, to the extent
required by law, disseminated to the stockholders of the Company. The Company
shall include in the Consent Statement the recommendation of the Company's Board
of Directors that the shareholders consent to the adoption of this Agreement.
(b) Upon approval of the Consent Statement by the
SEC, the Company shall solicit written consents for the adoption of this
Agreement in compliance with the applicable rules of the New York Stock Exchange
and the SEC. Notwithstanding the foregoing, the parties understand that,
pursuant to the Voting Agreement, immediately following the execution of this
Merger Agreement, the Principal Shareholders will effect the adoption of this
Agreement by the stockholders of the Company by taking
-10-
11
action by written consent of the stockholders of the Company in lieu of calling
a meeting of stockholders pursuant to, and in accordance with, the requirements
set forth in Section 228 of the GCL. The Company shall use its best efforts in
the making of the Consent Solicitation and in causing the approval of this
Agreement and the Merger to become effective as soon as practicable after the
date of this Agreement, including but not limited to, fixing a record date for
the purpose of determining the holders of Shares entitled to consent to the
adoption of this Agreement and distributing the consents to the holders of
Shares. The Company shall deliver to Newco, promptly after receipt, but in no
case, more than two business days after receipt, notice of receipt of all
consents received pursuant to the Consent Solicitation and filing of such
consents with the Secretary of the Company. The Company shall promptly file with
the Secretary of the Company after receipt, but in no case, more than one (1)
business day after receipt, all consents received pursuant to the Consent
Solicitation. The Company shall ensure that the Consent Solicitation is
conducted in accordance with applicable laws.
SECTION 2.4. RELEASES.
(a) Effective upon the Effective Time, the Company
hereby releases and forever discharges each person who is now, or has been at
any time prior to the date hereof, an officer, director or stockholder (and any
direct or indirect partner of any stockholder that is a partnership), trustee or
agent of the Company or any of its subsidiaries and each person controlling any
of the foregoing persons (individually, a "RELEASED PARTY" and collectively, the
"RELEASED PARTIES"), from any and all claims, rights, obligations, debts,
liabilities, actions or causes of action of every kind and nature, whether
foreseen or unforeseen, contingent or actual, and whether now known or hereafter
discovered, which the Company or any of its subsidiaries had, now has or may in
the future have, in law or in equity, against any Released Party in any way
arising out of, pertaining to or incurred in connection with acts or omissions
or alleged acts or omissions by any of them in their capacity as an officer,
director or stockholder which acts or omissions existed or occurred at or prior
to the Effective Time other than acts or omissions or alleged acts or omissions
involving criminal activity, willful misconduct or fraudulent activity by such
Released Party (a "RELEASED CLAIM"). This Section 2.4 shall not apply to loans
from the Company to any Released Party.
(b) The Company shall pay all expenses, including
attorneys' fees, that may be incurred by any Released Party in enforcing the
obligations provided for in this Section 2.4 and all expenses, including
attorneys' fees, that may be incurred by any Released Party in defending any
Released Claim; provided, that the Company shall not be obligated to pay any
such expenses incurred by an officer, director or stockholder in the event that
the Company is purchasing a claim against such officer, director
-11-
12
or stockholder for acts or omissions or alleged acts or omissions involving
criminal activity, willful misconduct or fraudulent activity unless such person
is determined not to have committed such acts or omissions.
(c) The rights of each Released Party hereunder shall
be in addition to any other rights such Released Party may have under the
charter or by-laws of the Company, under applicable law or otherwise, the
provisions of this Section 2.4 shall survive the Merger and each Released Party
shall, for all purposes, be a third-party beneficiary of the covenants and
agreements of the Company under this Section 2.4 and, accordingly, shall be
treated as a party to this Agreement for purposes of the rights and remedies
relating to enforcement of such covenants and agreements and shall be entitled
to enforce any such rights and exercise any such remedies directly.
ARTICLE III.
DISSENTING SHARES; PAYMENT FOR SHARES
SECTION 3.1. DISSENTING SHARES. Notwithstanding anything in
this Agreement to the contrary, Shares outstanding immediately prior to the
Effective Time and held by a holder who has not voted in favor of the Merger or
consented thereto in writing and who demands in writing appraisal for such
Shares in accordance with Section 262 of the GCL, if such Section 262 provides
for appraisal rights for such Shares in the Merger ("DISSENTING SHARES"), shall
not be converted into the right to receive the Merger Price as provided in
Section 2.1(a), but shall be entitled to receive the consideration as shall be
determined pursuant to Section 262 of the GCL unless and until such holder fails
to perfect or withdraws or otherwise loses his right to appraisal and payment
under the GCL. If any such holder fails to perfect or withdraws or loses his
right to appraisal, such Dissenting Shares shall thereupon be treated as if they
had been converted as of the Effective Time into the right to receive the Merger
Price, if any, to which such holder is entitled, without interest or dividends
thereon. The Company shall give Newco prompt notice of any demands received by
the Company for appraisal of Shares, withdrawals of such demands and any other
instruments served pursuant to the GCL and received by the Company and, prior to
the Effective Time, Newco shall have the right to participate in all
negotiations and proceedings with respect to such demands. Prior to the
Effective Time, the Company shall not, except with the prior written consent of
Newco, make any payment with respect to, or settle or offer to settle, any such
demands.
SECTION 3.2. PAYMENT FOR SHARES.
(a) From and after the Effective Time, a bank or
trust company mutually acceptable to Newco and the Company shall
-12-
13
act as paying agent (the "PAYING AGENT") in effecting the payment of the Merger
Price. Immediately prior to the Effective Time, Newco shall deposit, or cause to
be deposited, in trust with the Paying Agent the aggregate Merger Price to which
holders of Shares shall be entitled at the Effective Time pursuant to Section
2.1(a).
(b) Promptly after the Effective Time, the Surviving
Corporation shall cause the Paying Agent to mail to each record holder of
Certificates (other than Certificates representing Dissenting Shares and
Certificates representing Shares held by Newco, any wholly-owned subsidiary of
Newco, in the treasury of the Company or by any wholly-owned subsidiary of the
Company) (i) a form of letter of transmittal which shall specify that delivery
shall be effected, and risk of loss and title to the Certificates shall pass,
only upon proper delivery of the Certificates to the Paying Agent and which
shall be in such form and have such other provisions as Newco may reasonably
specify and to which the Company consents (such consent not to be unreasonably
withheld or delayed) and (ii) instructions for use in surrendering such
Certificates and receiving the aggregate Merger Price in respect thereof. Upon
the surrender of each such Certificate, duly completed and validly executed in
accordance with the instructions thereto, the Paying Agent shall pay the holder
of such Certificate the Merger Price multiplied by the number of Shares formerly
represented by such Certificate in consideration therefor, and such Certificate
shall forthwith be canceled. Until so surrendered, each such Certificate (other
than Certificates representing Dissenting Shares and Certificates representing
Shares held by Newco, any wholly-owned subsidiary of Newco, in the treasury of
the Company or by any wholly-owned subsidiary of the Company) shall represent
solely the right to receive the aggregate Merger Price relating thereto. No
interest or dividends shall be paid or accrued on the Merger Price. If the
Merger Price (or any portion thereof) is to be delivered to any person other
than the person in whose name the Certificate formerly representing Shares
surrendered therefor is registered, it shall be a condition to such right to
receive such Merger Price, that the Certificate so surrendered shall be properly
endorsed, with signature guaranteed, or otherwise be in proper form for transfer
and that the person surrendering such Certificates shall pay to the Paying Agent
any transfer or other taxes required by reason of the payment of the Merger
Price to a person other than the registered holder of the Certificate
surrendered, or shall establish to the satisfaction of the Paying Agent that
such tax has been paid or is not applicable.
(c) Promptly following the date which is 180 days
after the Effective Time, the Paying Agent shall deliver to the Surviving
Corporation all cash, Certificates and other documents in its possession
relating to the transactions described in this Agreement, and the Paying Agent's
duties shall terminate. Thereafter, each holder of a Certificate formerly
representing
-13-
14
Shares who has not theretofore complied with Article II and this Article III
shall look only to the Surviving Corporation (as a general creditor thereof) for
payment of its claim for the Merger Price (without any interest or dividends
thereon).
(d) NO LIABILITY. None of Newco, the Company or the
Paying Agent shall be liable to any person in respect of any cash delivered to a
public official pursuant to any applicable abandoned property, escheat or
similar law to the extent any such law so provides.
(e) INVESTMENT IN EXCHANGE FUND. The Paying Agent
shall invest the Merger Price as directed by the Surviving Corporation (within
guidelines approved by the Company prior to the Closing Date, which approval
shall not be unreasonably withheld or delayed). Any interest resulting from such
investment shall be paid to the Surviving Corporation.
(f) STOCK TRANSFER BOOKS. After the Effective Time,
there shall be no registrations of transfers on the stock transfer books of the
Surviving Corporation of any Shares which were outstanding immediately prior to
the Effective Time. If, after the Effective Time, Certificates formerly
representing Shares are presented to the Surviving Corporation or the Paying
Agent, they shall be surrendered and canceled in return for the payment of the
aggregate Merger Price relating thereto, as provided in this Article III.
(g) NO FURTHER OWNERSHIP RIGHTS IN SHARES EXCHANGED
FOR CASH. All cash paid upon the surrender for exchange of Certificates formerly
representing Shares in accordance with the terms of this Article III shall be
deemed to have been paid in full satisfaction of all rights pertaining to the
Shares formerly represented by such Certificates.
(h) LOST CERTIFICATES. If any Certificate shall have
been lost, stolen or destroyed, upon the making of an affidavit of that fact by
the person claiming such Certificate to be lost, stolen or destroyed and, if
required by the Surviving Corporation, the posting by such person of a bond in
such reasonable and customary amount as the Surviving Corporation may direct as
indemnity against any claim that may be made against it with respect to the
Certificate, the Paying Agent shall deliver in exchange for such lost, stolen or
destroyed Certificate the applicable Merger Price with respect thereto.
(i) WITHHOLDING RIGHTS. The Surviving Corporation
shall be entitled to deduct and withhold from the consideration otherwise
payable to any holder of Shares pursuant to this Agreement such amounts as may
be required to be deducted and withheld with respect to the making of such
payment under the Internal Revenue Code of 1986, as amended (the "CODE"), or
under any provision of state, local or foreign Tax law.
-14-
15
SECTION 3.3. THE DEBT OFFER.
(a) Provided that this Agreement shall not have been
terminated in accordance with Section 8.1, the Company shall, as soon as
practicable following execution of this Agreement (but in no event later than 15
calendar days after the public announcement of the execution of this Agreement),
commence an offer to purchase all of the outstanding aggregate principal amount
of the Company's 11.63% Senior Subordinated Notes due 2004 (the "SUBORDINATED
NOTES") on the terms set forth in Section 3.3 of the Company Disclosure Schedule
(as defined in Article IV) and such other customary terms and conditions as are
reasonably acceptable to Newco (the "DEBT OFFER"). The Company shall waive any
of the conditions (other than that the Merger shall have been consummated) to
the Debt Offer and make any other changes in the terms and conditions of the
Debt Offer as reasonably requested by Newco, and the Company shall not, without
Newco's prior consent, waive any condition to the Debt Offer or make any changes
to the terms and conditions of the Debt Offer. Notwithstanding anything in this
Agreement, including the immediately preceding sentence, to the contrary, Newco
shall not request that the Company make any change to the terms and conditions
of the Debt Offer that, in the Company's reasonable judgment, is adverse to the
holders of the Subordinated Notes or the Shares or that reasonably could be
expected to delay or impair consummation of the Merger or the transactions
contemplated hereby unless such change was previously approved by the Company in
writing. The Company covenants and agrees that, subject to the terms and
conditions of this Agreement, including but not limited to the conditions to the
Debt Offer, it will accept for payment and pay for the Subordinated Notes as
soon as the condition set forth in Section 7.2(f) is satisfied or waived and
immediately prior to the Effective Time so long as it is permitted to do so
under applicable law.
(b) Promptly following the date of this Agreement,
Newco and the Company shall prepare an offer to purchase the Subordinated Notes
(or portions thereof) and forms of the related letter of transmittal (the
"LETTER OF TRANSMITTAL") (collectively, the "OFFER TO PURCHASE") and summary
advertisement, as well as all other information and exhibits (collectively, the
"OFFER DOCUMENTS"). Newco and the Company will cooperate with each other in the
preparation of the Offer Documents. All mailings to the holders of Subordinated
Notes in connection with the Debt Offer shall be subject to the prior review,
comment and reasonable approval of Newco. The Company will use its reasonable
best efforts to cause the Offer Documents to be mailed to the holders of the
Subordinated Notes as promptly as practicable following commencement of the Debt
Offer in accordance with Section 3.3(a). The Company agrees promptly to correct
any information in the Offer Documents that shall be or have become false or
misleading in any material respect.
