Exhibit 3
AGREEMENT AND PLAN OF MERGER
by and among
AMERICAN CITY BUSINESS JOURNALS, INC.,
BUSINESS JOURNAL ASSOCIATES LIMITED PARTNERSHIP,
ADVANCE PUBLICATIONS, INC.
and
ADVANCE ACQUISITION SUB. INC.
dated as of
August 3, 1995
TABLE OF CONTENTS
Page
ARTICLE I - Definitions . . . . . . . . . . . . . . . . . . . 1
ARTICLE II - The Merger; Closing; Effective Time . . . . . . 7
2.1. The Merger . . . . . . . . . . . . . . . . . . . . . . . 7
2.2. Closing . . . . . . . . . . . . . . . . . . . . . . . . 7
2.3. Effective Time . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE III - Certificate of Incorporation, Bylaws,
Directors and Officers of the Surviving
Corporation . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.1. Certificate of Incorporation . . . . . . . . . . . . . . 7
3.2. Bylaws . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.3. Directors and Officers . . . . . . . . . . . . . . . . . 8
ARTICLE IV - Conversion and Payment of Shares; Treatment of
Options; Dissenting Stockholders . . . . . . 8
4.1. Conversion or Cancellation of Shares and Convertible
Debentures . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.2. Stock Options . . . . . . . . . . . . . . . . . . . . . 9
4.3. Payment for Shares, Convertible Debentures and Options 10
4.4. Dissenters' Rights . . . . . . . . . . . . . . . . . . . 11
4.5. Transfer of Shares After the Effective Time . . . . . . 12
ARTICLE V - Representations and Warranties of the Company . . 12
5.1. Corporate Organization and Qualification . . . . . . . . 12
5.2. Subsidiaries . . . . . . . . . . . . . . . . . . . . . . 12
5.3. Capital Structure . . . . . . . . . . . . . . . . . . . 13
5.4. Corporate Authority . . . . . . . . . . . . . . . . . . 13
5.5. Governmental Filings . . . . . . . . . . . . . . . . . . 14
5.6 No Violations; Non-Contravention; Requisite Consents . . 14
5.7. Company Reports; Financial Statements . . . . . . . . . 14
5.8. Absence of Certain Changes . . . . . . . . . . . . . . . 15
5.9. Litigation . . . . . . . . . . . . . . . . . . . . . . . 15
5.10. Liabilities . . . . . . . . . . . . . . . . . . . 16
5.11. Employee Benefit Plans . . . . . . . . . . . . . 16
5.12. Brokers and Finders . . . . . . . . . . . . . . . 17
-i-
5.13. Intellectual Property . . . . . . . . . . . . . . 17
5.14. Taxes . . . . . . . . . . . . . . . . . . . . . . 17
5.15. Properties . . . . . . . . . . . . . . . . . . . 18
5.16. Licenses, Franchises, Etc. . . . . . . . . . . . 18
5.17. Information Statement and Applications . . . . . 18
5.18. Powers of Attorney, Etc. . . . . . . . . . . . . 19
5.19. Contracts and Leases . . . . . . . . . . . . . . 19
5.20. Accounts Payable; Accrued Expenses; Prepaid Expenses
19
5.21. Compliance with Laws . . . . . . . . . . . . . . 19
5.22. Insurance . . . . . . . . . . . . . . . . . . . . 20
5.23. Environmental Matters . . . . . . . . . . . . . . 20
5.24. Disclosure . . . . . . . . . . . . . . . . . . . 20
ARTICLE VI - Representations and Warranties of BJALP . . . . 21
6.1. Organization . . . . . . . . . . . . . . . . . . . . . . 21
6.2. Authority . . . . . . . . . . . . . . . . . . . . . . . 21
6.3. Brokers and Finders . . . . . . . . . . . . . . . . . . 21
6.4. BJALP Ownership of Company Shares . . . . . . . . . . . 21
ARTICLE VII - Representations and Warranties of Purchaser
and Merger Sub . . . . . . . . . . . . . . . 22
7.1. Corporate Organization and Qualification . . . . . . . . 22
7.2. Corporate Authority . . . . . . . . . . . . . . . . . . 22
7.3. Governmental Filings . . . . . . . . . . . . . . . . . . 22
7.4. No Violations; Non-Contravention; Requisite Consents . . 22
7.5. Litigation . . . . . . . . . . . . . . . . . . . . . . . 23
7.6. Purchaser's Investigation . . . . . . . . . . . . . . . 23
ARTICLE VIII - Covenants . . . . . . . . . . . . . . . . . . 23
8.1. Interim Operations of the Company . . . . . . . . . . . 23
8.2. Acquisition Proposals . . . . . . . . . . . . . . . . . 26
8.3. Approval by the Company's Stockholders . . . . . . . . . 27
8.4. Filings; Other Action . . . . . . . . . . . . . . . . . 28
8.5. Access; Confidentiality . . . . . . . . . . . . . . . . 29
8.6. Notification of Certain Matters . . . . . . . . . . . . 29
8.7. Publicity . . . . . . . . . . . . . . . . . . . . . . . 29
8.8. Expenses . . . . . . . . . . . . . . . . . . . . . . . . 29
8.9. Transmittal to Optionholders . . . . . . . . . . . . . . 30
8.10. Redemption of Convertible Debentures . . . . . . 30
8.11. Approval of Merger by BJALP; Granting of Options 30
-ii-
8.12. Survival of Indemnification Obligations . . . . . 30
8.13. Funding . . . . . . . . . . . . . . . . . . . . . 31
8.14. Takeover Statute . . . . . . . . . . . . . . . . 31
8.15. Fairness Opinion . . . . . . . . . . . . . . . . 31
8.16. SLBJ and SLM Option Agreement . . . . . . . . . . 31
ARTICLE IX - Conditions . . . . . . . . . . . . . . . . . . . 32
9.1. Conditions to Obligations of the Company . . . . . . . . 32
9.2. Conditions to Obligations of Purchaser and
Merger Sub . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE X - Termination . . . . . . . . . . . . . . . . . . . 35
10.1. Termination by Mutual Consent . . . . . . . . . . 35
10.2. Termination by Either Party . . . . . . . . . . . 35
10.3. Termination by Company . . . . . . . . . . . . . 35
10.4. Termination by Purchaser and Merger Sub . . . . . 36
10.5. Effect of Termination and Abandonment . . . . . . 36
ARTICLE XI - Miscellaneous . . . . . . . . . . . . . . . . . 37
11.1. Survival . . . . . . . . . . . . . . . . . . . . 37
11.2. Modification or Amendment . . . . . . . . . . . . 37
11.3. Waiver of Conditions . . . . . . . . . . . . . . 37
11.4. Counterparts . . . . . . . . . . . . . . . . . . 37
11.5. Governing Law . . . . . . . . . . . . . . . . . . 37
11.6. Notices . . . . . . . . . . . . . . . . . . . . . 37
11.7. Obligation of Purchaser . . . . . . . . . . . . . 39
11.8. Captions . . . . . . . . . . . . . . . . . . . . 39
11.9. Severability . . . . . . . . . . . . . . . . . . 39
11.10. Entire Agreement; Assignment . . . . . . . . . . 39
11.11. Tax Filing Consistency . . . . . . . . . . . . . 39
Exhibits
Exhibit A Certificate of Merger
Annexes
Annex 8.11(a)(i)Company Stock Option Agreement
Annex 8.11(a)(ii) BJALP Stock Option Agreement
Annex 8.11(b) BJALP Irrevocable Written Consent
-iii-
Disclosure Schedule
Section 5.2 Subsidiaries
Section 5.3 Stock Options, Etc.
Section 5.6 No Violations; Non-Contravention; Requisite
Consents
Section 5.8 Absence of Certain Changes
Section 5.9 Litigation
Section 5.10 Liabilities
Section 5.11 Employee Benefit Plans
Section 5.13 Intellectual Property
Section 5.14 Taxes
Section 5.15 Leased Real Estate
Section 5.19 Contracts and Leases
Section 5.20 Accrued and Prepaid Expenses
Section 5.21 Compliance with Laws
Section 5.22 Insurance
Section 5.23 Environmental Matters
Section 8.1 Capital Expenditures Budget
-iv-
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER dated as of August 3,
1995, is entered into by and among AMERICAN CITY BUSINESS
JOURNALS, INC., a Delaware corporation (the "Company"), BUSINESS
JOURNAL ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited
partnership and the principal stockholder of the Company
("BJALP"), ADVANCE PUBLICATIONS, INC., a New York corporation
("Purchaser"), and ADVANCE ACQUISITION SUB. INC., a newly-formed
Delaware corporation and the wholly-owned subsidiary of Purchaser
("Merger Sub").
RECITALS:
WHEREAS, the respective Boards of Directors of the
Purchaser, the Merger Sub and the Company have determined that it
is in the best interests of such companies and of their
respective stockholders for the Purchaser to acquire the Company
through a merger of Merger Sub into the Company upon the terms
and subject to the conditions set forth herein;
NOW, THEREFORE, the Company, BJALP, the Purchaser and the
Merger Sub hereby agree as follows:
ARTICLE I
Definitions
The terms defined in this Article I shall have the following
respective meanings for all purposes of this Agreement, with the
definitions being equally applicable to both the singular and the
plural forms of the terms defined:
"Acquisition Proposal" shall have the meaning set forth in
Section 8.2.
