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EXHIBIT 2.3
MANAGEMENT AGREEMENT
This Management Agreement (this "Agreement"), dated as of May
7, 1999, between American Media, Inc., a Delaware corporation (together with
its subsidiaries, the "Company"), and Evercore Advisors Inc., a Delaware
limited liability company ("Evercore").
WHEREAS, Evercore, by and through itself, its affiliates and
their respective officers, employees and representatives, has expertise in the
areas of management, finance, strategy, investment, acquisitions and other
matters relating to the business of the Company; and
WHEREAS, the Company desires to avail itself, for the term of
this Agreement, of the expertise of Evercore in the aforesaid areas and
Evercore wishes to provide the services to the Company as herein set forth.
NOW, THEREFORE, in consideration of the foregoing recitals
and the covenants and conditions contained herein, the parties hereto agree as
follows:
1. DEFINITIONS. Capitalized terms used herein without
definition shall have the meanings assigned to such terms in the Amended and
Restated Limited Liability Agreement and Investors Rights Agreement, dated as
of February 16, 1999, of EMP Group L.L.C. (as amended from time to time, the
"LLC Agreement").
2. APPOINTMENT. The Company hereby appoints Evercore to
render the advisory and consulting services described in Section 3 hereof for
the term of this Agreement.
3. SERVICES. Evercore hereby agrees that during the term of
this Agreement it shall render to the Company and its subsidiaries, by and
through itself, its affiliates, and their respective officers, members,
employees, agents and representatives as Evercore in its sole discretion shall
designate from time to time, advisory and consulting services in relation to
the affairs of the Company and its subsidiaries in connection with ongoing
strategic and operational oversight of the Company, including, without
limitation, (i) advice in designing financing structures and advice regarding
relationships with the Company's lenders and bankers; (ii) advice regarding the
structure and timing of public offerings of debt and equity securities of the
Company; (iii) advice regarding property dispositions or acquisitions; and (iv)
such other advice directly related or ancillary to the above financial advisory
services as
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may be reasonably requested by the Company. It is expressly agreed that the
services to be performed hereunder shall not include investment banking or
other financial advisory services rendered by Evercore or its affiliates to the
Company in connection with any specific acquisition, divestiture, refinancing
or recapitalization by the Company or any of its subsidiaries. Evercore may be
entitled to receive additional compensation for providing services of the type
specified in the preceding sentence by mutual agreement of the Company or such
subsidiary and Evercore.
4. FEES. In consideration of the services contemplated by
Section 3, for the term of this Agreement, the Company and its successors agree
to pay to Evercore an annual monitoring fee (the "Monitoring Fee") which will
be paid annually and in advance. The first payment of $750,000 shall be paid on
the Closing Date (as defined in the Agreement and Plan of Merger, by and
between the Company and EMP Acquisition Corp. dated as of February 16, 1999).
Thereafter, commencing on June 1, 2000, on each June 1, the Company shall pay
Evercore $750,000, PROVIDED that: (a) the Company will not be required to pay
Evercore the annual Monitoring Fee in any calendar year that the EBITDA for the
Fiscal Year that ends in such calendar year (as calculated in good faith with
due care by the EBITDA Committee) is less than the EBITDA test applicable to
such Fiscal Year as set forth in Schedule 1 hereto; and (b) in the case of any
calendar year where an annual Monitoring Fee has not been paid to Evercore
pursuant to clause (a) above, (i) the Company will pay Evercore such Monitoring
Fee and any previous Monitoring Fee that could have been paid in that year
pursuant to this clause (b)(i) on June 1 of the first subsequent calendar year
(in addition to any Monitoring Fee that otherwise would be payable to Evercore
in such year) that (A) the sum of the EBITDA for the Fiscal Years from and
including the Fiscal Year that ends in the calendar year in which such
Monitoring Fee was not paid to and including the Fiscal Year that ends in such
subsequent calendar year EXCEEDS (B) the sum of the EBITDA tests for such
Fiscal Years as set forth in Schedule 1; and (ii) in the event of (A) any IPO,
merger, consolidation, recapitalization or similar transaction involving the
Company, (B) sale of all or substantially all of the assets of the Company and
its subsidiaries taken as a whole or (C) acquisition by any Person or group
(other than Evercore and its affiliates) of beneficial ownership of a majority
of the Company's outstanding common stock, the Company will promptly pay
Evercore any Monitoring Fee that has not been paid pursuant to clause (a)
(after giving effect to any subsequent payments pursuant to clause (b)) in the
event that the Members (as defined in the LLC Agreement) of the LLC have
received aggregate distributions from the LLC that, when added to the value of
the Members' remaining interests in the LLC (determined by reference to the IPO
price or the consideration paid in the relevant transaction), exceeds their
aggregate capital contributions to
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the LLC. For purposes of this Section 4, "EBITDA" shall have the
meaning set forth in the LLC Agreement.