-15-
16
(c) In connection with the Debt Offer, if requested
by Newco, the Company shall promptly furnish Newco with security position
listings, any non-objecting beneficial owner lists and any available listings or
computer files containing the names and addresses of the beneficial owners
and/or record holders of Subordinated Notes, each as of a recent date, and shall
promptly furnish Newco with such additional information (including but not
limited to updated lists of holders of the Subordinated Notes, mailing labels,
security position listings and non-objecting beneficial owner lists) and such
other assistance as Newco or its agents may reasonably require in communicating
the Debt Offer to the record and beneficial holders of Subordinated Notes.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Newco that (i) except
as set forth in the Company Disclosure Schedule delivered to Newco prior to the
execution of this Agreement (the "COMPANY DISCLOSURE SCHEDULE"), but, with
respect to any representation or warranty, only to the extent that it would be
reasonably apparent that a reference on the Company Disclosure Schedule relates
to such representation or warranty, and (ii) except as fairly reflected in the
notes to the financial statements described in Section 4.6(b) hereof.
SECTION 4.1. ORGANIZATION AND QUALIFICATION; SUBSIDIARIES. The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware. Each of the Company's subsidiaries is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation. The Company and each of its
subsidiaries has the requisite corporate power and authority to own, operate or
lease its properties and to carry on its business as it is now being conducted,
and is duly qualified or licensed to do business, and is in good standing, in
each jurisdiction in which the nature of its business or the properties owned,
operated or leased by it makes such qualification, licensing or good standing
necessary, except where the failure to have such power or authority, or the
failure to be so qualified, licensed or in good standing, reasonably could not,
individually or in the aggregate, be expected to have a Material Adverse Effect
on the Company. The term "MATERIAL ADVERSE EFFECT ON THE COMPANY", as used in
this Agreement, means any change, effect, event, occurrence or development that
is (i) materially adverse to the business, operations, assets, liabilities,
condition (financial or otherwise), results of operations or prospects of the
Company and its subsidiaries taken as a whole except for any change or effect
resulting from (a) general economic, financial or market conditions, (b) any
change or effect resulting from conditions or
-16-
17
circumstances generally affecting the newspaper or magazine publishing industry
so long as such change or effect does not have a materially disproportionate
effect on the Company, or (c) changes in laws of general applicability or
applicable generally to the newspaper or magazine publishing industry so long as
such change or effect does not have a materially disproportionate effect on the
Company or (ii) materially adversely affects the ability of the Company to
perform its obligations under this Agreement.
SECTION 4.2. CERTIFICATE OF INCORPORATION AND BY-LAWS. The
Company has heretofore delivered to Newco a complete and correct copy of the
certificate of incorporation and the by-laws, each as amended to the date
hereof, of the Company and of each of its subsidiaries. Such certificates of
incorporation and by-laws are in full force and effect and no other
organizational documents are applicable to or binding upon the Company or its
subsidiaries, as applicable. Neither the Company nor any of its subsidiaries is
in violation of any of the provisions of its certificate of incorporation or
by-laws.
SECTION 4.3. CAPITALIZATION. The authorized capital stock of
the Company consists of 155,000,000 Shares divided into 100,000,000 Class A
Shares, 20,000,000 shares of Class B Common Stock, par value $.01 per share (the
"CLASS B SHARES"), 25,000,000 Class C Shares and 10,000,000 shares of Serial
Preferred Stock, par value $.01 per share (the "PREFERRED STOCK"), none of which
preferred shares are outstanding. As of the close of business on February 8,
1999, there were 21,793,184 Class A Shares issued and outstanding. As of the
date of this Agreement, there were no Class B Shares and 20,702,005 Class C
Shares issued and outstanding. The Company has no shares of capital stock
reserved for issuance, except that (i), as of the close of business on February
8, 1999, there were 1,672,912 Class A Shares issuable upon exercise of
outstanding Options (with an average exercise price of $6.02) and (ii) as of the
date of this Agreement, there are 20,702,005 Class A Shares issuable upon
conversion of Class C Shares. Except as set forth above, as of the close of
business on February 8, 1999, or the date of this Agreement, as the case may be,
no shares of capital stock or other voting securities of the Company are issued,
reserved for issuance or outstanding. All the outstanding Shares are, and all
Shares which may be issued pursuant to the exercise of outstanding Options or
the conversion of Class C Shares will be, when issued in accordance with the
respective terms thereof, duly authorized, validly issued, fully paid and
nonassessable and free of preemptive (or similar) rights. There are no bonds,
debentures, notes or other indebtedness or securities having general voting
rights (or convertible into securities having such rights) ("VOTING DEBT") of
the Company or any of its subsidiaries issued and outstanding. Except as set
forth above, there are no existing options, warrants, calls, subscriptions or
other rights, agreements, arrangements or commitments of any character,
-17-
18
relating to the issued or unissued capital stock of the Company or any of its
subsidiaries, obligating the Company or any of its subsidiaries to issue,
deliver, transfer or sell or cause to be issued, delivered, transferred or sold
any shares of capital stock or Voting Debt of, or other equity or voting
interest in, the Company or any of its subsidiaries or securities convertible
into or exchangeable or exercisable for such shares or equity or voting
interests or obligations of the Company or any of its subsidiaries to grant,
extend or enter into any such option, warrant, call, subscription or other
right, agreement, arrangement or commitment. All Options were granted under the
Option Plan. Since the close of business on February 8, 1999 and prior to the
execution of this Agreement, there have been no Options, Shares or any other
voting securities or capital stock issuances by the Company or any subsidiary
except for issuances of Shares pursuant to the exercise of Options. Except for
the Company's obligations to accept surrendered Class C Shares upon conversion
thereof into Class A Shares, there are no outstanding obligations of the Company
or any of its subsidiaries to repurchase, redeem or otherwise acquire, or make
any payment in respect of, any Shares or the capital stock of the Company or any
of its subsidiaries, or to provide funds or make any investment (in the form of
a loan, capital contribution or otherwise) in, any other person (other than cash
equivalents, trade receivables and investments in wholly-owned subsidiaries). To
the knowledge of the Company, there are no irrevocable proxies with respect to
Shares of the Company or any shares of capital stock of any subsidiary of the
Company. Section 4.3 of the Company Disclosure Schedule constitutes a true and
complete list of the subsidiaries and associated entities of the Company and
evidences the amount of capital stock or other equity interests owned by the
Company, either directly or indirectly, in such subsidiaries or associated
entities. Each of the outstanding shares of capital stock of each of the
Company's subsidiaries is duly authorized, validly issued, fully paid and
nonassessable, and such shares of the Company's subsidiaries are 100% owned by
the Company or by a subsidiary of the Company (other than the shares of
Frontline Marketing, Inc. and Biocide, Inc. (collectively, the "SPECIAL SUBS"),
the shares of which are each 80% owned by the Company), in each case free and
clear of any lien, claim, option, charge, security interest, limitation,
encumbrance, agreement, limitation on voting rights and restriction of any kind
(any of the foregoing being a "LIEN"). For the purposes of this Agreement, the
Special Subs are considered to be wholly-owned subsidiaries of the Company. No
entity in which the Company owns, directly or indirectly, less than a 50% equity
interest is, individually or when taken together with all such other entities,
material to the business of the Company and its subsidiaries taken as a whole.
SECTION 4.4. AUTHORITY RELATIVE TO THIS AGREEMENT. The Company
has all necessary corporate power and authority to execute and deliver this
Agreement, to perform its obligations under this Agreement and to consummate the
transactions
-18-
19
contemplated hereby. The execution, delivery and performance of this Agreement
by the Company and the consummation by the Company of the transactions
contemplated hereby have been duly and validly authorized and approved by the
Board and no other corporate proceedings on the part of the Company are
necessary to authorize or approve this Agreement or to consummate the
transactions contemplated hereby (other than, with respect to the Merger, the
adoption of this Agreement by holders of the Shares to the extent required by
the Company's certificate of incorporation and by applicable law). This
Agreement has been duly and validly executed and delivered by the Company and,
assuming the due and valid authorization, execution and delivery of this
Agreement by Newco, constitutes a valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except that such
enforceability (i) may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws affecting or
relating to the enforcement of creditors' rights generally and (ii) is subject
to general principles of equity (whether considered in a proceeding in equity or
in law).
SECTION 4.5. NO CONFLICT; REQUIRED FILINGS AND CONSENTS.
(a) None of the execution, delivery and performance
of this Agreement by the Company, the consummation by the Company of the
transactions contemplated hereby or compliance by the Company with any of the
provisions hereof (in each case other than in respect of the financing to be
obtained contemplated by the Commitment Letters or any other financing obtained
in connection with the transactions contemplated hereby) will (i) conflict with
or violate any provision of the certificate of incorporation or by-laws of the
Company or the comparable organizational documents of any of its subsidiaries,
(ii) subject to the governmental filings and of matters referred to in Section
4.5(b), conflict with or violate any statute, ordinance, rule, regulation,
order, judgment or decree applicable to the Company or its subsidiaries, or by
which any of them or any of their respective properties or assets may be bound
or affected, or (iii) result in a violation or breach of or constitute a default
(or an event which with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation of, or result in any loss of any material benefit, or the creation
of any Lien on any of the property or assets of the Company or any of its
subsidiaries (any of the foregoing referred to in clause (ii) or this clause
(iii) being a "VIOLATION") pursuant to, any loan or credit agreement, note,
bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries or
any of their respective properties may be bound or affected, except in the case
of the foregoing clauses (ii) or (iii) for any such Violations which,
individually or in the
-19-
20
aggregate, reasonably could not be expected to have a Material Adverse Effect on
the Company.
(b) None of the execution, delivery and performance
of this Agreement by the Company, the consummation by the Company of the
transactions contemplated hereby or compliance by the Company with any of the
provisions hereof (in each case other than in respect of the financing
contemplated by the Commitment Letters or any other financing obtained in
connection with the transactions contemplated hereby) will require any consent,
waiver, approval, authorization or permit of, or registration or filing with or
notification to (any of the foregoing being a "CONSENT"), any administrative,
government or regulatory authority, agency, court, commission, tribunal or body,
domestic, foreign or supranational (a "GOVERNMENTAL ENTITY"), except for (i)
compliance with any applicable requirements of the Exchange Act, (ii) the filing
of a certificate of merger, pursuant to the GCL, (iii) applicable state takeover
statutes, (iv) compliance with the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended (the "HSR ACT"), and any requirements of any foreign or
supranational Antitrust Laws (as hereinafter defined) and (v) Consents, the
failure of which to obtain or make, individually or in the aggregate, could not
be reasonably expected to have a Material Adverse Effect on the Company.
SECTION 4.6. SEC REPORTS AND FINANCIAL STATEMENTS.
(a) The Company has filed with the SEC all forms,
reports, schedules, registration statements and definitive proxy statements
(collectively, and in each case including all exhibits and schedules thereto and
documents incorporated by reference therein, the "SEC REPORTS") required to be
filed by the Company with the SEC since December 31, 1995. Other than American
Media Operations, Inc. ("OPERATIONS"), no subsidiary of the Company is required
to file any form, report, schedule, registration statement or proxy statement
with the SEC. As of their respective dates, the SEC Reports complied in all
material respects with the requirements of the Exchange Act or the Securities
Act of 1933, as amended, and the rules and regulations of the SEC promulgated
thereunder applicable, as the case may be, to such SEC Reports, and none of the
SEC Reports, when filed, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements made therein, in light of the circumstances under which they
were made, not misleading.
(b) Each of the audited and unaudited consolidated
financial statements of the Company (including any related notes and schedules,
if any, thereto) included in the SEC Reports complies as to form in all material
respects with all applicable accounting requirements and with the published
rules and regulations of the SEC with respect thereto, represents
-20-
21
fairly, in all material respects, the consolidated financial position and the
consolidated results of operations and cash flows of the Company and its
consolidated subsidiaries as of the dates or for the periods presented therein
and has been prepared in conformity with United States generally accepted
accounting principles ("GAAP") applied on a consistent basis during the periods
involved except as otherwise noted therein, including in the notes thereto.
Except as set forth in the consolidated balance sheet of the Company at
September 28, 1998, included in the SEC Reports, as of such date, neither the
Company nor any of its subsidiaries has any liability or obligation of any
nature (whether accrued, absolute, contingent or otherwise) that (i) is required
by GAAP to be reflected on a consolidated balance sheet of the Company as of
such date, and (ii) individually or in the aggregate, reasonably could be
expected to have a Material Adverse Effect on the Company. Except as set forth
in the consolidated balance sheet of the Company at September 30, 1998, included
in the SEC Reports, neither the Company nor any of its subsidiaries had any
liabilities or obligations of any nature (whether accrued, absolute, contingent
or otherwise) which would be required by GAAP to be reflected on a consolidated
balance sheet of the Company, except for liabilities or obligations (i) incurred
in the ordinary course of business since September 28, 1998, or (ii) which could
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. As of January 31, 1999, the aggregate Funded Debt of the Company
and its subsidiaries was less than $483 million.