"Affiliate", with respect to the Company, shall mean any
Person which is a directly or indirectly held Subsidiary of the
Company or any Person which controls, is controlled by or is
under common control with the Company, and, with respect to any
Person other than the Company, shall mean any Person which is a
directly or indirectly held subsidiary of, or controls, is
controlled by or is under common control with, such Person.
"Agreement" shall mean this Agreement and Plan of Merger
dated as of August 3, 1995 among the Company, BJALP, the
Purchaser and the Merger Sub.
"BJALP" shall mean Business Journal Associates Limited
Partnership, a Delaware limited partnership.
"BJALP Irrevocable Written Consent" shall mean the
irrevocable written consent to be executed by BJALP and delivered
to the Company pursuant to Section 8.11(b).
"BJALP Stock Option Agreement" shall mean the Stock Option
Agreement executed by the Purchaser, BJALP and The Oklahoma
Publishing Company, a Delaware corporation ("OPUBCO"), on the
date hereof pursuant to Section 8.11(a)(ii).
"Certificate of Merger" shall mean the Certificate of Merger
attached hereto as Exhibit A which shall be executed and filed
with the Secretary of State of Delaware in accordance with the
applicable provisions of the DGCL to effectuate the Merger as
provided for in this Agreement.
"Closing" shall mean the closing of the Merger as provided
in Section 2.2 of this Agreement.
"Closing Date" shall mean the date on which the Closing
takes place.
"Code" shall mean the United States Internal Revenue Code of
1986, as amended, and all regulations promulgated thereunder.
"Company" shall mean American City Business Journals, Inc.,
a Delaware corporation.
"Company Reports" shall mean all forms, reports, schedules,
registration statements, proxy statements and other documents
which the Company has been or shall be required to file with the
SEC with respect to all periods commencing on or after January 1,
1992 and up to and including the Effective Time.
"Company Shares" shall mean the 30,000,000 authorized shares
of the Company's common stock, with a par value of $0.01 per
share.
"Company Stock Option Agreement" shall mean the Stock Option
Agreement executed by the Purchaser, the Merger Sub and the
Company on the date hereof pursuant to Section 8.11(a)(i).
"Confidentiality Agreement" shall mean the Confidentiality
Agreement executed by the Purchaser for the benefit of BJALP and
the Company on June 2, 1995.
"Contracts" shall mean all material contracts, agreements
and commitments to which the Company or any Subsidiary is a party
(other than the Leases) (i) calling for payment of more than One
Hundred Thousand Dollars ($100,000) in any calendar year which
are not terminable by any party thereto on less than one hundred
eighty (180) days' notice without penalty and which are not
entered into in the ordinary course of business, (ii) containing
-2-
covenants limiting, in any material respect, the freedom of the
Company or any Subsidiary to compete with any Person in any line
of business or in any territory, (iii) evidencing or relating to
indebtedness for borrowed money, (iv) mortgaging, pledging or
otherwise placing a lien on the assets of the Company or a
Subsidiary, all of which are identified in Section 5.19 of the
Disclosure Schedule, or (v) requiring the consent of the other
party thereto in connection with the execution and delivery of
this Agreement and the Company Stock Option Agreement or the
consummation of the transactions contemplated hereby and thereby.
"Convertible Debentures" shall mean the Company's 6%
Convertible Subordinated Debentures due December 31, 2011.
"DGCL" shall mean the Delaware General Corporation Law.
"Director Stock Option Plan" shall mean the American City
Business Journals, Inc. Formula Stock Option Plan effective as of
June 1, 1993.
"Disclosure Schedule" shall mean the disclosure schedule
document executed by the Company, the Purchaser and the Merger
Sub as of the date hereof.
"Dissenting Stockholders" shall mean the Company
stockholders who exercise appraisal rights pursuant to Section
262 of the DGCL with respect to their Company Shares in
connection with the consummation of the Merger.
"Effective Time" shall mean the time and date upon which the
Merger is effective pursuant to the provisions of Section 2.3.
"Employee Benefit Plan" shall mean any bonus, pension,
retirement, profit sharing, deferred compensation, restricted
stock, stock option, stock appreciation right, severance and
welfare plans, employment or severance agreements (including any
plans described in Section 3(3) of ERISA) and all similar
arrangements contributed to or maintained by the Company (or any
of its Subsidiaries) for the benefit of any current or former
employee, officer, or director of the Company or its
Subsidiaries.
"Employee Stock Option Plan" shall mean the American City
Business Journals, Inc. 1989 Stock Option Plan effective as of
November 15, 1989.
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended, and the rules and regulations
promulgated thereunder.
"ERISA Affiliate Plan" shall have the meaning set forth in
Section 5.11.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated
thereunder.
-3-
"GAAP" shall mean United States generally accepted
accounting principles promulgated or adopted by the Financial
Accounting Standards Board or its predecessors that are in effect
from time to time.
"HSR Act" shall mean the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended.
"Indenture" shall mean the indenture dated as of February 1,
1987 between the Company and Boatmen's First National Bank of
Kansas City, as trustee (First Union National Bank currently
serving as trustee under the Indenture).
"Information Statement" shall mean, as applicable, the
information or proxy statement and all related amendments,
materials or supplements to be distributed by the Company to its
stockholders concerning the subject matter of this Agreement as
is described further in Section 8.3.
"Intellectual Property" shall mean all trade names, service
marks, service xxxx registrations and applications, trademarks,
trademark registrations and applications, domestic and foreign
patents (including, without limitation, letters, design and
reissue, utility models and industrial design registrations),
patent applications, unpatented inventions, material licenses,
copyrights, copyright registrations and applications and other
intellectual property owned, licensed or used by the Company or
any of the Subsidiaries and that are material to its business,
all of which are identified in Section 5.13 of the Disclosure
Schedule.
"Leases" shall mean the leases of real or personal property
relating to the Company's business to which the Company or any
Subsidiary is a party, as lessor or lessee, or by which the
Company or any Subsidiary is bound, calling for payment of more
than One Hundred Thousand Dollars ($100,000) in any calendar year
which are not terminable by any party thereto on less than one
hundred eighty (180) days' notice without penalty and, with
respect to personal property leases, which are not entered into
in the ordinary course of business, all of which are identified
in Section 5.19 of the Disclosure Schedule.
"Material Adverse Effect" shall mean a material adverse
effect on the financial condition, business, assets, prospects or
results of operations of the Company and the Subsidiaries taken
as a whole.
"Merger" shall mean the merger of the Merger Sub with and
into the Company upon the terms set forth in Section 2.1.
"Merger Consideration" shall mean an amount equal to $28.00
per share, without interest thereon.
"Merger Sub" shall mean Advance Acquisition Sub. Inc., a
Delaware corporation.
-4-
"Merger Sub Shares" shall mean all of the authorized shares
of the common stock of the Merger Sub.
"Order" shall mean any statute, rule, regulation, judgment,
decree, injunction or other order, whether temporary, preliminary
or permanent, which is in effect and prohibits consummation of
the transactions contemplated by this Agreement.
"Paying Agent" shall mean the entity or entities designated
by the Purchaser or Merger Sub in accordance with Section 4.3 to
facilitate the payment of the Merger Consideration to the
Company's stockholders, holders of certain stock options and
holders of Convertible Debentures in accordance with this
Agreement.
"Person" shall mean any individual, partnership,
corporation, trust, unincorporated organization, association,
joint venture or other entity or a government, agency, political
subdivision, instrumentality or division thereof.
"Purchaser" shall mean Advance Publications, Inc., a New
York corporation.
"Real Estate" shall mean the real estate owned or leased by
the Company or its Subsidiaries, all of which is described in
Section 5.15 of the Disclosure Schedule.
"Redemption Date" shall mean the date fixed for the
redemption of the Convertible Debentures as described in Section
7.10.
"Regulatory Filings" shall mean all filings required to
legally consummate the Merger under the HSR Act, the Exchange
Act, the rules of the National Association of Securities Dealers,
Inc. and any applicable state "blue sky" securities rules or
regulations.
"Requisite Consents" shall mean all consents of contracting
parties, governmental or regulatory authorities or other Persons
to the execution and delivery by the Company of this Agreement or
the consummation of the transactions contemplated hereby, which
consents are identified in Section 5.6 of the Disclosure
Schedule.
"SEC" shall mean the United States Securities and Exchange
Commission.
"Stock Option Plans" shall mean, collectively, the Director
Stock Option Plan, the Employee Stock Option Plan, the Stock
Purchase Plan and those "Additional Stock Option Agreements" set
forth in Section 5.3 of the Disclosure Schedule.
"Stock Purchase Plan" shall mean the Amended and Restated
American City Business Journals, Inc. Employee Stock Purchase
Plan effective as of July 1, 1990.
"Subsidiary", with respect to the Company, shall mean any
entity 50% or more of
-5-
the stock of which is owned directly or indirectly by the
Company, and, with respect to any Person other than the
Company, any entity 50% or more of the stock of which is owned
directly or indirectly by such Person.
"Substantial Transaction" shall mean a transaction involving
the sale of all or a material portion of the Company's assets, a
merger or other form of business consolidation involving the
Company or any of its material Subsidiaries, the sale of 15% or
more of the Company Shares or other equity securities (by means
of a stock sale or other transaction) or any other transaction or
series of transactions effecting a change in control of the
Company.