5. REIMBURSEMENTS. In addition to the Monitoring Fee payable
pursuant to this Agreement, the Company shall pay directly or reimburse
Evercore for its Out-of-Pocket Expenses (as defined below). Promptly following
the Company's request therefor, Evercore will provide written back-up relating
to any Out-of-Pocket Expenses to be paid or reimbursed by the Company pursuant
to this Agreement. For the purposes of this Agreement, the term "Out-of-Pocket
Expenses" shall mean the reasonable out-of-pocket costs and expenses incurred
by Evercore or its affiliates in connection with the services rendered
hereunder, including, without limitation, (i) fees and disbursements of any
independent professionals and organizations, including independent accountants,
outside legal counsel or consultants, (ii) costs of any outside services or
independent contractors such as financial printers, couriers, business
publications, on-line financial services or similar services, (iii) research
and research related expenses and (iv) transportation, per diem costs, word
processing expenses or any similar expense not associated with its ordinary
operations. All reimbursements for Out-of-Pocket Expenses shall be made
promptly upon or as soon as practicable after presentation by Evercore to the
Company of a written statement thereof.
6. INDEMNIFICATION. The Company will indemnify and hold
harmless Evercore, its affiliates and their respective partners (both general
and limited), members (both managing and otherwise), officers, directors,
employees, agents and representatives (each such person being an "Indemnified
Party") from and against any and all losses, claims, damages and liabilities,
whether joint or several, expenses of any nature (including reasonable
attorneys' fees and disbursements), judgments, fines, settlements and other
amounts arising from any and all claims, demands, actions, suits or
proceedings, whether, civil, criminal, administrative, arbitral or
investigative, in which an Indemnified Party was involved or may be involved,
or threatened to be involved, as a party or otherwise (the "Liabilities"),
related to, arising out of or in connection with the advisory and consulting
services contemplated by this Agreement or the engagement of Evercore pursuant
to, and the performance by Evercore of the services contemplated by, this
Agreement, and any other action taken by an Indemnified Party on behalf of the
LLC, whether or not pending or threatened, and any other action taken by an
Indemnified Party on behalf of the LLC, whether or not resulting in any
liability and whether or not such action, claim, suit, investigation or
proceeding is initiated or brought by the Company. The Company will reimburse
any Indemnified Party for all reasonable costs and expenses
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(including reasonable attorneys' fees and expenses) as they are incurred in
connection with investigating, preparing, pursuing, defending or assisting in
the defense of any action, claim, suit, investigation or proceeding for which
the Indemnified Party would be entitled to indemnification under the terms of
the previous sentence, or any action or proceeding arising therefrom, whether
or not such Indemnified Party is a party thereto, provided that, subject to the
following sentence, the Company shall be entitled to assume the defense thereof
at its own expense, with counsel satisfactory to such Indemnified Party in its
reasonable judgment. Any Indemnified Party may, at its own expense, retain
separate counsel to participate in such defense, and in any action, claim,
suit, investigation or proceeding in which both the Company and/or one or more
of its subsidiaries, on the one hand, and an Indemnified Party, on the other
hand, is, or is reasonably likely to become, a party, such Indemnified Party
shall have the right to employ separate counsel at the expense of the Company
and to control its own defense of such action, claim, suit, investigation or
proceeding if, in the reasonable opinion of counsel to such Indemnified Party,
a conflict or potential conflict exists between the Company, on the one hand,
and such Indemnified Party, on the other hand, that would make such separate
representation advisable. The Company agrees that it will not, without the
prior written consent of the applicable Indemnified Party, settle, compromise
or consent to the entry of any judgment in any pending or threatened claim,
suit, investigation, action or proceeding relating to the matters contemplated
hereby (if any Indemnified Party is a party thereto or has been threatened to
be made a party thereto) unless such settlement, compromise or consent includes
an unconditional release of the applicable Indemnified Party and each other
Indemnified Party from all liability arising or that may arise out of such
claim, suit, investigation, action or proceeding. Provided the Company is not
in breach of its indemnification obligations hereunder, no Indemnified Party
shall settle or compromise any claim subject to indemnification hereunder
without the consent of the Company. The Company will not be liable under the
foregoing indemnification provision with respect to any Indemnified Party, to
the extent that any loss, claim, damage, liability, cost or expense is
determined by a court, in a final judgment from which no further appeal may be
taken, to have resulted primarily from the gross negligence or willful
misconduct of Evercore. If an Indemnified Party is reimbursed hereunder for any
expenses, such reimbursement of expenses shall be refunded to the extent it is
finally judicially determined that the Liabilities in question resulted
primarily from the gross negligence or willful misconduct of Evercore.