SECTION 4.7. INFORMATION. None of the information supplied by
the Company for inclusion or incorporation by reference in (i) the Offer
Documents, (ii) the Consent Statement or (iii) any other document to be filed
with the SEC or any other Governmental Entity in connection with the
transactions contemplated by this Agreement (the "OTHER FILINGS") will, at the
respective times filed with the SEC or other Governmental Entity and, in
addition, in the case of the Consent Statement, at the date it or any amendment
or supplement is mailed to stockholders, and at the Effective Time, and, in the
case of the Offer Documents, at the time the Offer Documents or any amendments
or supplements are first published or sent or given to Holders of the
Subordinated Notes, as the case may be, or at the time the Debt Offer is
consummated, contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to make
the statements made therein, in light of the circumstances under which they were
made, not misleading except, in each case, as the same may be amended or
supplemented prior to the Effective Time. The Consent Statement will comply as
to form in all material respects with the provisions of the Exchange Act and the
rules and regulations thereunder, except that no representation is made by the
Company with respect to statements made therein based on information supplied by
Newco in writing specifically for inclusion in the Consent Statement. For
purposes of this Agreement, the parties
-21-
22
agree that statements made and information in the Consent Statement relating to
the Federal income tax consequences of the transactions herein contemplated to
holders of Shares shall be deemed to be supplied by the Company and not by
Newco.
SECTION 4.8. LITIGATION. As of the date hereof: there is no
suit, claim, action, proceeding or investigation pending or, to the knowledge of
the Company, threatened against or affecting the Company or any of its
subsidiaries that, individually or in the aggregate, reasonably could be
expected to (x) have a Material Adverse Effect on the Company or (y) prevent or
delay in any material respect the consummation of the transactions contemplated
by this Agreement, nor is there any judgment, decree, injunction or order of any
Governmental Entity, administrative or regulatory authority or body, or
arbitrator outstanding against the Company or any of its subsidiaries that
reasonably could be expected to (x) have, individually or in the aggregate, a
Material Adverse Effect on the Company or (y) prevent or delay in any material
respect the consummation of the transactions contemplated by this Agreement.
Neither the Company nor any of its subsidiaries nor any of their respective
properties is or are subject to any order, writ, judgment, injunction, decree,
determination or award which reasonably could be expected to have, individually
or in the aggregate, a Material Adverse Effect on the Company or would enjoin or
prohibit the consummation of the transactions contemplated hereby.
SECTION 4.9. COMPLIANCE WITH APPLICABLE LAWS. Each of the
Company and its subsidiaries has been and is in compliance with all permits,
licenses and franchises from Governmental Entities required to conduct its
business as now being conducted, except to the extent that the failure to have
been or comply with such permits, licenses and franchises reasonably could not,
individually or in the aggregate, be expected to have a Material Adverse Effect
on the Company. The Company and its subsidiaries are, and are conducting their
respective business operations, in compliance with all laws, regulations and
orders of any Governmental Entity applicable to any of them, except for such
failures so to comply which, individually or in the aggregate, reasonably could
not be expected to have a Material Adverse Effect on the Company.
SECTION 4.10. EMPLOYEE BENEFIT PLANS.
(a) Section 4.10 of the Company Disclosure Schedule
includes a complete list of each material "employee benefit plan" (within the
meaning of section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA")) (including, without limitation, multiemployer plans within
the meaning of ERISA section 3(37)), stock purchase, stock option, severance,
employment, change-in-control, fringe benefit, collective bargaining, bonus,
incentive, deferred compensation and all other employee benefit plans,
agreements, programs,
-22-
23
policies or other arrangements, whether or not subject to ERISA (including any
funding mechanism therefor now in effect or required in the future as a result
of the transaction contemplated by this Agreement or otherwise), whether formal
or informal, oral or written, legally binding or not under which any employee or
former employee of the Company or any of its subsidiaries has any present or
future right to benefits or under which the Company or any of its subsidiaries
has any present or future liability. All such plans, agreements, programs,
policies and arrangements shall be collectively referred to as the "PLANS."
(b) With respect to each Plan, the Company has made
available to Parent a true, correct and complete copy of: (i) all plan
documents, benefit schedules, trust agreements, and insurance contracts and
other funding vehicles; (ii) the most recent Annual Report (Form 5500 Series)
and accompanying schedule, if any; (iii) the current summary plan description,
if any, and other written communications; (iv) the three most recent annual
financial reports, if any; (v) the three most recent actuarial reports, if any;
and (vi) the most recent determination letter from the Internal Revenue Service
(the "IRS"), if any.
(c) Each Plan has been established and administered
in accordance with its terms, and in compliance with the applicable provisions
of ERISA, the Code and other applicable laws, rules and regulations except for
such violations or non-compliances, which, individually or in the aggregate,
reasonably could not be expected to have a Material Adverse Effect on the
Company. With respect to each Plan that is intended to be a "qualified plan"
within the meaning of Section 401(a) of the Code ("QUALIFIED PLANS"), the IRS
has issued a favorable determination letter and nothing has occurred, whether by
action or failure to act, which would cause the loss of such qualification.
(d) All contributions required to be made to any
Plan by applicable law or regulation or by any plan document or other
contractual undertaking, and all premiums due or payable with respect to
insurance policies funding any Plan, for any period through the Effective Time
have been timely made or paid in full or, to the extent not required to be made
or paid on or before the date hereof, have been fully reflected in the financial
statements of the Company to the extent required under GAAP.
(e) No Plan is subject to Title IV or Section 302 of
ERISA or Section 412 or 4971 of the Code. There does not now exist, nor do any
circumstances exist that could reasonably be expected to result in, any material
liability under (i) Title IV of ERISA, (ii) section 302 of ERISA, (iii) sections
412 and 4971 of the Code or (iv) the continuation coverage requirements of
section 601 et seq. of ERISA and section 4980B of the Code.
-23-
24
(f) (i) With respect to any Plan, no actions, suits
or claims (other than routine claims for benefits in the ordinary course) are
pending or threatened and no facts or circumstances exist which could give rise
to any such actions, suits or claims; (ii) neither the Company nor any other
party has engaged in a prohibited transaction, as such term is defined under
Code section 4975 or ERISA section 406, which would subject the Company, any of
its subsidiaries or the Buyer to any taxes, penalties or other liabilities under
Code section 4975 or ERISA sections 409 or 502(i); (iii) no event has occurred
and no condition exists that would subject the Company or any of its
subsidiaries, either directly or by reason of its affiliation with any member of
its Controlled Group (defined as any organization which is a member of a
controlled group of organizations within the meaning of Code sections 414(b),
(c), (m) or (o)), to any tax, fine or penalty imposed by ERISA, the Code or
other applicable laws, rules and regulations; (iv) no Plan provides for an
increase in benefits on or after the Closing Date; and (v) each Plan, excluding
individual employment agreements or individual contracts with employees, may be
amended or terminated without obligation or liability (other than those
obligations and liabilities for which specific assets have been set aside in a
trust or other funding vehicle or reserved for on the Company's balance sheet).
(g) Except as set forth in Section 4.10 of the
Company Disclosure Schedule, no Plan exists which could result in the payment to
any employee of the Company or any of its subsidiaries of any money or other
property or rights or accelerate or provide any other rights or benefits to any
employee of the Company or any of its subsidiaries as a result of the
transaction contemplated by this Agreement, whether or not such payment would
constitute a parachute payment within the meaning of Code section 280G, and
whether or not some other subsequent action or event would be required to cause
such payment, acceleration or provision to be triggered.
SECTION 4.11. INTELLECTUAL PROPERTY.
(a) Schedule 4.11(a) sets forth (i) all patents,
registrations and applications for Intellectual Property owned, held or used by
the Company or any of its subsidiaries, (ii) all material unregistered
Intellectual Property owned, held or used by the Company or any of its
subsidiaries, and (iii) all material licenses, sublicenses, consent-to-use
agreements and other agreements concerning Intellectual Property to which the
Company or any of its subsidiaries is a party ("IP LICENSES"). The Company or
any of its subsidiaries owns or has the right to use all the Intellectual
Property listed on Schedule 4.11(a), and all the Intellectual Property necessary
or desirable for the operation of the Company or any of its subsidiaries as each
is currently operated and consistent with past practice.
-24-
25
(b) Except as set forth on Schedule 4.11(b), and
except for such matters that, individually or in the aggregate, reasonably could
not be expected to have a Material Adverse Effect on the Company, (i) all of the
Intellectual Property owned or used by the Company or any of its subsidiaries is
valid, enforceable and unexpired, is free of all Liens, has not been abandoned,
does not infringe or impair the Intellectual Property of any third party and is
not being infringed or impaired by any third party; (ii) no judgment, decree,
injunction, rule or order has been rendered or, to the Company's knowledge, is
threatened by any Governmental Entity which would limit, cancel or question the
validity of (or the Company's or any of its subsidiaries' rights regarding
ownership or use of) any Intellectual Property owned, held or used by the
Company or any of its subsidiaries; (iii) no action, suit or proceeding is
pending, or to the Company's knowledge, threatened that seeks to limit, cancel
or question the validity of (or the Company's or any of its subsidiaries' rights
regarding ownership or use of) any Intellectual Property owned, held or used by
the Company or any of its subsidiaries; and (iv) the Company and its
subsidiaries are not in breach of or default under any IP License, nor to the
Company's knowledge, does a valid basis exist for any other party to any IP
License to claim same.
(c) For purposes of this Section 4.11, "INTELLECTUAL
PROPERTY" shall mean all U.S., state and foreign intellectual property,
including without limitation all (i) (A) patentable inventions, discoveries,
processes, designs, techniques, developments, technology, and related
improvements and know-how; (B) copyrights in works of authorship in any language
or media, including computer software, databases and related items, textual
works, graphics, artwork, photography, advertising and promotional materials,
designs, web site content, and all authors' rights and waivers; (C) trademarks,
service marks, trade names, brand names, corporate names, domain names, logos,
trade dress and all elements thereof, the goodwill of any business symbolized
thereby, and all common-law rights relating thereto; and (D) trade secrets,
subscriber and advertiser lists and other confidential information; (ii) all
registrations, applications, recordings, licenses and other agreements related
thereto; and (iii) all rights to obtain renewals, extensions, continuations,
continuations-in-part, reissues, divisions or similar legal protections related
thereto.
SECTION 4.12. ENVIRONMENTAL MATTERS. Except for items referred
to below which could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect on the Company, (a) each of the
Company and each of its subsidiaries complies and has complied with all
Environmental Laws applicable to the properties, assets or businesses of the
Company and its subsidiaries, and possesses and complies with and has possessed
and complied with all Environmental Permits required under such laws; (b) no
modification, revocation,
-25-
26
reissuance, alteration, transfer, or amendment of any of the Environmental
Permits, or any review by, or approval of, any third party of any of the
Environmental Permits is required in connection with the execution or delivery
of this Agreement or the consummation of the transactions contemplated hereby or
the continuation of the business of the Company and its subsidiaries following
such consummation; (c) no judicial or administrative proceeding is pending or to
the knowledge of the Company threatened relating to liability for any off-site
disposal or contamination; (d) none of the Company or any of its subsidiaries
has received any Environmental Claim, and none of the Company or any of its
subsidiaries is aware after reasonable inquiry of any threatened Environmental
Claim; (e) none of the Company or any of its subsidiaries has assumed,
contractually or by operation of law, any liabilities or obligations under any
Environmental Laws; (f) there are and have been no Hazardous Materials at any
property owned, operated or otherwise used by the Company or any subsidiary now
or in the past that reasonably could be expected to give rise to liability that
could reasonably be expected to have a Material Adverse Effect on the Company or
any subsidiary under any Environmental Law; (g) there are no past or present
events, conditions, circumstances, practices, plans or legal requirements that
could reasonably be expected to result in liability to the Company or any of its
subsidiaries under Environmental Laws or prevent or increase either the
Company's or any of its subsidiaries' burden of complying with Environmental
Laws, in either case, such that, individually or in the aggregate, such matters
could reasonably be expected to have a Material Adverse Effect; and (h) none of
the Company or any of its subsidiaries has entered into or agreed to any
consent, decree, order or agreement under any Environmental Law, and none of the
Company or any of its subsidiaries is subject to any judgment, decree or order
relating to compliance with any Environmental Law or to investigation, cleanup,
remediation or removal of Hazardous Materials. For purposes of this Agreement,
the following terms shall have the following meanings:
"ENVIRONMENTAL CLAIM" means any written or oral notice, claim,
demand, action, suit, complaint, proceeding or other communication by
any person alleging liability or potential liability arising out of,
relating to, based on or resulting from (i) the presence, discharge,
emission, release or threatened release of any Hazardous Materials at
any location, whether or not owned, leased or operated by the Company
or any of its subsidiaries or (ii) circumstances forming the basis of
any violation or alleged violation of any Environmental Law or
Environmental Permit or (iii) otherwise relating to obligations or
liabilities under any Environmental Laws.
"ENVIRONMENTAL LAWS" means all applicable federal, state and
local statutes, rules, regulations, ordinances,
-26-
27
orders, decrees and common law, as they exist at the date hereof,
relating in any manner to contamination, pollution or protection of
human health or the environment, including without limitation the
Comprehensive Environmental Response, Compensation and Liability Act,
the Solid Waste Disposal Act, the Resource Conservation and Recovery
Act, the Clean Air Act, the Clean Water Act, the Toxic Substances
Control Act, the Occupational Safety and Health Act, the Emergency
Planning and Community-Right-to-Know Act, the Safe Drinking Water Act,
all as amended, and similar state laws.