"Superior Proposal" shall have the meaning set forth in
Section 8.2.
"Surviving Corporation" shall mean the surviving corporation
in the Merger as provided for in Section 2.1.
"Taxes" shall mean all taxes, fees, levies, duties, charges
or other like assessments, including, without limitation, income,
withholding, gross receipts, excise, real or personal property,
asset, sales, use, license, payroll, transaction, transfer,
transfer gains, documentary recording, capital, net worth and
franchise taxes imposed by or payable to any federal, state,
county, local or foreign government, taxing authority,
subdivision or agency thereof, including interest, penalties or
additional amounts related thereto.
"Tax Return" shall mean any report, return, declaration or
other information required to be supplied to or filed with a
taxing authority in connection with the Taxes of the Company or
any Subsidiary.
ARTICLE II
The Merger; Closing; Effective Time
2.1. The Merger. In accordance with this Agreement and
the DGCL, at the Effective Time the Merger Sub shall be merged
with and into the Company and the separate corporate existence of
the Merger Sub shall thereupon cease. The Company shall be the
surviving corporation in the Merger and shall continue to be
governed by the laws of the State of Delaware, and the separate
corporate existence of the Company with all its rights,
privileges, immunities, powers and franchises shall continue
unaffected by the Merger. The Merger shall have the effects
specified in the DGCL.
2.2. Closing. Subject to the provisions of Articles IX
and X, the Closing shall take place at the offices of Parker,
Poe, Xxxxx & Xxxxxxxxx L.L.P. at 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000 promptly after the satisfaction or waiver
of all conditions precedent set forth in Article IX, or at such
other place or time or on such other date as the parties may
agree.
-6-
2.3 Effective Time. The Merger shall become effective as
of the time and date of the filing of the Certificate of Merger
with the Secretary of State of the State of Delaware in
accordance with the provisions of the DGCL, or at the time
specified in the Certificate of Merger, if later than the time of
filing. The date and time when the Merger shall become effective
is herein referred to as the "Effective Time." Notwithstanding
the foregoing, for accounting purposes the Merger shall be deemed
to have occurred at the close of business on the date of the
Effective Time.
ARTICLE III
Certificate of Incorporation, Bylaws, Directors
and Officers of the Surviving Corporation
3.1. Certificate of Incorporation. The Certificate of
Incorporation of the Company, as in effect at the Effective Time,
shall be the Certificate of Incorporation of the Surviving
Corporation, until thereafter amended in accordance with the
terms thereof and in accordance with the Surviving Corporation's
bylaws and the DGCL, except that Article Four of the Certificate
of Incorporation shall be amended to read in its entirety as
follows:
"The aggregate number of shares which the
Corporation shall have the authority to issue is 1,000
shares of Common Stock, par value $1.00 per share."
3.2. Bylaws. The bylaws of the Merger Sub, as in effect
at the Effective Time, shall be the bylaws of the Surviving
Corporation, until thereafter amended in accordance with the
terms thereof and in accordance with the Surviving Corporation's
Certificate of Incorporation and the DGCL.
3.3. Directors and Officers. The directors of the Merger
Sub and the officers of the Company at the Effective Time shall,
from and after the Effective Time, be the directors and officers,
respectively, of the Surviving Corporation until their successors
have been duly elected or appointed and qualified or until their
earlier death, resignation or removal in accordance with the
Surviving Corporation's Certificate of Incorporation and bylaws.
ARTICLE IV
Conversion and Payment of Shares; Treatment of Options;
Dissenting Stockholders
4.1. Conversion or Cancellation of Shares and Convertible
Debentures. As
-7-
of the Effective Time, by virtue of the Merger and without any
action on the part of the holders thereof:
(a) All Company Shares that are held by the Company
as treasury stock or by any Subsidiary shall be cancelled and
retired, without any conversion thereof.
(b) Except as otherwise provided in Section 4.4,
each remaining issued and outstanding Company Share shall be
converted into the right to receive, without interest, an amount
equal to the Merger Consideration. From and after the Effective
Time, all such Company Shares shall no longer be outstanding and
shall be cancelled, and each holder of a certificate representing
any such Company Shares shall thereafter cease to have any rights
with respect to such Company Shares, except the right to receive
the Merger Consideration upon the surrender of such certificate
pursuant to Section 4.3.
(c) Each issued and outstanding Merger Sub Share
shall be converted into and exchangeable for one (1) fully paid
and nonassessable share of the $0.01 par value common stock of
the Surviving Corporation. From and after the Effective Time,
each outstanding certificate theretofore representing Merger Sub
Shares shall be deemed for all purposes to evidence ownership of
and to represent the number of shares of Surviving Corporation
common stock into which such Merger Sub Shares shall have been
converted. Promptly after the Effective Time and upon the tender
of the certificate or certificates formerly representing a
holder's Merger Sub Shares, the Surviving Corporation shall issue
to each such holder of Merger Sub Shares a stock certificate or
certificates representing such holder's shares of Surviving
Corporation common stock, and the certificate or certificates
which formerly represented Merger Sub Shares shall be cancelled.
(d) In accordance with and subject to the terms of
the Indenture, each outstanding Convertible Debenture whose
conversion rights are validly exercised after the Effective Time
but before the close of business on the fifth business day prior
to the Redemption Date shall be converted into the right to
receive, without interest, the amount that would have been
received by a holder of the number of Company Shares into which
such Convertible Debenture could have been converted immediately
prior to the Effective Time.
(e) All notes and other debt instruments of the
Company other than the Convertible Debentures (including, but not
limited to, the $20.00 Series Promissory Notes due 1999 of the
Company and the $3.00 Series Promissory Notes due 1999 of the
Company) outstanding at the Effective Time shall continue to be
outstanding subsequent to the Effective Time as notes and other
debt instruments of the Surviving Corporation, subject to their
respective terms and covenants, and shall not be affected by the
Merger.
4.2. Stock Options. Prior to the Effective Time, the
Company shall take such actions (including those described in
Section 7.9) as may be necessary such that at the Effective Time
all outstanding stock options granted pursuant to the Stock
Option Plans
-8-
(regardless of whether such stock options are vested or
exercisable as of the Effective Time, all such unvested
options being deemed to be fully vested and exercisable as of
the Effective Time) shall be cancelled and shall only entitle
the holder thereof, upon the holder's relinquishing all rights
therein, to receive an amount equal to the excess, if any, of
the Merger Consideration over the exercise price per Company
Share of such option multiplied by the number of Company
Shares previously subject to such option (less all required
tax withholdings), and such options and all rights thereunder
shall cease to exist. The Company may extend the expiration
date of any stock option issued pursuant to any of the Stock
Option Plans which is outstanding on the date hereof and is
scheduled to expire prior to the Closing Date, provided that
such options shall be subject to the terms of this Section
4.2.
4.3. Payment for Shares, Convertible Debentures and
Options.
(a) Prior to the Effective Time, Purchaser or
Merger Sub shall designate First Union National Bank, or
another entity reasonably acceptable to the Company, to act as
Paying Agent. Immediately prior to the Effective Time,
Purchaser and Merger Sub will provide the Paying Agent with
the funds necessary to make the payments contemplated by
Section 4.1(b) and will make available an amount equal to the
funds necessary to satisfy the obligations to the holders of
stock options pursuant to the terms of Section 4.2. The
Purchaser and the Surviving Corporation will provide the
Paying Agent with funds necessary to make the payments
contemplated by Section 4.1(d) as and when required in
accordance with the terms of the Indenture.
(b) Promptly after the Effective Time, or in the
case of holders of the Convertible Debentures, as, when and to
the extent prescribed under the terms of the Indenture, the
Surviving Corporation shall cause to be mailed to each person who
was, immediately prior to the Effective Time, a holder of record
of issued and outstanding Company Shares or Convertible
Debentures a form (mutually agreed to by Purchaser and the
Company) of letter of transmittal and instructions for use in
effecting the surrender of the certificates which, immediately
prior to the Effective Time, represented any of such Company
Shares or Convertible Debentures, in exchange for payment
therefor. Purchaser and Merger Sub shall also arrange (i) for
the Surviving Corporation and the Paying Agent to make available
letters of transmittal and instructions for use in effecting
surrender of certificates to holders of Company Shares or
Convertible Debentures, who satisfy the requirements of the
letter of transmittal and request personal delivery thereof after
the Effective Time and (ii) for the Paying Agent to make payment
to any such holder who desires to receive payment in person after
the Effective Time. Upon surrender to the Paying Agent of
certificates formerly representing Company Shares or Convertible
Debentures, or the satisfaction of the prerequisites identified
in the letter of transmittal regarding lost stock certificates,
together with the letter of transmittal, duly executed and
completed in accordance with the instructions, the Surviving
Corporation shall promptly cause to be delivered to the persons
entitled thereto a check in the amount to which such persons are
entitled, after giving effect to any required tax withholdings.
No interest will be paid or will accrue on the amount payable
upon the
-9-
surrender of any such certificate. If payment is to be
made to a person other than the registered holder of the
certificate surrendered, it shall be a condition of such payment
that the certificate so surrendered shall be properly endorsed or
otherwise in proper form for transfer and that the person
requesting such payment shall pay any transfer or other taxes
required by reason of the payment to a person other than the
registered holder of the certificate surrendered (unless the
Surviving Corporation or the Paying Agent determines that the tax
is not applicable). The Surviving Corporation shall pay all
charges and expenses, including those of the Paying Agent, in
connection with the exchange of Company Shares and Convertible
Debentures.