The Company agrees that if any indemnification sought by any
Indemnified Party pursuant to this Section 6 is
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unavailable for any reason or is insufficient to hold the Indemnified Party
harmless against any Liabilities referred to herein, then the Company shall
contribute to the Liabilities for which such indemnification is held
unavailable or insufficient in such proportion as is appropriate to reflect the
relative benefits received (or anticipated to be received) by the Company, on
the one hand, and Evercore, on the other hand, in connection with the
transactions which gave rise to such Liabilities or, if such allocation is not
permitted by applicable law, not only such relative benefits but also the
relative faults of the Company, on the one hand, and Evercore, on the other
hand, as well as any other equitable considerations, subject to the limitation
that in any event the aggregate contribution by the Indemnified Parties to all
Liabilities with respect to which contribution is available hereunder shall not
exceed the fees pursuant to this Agreement actually received by Evercore in
connection with the transaction which gave rise to such Liabilities (excluding
any amounts paid as reimbursement of expenses).
7. ACCURACY OF INFORMATION. The Company shall furnish or
cause to be furnished to Evercore such information as Evercore believes
appropriate to its assignment (all such information so furnished being the
"Information"). The Company recognizes and confirms that Evercore (i) will use
and rely primarily on the Information and on information available from
generally recognized public sources in performing the services contemplated by
this Agreement without having independently verified the same, (ii) does not
assume responsibility for the accuracy or completeness of the Information and
such other information and (iii) is entitled to rely upon the Information
without independent verification.
8. TERM. This Agreement shall be effective as of the date
hereof and shall continue until the later of (i) the first date on which EMP
Group L.L.C. and its affiliates beneficially own in the aggregate less than 30%
of the common stock of the Company and (ii) the date on which the persons who
beneficially own interests in the LLC on the date of the LLC is dissolved no
longer beneficially own in the aggregate 30% of the common stock of the Company
(such termination date, the "Agreement Termination Date"); provided that
Section 5 shall remain in effect with respect to Out-of-Pocket Expenses
incurred prior to the Agreement Termination Date. The provisions of Sections 6,
8 and 10 and otherwise as the context so requires shall survive the termination
of this Agreement.
9. PERMISSIBLE ACTIVITIES. Subject to applicable law, nothing
herein shall in any way preclude Evercore, its affiliates or their respective
partners (both general and limited), members (both managing and otherwise),
officers, directors, employees,
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agents or representatives from engaging in any business activities or from
performing services for its or their own account or for the account of others,
including for companies that may be in competition with the business conducted
by the Company.
10. MISCELLANEOUS.
(a) No amendment or waiver of any provision of this
Agreement, or consent to any departure by either party hereto from any such
provision, shall be effective unless the same shall be in writing and signed by
all of the parties hereto. Any amendment, waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given. The
waiver by any party of any breach of this Agreement shall not operate as or be
construed to be a waiver by such party of any subsequent breach.
(b) Any notices or other communications required or permitted
hereunder shall be sufficiently given if delivered personally or sent by
telecopier, Federal Express, or other overnight courier, addressed as follow or
to such other address of which the parties may have given notice:
If to Evercore: Evercore Advisors Inc.
65 East 55th Street
New York, New York 10022
Attention: Austin Beutner
Telecopy: (212) 857-3122
Telephone: (212) 857-3120
If to the Company: American Media, Inc.
600 South East Coast Avenue
Lantana, Florida 33464
Attention: Peter A. Nelson
Telecopy: (561) 540-1018
Telephone: (561) 540-1000
Unless otherwise specified herein, such notices or other communications shall
be deemed received (i) on the date delivered, if delivered personally or sent
by telecopier, and (ii) one business day after being sent by Federal Express or
other overnight courier.
(c) This Agreement shall constitute the entire agreement
between the parties with respect to the subject matter hereof, and shall
supersede all previous oral and written (and all contemporaneous oral)
negotiations, commitments, agreements and understandings relating hereto.
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(d) This Agreement shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York. This
Agreement shall inure to the benefit of, and be binding upon, Evercore, the
Company and their respective successors and assigns. The provisions of Section
6 shall inure to the benefit of each Indemnified Party.
(e) This Agreement may be executed by one or more parties to
this Agreement on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
(f) The waiver by any party of any breach of this Agreement
shall not operate as or be construed to be a waiver by such party of any
subsequent breach.
(g) Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed and delivered by their duly authorized officers or agents as of the
date first above written.
AMERICAN MEDIA, INC.
By: /s/ Peter A. Nelson
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Name: Peter A. Nelson
Title: Executive Vice President and CFO
EVERCORE ADVISORS INC.
By: /s/ Austin Beutner
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Name: Austin Beutner
Title: Founder, Vice President
and Assistant Secretary
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SCHEDULE 1
EBITDA TEST
FOR THE FISCAL YEAR ENDED (IN MILLIONS) PAYMENT DATE
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March 31, 2000 $ 90.0 June 1, 2000
March 31, 2001 $ 97.5 June 1, 2001
March 31, 2002 $107.5 June 1, 2002
March 31, 2003 $110.0 June 1, 2003
March 31, 2004 $120.0 June 1, 2004
Each March 31 thereafter $120.0 June 1 of each
year thereafter