"ENVIRONMENTAL PERMITS" means all permits, licenses,
registrations and other governmental authorizations required for the
Company and the operations of the Company's and its subsidiaries'
facilities and otherwise to conduct its business under Environmental
Laws.
"HAZARDOUS MATERIALS" means all hazardous or toxic substances,
wastes, materials or chemicals, petroleum (including crude oil or any
fraction thereof) and petroleum products, asbestos and
asbestos-containing materials, pollutants, contaminants and all other
materials and substances regulated pursuant to, or that could form the
basis of liability under, any Environmental Law.
SECTION 4.13. MATERIAL ADVERSE CHANGE. Since September 28,
1998, the Company and its subsidiaries have conducted their businesses only in
the ordinary course of business consistent with past practice (except with
respect to the Soap Opera Sale) in all material respects, and, since such date,
there has not been (a) any change, effect, event, occurrence or development in
the business, operations, assets, liabilities, condition (financial or
otherwise), results of operations or prospects of the Company or any of its
subsidiaries that reasonably could be expected to be materially adverse to the
Company and its subsidiaries taken as a whole except for any change resulting
from (i) general economic, financial or market conditions, (ii) conditions or
circumstances generally affecting the newspaper or magazine publishing industry
so long as such change does not have a materially disproportionate effect on the
Company, or (iii) changes in laws of general applicability or applicable
generally to the newspaper or magazine publishing industry so long as such
change does not have a materially disproportionate effect on the Company, (b)
any action by the Company or any of its subsidiaries which, if taken after the
date of this Agreement, would constitute a breach of any provision of Section
6.1 (other than Section 6.1(i) and (n)) or (c) any change, effect, event,
occurrence of development which reasonably could be expected to prevent or delay
in any material respect the consummation of the transactions contemplated by
this Agreement.
-27-
28
SECTION 4.14. CERTAIN APPROVALS.
(a) The Board of Directors of the Company, at a
meeting duly called and held, has by unanimous vote of the directors present and
with the written consent of the one director not present (who together
constituted 100% of the directors then in office) (a) declared this Agreement
advisable and determined that the transactions contemplated hereby, including
the Merger and the Debt Offer, are fair to and in the best interests of the
stockholders of the Company, (b) duly approved this Agreement and the
transactions contemplated hereby, including the Merger and the Debt Offer, and
the Voting Agreement and (c) resolved to recommend that the holders of Shares
adopt this Agreement. The Board of Directors of the Company has taken
appropriate action such that, assuming the accuracy of Newco's representation in
Section 5.6 of this Agreement, the provisions of Section 203 of the GCL will not
apply to Newco, any "affiliate" or "associate" (each as defined in Section 203)
of Newco or any of the transactions contemplated by this Agreement or the Voting
Agreement.
(b) The Company Stockholder Vote is the only vote of
the holders of any class or series of the Company's voting securities necessary
to approve this Agreement and the transactions contemplated hereby. There is no
vote of the holders of any class or series of the Company's securities necessary
to approve the Voting Agreement.
SECTION 4.15. OPINION OF FINANCIAL ADVISOR. The Company has
received the written opinion of Lazard Freres & Co., LLC ("LAZARD FRERES") to
the effect that the Merger Price is fair to the holders of the Shares from a
financial point of view.
SECTION 4.15.1. BROKERS. Except for the engagement of Lazard
Freres, none of the Company, any of its subsidiaries, or any of their respective
officers, directors or employees has employed any broker or finder or incurred
any liability for any brokerage fees, commissions or finder's fees in connection
with the transactions contemplated by this Agreement. The Company is obligated
to pay to Lazard Freres at the Effective Time an aggregate fee of $3.45 million
plus its costs and expenses.
SECTION 4.16. CONTRACTS, ETC. Section 4.16 of the Company
Disclosure Schedule contains a complete and accurate list of all material
contracts (written or oral), plans, undertakings, commitments or agreements to
which the Company or any of its subsidiaries is a party or by which any of them
is bound as of the date of this Agreement ("Contracts") (other than Contracts
between or solely among the Company and any of its wholly owned subsidiaries),
including those agreements included in the following categories.
(a) To the extent not already listed in the Company
Disclosure Schedule, employment contracts, including, without limitation,
contracts to employ executive officers and other
-28-
29
contracts with officers or directors of the Company or the Principal
Stockholders (or their affiliates), and all severance, change in control or
similar arrangements with any officers, employees or agents of the Company that
will result in any obligation (absolute or contingent) of the Company or any of
its subsidiaries to make any payment to any officers, employees or agents of the
Company following either the consummation of the transactions contemplated
hereby, termination of employment or both;
(b)(i) Contracts for the purchase of
inventory/supplies which are not cancelable (without penalty, cost or other
liability in excess of $100,000) within one (1) year and (ii) other contracts
made in the ordinary course of business involving future annual expenditures or
liabilities of the Company and its subsidiaries in excess of $100,000 which are
not cancelable (without penalty, cost or other liability in excess of $100,000)
within ninety (90) days;
(c) Promissory notes, loans, agreements, indentures,
evidences of indebtedness or other instruments providing for the lending of
money in excess of $1,000,000, whether as borrower, lender or guarantor;
(d) Contracts containing covenants limiting the
freedom of the Company or any of its subsidiaries to engage in any line of
business or compete with any person or operate at any location;
(e) Joint venture or partnership agreements or joint
development or similar agreements pursuant to which any third party is entitled
to develop any products on behalf of the Company or its subsidiaries;
(f) Any Contract pending or the acquisition or
disposition, directly or indirectly (by merger or otherwise) of assets with fair
market value or book value in excess of $100,000 (other than inventory) or
capital stock of another person;
(g) Any Contract with an affiliate of the Company or
any of its subsidiaries;
(h) Any other Contract containing "change of control"
provisions which would be triggered upon the Merger, sale of the Company or any
of its subsidiaries or similar transaction; and
(i) all Contracts governing the material distribution
of the publications, subscription servicing and any other material Contract
governing the operations of the Company or any subsidiary.
True and complete copies of the written Contracts
-29-
30
identified on Section 4.16 of the Company Disclosure Schedule have been filed
with the SEC as exhibits to the Company SEC Reports or delivered to Newco,
including, without limitation, all schedules, exhibits and annexes to such
contracts. Except as set forth in Section 4.16 of the Company Disclosure
Schedule, neither the Company nor any of its subsidiaries nor any other party to
any Contract is in default under, or in breach or violation of, any Contract
and, to the knowledge of the Company, no event has occurred which, with the
giving of notice or passage of time or both would constitute a default under any
Contract, except for such defaults, breaches and violations which, individually
or in the aggregate, reasonably could not be expected to have a Material Adverse
Effect on the Company. Other than contracts which have terminated or expired in
accordance with their terms, each of the Contracts is valid, binding and
enforceable in accordance with its terms (subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general equitable
principles (whether considered on a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing) and is in full force and
effect. No event (except for the execution, delivery and performance of this
Agreement) has occurred which either entitles, or would, on notice or lapse of
time or both, entitle, the holder of any indebtedness for borrowed money of the
Company or any of its subsidiaries to accelerate, or which does accelerate, the
maturity of any indebtedness affecting the Company or any of its subsidiaries.
SECTION 4.17. LABOR MATTERS. The Company is not a party to any
agreement pursuant to which a labor organization is certified under applicable
labor law as a bargaining agent for any of the Company's or any of its
subsidiaries' employees, nor is such an agreement being negotiated. There are no
representation or certification proceedings, or petitions seeking a
representation proceeding pending or, to the knowledge of the Company,
threatened to be brought or filed with the National Labor Relations Board or any
other labor relations tribunal or authority; and there are not any organizing
activities or strikes involving the Company or any of its subsidiaries with
respect to any group of employees of the Company or its subsidiaries.
SECTION 4.18. TAX MATTERS. Except as set forth on Section 4.18
of the Company Disclosure Schedule: the Company and each of its subsidiaries and
any consolidated, combined, unitary or aggregate group for Tax purposes of which
the Company or any of its subsidiaries is a member has timely filed all material
Tax Returns required to be filed by it in the manner provided by law, has timely
paid all material Taxes and has provided adequate reserves as required by GAAP
in its financial statements with respect to any liability for Taxes not yet due
and payable. Except as set forth in Section 4.18 of the Company Disclosure
Schedule: (i) no deficiencies for any United States federal
-30-
31
income Taxes have been proposed, asserted or assessed in writing against the
Company or any of its subsidiaries that are not adequately reserved for as
required by GAAP; (ii) no audit of any United States Tax Return of the Company
or any of subsidiaries is being conducted by a Tax authority; (iii) no extension
of the statute of limitations on the assessment of any Taxes has been granted by
the Company or any of its subsidiaries and is currently in effect; (iv) neither
the Company nor any of its subsidiaries (x) has been a member of an affiliated
group filing a consolidated Federal Income Tax Return (other than a group the
common parent of which was the Company) or (y) has any liability for the Taxes
of any person (other than the Company and its subsidiaries) arising from the
application of Treasury Regulations Section 1.1502-6 or any analogous provision
of state, local or foreign law; (v) no consent under Section 341(f) of the Code
has been filed with respect to the Company or any of its subsidiaries; (vi)
neither the Company nor any of its subsidiaries has issued or assumed any
obligations described in Section 279(a) of the Code that remains outstanding;
(vii) no claim for unpaid Taxes has become a Lien against the property of the
Company or any of its subsidiaries or is being asserted against the Company or
any of its subsidiaries; and (viii) neither the Company nor any of its
subsidiaries has made any payments, or is a party to any agreement that under
certain circumstances could obligate it to make any payments, that will not be
deductible under Sections 162(m) or 2180G of the Code. As used herein, "TAXES"
shall mean any taxes of any kind including but not limited to those on or
measured by or referred to as income, gross receipts, capital, sales, use, ad
valorem, franchise, profits, license, withholding, payroll, employment, excise,
severance, stamp, occupation, premium, value added, property or windfall profits
taxes, customs, duties or similar fees, assessments or charges of any kind
whatsoever, together with any interest and any penalties, additions to tax or
additional amounts imposed by any governmental authority, domestic or foreign.
As used herein, "TAX RETURN" shall mean any return, report or statement required
to be filed with any governmental authority with respect to Taxes.
SECTION 4.19. MAKE GOOD; ADVERTISING CREDITS. Set forth in
Section 4.19 of the Company Disclosure Schedule is a description of the policies
of the Company and its subsidiaries regarding "make good" and advertising credit
requests for each publication.
SECTION 4.20. INSURANCE. Section 4.20 of the Company
Disclosure Schedule contains a correct and complete description of all
performance bonds, policies or binders of insurance held by or on behalf of the
Company or its subsidiaries exclusively, or providing coverage for any of their
respective properties or assets (in each case specifying the insurer, the amount
of coverage, the type of insurance, the risks insured, the expiration date, and
the policy number). Except as set forth in Section 4.20 of the Company
Disclosure Schedule, to the best of the
-31-
32
Company's knowledge, no state or fact exists and no event has occurred which
reasonably might form the basis of any claim against or relating to the Company
and its subsidiaries which might substantially increase the insurance premiums
payable under or result in the cancellation or nonrenewal of any of the policies
or binders listed on such schedule.
SECTION 4.21. YEAR 2000. The statement set forth in Section
4.21 of the Company Disclosure Schedule is, as of the date hereof, materially
true and correct.
SECTION 4.22. SOAP OPERA SALE. On February 3, 1999, the Soap
Opera Sale was consummated.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
OF NEWCO
Newco represents and warrants to the Company that, except as
set forth in the Newco Disclosure Schedule delivered to the Company prior to the
execution of this Agreement (the "NEWCO DISCLOSURE SCHEDULE"), but, with respect
to any representation or warranty, only to the extent that it would be
reasonably apparent that a reference on the Newco Disclosure Schedule relates to
such representation or warranty:
SECTION 5.1. ORGANIZATION AND QUALIFICATION. Newco is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware, has the requisite corporate power and authority to
own, operate or lease its properties and to carry on its business as it is now
being conducted, and is duly qualified or licensed to do business, and is in
good standing, in, each jurisdiction in which the nature of its business or the
properties owned, operated or leased by it makes such qualification, licensing
or good standing necessary, except where the failure to have such power or
authority, or the failure to be so qualified, licensed or in good standing,
would not have a Material Adverse Effect on Newco. The term "MATERIAL ADVERSE
EFFECT ON NEWCO", as used in this Agreement, means any change in or effect on
the business, operations or financial condition of Newco or any of its
subsidiaries that (a) materially and adversely affects the ability of Newco to
perform its obligations under this Agreement or (b) prevents or delays in any
material respect consummation of the transactions contemplated by this Agreement
(including, in each case and without limitation, the financing contemplated by
the Commitment Letters or any other financing obtained in connection with the
transactions contemplated hereby).