(c) Any portion of the aggregate Merger
Consideration made available to the Paying Agent pursuant to this
Section 4.3 that remains unclaimed by the holders of Company
Shares six (6) months after the Effective Time shall be returned
to the Surviving Corporation, upon demand, and any such holder
who has not exchanged certificates representing his or her
Company Shares for the Merger Consideration in accordance with
this Agreement shall thereafter look to the Surviving Corporation
for payment of the Merger Consideration in respect of his or her
Company Shares.
(d) Any portion of the aggregate Merger
Consideration made available to the Paying Agent pursuant to this
Section 4.3 to pay for Company Shares for which Dissenting
Stockholders rights have been perfected shall be returned to the
Surviving Corporation, upon demand.
4.4. Dissenters' Rights.
(a) Notwithstanding the provisions of Section 4.1,
Company Shares held by Dissenting Stockholders who have perfected
the right to dissent under the DGCL shall not be converted into
the right to receive any portion of the aggregate Merger
Consideration. Instead, all Company Shares so held shall be
converted into and represent only a right to payment in
accordance with Section 262 of the DGCL; provided that if any
Dissenting Stockholder fails to perfect or shall have effectively
withdrawn or lost the right to dissent under the DGCL, each
Company Share held by such Dissenting Stockholder shall thereupon
be treated as having been converted as of the Effective Time into
the right to receive, and be exchangeable for, the Merger
Consideration pursuant to Section 4.1(b). The Company shall
promptly give Purchaser notice upon receipt by the Company of any
written demand for appraisal under the DGCL by any Dissenting
Stockholder, and Purchaser shall have the right to participate in
all negotiations and proceedings with respect to any such
demands. The Company agrees that prior to the Effective Time it
will not, except with the written consent of Purchaser,
voluntarily make any payment with respect to, or settle or offer
to settle, any such demand for payment.
(b) Each Dissenting Stockholder who becomes
entitled, pursuant to the provisions of Section 262 of the DGCL,
to payment for his Company Shares shall receive
-10
payment therefor after the Effective Time from the Surviving
Corporation (but only after the amount thereof shall have been
agreed upon or finally determined pursuant to such
provisions), and such Company Shares shall be cancelled.
4.5. Transfer of Shares After the Effective Time. At the
Effective Time, the stock transfer books of the Surviving
Corporation shall be closed and no transfer of Company Shares
shall thereafter be made. If after the Effective Time
certificates previously representing Company Shares are presented
to the Surviving Corporation or the Paying Agent, they shall be
cancelled and exchanged for the Merger Consideration as provided
in Section 4.1.
ARTICLE V
Representations and Warranties of the Company
The Company hereby represents and warrants to Purchaser and
Merger Sub as follows:
5.1. Corporate Organization and Qualification. Each of
the Company and each Subsidiary is a corporation duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation, with all requisite corporate
power and authority to own, operate and lease its properties and
to carry on its business as it is now being conducted, and is
qualified or licensed to do business and is in good standing in
each jurisdiction in which it is required to be so qualified or
licensed, except where the failure to be so qualified or
licensed, individually or in the aggregate, has not had (except
as reflected in the Company Reports filed prior to the date
hereof) and is not reasonably likely to have a Material Adverse
Effect. The Company has provided to Purchaser complete and
correct copies of the Company's Certificate of Incorporation and
bylaws as in effect on the date hereof.
5.2. Subsidiaries. Set forth in Section 5.2 of the
Disclosure Schedule are all of the Subsidiaries of the Company,
together with their respective jurisdictions of incorporation,
their authorized and issued shares of capital stock and the
percentage of outstanding shares of each class of capital stock
of each Subsidiary owned, directly or indirectly, by the Company.
Except as set forth in Section 5.2 of the Disclosure Schedule,
all of the issued and outstanding shares of capital stock of each
Subsidiary have been duly authorized and validly issued, are
fully paid and nonassessable and are owned, of record and
beneficially, by the Company or a Subsidiary, free and clear of
all liens, encumbrances, equities, options or claims whatsoever.
Except as set forth in Section 5.2 of the Disclosure Schedule, no
shares of capital stock of a Subsidiary are reserved for issuance
and there are no outstanding options, warrants, rights,
subscriptions, agreements, obligations, convertible or
exchangeable securities or other commitments or claims,
contingent or otherwise, relating to the capital stock of a
Subsidiary, pursuant to which a Subsidiary is or may become
obligated to issue, sell, transfer
-11-
or exchange any shares of such capital stock. Except as set
forth in Section 5.2 of the Disclosure Schedule, neither the
Company nor any of the Subsidiaries owns, directly or
indirectly, any capital stock or other equity, ownership or
proprietary interest in any other Person.
5.3. Capital Structure. As of the date hereof, the
authorized capital stock of the Company consists of (i)
30,000,000 Company Shares, of which 6,917,741 shares are issued
and outstanding and 707,842 shares are issued and held in the
Company's treasury, and (ii) 2,500,000 shares of preferred stock,
par value $.01 per share, of the Company, none of which are
issued and outstanding. All of the outstanding Company Shares
have been duly authorized and are validly issued, fully paid and
nonassessable. The class of Company Shares has been duly and
validly registered pursuant to Section 12(g) of the Exchange Act,
which registration is in full force and effect. As of the date
hereof, (i) 29,000 Company Shares were issuable upon exercise of
outstanding stock options granted under the Director Stock Option
Plan to purchase Company Shares (at a weighted average exercise
price of $14.49 per share), (ii) 541,000 Company Shares were
issuable upon exercise of outstanding stock options granted under
the Employee Stock Option Plan to purchase Company Shares (at a
weighted average exercise price of $10.362 per share), (iii)
59,400 Company Shares were issuable upon exercise of outstanding
stock options granted under the Stock Purchase Plan to purchase
Company Shares (at a weighted average exercise price of $18.70
per share), (iv) 63,000 Company Shares were issuable upon
exercise of outstanding stock options granted under the
"Additional Stock Option Agreements" set forth in Section 5.3 of
the Disclosure Schedule to purchase Company Shares (at a weighted
average exercise price of $7.262 per share), and (v) 1,995,035
Company Shares were issuable upon conversion of the outstanding
Convertible Debentures. Section 5.3 of the Disclosure Schedule
sets forth the grantee, grant date, number of shares, option
price, vesting schedules and expiration date for all outstanding
options granted pursuant to the Stock Option Plans as of the date
hereof. Except as set forth in this Section 5.3 and in Section
5.3 of the Disclosure Schedule, there are no preemptive rights or
any outstanding subscriptions, options, warrants, rights,
convertible securities or other agreements, commitments or
benefit arrangements of any character relating to the issued or
unissued capital stock or other securities of the Company or
which give rise to an obligation to issue or an option or right
to acquire Company Shares or any other shares from the Company.
5.4. Corporate Authority. The Board of Directors of the
Company has approved and authorized the execution and delivery of
this Agreement and has determined that it will recommend to the
Company's stockholders the approval of this Agreement and the
Merger. The Company has the requisite corporate power and
authority and has taken all corporate action necessary in order
to execute and deliver this Agreement and, subject only to
approval of this Agreement by the holders of a majority of the
outstanding Company Shares, to consummate the transactions
contemplated hereby. Subject to such stockholder approval, this
Agreement is a legal, valid and binding agreement of the Company
enforceable against the Company in accordance with its terms.
-12-
5.5. Governmental Filings. Other than the filing of the
Certificate of Merger and the Regulatory Filings, no notices,
reports or other filings are required to be made by the Company
with, nor are any consents, registrations, approvals, permits or
authorizations required to be obtained by the Company from, any
governmental or regulatory authorities of the United States or
the several states in connection with the execution and delivery
of this Agreement by the Company and the consummation by the
Company of the transactions contemplated hereby.
5.6. No Violations; Non-Contravention; Requisite Consents.
Except as disclosed in Section 5.6 of the Disclosure Schedule and
except for the requisite approval by the Company's stockholders,
the execution and delivery of this Agreement by the Company do
not, and the consummation by the Company of the transactions
contemplated by this Agreement will not create, constitute or
result in: (i) a breach or violation of, or a default under, or
the obligation to obtain the consent or approval of any Person
pursuant to, the Certificate of Incorporation or bylaws of the
Company; (ii) a breach or violation of, a default under, or the
obligation to obtain the consent or approval of any Person or the
triggering of any payment, stock issuance, acceleration of
vesting or other material obligations pursuant to, any of the
Company's Employee Benefit Plans or any grant or award made
thereunder; (iii) a breach or violation of, or a default under,
or the obligation to obtain the consent or approval of any
Person, or the acceleration of, or the creation of a material
lien, pledge, security interest or other encumbrance on Company
or any Subsidiary assets (with or without the giving of notice or
the lapse of time or both) pursuant to, any provision of (A) any
Contract or Lease or (B) any law, rule, ordinance or regulation
or judgment, decree, order, award or governmental or
non-governmental permit or license to which the Company or any
Subsidiary is subject; or (iv) any material change in the rights
or obligations of any party to any of the Contracts or Leases.