SECTION 5.2. AUTHORITY RELATIVE TO THIS AGREEMENT. Newco has
all necessary corporate power and authority to execute and
-32-
33
deliver this Agreement, to perform its obligations under this Agreement and to
consummate the transactions contemplated hereby (including the financing
contemplated by the Commitment Letters or any other financing obtained in
connection with the transactions contemplated hereby). The execution, delivery
and performance of this Agreement by Newco and the consummation by Newco of the
transactions contemplated hereby have been duly and validly authorized and
approved by all necessary corporate actions on the part of Newco and no other
corporate proceedings on the part of Newco are necessary to authorize or approve
this Agreement or to consummate the transactions contemplated hereby (including
the financing contemplated by the Commitment Letters or any other financing
obtained in connection with the transactions contemplated hereby). This
Agreement has been duly executed and delivered by Newco and, assuming the due
and valid authorization, execution and delivery by the Company, constitutes a
valid and binding obligation of Newco enforceable against it in accordance with
its terms, except that such enforceability (i) may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other similar
laws affecting or relating to the enforcement of creditors' rights (whether
considered in a proceeding in equity or in law) generally and (ii) is subject to
general principles of equity.
SECTION 5.3. NO CONFLICT; REQUIRED FILINGS AND CONSENTS.
(a) None of the execution, delivery and performance
of this Agreement by Newco, the consummation by Newco of the transactions
contemplated hereby or compliance by Newco with any of the provisions hereof
will (i) conflict with or violate any provision of the organizational documents
of Newco, (ii) subject to the governmental filings and other matters referred to
in Section 5.3(b) below, conflict with or violate any statute, ordinance, rule,
regulation, order, judgment or decree applicable to Newco, or any of its
subsidiaries, or by which any of them or any of their respective properties or
assets may be bound or affected, or (iii) result in a Violation pursuant to any
loan or credit agreement, note, bond, mortgage, indenture, contract, agreement,
lease, license, permit, franchise or other instrument or obligation to which
Newco or any its subsidiaries is a party or by which any of their respective
properties or assets may be bound or affected, except in the case of the
foregoing clauses (ii) and (iii) for any such Violations which reasonably could
not be expected to have a Material Adverse Effect on Newco.
(b) None of the execution, delivery and performance
of this Agreement by Newco, the consummation by Newco of the transactions
contemplated hereby (including the financing contemplated by the Commitment
Letters or any other financing obtained in connection with the transactions
contemplated hereby) or compliance by Newco with any of the provisions hereof
will require any Consent of any Governmental Entity, except for
-33-
34
(i) compliance with any applicable requirements of the Exchange Act, (ii) the
filing of a certificate of merger, pursuant to the GCL, (iii) applicable state
takeover and environmental statutes, (iv) compliance with the HSR Act and any
requirements of any foreign or supranational Antitrust Laws, and (v) Consents,
the failure of which to obtain or make reasonably could not be expected to have
a Material Adverse Effect on Newco.
SECTION 5.4. INFORMATION. None of the information supplied or
to be supplied by Newco in writing specifically for inclusion in (i) the Offer
Documents, (ii) the Consent Statement or (iii) the Other Filings will, at the
respective times filed with the SEC or such other Governmental Entity and, in
addition, in the case of the Consent Statement, at the date it or any amendment
or supplement is mailed to stockholders, and at the Effective Time, and, in the
case of the Offer Documents, at the time the Offer Documents or any amendments
or supplements are first published or sent or given to holders of the
Subordinated Notes, as the case may be, or at the time the Debt Offer is
consummated, contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to make
the statements made therein, in light of the circumstances under which they were
made, not misleading, except, in each case, as the same may be amended or
supplemented prior to the Effective Time. Notwithstanding the foregoing, Newco
makes no representation or warranty with respect to any information supplied by
the Company or its subsidiaries or any of their respective representatives which
is contained in or incorporated by reference in the Consent Statement.
SECTION 5.5. FINANCING. Attached as Annex A-1 to A-2 of the
Newco Disclosure Schedule are true and complete copies of the letters addressed
to the Company, dated the date hereof, issued in connection with the financing
of the transactions contemplated by this Agreement (collectively, the
"Commitment Letters"). The terms and conditions of the letters attached as Annex
A-1 to A-2 of the Newco Disclosure Schedule are satisfactory to Newco.
SECTION 5.6. NEWCO NOT AN INTERESTED STOCKHOLDER OR AN
ACQUIRING PERSON. Except as a result of the execution of this Agreement or the
Voting Agreement, as of the date of this Agreement Newco is not an "INTERESTED
STOCKHOLDER" of the Company as such term is defined in Section 203 of the GCL.
SECTION 5.7. NEWCO.
(a) Except as contemplated by this Agreement, none of
Newco, Evercore Capital Partners L.P., any of their affiliates controlled by any
of them, Evercore Partners LLC or any of its affiliates are engaged in the
magazine or newspaper publishing business, and there is no intention as of the
date hereof, on the part of Newco, Evercore Capital Partners L.P., any of their
affiliates controlled by any of them, Evercore Partners
-34-
35
LLC or any of its affiliates, to cause Newco to become affiliated with any
person engaged in the magazine or newspaper publishing business.
(b) Newco has not engaged in any business, and has
(and prior to the Effective Time will have) no liabilities except for costs and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby (including costs and expenses of providers of the financing
contemplated by the Commitment Letters) in connection with the transactions
contemplated hereby), liabilities under this Agreement and liabilities to the
providers of finance pursuant to the Commitment Letters as described in the
Commitment Letters.
(c) None of the Commitment Letters requires that
Newco or its affiliates make any payments (other than reimbursement of costs and
expenses as therein provided) before the Effective Time.
SECTION 5.8. BROKERS. Neither Newco nor any of its
subsidiaries, officers, directors or employees, has employed any broker or
finder or incurred any liability for any brokerage fees, commissions or finder's
fees in connection with the transactions contemplated by this Agreement for or
with respect to which the Company is or might be liable.
ARTICLE VI.
COVENANTS
SECTION 6.1. CONDUCT OF BUSINESS OF THE COMPANY. Except as
expressly contemplated by this Agreement (and, for purposes of Section 4.13, the
Soap Opera Sale) or with the prior written consent of Newco, during the period
from the date of this Agreement to the Effective Time, the Company will, and
will cause each of its subsidiaries to, conduct its operations only in the
ordinary course of business consistent with past practice and in compliance with
applicable laws and will use its reasonable efforts, and will cause each of its
subsidiaries to use its reasonable efforts, to preserve intact the business
organization of the Company and each of its subsidiaries, to keep available the
services of its and their present officers and employees, and to preserve the
good will of those having business relationships with it. Without limiting the
generality of the foregoing, and except as otherwise expressly contemplated by
this Agreement, the Company Disclosure Schedule (or for purposes of Section
4.13, the Soap Opera Sale), the Company will not, and will not permit any of its
subsidiaries to, prior to the Effective Time, without the prior written consent
of Newco:
(a) adopt any amendment to its certificate of
incorporation or by-laws or comparable organizational documents;
-35-
36
(b) except for issuances of capital stock of the
Company's subsidiaries to the Company or a wholly-owned subsidiary of the
Company, issue, reissue, deliver, sell, pledge or otherwise encumber, agree or
commit to issue, reissue, deliver, sell, pledge or otherwise encumber, or
authorize the issuance, reissuance, delivery, sale, pledge or encumbrance of
shares of capital stock of any class, any other voting securities or equity
equivalents (including, without limitation, stock appreciation rights) or
securities convertible into, or exchangeable for capital stock or equity
equivalents, or any rights, warrants or options to acquire any convertible
securities, capital stock, voting securities or equity equivalents other than
the issuance of Class A Shares pursuant to the exercise of the Options
outstanding on September 30, 1998, and in accordance with their terms as of the
date of this Agreement or pursuant to the conversion of Class C Shares;
(c) declare, set aside or pay any dividend or other
distribution (whether in cash, securities or property or any combination
thereof) in respect of any class or series of its capital stock or rights,
warrants or options to acquire any such securities, except for the Debt Offer
and the purchase of the Subordinated Notes and transactions between or among the
Company and any of its wholly-owned subsidiaries;
(d) split, combine, subdivide, reclassify or redeem,
purchase or otherwise acquire, or propose to redeem, purchase or otherwise
acquire, any shares of its capital stock, or any of its other securities or
rights, warrants or options to acquire any such shares or securities, except for
the Debt Offer and the purchase of the Subordinated Notes and transactions
between or among the Company and any of its wholly owned subsidiaries;
(e) (i) except for increases in salary or wages,
benefits of officers or of employees of the Company or its subsidiaries (who are
not officers of the Company or Operations) in the ordinary course of business
and in accordance with past practice, (ii) increases in salary, wages and
benefits granted to officers and employees of the Company or its subsidiaries
(who are not officers of the Company or Operations) in conjunction with new
hires, promotions or other changes in job status or (iii) increases in salary,
wages and benefits to employees of the Company pursuant to collective bargaining
agreements entered into in the ordinary course of business or pursuant to
agreements disclosed in Sections 4.10 or 4.16 of the Company Disclosure
Schedule, increase the compensation or fringe benefits payable or to become
payable to its directors, officers or key employees (whether from the Company or
any of its subsidiaries), or pay any benefit not required by any existing plan
or arrangement (including, without limitation, the granting of stock options,
stock appreciation rights, shares of restricted stock or performance units) or
grant any severance or termination pay to (except pursuant to existing
agreements, plans or policies), or
-36-
37
enter into any employment, consulting or severance agreement with, any director,
officer or other key employee of the Company or any of its subsidiaries or
establish, adopt, enter into, or amend any collective bargaining, bonus, profit
sharing, thrift, compensation, stock option, restricted stock, pension,
retirement, savings, welfare, deferred compensation, employment termination,
severance or other employee benefit plan, agreement, trust, fund, policy or
arrangement for the benefit or welfare of any directors, officers or current or
former employees (any of the foregoing being an "EMPLOYEE BENEFIT ARRANGEMENT"),
except in each case to the extent required by applicable law or regulation;
(f) acquire, sell, lease, license, mortgage, encumber
or dispose of any assets (other than inventory) or securities (including capital
stock of the Company's subsidiaries), or enter into any commitment to do any of
the foregoing, in each case outside the ordinary course of business, other than
transactions between or among the Company and any of its wholly owned
subsidiaries;
(g) merge or consolidate with, or purchase an equity
interest in or a substantial portion of the assets of, any corporation,
partnership, association or other business organization or any division or
business thereof other than transactions between or among the Company or any of
its fully owned subsidiaries;
(h) (i) incur, assume or pre-pay any long-term debt,
incur or assume any short-term debt, issue or sell any debt securities or
warrants or other rights to acquire any debt securities of the Company or any of
its subsidiaries (other than transactions between or among the Company and any
of its wholly-owned subsidiaries or (except for incurring Funded Debt in the
ordinary course of business consistent with past practice so long as the
aggregate amount of Funded Debt does not exceed $474 million at any one time
outstanding) except that the Company and its subsidiaries may incur, assume or
pre-pay debt to the extent necessary to effect the Debt Offer and except that
the $474 million limitation shall not apply to periods prior to the date hereof;
(ii) assume, guarantee, endorse or otherwise become liable or responsible
(whether directly, contingently or otherwise) for the obligations of any other
person (other than checks in collection and transactions between or among the
Company and any of its wholly owned subsidiaries) or (iii) make any loans,
advances or capital contributions to, or investments in, any other person except
for loans, advances, capital contributions or investments between or among the
Company and any of its wholly owned subsidiaries and investments in cash
equivalents or trade receivables; or
(i) take any other action that reasonably could be
expected to result in any of the representations and warranties of the Company
set forth in this Agreement becoming
-37-
38
untrue or any of the conditions to the Merger set forth in Section 7.1 or 7.2
hereof not being satisfied;
(j) adopt a plan of complete or partial liquidation
or resolutions provided for or authorizing such a liquidation or a dissolution,
merger, consolidation, restructuring, recapitalization or reorganization of
Company or any of its subsidiaries;
(k) change any assumption underlying, or method of
calculating, any bad debt, contingency or other reserve, or change any other
material accounting principles or practices used by it (except changes that may
be necessary or appropriate in order to comply with a change in GAAP that takes
effect after the date of this Agreement);
(l)(i) pay, discharge or satisfy any claims
(including claims of stockholders or repayment of debt otherwise permitted),
liabilities or obligations (absolute, accrued, asserted or unasserted,
contingent or otherwise) other than the payment, discharge or satisfaction of
(A) liabilities in the ordinary course consistent with past practices, and (B)
costs relating to this Agreement and the transactions contemplated hereby, (ii)
other than in connection with a settlement otherwise permitted under clause
(iii) below, waive, release, grant or transfer any rights of material value or
terminate, modify or change in any material respect any existing material
license, lease, contract or other document or (iii) settle or compromise any
litigation (whether or not commenced prior to the date of this Agreement) other
than settlements or compromises of litigation in the ordinary course of business
consistent with past practice if the amount paid (after giving effect to
insurance proceeds actually received or to be received) in settlement or
compromise does not exceed $75,000; PROVIDED that the aggregate amount paid
(after giving effect to insurance proceeds actually received or to be received)
in connection with the settlement or compromise of all such litigation matters
shall not exceed $1 million (exclusive, in the case of Section 4.13 hereof, of
amounts paid in settlement or compromise of litigation after September 28, 1998,
but before December 28, 1998);
(m) enter into any collective bargaining agreement or
any successor collective bargaining agreement to any collective bargaining
agreement;
(n) make or agree (other than pursuant to contracts
or arrangements that are terminable by the Company after nor more than 90 days
notice and without penalty or cost in excess of $100,000) to make any new
capital expenditure or expenditures which exceed, in the aggregate, $5 million
if such expenditures are made in the ordinary course of business consistent with
past practice
-38-
39
(o) engage in any transaction with, or enter into any
agreement, arrangement or understanding with, directly or indirectly, any of the
Company's affiliates (other than wholly-owned subsidiaries of the Company);
(p) make or change any material Tax election, file
any material amended Tax Return, settle or compromise any material federal,
state, local or foreign Tax liability, change any annual Tax accounting period,
change any method of Tax accounting, enter into any material closing agreement
relating to any Tax, surrender any right to claim a material Tax refund, or
consent to any extension or waiver of the limitations period applicable to any
material Tax claim or assessment;
(q)(i) grant any material bonus, free or make good
space to any advertiser or change the discount structure for any of the
Company's advertising customers other than in the ordinary course of business
consistent with past practice, (ii) (x) change the 52-week subscription pricing
of any of the publications, (y) change the other subscription pricing in any of
the publications other than, in the case of this clause (y), in the ordinary
course of business consistent with past practice or (z) enter into, amend or
terminate any material arrangements with any subscription agents, (iii) change
any cover prices, wholesaler discounts or any other changes to the Company's
incentive sales programs (wholesale or retail), (iv) enter into any material
licensing agreement, arrangement or understanding with respect to television,
radio, Internet or other media or enter into any material licensing agreement,
arrangement or understanding with respect to any "branded" merchandise bearing
any of the trademarks or tradenames owned or licensed by the Company or any
subsidiary; (v) enter into, amend or terminate any agreements or arrangements
with the national distributor of the publications; or (vi) take any action with
respect to the publications in contravention of the advice of the Company's
litigation counsel; or
(r) authorize any of, or commit, contract, arrange or
agree in writing or otherwise to take any of the foregoing actions.