5.7. Company Reports; Financial Statements. The Company
has duly and timely filed all Company Reports required to be
filed as of the date hereof, all of which, when filed, complied
in all material respects with all applicable requirements of the
Securities Act of 1933, as amended, and the Exchange Act and the
rules and regulations promulgated thereunder. Correct and
complete copies of the Company Reports have been, or when filed
shall be, provided by the Company to Purchaser. As of their
respective dates, the Company Reports did not, and if filed
subsequent to the date hereof shall not, contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
made therein, in light of the circumstances in which they were
made, not misleading. Each of the consolidated balance sheets
included in or incorporated by reference into the Company Reports
(including the related notes and schedules), and if included in
or
-13-
incorporated by reference in a Company Report filed subsequent
to the date hereof shall, fairly present the consolidated
financial position of the Company as of its date, and each of the
consolidated statements of income, of changes in stockholder
equity and of cash flows included in or incorporated by reference
into the Company Reports (including any related notes and
schedules) is, and if included in or incorporated by reference in
a Company Report filed subsequent to the date hereof shall be,
complete and correct in all material respects and does or shall
fairly present the results of operations, retained earnings and
cash flows, as the case may be, of the Company and its
subsidiaries for the periods identified therein (subject, in the
case of unaudited statements, to normal year-end audit
adjustments), in each case in accordance with GAAP consistently
applied during the periods involved.
5.8 Absence of Certain Changes. Except as set forth in
Section 5.8 of the Disclosure Schedule, during the period between
January 1, 1995 and the date of the Agreement, the Company has
conducted its business in, and has not engaged in any material
transaction other than in, the ordinary and usual course of
business consistent with past practices and there has not been
(1) any change in the financial condition, business, prospects or
results of operations of the Company and the Subsidiaries taken
as a whole, or any development or combination of developments of
which management of the Company has knowledge which, individually
or in the aggregate, has had or is reasonably likely to result in
a Material Adverse Effect; (2) any direct or indirect redemption,
purchase or other acquisition of any Company Shares by the
Company or any declaration, setting aside or payment of any
dividend or other distribution with respect to the capital stock
of the Company; (3) any change by the Company in its accounting
principles, practices or methods; (4) any damage, destruction or
other casualty loss (whether or not covered by insurance) which,
individually or in the aggregate, has had or may reasonably be
expected to have a Material Adverse Effect; (5) any increase in
the compensation payable or to become payable by the Company to
any of its officers, employees or agents, other than normal cost
of living increases, normal merit increases and increases
previously disclosed in writing to Purchaser; (6) any option to
purchase or other right to acquire Company Shares granted to any
person by the Company; (7) any issuance of Company Shares except
in connection with the exercise of stock options issued pursuant
to any of the Stock Option Plans; or (8) any indebtedness for
borrowed money incurred or permitted by the Company or guaranties
provided by the Company except in the ordinary course of business
or other than as reflected in the Company Reports.
5.9 Litigation. Except as set forth in Section 5.9 of
the Disclosure Schedule, there is no action, suit, proceeding at
law or in equity by any Person, or any arbitration or any
administrative or other proceeding by or before (or, to the
knowledge of management of the Company, any investigation by) any
governmental or other instrumentality or agency, pending, or, to
the knowledge of management of the Company, threatened, against
or affecting the Company, the Subsidiaries or their respective
properties or rights which is reasonably likely to materially and
adversely affect the Company's ability to perform its obligations
hereunder or the transactions contemplated hereby or which,
individually or in the aggregate, has had (except as reflected in
the Company Reports filed prior to the date hereof) or is
reasonably likely to have a Material Adverse Effect, and the
Company and the Subsidiaries are not subject to any judgement,
order or decree entered in any lawsuit or proceeding which,
individually or in the aggregate, has had (except as reflected in
the Company Reports filed prior to the date hereof) or is
reasonably likely to have a Material
-14-
Adverse Effect.
5.10. Liabilities. Except as set forth in Section 5.10 of
the Disclosure Schedule, or except as and to the extent reserved
against or otherwise referenced in the financial statements
included in the Company Reports filed with the SEC on or prior to
the date hereof, the Company and the Subsidiaries have no
existing claims, liabilities (including potential liabilities) or
indebtedness, contingent or otherwise, which, individually or in
the aggregate have had or are reasonably likely to have a
Material Adverse Effect.
5.11. Employee Benefit Plans. Set forth in Section 5.11 of
the Disclosure Schedule is an accurate and complete list of all
Employee Benefit Plans established, maintained or contributed to
by the Company. No Employee Benefit Plan is a "Defined Benefit
Plan" as defined in Section 3(35) of ERISA or a "Multiemployer
Plan" as defined in Sections 3(37) and 4001(a)(3) of ERISA and
Section 414(f) of the Code and the Company has no obligations
related to such a Multiemployer Plan. Except as set forth in
Section 5.11 of the Disclosure Schedule, with respect to the
Employee Benefit Plans (or any plan subject to Title IV of ERISA
or Section 412 of the Code maintained by any entity considered
one employer with the Company under Section 4001 of ERISA or
Section 414 of the Code (an "ERISA Affiliate Plan")), no event
has occurred and, to the knowledge of the management of the
Company, there exists no condition or set of circumstances in
connection with which the Company or any Subsidiary could be
subject to any material liability under the terms of such
Employee Benefit Plans (or ERISA Affiliate Plan), ERISA, the Code
or any other applicable law (other than the payment of
contributions and benefits in the ordinary course). With respect
to each Employee Benefit Plan, the Company has made available, if
applicable, a true and correct copy of: (i) the most recent
annual report (Form 5500) filed with the Internal Revenue Service
(the "IRS"); (ii) the plan document; (iii) each related trust
agreement; (iv) the most recent summary plan description; and (v)
the most recent determination letter issued by the IRS. Except
as set forth in Section 5.11 of the Disclosure Schedule, or as
otherwise required by applicable law, no Employee Benefit Plan
provides retiree medical or life insurance benefits to any
person.
5.12. Brokers and Finders. Except for the engagement of
Lazard Freres & Co. by the Company as previously disclosed to the
Purchaser in writing, the Company, the Subsidiaries and their
officers, directors or employees have not employed any broker or
finder or incurred any liability for any brokerage fees,
commissions or finders' fees or any break-up fees or liability
for the expenses of third parties in connection with the
transactions contemplated herein.
5.13. Intellectual Property. Section 5.13 of the
Disclosure Schedule contains a correct and complete list of all
Intellectual Property as of the date hereof. Except as set forth
in Section 5.13 of the Disclosure Schedule, as of the date
hereof, (i) no claim is pending or, to the knowledge of the
Company's management, threatened to the effect that the present
or past operations of the Company or any of its Subsidiaries
infringe upon or conflict with the
-15-
rights of others with respect to any patents, patent
applications, trademarks, trademark applications, tradenames,
copyrights or any other intellectual property rights, (ii) the
Company or a Subsidiary thereof, as the case may be, is the
sole owner of all of the Intellectual Property (except to the
extent the Company or Subsidiary is a licensee of any
Intellectual Property as indicated in Section 5.13 of the
Disclosure Schedule) currently used in the conduct of the
Company's or Subsidiary's business, free and clear of any
liens, claims, encumbrances or interests, (iii) no claim is
pending or, to the knowledge of the Company's management,
threatened to the effect that any of the Intellectual Property is
invalid or unenforceable, and (iv) no contract, agreement or
understanding with any party exists which would prevent the
continued use by the Company or Subsidiary (as currently used by
the Company or Subsidiary) of any Intellectual Property.
5.14. Taxes.
(a) Except as set forth on Section 5.14 of the
Disclosure Schedule, the Company and each of the Subsidiaries
have duly filed all Tax Returns required to be filed by them, and
have duly paid, caused to be paid or made adequate provision for
the payment of all Taxes required to be paid in respect of the
periods covered by such returns except where any failures to pay
are not, individually or in the aggregate, reasonably likely to
have a Material Adverse Effect. Except as set forth in Section
5.14 of the Disclosure Schedule, (i) no claims for federal Taxes
have been asserted against the Company or any of the Subsidiaries
and no deficiency for any federal Taxes has been proposed,
asserted or assessed which has not been resolved or paid in full,
(ii) no claims for Taxes other than federal Taxes have been
asserted against the Company or any of the Subsidiaries and no
deficiency for any such Taxes has been proposed, asserted or
assessed which has not been resolved or paid in full, (iii) no
Tax Return or taxable period of the Company or any of the
Subsidiaries is under examination and neither the Company nor any
Subsidiary has received written notice of any pending audit, (iv)
there are no outstanding agreements or waivers extending the
statutory period of limitation applicable to any Tax Return for
any period of the Company or any of the Subsidiaries, (v) neither
the Company nor any Subsidiary has any obligation or liability to
pay Taxes of or attributable to any other Person, (vi) there are
no tax liens other than liens for Taxes not yet due and (vii)
neither the Company nor any Subsidiary is a party to any
agreement or contract which would result in payment of any
"excess parachute payment" within the meaning of Section 280G of
the Code.
(b) Neither the Company nor any Subsidiary has filed
any consent pursuant to Section 341(f) of the Code or agreed to
have Section 341(f)(2) of the Code apply to any disposition of a
subsection (f) asset owned by the Company or any Subsidiary.