SECTION 6.2. ACCESS TO INFORMATION; INTERIM FINANCIALS.
(a) From the date hereof until the Effective Time,
the Company will, and will cause its subsidiaries, and each of their respective
officers, directors, employees, counsel, advisors and representatives
(collectively, the "COMPANY REPRESENTATIVES") to, provide Newco and its
respective officers, employees, counsel, advisors and representatives
(collectively, the "NEWCO REPRESENTATIVES") reasonable access (subject, however,
to existing confidentiality and similar non-disclosure obligations), during
normal business hours and upon reasonable notice, to the offices and other
facilities and to the books and
-39-
40
records and personnel of the Company and its subsidiaries, as will permit Newco
to make inspections of such as it may reasonably require, and will cause the
Company Representatives and the Company's subsidiaries to furnish Newco and the
Newco Representatives to the extent available with such other information with
respect to the business and operations of the Company and its subsidiaries as
Newco may from time to time reasonably request. Unless otherwise required by
law, Newco will, and will cause the Newco Representatives to, hold any such
information in confidence to the extent required by, and in accordance with, the
Confidentiality Agreement (as hereinafter defined).
(b) No investigation pursuant to this Section 6.2
shall affect any representations or warranties of the parties herein or the
conditions to the obligations of the parties hereto.
(c) As promptly as practicable after their
completion, the Company shall deliver to Newco copies of monthly consolidated
balance sheets, statements of operations and cash flows to the extent
customarily prepared by the Company in the ordinary course of business and in a
manner consistent with past practice.
SECTION 6.3. REASONABLE BEST EFFORTS.
(a) Subject to the terms and conditions herein
provided, each of the parties hereto agrees to, and shall cause each of its
subsidiaries to, use its reasonable best efforts to take, or cause to be taken,
all action, and to do, or cause to be done, and to assist and cooperate with the
other parties hereto in doing, as promptly as practicable, all things necessary,
proper or advisable to ensure that the conditions set forth in Article VII are
satisfied and to consummate and make effective, in the most expeditious manner
practicable, the Merger, the Debt Offer and the other transactions contemplated
by this Agreement and the Voting Agreement.
(b) The Company agrees to provide, and will cause its
subsidiaries and its and their respective officers, employees and advisers to
provide, all necessary cooperation in connection with the arrangement of any
financing to be consummated contemporaneous with or at or after the Closing in
respect of the transactions contemplated by this Agreement, including without
limitation, participation in meetings, due diligence sessions, road shows, the
preparation of offering memoranda, private placement memoranda, prospectuses and
similar documents, the execution and delivery of any commitment letters,
underwriting or placement agreements, pledge documents, or other definitive
financing documents including a certificate of the chief financial officer
(without personal liability thereto) of the Company with respect to solvency
matters, comfort letters of accountants and legal opinions as may be requested
by Newco. In
-40-
41
addition, in conjunction with the obtaining of any such financing, the Company
agrees, at the request of Newco, to call for prepayment or redemption, or to
prepay, redeem and/or renegotiate, as the case may be, any then existing
indebtedness of the Company. Anything in this Agreement to the contrary
notwithstanding, none of the actions, agreements or documents described in this
Section 6.3(b) shall impose any liability on the Company or its subsidiaries
until after the Effective Time and Newco shall reimburse the Company for all
Expenses incurred thereby (or by its subsidiaries) in respect of the foregoing
to the extent provided in Section 8.3 hereof (and all costs of litigation in
respect of the Debt Offer as described in Section 6.11 hereof).
(c) If at any time after the Effective Time any
further action is necessary or desirable to carry out the purposes of this
Agreement, including the execution of additional instruments, the proper
officers and directors of each party to this Agreement shall take all such
necessary action.
(d) The Company shall not take any action with
respect to any transaction or proposed transaction with a third party with the
intention of impeding, interfering with, preventing or materially delaying the
Debt Offer or the Merger or diluting the benefits to Newco of the transactions
contemplated by this Agreement. The Company agrees not to release any third
party from, or waive any provisions of, any confidentiality or standstill
agreement to which the company is a party. The Company will immediately cease
and cause to be terminated any existing activities, discussions or negotiations
conducted heretofore by or on behalf of the Company with respect to any of the
foregoing.
(e) Each of the parties agrees to cooperate with each
other in taking, or causing to be taken, all actions necessary to delist the
Shares from the New York Stock Exchange; provided, that such delisting shall not
be effective until after the Effective Time. The parties also acknowledge that
it is Newco's intent that the Shares following the Merger will not be listed on
any national securities exchange or quoted on NASDAQ/NMS.
SECTION 6.4. CONSENTS. Each of the parties will use its
reasonable best efforts to obtain as promptly as practicable all Consents of any
Governmental Entity or any other person required in connection with, and waivers
of any Violations that may be caused by, the consummation of the Merger, the
Debt Offer and the other transactions contemplated by this Agreement and the
Voting Agreement (provided that the Company shall not pay or agree to pay any
material amount to obtain a Consent without the prior approval of Newco).
-41-
42
SECTION 6.5. PUBLIC ANNOUNCEMENTS. So long as this Agreement
is in effect, Newco and the Company agree to use reasonable efforts to consult
with each other before issuing, and provide each other with a reasonable
opportunity to review and comment upon, any press release or otherwise making
any public statement with respect to the transactions contemplated by this
Agreement and the Voting Agreement. The parties agree that the initial press
release or releases to be issued with respect to the transactions contemplated
by this Agreement and the Voting Agreement shall be mutually agreed upon prior
to the issuance thereof.
SECTION 6.6. EMPLOYEE BENEFITS MATTERS.
(a) Except as contemplated herein, the Surviving
Corporation, for a period of at least six months from the Effective Time, shall
provide employee benefits under plans, programs and arrangements (other than
equity-based plans) which, in the aggregate, will provide benefits to all
employees of the Surviving Corporation or its subsidiaries which are no less
favorable, in the aggregate, than those provided pursuant to the plans, programs
and arrangements of the Company and its subsidiaries in effect and disclosed to
Newco as of the date hereof; PROVIDED, HOWEVER, that nothing herein shall (i)
require that the Surviving Corporation provide or permit investment in the
securities of the Surviving Corporations or (ii) interfere with the Surviving
Corporation's right or obligation to make such changes as are necessary to
conform with applicable law or (iii) prevent the amendment or termination of any
such plan, program or arrangement, so long as in each such case the aggregate of
benefits provided to all employees of the Surviving Corporation or its
subsidiaries for such six month period are no less favorable than those provided
pursuant to the plans, programs and arrangements of the Company and its
subsidiaries in effect and as disclosed to Newco as of the date hereof.
(b) Newco and the Company agree that, for purposes
of the Employee Severance Policy as reflected in Section 6.6 of the Company
Disclosure Schedule the resignations contemplated by Section 7.2(h) hereof from
persons who are also employees of the Company or any of its subsidiaries shall
not affect the rights of such resigning directors under such severance policy.
SECTION 6.7. INDEMNIFICATION.
(a) Newco agrees that all rights to indemnification
now existing in favor of any current or former employee, agent, director or
officer of the Company and its subsidiaries (the "INDEMNIFIED PARTIES") as
provided in their respective certificates of incorporation or by-laws, in an
agreement between an Indemnified Party and the Company or one of its
subsidiaries, in effect on the date hereof and disclosed in Section 6.7 of the
Company Disclosure Schedule shall survive the
-42-
43
Merger and shall continue in full force and effect for a period of six years
from the Effective Time; PROVIDED that in the event any claim or claims are
asserted or made within such six-year period, all rights to indemnification in
respect of any such claim or claims shall continue until final disposition of
any and all such claims.
(b) Subject to the terms hereof, Newco agrees that
the Company and, from and after the Effective Time, the Surviving Corporation
shall cause to be maintained in effect for six years from the Effective Time the
current policies of the directors' and officers' liability insurance maintained
by the Company; PROVIDED that the Surviving Corporation may substitute therefor
policies of at least the same coverage containing terms and conditions which are
no less advantageous and provided that such substitution shall not result in any
gaps or lapses in coverage with respect to matters occurring prior to the
Effective Time. Prior to the Effective Time, the Company shall endeavor to, and
shall be permitted to, satisfy its obligations under the preceding sentence by
extending coverage under such insurance policies pursuant to a six-year "tail"
policy if the terms of such "tail" policy are agreed to in writing by Newco. If
such a "tail" policy cannot be purchased on such terms prior to the Effective
Time, then the Company shall endeavor to obtain coverage contemplated by the
first sentence of this Section 6.7(b) at the lowest premium cost available;
PROVIDED, that the Surviving Corporation shall not be required to pay an annual
premium in excess of 200% of the last annual premium paid by the Company prior
to the date hereof and if the Surviving Corporation is unable to obtain the
insurance required by this Section 6.7(b) within such limitation it shall obtain
as much comparable insurance as possible for an annual premium equal to such
maximum amount; and PROVIDED, FURTHER, that during such six-year period the
Surviving Corporation shall review, not less than annually, the feasibility of
purchasing tail coverage for the balance of such six-year period and shall
endeavor to purchase such coverage if it is available at a cost not exceeding
the maximum amount that the Surviving Corporation would otherwise be obligated
to pay for such remaining period under the first proviso to this sentence. The
Company represents and warrants that the current annual premium for such
insurance coverage is $182,200.
(c) The provisions of this Section 6.7 shall survive
the Merger, and each Indemnified Party shall, for all purposes, be a third-party
beneficiary of the covenants and agreements of Newco and the Company under this
Section 6.7 and, accordingly, shall be treated as a party to this Agreement for
purposes of the rights and remedies relating to enforcement of such covenants
and agreements and shall be entitled to enforce any such rights and exercise any
such remedies directly.
SECTION 6.8. NO SOLICITATION. The Company agrees that, prior
to the Effective Time, it and each of its subsidiaries
-43-
44
shall not, and shall not authorize or permit any of its or its subsidiaries'
directors, officers, employees, agents, advisors or representatives, directly or
indirectly, to (a) solicit, initiate or encourage or knowingly facilitate the
submission of any inquiries or the making of any proposal (a "TAKEOVER
PROPOSAL") with respect to any acquisition or purchase of a significant amount
of assets of the Company and its subsidiaries, taken as a whole (other than
inventory), or of over 15% of any class of equity securities of the Company or
any of its subsidiaries or any tender offer (including a self tender offer) or
exchange offer that if consummated would result in any person beneficially
owning 15% or more of any class of equity securities of the Company or any of
its subsidiaries, or any merger, consolidation, business combination, sale of
substantially all assets, recapitalization, reclassification, liquidation,
dissolution or similar transaction involving the Company or any of its
subsidiaries other than the transactions contemplated by this Agreement and the
Voting Agreement (an "ACQUISITION TRANSACTION"), (b) negotiate, explore or
otherwise participate in discussions with any person (other than Newco or its
directors, officers, employees, agents and representatives) with respect to any
Acquisition Transaction, or furnish to any person (other than Newco or its
directors, officers, employees, agents and representatives) any information with
respect to its business, properties or assets or any of the foregoing, or
otherwise cooperate in any way with, or assist or participate in, facilitate or
encourage, any effort or attempt by any other person (other than Newco or its
directors, officers, employees, agents and representatives) to do or seek any of
the foregoing, in each case, in respect of an Acquisition Transaction or (c)
enter into any agreement, arrangement or understanding with respect to, or
endorse, any Takeover Proposal.