(c) Neither the Company nor any Subsidiary has been,
and is not, a United States real property holding company (as
defined in Section 897(c)(2) of the Code) during the applicable
period specified in Section 897(c)(1)(A)(ii) of the Code.
-16-
5.15. Properties. Neither the Company nor any Subsidiary
currently owns any Real Estate. Section 5.15 of the Disclosure
Schedule sets forth a list of Real Estate currently leased in
whole or in part by the Company or any Subsidiary. Except as set
forth in Section 5.15 of the Disclosure Schedule, the Company
enjoys quiet and peaceful possession of all leased properties.
The tangible properties of the Company are adequate for the
business of the Company and its Subsidiaries as conducted in
accordance with past practices.
5.16. Licenses, Franchises, Etc. The Company and each of
its Subsidiaries has all licenses, franchises, permits or
authorizations required in connection with the operations of the
Company and each of its Subsidiaries as presently conducted,
except to the extent that the absence of any requisite license,
franchise, permit or authorization, individually or in the
aggregate, is not reasonably likely to have a Material Adverse
Effect. No material license, franchise, permit or authorization
held by the Company or any of its Subsidiaries will be terminated
or impaired by reason of the Merger, which termination or
impairment, individually or in the aggregate, is reasonably
likely to have a Material Adverse Effect.
5.17. Information Statement and Applications. When the
Information Statement is mailed to the holders of Company Shares,
such Information Statement, with respect to all information set
forth therein furnished by the Company with respect to this
Agreement, shall comply in all material respects with the
provisions (to the extent applicable) of the Exchange Act. The
information furnished by the Company in respect of the
Information Statement as filed with the SEC under the Exchange
Act will not contain any untrue statement of any material fact or
omit to state a material fact required to be stated therein
necessary to make the statements contained therein not
misleading.
5.18. Powers of Attorney, Etc. No power of attorney or
similar authorization given by the Company is presently
outstanding other than powers of attorney given in the ordinary
course of business with respect to routine matters.
5.19. Contracts and Leases. Section 5.19 of the Disclosure
Schedule contains a current and complete list of all Contracts
and Leases by which the Company is bound as of the date hereof
and identifies all such Contracts and Leases to which any
Affiliate is a party. Each of the Contracts and Leases is valid
and in full force and effect and there exists no material default
or event of default or occurrence, condition, commitment or act
(including the consummation of the Merger) which would, with the
passage of time or the giving of notice or both, cause a default
thereunder which would have a Material Adverse Effect. Except as
set forth in Section 5.19 of the Disclosure Schedule, to the
knowledge of management of the Company, all of the material
covenants to be performed by each other contracting party under
all such Contracts and Leases have been fully performed.
5.20. Accounts Payable; Accrued Expenses; Prepaid Expenses.
Each of the trade accounts payable of the Company was incurred in
the ordinary course of the Company's business. Except as
disclosed in Section 5.20 of the Disclosure Schedule or as
reserved for in
-17-
the financial statements appearing in the Company Reports, all
material accrued expenses of the Company which would be
required to be reported in the Company's financial statements
on the date of this Agreement if such statements were prepared
as of such date, were incurred in the ordinary course of the
business. Each of the Company's prepaid expenses was incurred
in the ordinary course of the Company's business.
5.21. Compliance with Laws. Except as set forth in Section
5.21 of the Disclosure Schedule, neither the Company nor any
Subsidiary has, within the three (3) year period prior to the
date of this Agreement, received any notice of any material
violation of any material law, rule, regulations, order,
judgment, writ or decree of any court or any governmental agency
or instrumentality. Except as set forth in Section 5.21 of the
Disclosure Schedule, the Company and each Subsidiary are in
compliance in all material respects with all applicable federal,
state, local and foreign laws, regulations, orders, judgments and
decrees, including, without limitation, matters relating to the
environment, antitrust and anticompetitive practices,
discrimination, employment and employment practices, wage and
hour, health and safety matters and matters covered by ERISA and
other laws regarding employee benefit matters.
5.22. Insurance. Section 5.22 of the Disclosure Schedule
sets forth a correct and complete list of all policies of
insurance and self insurance arrangements maintained by the
Company as of the date hereof. The Company's insurance policies
are valid and in full force and effect and shall remain in full
force and effect following the Closing without impairment or
increase in premium as a result of the consummation of the
Merger.
5.23. Environmental Matters. Except as set forth in
Section 5.23 of the Disclosure Schedule:
(a) during and, to the knowledge of management of
the Company, prior to the period of the Company's or a
Subsidiary's ownership or use thereof, all properties owned or
used by the Company and the Subsidiaries have been maintained,
and all activities of the Company and the Subsidiaries have been
conducted, in compliance with all federal, state and local
environmental laws, rules and regulations, except where any such
failure to be in compliance, individually or in the aggregate,
has not had (except as reflected in the Company Reports filed
prior to the date hereof) and is not reasonably likely to have a
Material Adverse Effect; and the Company and its Subsidiaries are
not liable under any federal, state and local environmental laws,
rules and regulations, except where any such liability,
individually or in the aggregate, has not had (except as
reflected in the Company Reports filed prior to the date hereof)
and is not reasonably likely to have a Material Adverse Effect;
(b) neither the Company nor any of the Subsidiaries
has received written notification from any governmental authority
with respect to current, existing violations or liabilities
relating to the Company or the Subsidiaries of any of the laws
referred to in clause
-18-
(a) above, or pursuant to any of the respective implementing
regulations to such laws, rules or regulations; and
(c) neither the Company nor any of the Subsidiaries
has received written notification (i) from the United States
Environmental Protection Agency that it is a Potentially
Responsible Party under the Comprehensive Environmental Response,
Compensation and Liability Act ("CERCLA") for "removal" or
"remedial" action at a waste site listed on the National
Priorities List to which it sent or arranged for the
transportation or disposal of hazardous waste, or (ii) that it is
liable for contribution for costs incurred by another Person in
taking "removal" or "remedial" action under CERCLA.
5.24. Disclosure. No written statement made in any
schedule or certificate or other document delivered by or on
behalf of the Company to Purchaser or Merger Sub in connection
with this Agreement contains or will contain any untrue statement
of a material fact or omits or will omit to state a material fact
necessary in order to make the statements contained herein or
therein, in light of the circumstances under which they were
made, not misleading.
ARTICLE VI
Representations and Warranties of BJALP
BJALP hereby represents and warrants to Purchaser and Merger
Sub as follows:
6.1. Organization. BJALP is a limited partnership duly
organized, validly existing and in good standing under the laws
of the jurisdiction of its organization, with all requisite power
and authority to own, operate and lease its properties and to
carry on its business as it is now being conducted, and is
qualified or licensed to do business and is in good standing in
each jurisdiction in which it is required to be so licensed or
qualified, except where the failure to be so qualified or
licensed, individually or in the aggregate, has not had and is
not reasonably likely to have a Material Adverse Effect.
6.2. Authority. BJALP has the requisite power and
authority and has taken all action necessary under the BJALP
Limited Partnership Agreement, Certificate of Limited Partnership
and applicable law to execute and deliver this Agreement and the
BJALP Irrevocable Written Consent. This Agreement is a valid and
binding agreement of BJALP enforceable against BJALP in
accordance with its terms.
6.3. Brokers and Finders. Except for the engagement of
Lazard Freres & Co. LLC by BJALP as previously disclosed to the
Purchaser in writing, neither BJALP nor any of its general or
limited partners, officers or employees has employed any broker
or finder or incurred any liability for any brokerage fees,
commissions or finders' fees or any break-up fees or liability
for the expenses of third parties in connection with the
transactions
-19-
contemplated herein.
6.4. BJALP Ownership of Company Shares. As of the date of
this Agreement and the date of the BJALP Irrevocable Written
Consent, BJALP is the record owner of 3,885,105 Company Shares.
ARTICLE VII
Representations and Warranties
of Purchaser and Merger Sub
Purchaser and Merger Sub, jointly and severally, represent
and warrant to the Company as follows:
7.1. Corporate Organization and Qualification. Each of
Purchaser and Merger Sub is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction
of its incorporation and each has the requisite corporate power
and authority to own, operate and lease all of its property and
assets and to carry on its business as now being conducted by it.
7.2. Corporate Authority. Purchaser and Merger Sub each
has the requisite corporate power and authority and has taken all
corporate action necessary to execute and deliver this Agreement
and to consummate the transactions contemplated hereby. This
Agreement is a legal, valid and binding agreement of Purchaser
and Merger Sub enforceable against each of Purchaser and Merger
Sub in accordance with its terms.
7.3. Governmental Filings. Other than the filing of the
Certificate of Merger and the Regulatory Filings, no notices,
reports or other filings are required to be made by Purchaser or
Merger Sub with, nor are any consents, registrations, approvals,
permits or authorizations required to be obtained by Purchaser or
Merger Sub from, any governmental and regulatory authorities of
the United States or the several states in connection with the
execution and delivery of this Agreement by Purchaser and Merger
Sub or the consummation by the Purchaser and Merger Sub of the
transactions contemplated hereby.
7.4. No Violations; Non-Contravention; Requisite Consents.
The execution and delivery of this Agreement by Purchaser or
Merger Sub do not, and the consummation of the transactions
contemplated hereby by Purchaser or Merger Sub will not,
constitute or result in (i) a breach or violation of, or a
default under, or the obligation to obtain the consent or
approval of any Person pursuant to, the Certificate of
Incorporation or bylaws of Purchaser or Merger Sub; or (ii) a
breach or violation of, or a default under, or the acceleration
of, or the creation of a material lien, pledge, security interest
or other encumbrance on assets (with or without the giving of
notice or the lapse of time or both) pursuant to any provision of
any agreement, lease, contract, note, mortgage, indenture,
arrangement or other obligation of
-20-
Purchaser or Merger Sub, or any law, rule, ordinance or
regulation or judgment, decree, order, award or governmental
or non-governmental permit or license to which Purchaser or
Merger Sub is subject.
7.5. Litigation. There is no action, suit, proceeding at
law or in equity by any person, or any arbitration or any
administrative or other proceeding by or before (or, to the
knowledge of management of the Purchaser or Merger Sub, any
investigation by) any governmental or other instrumentality or
agency, pending, or, to the knowledge of management of the
Purchaser or Merger Sub, threatened, against or affecting the
Purchaser or Merger Sub, which is reasonably likely to materially
and adversely affect the Purchaser's or Merger Sub's ability to
perform its obligations hereunder or the transactions
contemplated hereby.
7.6 Purchaser's Investigation. Purchaser is an informed
and sophisticated purchaser and has engaged expert advisors
experienced in the evaluation and purchase of companies such as
the Company. Purchaser has undertaken such investigation as it
has deemed necessary to enable it to make an informed and
intelligent decision with respect to this Agreement and the
transactions contemplated hereby. To the extent expressly
permitted hereafter under this Agreement, Purchaser may undertake
such further investigation as it deems necessary. Purchaser
acknowledges that in entering into this Agreement and in
consummating the other transactions contemplated herein,
Purchaser has relied solely upon its own investigation analysis
and, to the extent expressly permitted by this Agreement, the
representations and warranties contained in this Agreement.
Except in the case of fraud, intentional misstatement or
intentional omission, neither the Company nor BJALP (nor any of
their agents, officers, directors, employees, affiliates or
representatives) shall have any liability to Purchaser or Merger
Sub (or any of their respective agents, officers, directors,
employees, affiliates or representatives) to the extent based
upon any information made available or statements made to
Purchaser or Merger Sub (or any of there respective agents,
officers, directors, employees, affiliates or representatives),
including, without limitation, the representations and warranties
set forth in this Agreement.
ARTICLE VIII
Covenants
8.1 Interim Operations of the Company. The Company
covenants and agrees that, prior to the Effective Time, the
business of the Company and its Subsidiaries shall be conducted
diligently, in compliance with all applicable laws and only in
the ordinary and usual course and, to the extent consistent
therewith, the Company shall use its best efforts to preserve its
business organization intact, to maintain its existing relations
with customers, suppliers, employees and business associates and
to keep available the services of its present officers, agents
and employees (nothing herein implying any obligation on the part
of the
-21-
Company to maintain or retain any particular officer, agent or
employee). Without limiting the generality of the foregoing,
and except as otherwise expressly provided in this Agreement,
prior to the Effective Time or the termination of this
Agreement, whichever first occurs, the Company will not, and
will not permit its Subsidiaries to, without the prior written
consent of Purchaser:
(a) amend its Certificate of Incorporation or
bylaws;
(b) split, combine or reclassify the outstanding
Company Shares;
(c) declare, set aside or pay or make any dividend
or distribution payable in cash, stock, right or property with
respect to the Company Shares or adopted any form of stockholder
rights plan;
(d) issue, sell, pledge, dispose of or encumber any
additional shares of, or securities convertible or exchangeable
for, or options, warrants, calls, commitments or rights of any
kind to acquire, any shares of its capital stock of any class of
the Company or its Subsidiaries, or any other property or assets
other than Company Shares issuable pursuant to options
outstanding on the date hereof under any of the Stock Option
Plans or upon conversion of any of the Convertible Debentures;
(e) transfer, lease, license, sell, mortgage,
pledge, dispose of (other than the disposal of inventory in the
ordinary course of business) or encumber any assets with a value
in excess of $100,000 in the aggregate for all such transactions
(unless such assets are worn-out or obsolete), or incur or modify
any liability or obligation other than in the ordinary and usual
course of business or extend any loan, advance, guaranty or
indemnification where the effect of such would be, in the
aggregate, material to the Company and the Subsidiaries taken as
a whole;
(f) acquire directly or indirectly by redemption or
otherwise any shares of the capital stock of the Company;
(g) authorize additional capital expenditures not
provided for in Section 8.1 of the Disclosure Schedule in excess
of $50,000 in the aggregate, or make acquisition of, or
investment in, the assets or stock of any other Person;
(h) (i) grant any severance or termination pay to,
or enter into or modify any employment, sales agency, change of
control or severance agreement with, any director or officer of
the Company or any Subsidiary, or (ii) grant any severance or
termination pay to any other employee of the Company or any
Subsidiary other than pursuant to existing plans or policies of
the Company or its Subsidiaries set forth in Section 5.11 of the
Disclosure Schedule or otherwise consistent with past practice,
or (iii) enter into or modify in any respect any change of
control agreement with any other such employee of the Company or
any
-22-
Subsidiary, or (iv) enter into or modify in any material
respect any employment or sales agency agreement with any other
such employee of the Company or any Subsidiary other than in the
ordinary course of business and consistent with past practices;
and the Company shall not establish, adopt, enter into or amend
in any material respect any plan or arrangement which is or would
constitute an Employee Benefit Plan hereunder for the benefit of
any directors, officers or employees or increase in any material
manner the compensation or fringe benefits of any director,
officer or employee, in any case not required by an existing plan
or arrangement, or pay any benefit not required by any existing
Employee Benefit Plan;
(i) settle or compromise any claim or litigation
involving amounts in excess of $50,000 other than claims relating
directly to returns, credits or allowances settled in the
ordinary course of business, or, except in the ordinary and usual
course of business, modify, amend or terminate any of the
Contracts or Leases, or waive, release or assign any material
rights or claims;
(j) make any tax election or permit any insurance
policy naming the Company as a beneficiary or a loss payable
payee to be cancelled or terminated without notice to Purchaser,
except in the ordinary and usual course of business;
(k) file any registration statement with the SEC or
with any blue sky authority relating to the capital stock or
other securities of the Company or file an application for
quotation with The National Association of Securities Dealers,
Inc. (the "NASD") or listing with any national securities
exchange;
(l) engage in any sale/leaseback transactions other
than in the ordinary and usual course of business;
(m) except as otherwise contemplated by Section 4.2
of this Agreement, make any grants of stock options under, or
extend or accelerate the vesting schedule of any of its stock
options granted pursuant to, any of the Stock Option Plans or any
other Employee Benefit Plan;
(n) except to the extent permitted by Section 8.2,
agree to, directly or indirectly, merge or consolidate with,
purchase substantially all of the assets of, have substantially
all of the Company's assets purchased or otherwise acquire or be
acquired by any Person; or
(o) take, or agree in writing or otherwise to take,
any of the foregoing actions, or any action which is reasonably
likely to prevent the satisfaction of any condition to closing
set forth in Article IX hereof, or which would make any
representation or warranty of the Company contained in this
Agreement untrue or incorrect, as of the date when made, such
that, individually or in the aggregate, it is reasonably likely
that there shall be a Material Adverse Effect.
-23-
8.2. Acquisition Proposals. (a) Prior to the termination
of this Agreement, the Company and BJALP will not, and will cause
their respective directors, officers, employees, representatives
or agents not to, directly or indirectly, solicit or initiate any
discussions, submissions of proposals or offers or negotiations
with, or, participate in any negotiations or discussions with, or
provide any information or data of any nature whatsoever to, or
otherwise cooperate in any way with, or assist or participate in,
facilitate or encourage any effort or attempt to buy on the part
of, any Person other than Purchaser, Merger Sub and their
respective stockholders, employees, representatives, agents and
Affiliates, concerning any Substantial Transaction; provided,
however, that nothing contained in this Agreement shall prevent
the Company or its Board of Directors from (A) participating in
any negotiations or discussions with or providing any information
to any Person in response to an unsolicited bona fide written
acquisition proposal (an "Acquisition Proposal") by any such
Person; or (B) recommending such an unsolicited bona fide written
Acquisition Proposal to the stockholders of the Company, if and
only to the extent that, in each such case referred to in clauses
(A) and (B), (i) the Board of Directors of the Company believes
in good faith (after consultation with its financial advisor)
that such Acquisition Proposal would, if consummated, result in a
transaction more favorable to BJALP and the Company's other
stockholders from a financial point of view than the transaction
contemplated by this Agreement (any such more favorable
Acquisition Proposal being referred to in this Agreement as a
"Superior Proposal") and the Board of Directors of the Company
determines in good faith after consultation with outside legal
counsel that such action is necessary for the Company and its
Board of Directors to comply with their respective fiduciary
duties to stockholders under applicable law and (ii) prior to
providing any information or data to any Person in connection
with an Acquisition Proposal by any such Person, the Board of
Directors of the Company receives from such Person an executed
confidentiality agreement on terms substantially similar to those
contained in the Confidentiality Agreement; or (C) complying with
Rule 14e-2 promulgated under the Exchange Act with regard to an
Acquisition Proposal.