SECTION 6.9. NOTIFICATION OF CERTAIN MATTERS. Newco and the
Company shall promptly notify each other of (a) the occurrence or non-occurrence
of any fact or event which would be reasonably likely (i) to cause any
representation or warranty contained in this Agreement to be untrue or
inaccurate in any material respect at any time from the date hereof to the
Effective Time or (ii) to cause any covenant, condition or agreement hereunder
not to be complied with or satisfied in all material respects and (b) any
failure of the Company or Newco, as the case may be, to comply with or satisfy
any covenant, condition or agreement to be complied with or satisfied by it
hereunder in any material respect; PROVIDED, HOWEVER, that no such notification
shall affect the representations or warranties of any party or the conditions to
the obligations of any party hereunder or shall limit or otherwise affect the
remedies available hereunder to the parties receiving such notice.
SECTION 6.10. STATE TAKEOVER LAWS. The Company shall, upon the
request of Newco, take all reasonable steps to assist in any challenge by Newco
to the validity or applicability to the
-44-
45
transactions contemplated by this Agreement, including the Merger and the Voting
Agreement, of any state takeover law.
SECTION 6.11. DISPOSITION OF LITIGATION. The Company will not
voluntarily cooperate with any third party which has sought or may hereafter
seek to restrain or prohibit or otherwise oppose the Debt Offer or the Merger
and will cooperate with Newco to resist any such effort to restrain or prohibit
or otherwise oppose the Debt Offer or the Merger.
SECTION 6.12. STOP TRANSFER ORDER. The Company shall notify
the Company's transfer agent that there is a stop transfer order with respect to
all of the Subject Shares (as defined in the Voting Agreement) and that the
Voting Agreement places limits on the voting of the Subject Shares.
SECTION 6.13. FINANCING.
(a) Newco shall use its reasonable best efforts
(including complying with the provisions of the Commitment Letters) to obtain
the debt and equity financing necessary to consummate the Merger.
(b) Newco shall (i) fully enforce its rights under
the Commitment Letters and the documents contemplated thereby and (ii) not
amend, modify or terminate any of the Commitment Letters in a manner which
reasonably could be expected to result in a Material Adverse Effect on Newco.
(c) Newco shall not include any information
concerning the Company or its subsidiaries in any offering document to be used
in connection with a sale of securities contemplated by the Commitment Letters
to which the Company reasonably objects and Newco shall provide the Company with
copies of all such material to enable the Company to comment thereon.
(d) At the Effective Time, Newco shall provide the
Company with a copy of each solvency opinion (if any) delivered to any source of
financing in respect of the transactions contemplated hereby. Such opinion shall
state that it may be relied upon by the Board of Directors of the Company.
(e) None of Newco, Evercore Capital Partners L.P.,
any of their affiliates controlled by any of them, Evercore Partners LLC or any
of its affiliates shall announce, or announce any intention to pursue, any
transaction that, if announced on the date hereof, could reasonably be expected
to have a Material Adverse Effect on Newco.
SECTION 6.14. NEWCO ACTION. Newco shall not take any action
that reasonably could be expected to result in any of the representations and
warranties of Newco set forth in this
-45-
46
Agreement becoming untrue or any of the conditions to the Merger set forth in
Section 7.1 or 7.3 not being satisfied.
ARTICLE VII.
CONDITIONS TO CONSUMMATION OF THE MERGER
SECTION 7.1. CONDITIONS OF EACH PARTY'S OBLIGATION TO
CONSUMMATE THE MERGER. The respective obligations of Newco and the Company to
consummate the Merger are subject to the satisfaction, at or before the
Effective Time, of each of the following conditions:
(a) STOCKHOLDER APPROVAL. The stockholders
of the Company shall have duly approved the transactions contemplated by this
Agreement, pursuant to the requirements of the Company's certificate of
incorporation and applicable law.
(b) HSR ACT. The waiting period (and any
extension thereof) applicable to the Merger under the HSR Act shall have been
terminated or shall have expired.
(c) INJUNCTIONS; ILLEGALITY. The
consummation of the Merger, shall not be restrained, enjoined or prohibited by
any order, judgment, decree, injunction or ruling of a court of competent
jurisdiction or any Governmental Entity and there shall not have been any
statute, rule or regulation enacted, promulgated or deemed applicable to the
Merger by any Governmental Entity which prevents the consummation of the Merger;
provided, however, that each of the parties shall have used their reasonable
best efforts to prevent the entry of such order, judgment, decree, injunction or
ruling and to appeal as promptly as practicable any such order, judgment,
decree, injunction or ruling.
SECTION 7.2. CONDITIONS TO OBLIGATION OF NEWCO. The
obligations of Newco to effect the Merger are further subject to the
satisfaction at or prior to the Effective Time of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES. The
representations and warranties of the Company set forth in this Agreement that
are qualified as to materiality shall be true and correct and any such
representations and warranties that are not so qualified shall be true and
correct in all material respects, in each case as of the date of this Agreement
and as of the Closing Date as though made on and as of the Closing Date. Newco
shall have received a certificate signed on behalf of the Company by the chief
executive officer and the chief financial officer of the Company (with no
personal liability thereto) to the effect set forth in this paragraph.
-46-
47
(b) PERFORMANCE OF OBLIGATIONS OF THE COMPANY. The
Company shall have performed, in all material respects, the obligations required
to be performed by it under this Agreement at or prior to the Closing Date.
(c) CONSENTS, ETC. Newco shall have received
evidence, in form and substance reasonably satisfactory to it, that such
licenses, permits, consents, approvals, authorizations, qualifications and
orders of Governmental Entities, the failure of which to obtain reasonably could
be expected to have a Material Adverse Effect on the Company, have been
obtained.
(d) NO MATERIAL LITIGATION. There shall not be
pending by any Governmental Entity or any other third party any suit, action or
proceeding which has a reasonable likelihood of success (i) challenging or
seeking to restrain or prohibit the consummation of the Merger or any of the
other transactions contemplated by this Agreement or the Voting Agreement or
seeking to obtain from Newco or any of its affiliates any damages that are
material (assuming that the Merger had been consummated) to any party, (ii)
seeking to prohibit or limit the ownership or operation by the Company or any of
its subsidiaries of any material portion of the business or assets of the
Company or any of its subsidiaries or (iii) seeking to impose limitations on the
ability of Newco (or any designee of Newco pursuant to the Voting Agreement) or
any stockholder of Newco or the Company to acquire or hold, or exercise full
rights of ownership of, any Shares, including, without limitation, the right to
vote the Company's shares on all matters properly presented to the stockholders
of the Company.
(e) FINANCING. Newco shall have received the
proceeds of financing on the terms and conditions set forth in Annexes A-1
through A-2 of the Newco Disclosure Schedule or upon terms and conditions which
are substantially equivalent thereto and to the extent that any terms and
conditions are not set forth in Annexes A-1 through A-2 of the Newco Disclosure
Schedule, on terms and conditions reasonably satisfactory to Newco.
(f) SUBORDINATED NOTES. Newco shall have received
evidence that the terms of the Subordinated Notes shall have been amended as
contemplated by the terms of the Debt Offer. The Company shall have purchased at
least that principal amount of Subordinated Notes as equals the minimum
condition of the Debt Offer.
(g) APPRAISAL RIGHTS. Stockholders comprising no more
than 20% of the outstanding Shares shall have demanded appraisal rights under
Section 262 of the GCL.
(h) RESIGNATIONS OF COMPANY DIRECTORS. Each director
of the Company shall have resigned as a director of the Company pursuant to a
letter of resignation signed thereby and
-47-
48
delivered to Newco and the Company.
(i) NO MATERIAL ADVERSE CHANGE. Since March 31, 1998,
there shall not have occurred any change, effect, event, occurrence or
development that is materially adverse to the business, operations, assets,
liabilities, condition (financial or otherwise), results of operations or
prospects of the Company and its subsidiaries taken as a whole except for any
change or effect resulting from (i) general economic, financial or market
conditions, (ii) any change or effect resulting from conditions or circumstances
generally affecting the newspaper or magazine publishing industry so long as
such change or effect does not have a materially disproportionate effect on the
Company or (iii) changes in laws of general applicability or applicable
generally to the newspaper or magazine publishing industry so long as such
change or effect does not have a materially disproportionate effect on the
Company.
SECTION 7.3. CONDITIONS TO OBLIGATION OF THE COMPANY. The
obligations of the Company to effect the Merger are further subject to the
satisfaction at or prior to the Effective Time of the following conditions.
(a) REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Newco set forth in this Agreement that are
qualified as to materiality shall be true and correct and any such
representations and warranties that are not so qualified shall be true and
correct in all material respects, in each case as of the date of this Agreement
and as of the Closing Date. The Company shall have received a certificate signed
on behalf of Newco by an authorized officer of Newco (with no personal liability
thereto) to the effect set forth in this paragraph.
(b) PERFORMANCE OF OBLIGATIONS OF NEWCO. Newco shall
have performed, in all material respects, the obligations required to be
performed by it under this Agreement at or prior to the Closing Date.
ARTICLE VIII.
TERMINATION; AMENDMENT; WAIVER
SECTION 8.1. TERMINATION. This Agreement may be terminated
and the Merger contemplated hereby may be abandoned at any time prior to the
Effective Time, notwithstanding approval thereof by the stockholders of the
Company or of Newco:
(a) by the mutual written consent of Newco and the
Company;
(b) by Newco or the Company if any court or other
-48-
49
Governmental Entity shall have issued, enacted, entered, promulgated or enforced
any order, judgment, decree, injunction, or ruling or taken any other action
restraining, enjoining or otherwise prohibiting the Merger, the Debt Offer or
any of the transactions contemplated by the Merger Agreement, or otherwise
altering the terms of any of the forgoing in any material respect and such
order, judgment, decree, injunction, ruling or other action shall have become
final and nonappealable;
(c) by the Company if there shall have occurred, on
the part of Newco, a breach of any representation, warranty, covenant or
agreement contained in this Agreement which would give rise to the failure of a
condition set forth in Section 7.3(a) or 7.3(b) and which is not curable or, if
curable, is not cured within 30 calendar days after written notice of such
breach is given by the Company to Newco or cannot be cured by the termination
date set forth in Section 8.1(e) (provided that the Company is not then in
breach of any representation, warranty covenant or agreement contained in this
Agreement which would give rise to a failure of a condition set forth in Section
7.2(a) or 7.2(b));
(d) by Newco if there shall have occurred, on the
part of the Company, a breach of any representation, warranty, covenant or
agreement contained in this Agreement which would give rise to the failure of a
condition set forth in Section 7.2(a) or 7.2(b) and which is not curable or, if
curable, is not cured within 30 calendar days after written notice of such
breach is given by Newco to the Company or cannot be cured by the termination
date set forth in Section 8.1(e) (provided that Newco is not then in breach of
any representation, warranty, covenant or agreement contained in this Agreement
which would give rise to a failure of a condition set forth in Section 7.3(a) or
7.3(b));
(e) by Newco or the Company, if the Merger shall not
have been consummated on or before the earlier of (i) the later of 120 days
after the date hereof or 25 business days after the first date on which the
Company is permitted to disseminate the Consent Statement to its stockholders
pursuant to the rules and regulations under the Exchange Act and the NYSE or
(ii) 140 days after the date hereof; PROVIDED, that the right to terminate this
Agreement under this Section 8.1(e) shall not be available to the party whose
action or failure to act has been the cause of or resulted in the failure of the
Merger to occur on or before such date and such action or failure to act
constitutes a material breach of any representation, warranty or covenant in
this Agreement;
(f) by Newco, if the Company Stockholder Approval
shall not have been obtained.
SECTION 8.2. EFFECT OF TERMINATION. In the event of the
termination of this Agreement pursuant to Section 8.1, this
-49-
50
Agreement shall forthwith become void and have no effect, without any liability
on the part of any party or its directors, officers or stockholders, other than
the provisions of this Section 8.2, Section 8.3, the last sentence of Section
6.2 and Article IX, which shall survive any such termination. Nothing contained
in this Section 8.2 or Section 8.3 shall relieve any party from liability for
any willful breach of any agreement or covenant of such party prior to
termination of this Agreement or for any breach of the Confidentiality
Agreement.
SECTION 8.3. EXPENSES.
(a) Whether or not the Merger is consummated (unless
otherwise provided in Section 8.2 or this Section 8.3), all costs and expenses
incurred in connection with this Agreement and the transactions contemplated by
this Agreement shall be paid by the party incurring such expenses; PROVIDED,
HOWEVER, if the Merger as contemplated by this Agreement is consummated, then
the fees and expenses incurred by Newco and its affiliates in connection with
this transaction shall be paid by the Company.
(b) If this Agreement is terminated pursuant to
Section 8.1(e), then Newco shall pay to the Company all Expenses incurred by the
Company in respect of the performance of the Company's obligations in Sections
3.3, 6.3 and 6.11 hereof in respect of the Debt Offer and the financing
contemplated by the Commitment Letters.
(c) If this Agreement is terminated by Newco pursuant
to Section 8.1(d) or 8.1(f), then the Company shall pay to Newco all Expenses
incurred by Newco and its affiliates. Any payment pursuant to this Section
8.3(c) shall reduce damages otherwise obtainable by Newco in respect of a
willful breach by the Company of this Agreement.
(d) If this Agreement is terminated by the Company
pursuant to Section 8.1(c), then Newco shall pay to the Company all Expenses
incurred by the Company thereby. Any payment pursuant to this Section 8.3(d)
shall reduce damages otherwise obtainable by the Company in respect of a willful
breach by Newco of this Agreement.
"EXPENSES" means all out-of-pocket fees and expenses actually
incurred by any party hereto or on its behalf, whether before or after the
execution and delivery of this Agreement, in connection with the transactions
contemplated by this Agreement, including the Merger and the Debt Offer, and the
Voting Agreement, including without limitation the costs and expenses payable by
such party or its affiliates to all banks, investment banking firms and other
financial institutions, and the fees and expenses of their respective agents and
counsel, all fees and expenses of counsel, accountants, experts and consultants
to such party or its affiliates, and, in the case of Newco and its
-50-
51
affiliates, all salary and bonus payments, expense reimbursements and other
payments (not to exceed an amount disclosed to the Company in a letter dated the
date hereof from Newco to the Company) made by Newco or its affiliates to David
Pecker and, further, including without limitation fees and expenses of the party
attempting to collect such Expenses that are incurred in connection with, any
litigation or other proceedings to collect the Expenses if such party prevails
in such litigation or proceeding. Expenses shall not include fees to any person
(or its affiliates) providing, directly or indirectly, equity finance or costs
of employee compensation or overhead thereof.
SECTION 8.4. AMENDMENT. This Agreement may be amended by the
Company and Newco at any time before or after any approval of this Agreement by
the stockholders of Newco or of the Company but, after any such approval, no
amendment shall be made which under applicable 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 all the parties.
SECTION 8.5. EXTENSION; WAIVER. At any time prior to the
Effective Time, the parties hereto may (i) extend the time for the performance
of any of the obligations or other acts of any other party hereto, (ii) waive
any inaccuracies in the representations and warranties contained herein by any
other party or in any document, certificate or writing delivered pursuant
thereto by any other party or (iii) subject to applicable law, waive compliance
with any of the agreements of any other party or with any conditions to its own
obligations. Any agreement on the part of any party to any such extension or
waiver shall be valid only if set forth in an instrument in writing signed on
behalf of such party. The failure of any party to this Agreement to assert any
of its rights under this Agreement or otherwise shall not constitute a waiver of
those rights.
ARTICLE IX.
MISCELLANEOUS
SECTION 9.1. NON-SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
The representations and warranties made in this Agreement shall not survive
beyond the Effective Time. Notwithstanding the foregoing, the agreements set
forth in Sections 2.4 and 3.2, Section 6.3(c) and Sections 6.6 and 6.7 shall
survive the Effective Time indefinitely (except to the extent a shorter period
of time is explicitly specified therein).
SECTION 9.2. ENTIRE AGREEMENT; ASSIGNMENT.
(a) This Agreement (including the documents and
-51-
52
the instruments referred to herein) and the letter agreement, by and between
Purchaser and the Company (the "CONFIDENTIALITY AGREEMENT"), constitute the
entire agreement and supersede all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof
and thereof.
(b) Neither this Agreement nor any of the rights,
interests or obligations hereunder will be assigned by any of the parties hereto
(whether by operation of law or otherwise) without the prior written consent of
the other party; PROVIDED, that Newco may assign its rights hereunder to any of
its affiliates, but no such assignment shall relieve Newco of its obligations
hereunder or cause any representation or warranty of the Company or Newco herein
to be materially incorrect or, in the Company's reasonable judgment, materially
delay the Closing or the consummation of the transactions contemplated hereby.
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.
SECTION 9.3. VALIDITY. The invalidity or unenforceability of
any provision of this Agreement shall not affect the validity or enforceability
of any other provision of this Agreement, each of which shall remain in full
force and effect.
SECTION 9.4. NOTICES. All notices, requests, claims, demands
and other communications hereunder shall be in writing and shall be deemed to
have been duly given when delivered in person, by overnight courier or facsimile
to the respective parties as follows:
If to Newco:
EMP Acquisition Corp.
65 East 55th Street
New York, New York 10022
Attention: Austin Beutner
with a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Attention: Alan G. Schwartz, Esq.
If to the Company:
American Media, Inc.
600 South East Coast Avenue
Lantana, Florida 33464
Attention: Peter J. Callahan
-52-
53
with a copy to:
Willkie Farr & Gallagher
787 Seventh Avenue
New York, New York 10019
Attention: Jack H. Nusbaum, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the other in writing in the manner set forth above
(provided that notice of any change of address shall be effective only upon
receipt thereof).
SECTION 9.5. GOVERNING LAW; JURISDICTION. (a) This Agreement
shall be governed by and construed in accordance with the laws of the State of
Delaware, regardless of the laws that might otherwise govern under applicable
principles of conflicts of laws thereof.
(a)(b) In addition, each of the parties hereto
(i) consents to submit itself to the personal jurisdiction of any federal court
located in the State of Delaware or any Delaware state court in the event any
dispute arises out of this Agreement or any of the transactions contemplated by
this Agreement, (ii) agrees that it will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any such court
and (iii) agrees that it will not bring any action relating to this Agreement or
any of the transactions contemplated hereby in any court other than a federal or
state court sitting in the State of Delaware.
SECTION 9.6. WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND
AGREES THAT ANY CONTROVERSY OR DISPUTE THAT MAY ARISE UNDER THIS AGREEMENT IS
LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND THEREFORE EACH SUCH PARTY
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH
PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY
OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER
PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER, (ii) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF
THIS WAIVER, (iii) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH
SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.6.
SECTION 9.7. DESCRIPTIVE HEADINGS. The descriptive headings
herein are inserted for convenience of reference only and are not intended to be
part of or to affect the meaning or interpretation of this Agreement.
-53-
54
SECTION 9.8. COUNTERPARTS. This Agreement may be executed in
two or more counterparts, each of which shall be deemed to be an original, but
all of which shall constitute one and the same agreement.
SECTION 9.9. PARTIES IN INTEREST. This Agreement shall be
binding upon and inure solely to the benefit of each party hereto, and, except
with respect to Sections [2.4 and] 6.6(b), 6.7, nothing in this Agreement,
express or implied, is intended to confer upon any other person any rights or
remedies of any nature whatsoever under or by reason of this Agreement.
SECTION 9.10. CERTAIN DEFINITIONS. As used in this Agreement:
"ACQUISITION TRANSACTION" shall have the meaning set forth in
Section 6.8.
"AFFILIATE", as applied to any person, shall mean any other
person directly or indirectly controlling, controlled by, or under common
control with, that person. For the purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling", "controlled by"
and "under common control with"), as applied to any person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of that person, whether through the
ownership of voting securities, by contract or otherwise;
"CERTIFICATE" shall have the meaning set forth in Section
2.1(b).
"CLASS A SHARES" shall have the meaning set forth in the
Recitals hereto.
"CLASS B SHARES" shall have the meaning set forth in Section
4.3.
"CLASS C SHARES" shall have the meaning set forth in the
Recitals hereto.
"CODE" shall have the meaning set forth in Section 3.2(i).
"COMMITMENT LETTERS" shall have the meaning set forth in
Section 5.5.
"COMPANY" shall have the meaning set forth in the first
paragraph of this Agreement.
"COMPANY DISCLOSURE SCHEDULE" shall have the meaning set forth
in Article 4.
-54-
55
"COMPANY REPRESENTATIVES" shall have the meaning set forth in
Section 6.2.
"CONFIDENTIALITY AGREEMENT" shall have the meaning set forth
in Section 9.2(a).
"CONSENT" shall have the meaning set forth in Section 4.5(b).
"CONSENT STATEMENT" shall have the meaning set forth in
Section 2.3(a).
"CONTROL" shall have the meaning set forth in the definition
of affiliate.
"DISSENTING SHARES" shall have the meaning set forth in
Section 3.1.
"EFFECTIVE TIME" shall have the meaning set forth in Section
2.2.
"EMPLOYEE BENEFIT ARRANGEMENT" shall have the meaning set
forth in Section 6.1(e).
"ENVIRONMENTAL LAW" shall have the meaning set forth in
Section 4.12.
"ERISA" shall have the meaning set forth in Section 4.10(a).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"FUNDED DEBT" means, in respect of the Company and its
subsidiaries as of any date, all indebtedness of such person which by its terms
or by the terms of any instrument or agreement relating thereto matures one year
or more from, or is directly or indirectly renewable or extendible at the option
of the obligor in respect thereof to a date one year or more (including without
limitation an option of such obligor under a revolving credit or similar
agreement obligating the lender or lenders to extend credit over a period of one
year or more) from, the date of the creation thereof, and shall also include the
current maturities of any such indebtedness as of such date.
"GAAP" shall have the meaning set forth in Section 4.6(b).
"GCL" shall have the meaning set forth in the Granting
Clauses.
"GOVERNMENTAL ENTITY" shall have the meaning set forth in
Section 4.5(b).
-55-
56
"HSR ACT" shall have the meaning set forth in Section 4.5(b).
"HAZARDOUS SUBSTANCE" shall have the meaning set forth in
Section 4.12.
"IRS" shall have the meaning set forth in Section 4.10(c).
"INDEMNIFIED PARTIES" shall have the meaning set forth in
Section 6.7(a).
"INTELLECTUAL PROPERTY" shall have the meaning set forth in
Section 4.11(c).
"INTERESTED STOCKHOLDER" shall have the meaning set forth in
Section 5.6.
"LAZARD FRERES" shall have the meaning set forth in Section
4.15.
"LIEN" shall have the meaning set forth in Section 4.3.
"MATERIAL ADVERSE EFFECT ON THE COMPANY" shall have the
meaning set forth in Section 4.1.
"MATERIAL ADVERSE EFFECT ON PARENT" shall have the meaning set
forth in Section 5.1.
"MERGER" shall have the meaning set forth in the Granting
Clauses.
"MERGER PRICE" shall have the meaning set forth in Section
2.1.
"OPERATIONS" shall have the meaning set forth in Section
4.6(a).
"OPTION" shall have the meaning set forth in Section 2.2.
"OPTION PLAN" shall have the meaning set forth in Section 2.2.
"OTHER FILINGS" shall have the meaning set forth in Section
4.7.
"PAYING AGENT" shall have the meaning set forth in Section
3.2(a).
"PERSON" shall include individuals, corporations,
partnerships, trusts, other entities and groups (which term shall include a
"group" as such term is defined in Section 13(d)(3) of
-56-
57
the Exchange Act).
"PLANS" shall have the meaning set forth in Section 4.10(a).
"PREFERRED STOCK" shall have the meaning set forth in Section
4.3.
"RELEASED CLAIM" shall have the meaning set forth in Section
2.4.(a).
"RELEASED PARTY" shall have the meaning set forth in Section
2.4(a).
"SEC" means the Securities and Exchange Commission.
"SEC REPORTS" shall have the meaning set forth in Section
4.6(a).
"SHARES" shall have the meaning set forth in the Granting
Clauses.
"SOAP OPERA SALE" means the sale of the assets of the Company
and its subsidiaries pursuant to the agreements and documents included in
Section 4.22 of the Company Disclosure Schedule.
"SPECIAL SUBS" shall have the meaning set forth in Section
4.3.
"SUBSIDIARY" or "SUBSIDIARIES" means, with respect to Newco,
the Company or any other person, any corporation, partnership, joint venture or
other legal entity of which Newco, the Company or such other person, as the case
may be (either alone or through or together with any other subsidiary), owns,
directly or indirectly, stock or other equity interests the holders of which are
generally entitled to more than 50% of the vote for the election of the board of
directors or other governing body of such corporation or other legal entity.
"SURVIVING CORPORATION" shall have the meaning set forth in
Section 2.1.
"TAX RETURN" shall have the meaning set forth in Section 4.19.
"TAXES" shall have the meaning set forth in Section 4.19.
"VIOLATION" shall have the meaning set forth in Section
4.5(a).
"VOTING DEBT" shall have the meaning set forth in
Section 4.3.
-57-
58
SECTION 9.11. SPECIFIC PERFORMANCE. The parties hereto agree
that irreparable damage would occur in the event that any of the provisions of
this Agreement were not performed in accordance with their specific terms or
were otherwise breached. It is accordingly agreed that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions hereof in any federal court
located in the State of Delaware or any Delaware state court, this being in
addition to any other remedy to which they are entitled at law or in equity.
-58-
59
IN WITNESS WHEREOF, each of the parties has caused this
Agreement to be executed on its behalf by its respective officer thereunto duly
authorized, all as of the day and year first above written.
EMP ACQUISITION CORP.
By: /s/ Austin Beutner
---------------------------------
Name: Austin Beutner
Title: President
AMERICAN MEDIA, INC.
By: /s/ Michael J. Boylan
---------------------------------
Name: Michael J. Boylan
Title: Vice Chairman,
Publishing Operations
-59-