(b) The Company or BJALP, as applicable, shall
immediately notify Purchaser and Merger Sub if any proposal,
offer, inquiry or other contact is received by, any information
is requested from, or any discussions or negotiations are sought
to be initiated or continued with, the Company in respect of a
Substantial Transaction, and shall, in any such notice to
Purchaser and Merger Sub, indicate the identity of the offeror
and the terms and conditions of any proposals or offers or the
nature of any inquiries or contacts and thereafter shall keep
Purchaser and Merger Sub informed, on a current basis, of the
status and terms of any such proposals or offers and the status
of any such discussions or negotiations. The Company and BJALP
shall immediately cease any existing discussions with any Person
relating to a Substantial Transaction and inform any inquiring
party of the existence of this Agreement and of the obligations
of the Company and BJALP hereunder. The Company and BJALP shall
not release any third party from, or waive any provision of, any
confidentiality or standstill agreement to which the Company or
BJALP is a party.
8.3. Approval by the Company's Stockholders. (a) Subject
to the last
-24-
sentence of this subparagraph (a), the Company will take all
action necessary in connection with the BJALP Irrevocable
Written Consent (including the completion and mailing of the
Information Statement) in accordance with the DGCL and its
Certificate of Incorporation and bylaws and otherwise to
notify the holders of Company Shares as promptly as
practicable of the approval of this Agreement and the Merger.
The record date for purposes of determining the holders of
record entitled to consent to the Merger pursuant to this
subparagraph (a) shall be as determined pursuant to Section
213(b) of the DGCL without any action being taken by the
Company or its Board of Directors with respect to setting such
record date. Notwithstanding the foregoing and
notwithstanding any other provision of this Agreement to the
contrary, to the extent the Company is unable or it becomes
reasonably impractical for the Company, pursuant to the rules
and regulations of the SEC and/or of the National Association
of Securities Dealers Automated Quotation System ("NASDAQ") to
obtain the requisite stockholder approval for this Agreement
and the Merger, by means of the BJALP Irrevocable Written
Consent and as contemplated by this subparagraph, the Company
shall and shall be entitled to seek to obtain such stockholder
approval pursuant to subparagraph (b) below.
(b) To the extent required as contemplated by the
last sentence of subparagraph (a) above, the Company will take
all action necessary (including the completion and mailing of the
Information Statement) in accordance with the DGCL and its
Certificate of Incorporation and bylaws to convene a meeting of
holders of Company Shares as promptly as practicable to consider
and vote upon the approval of this Agreement and the Merger. To
the extent the Company shall determine it to be necessary or
appropriate, in respect of any such meeting, to solicit proxies
in order to obtain the requisite stockholder approval, such
solicitation shall be made in accordance with Regulation 14A of
the SEC and the Company's proxy statement in respect thereof
shall, for all purposes hereunder, be deemed to constitute the
Information Statement. Subject to fiduciary requirements of
applicable law, in the event of such a proxy solicitation, the
Board of Directors of the Company shall recommend such approval
and the Company shall use its best efforts to solicit such
approval.
(c) The Information Statement, as of the date that
it is first mailed to the Company's stockholders, will not
include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading; provided, however, that the
foregoing shall not apply to the extent that any such untrue
statement of a material fact or omission to state a material fact
was made by the Company in reliance upon information concerning
the Purchaser and Merger Sub furnished to the Company by
Purchaser or Merger Sub specifically for use in the Information
Statement. Following any such meeting of the Company's
stockholders described in this Section 8.3, the Secretary of the
Corporation shall certify to the Purchaser and Merger Sub the
number of Company Shares voting to approve this Agreement and the
Merger and the number of Company Shares held by Dissenting
Stockholders, if any.
(d) Neither a preliminary nor a definitive
Information Statement shall be
-25-
filed, and no amendment or supplement to a preliminary or
definitive Information Statement will be made by the Company,
without consultation with Purchaser and its counsel. The
Information Statement shall contain the notices and other
information required by Section 228(d) and 262(d)(2) of the
DGCL as applicable.
8.4. Filings; Other Action. Subject to the terms and
conditions herein provided, the Company, Purchaser and Merger Sub
shall: (a) as soon as practicable after the date hereof make
their respective filings and thereafter make any other required
submissions under the Regulatory Filings with respect to the
Merger; and (b) use all reasonable efforts to cooperate with each
other and as soon as practicable take, or cause to be taken, all
other action and do, or cause to be done, all other things
necessary, proper or appropriate under this Agreement and all
applicable laws and regulations to consummate and make effective
the transactions contemplated by this Agreement as soon as
practicable, including (i) with respect to the Company, promptly
completing the Information Statement, submitting it to the SEC
for its review, and addressing the SEC's comments thereon and
seeking to obtain satisfaction of the condition set forth in
Section 9.1(i) hereof, (ii) with respect to all parties, promptly
furnishing any information required in connection with the
preparation of all necessary documents, the preparation of all
filings, and the obtaining of all required consents under
Regulatory Filings and any other approvals or consents required
to consummate the transaction contemplated hereby, and (iii) with
respect to Purchaser, proffering its willingness to sell or hold
separate and agree to sell such assets or businesses of the
Company as, in Purchaser's good faith judgment, shall become
necessary in order to consummate the Merger (the "Section 8.4
Offer"); provided, however, that nothing in this Section 8.4
shall require, or be construed to require, Purchaser or any of
its Affiliates to proffer to, or agree to, sell or hold separate
and agree to sell any assets, businesses, or interests in any
such assets or businesses of Purchaser or any of its Affiliates.
8.5. Access; Confidentiality. Upon reasonable notice, the
Company shall afford Purchaser's and Merger Sub's officers,
employees, counsel, accountants and other authorized
representatives access, during reasonable business hours
throughout the period prior to the Effective Time, to its
premises, officers, employees, agents, representatives,
properties, books, contracts, leases and records and, during such
period, the Company shall furnish promptly to Purchaser all
information concerning its business, properties and personnel as
Purchaser may reasonably request for the purpose of conducting a
complete and thorough investigation and review of the Company's
business and properties; provided, however, that no investigation
pursuant to this Section 8.5 shall affect or be deemed to modify
any representation or warranty made by the Company or BJALP
hereunder. The terms and conditions of the Confidentiality
Agreement are hereby ratified and confirmed and shall remain in
full force and effect.
8.6. Notification of Certain Matters. The Company and
BJALP shall give prompt notice to Purchaser and Merger Sub of:
(a) any occurrence or notice of, or other communication relating
to, a default or event that, with the giving of notice or the
lapse of
-26-
time or both, would or could become a default under the
Agreement or cause a breach of any representation or warranty
or any Contract or Lease; and (b) any change which results or
which, so far as reasonably can be foreseen at the time of its
occurrence, is reasonably likely to result in a Material
Adverse Effect. Each of the Company and Purchaser shall give
prompt notice to the other party of any notice or
communication from any third party alleging that the consent
of such third party is or may be required in connection with
the transactions contemplated by this Agreement.
8.7. Publicity. The Company and Purchaser shall consult
with each other in connection with and shall endeavor to agree
upon the content and timing of any press releases or other public
statements with respect to the transactions contemplated hereby
and in making any filings with any federal or state governmental
or regulatory agency or with any national securities exchange
with respect thereto. The parties hereto shall not issue any
such press release or make any such public statement or filing
prior to such consultation, except as may be required by law or
by obligations pursuant to any listing agreement with the NASD.
In the event the parties are unable to agree on a public
statement or announcement and either the Company or the Purchaser
determines, after consultation with their respective counsel,
that such statement or announcement is required by law or
otherwise appropriate, then the Company or the Purchaser, as the
case may be, may issue such statement or announcement.
8.8. Expenses. Each of the Company, the Purchaser and the
Merger Sub shall pay its own expenses incident to the
transactions contemplated hereby, including all fees of
attorneys, brokers, finders, accountants and financial advisors.
8.9. Transmittal to Optionholders. Promptly after the
execution of this Agreement, the Company shall mail to each
person who is a holder of outstanding stock option(s) granted
pursuant to any of the Stock Option Plans (regardless of whether
such stock options are vested or exercisable at the time) a
letter in a form acceptable to Purchaser which describes the
treatment of and payment for such options pursuant to Section 4.2
and provides instructions for use in obtaining payment for such
options pursuant to Section 4.2. Each such holder shall sign a
release by which the holder effectively relinquishes all rights
with respect to all outstanding stock options issued pursuant to
any of the Stock Option Plans upon payment therefor in accordance
with Section 4.2 in connection with the Closing.
8.10. Redemption of Convertible Debentures. At the
Effective Time, the Surviving Corporation shall take all
requisite actions in accordance with the terms of the Indenture
to redeem all of the then outstanding Convertible Debentures,
such redemption to be effective 30 days after the Effective Time,
subject to the conversion rights of the holders of the
Convertible Debentures under the Indenture.
8.11. Approval of Merger by BJALP; Granting of Options.
(a) Contemporaneously with the execution and delivery of this
Agreement, (i) the Company shall enter into the Company Stock
Option Agreement substantially in the form attached hereto as
-27-
Annex 8.11(a)(i) granting the Purchaser the right to purchase
1,376,000 Company Shares and (ii) BJALP shall, and BJALP shall
cause OPUBCO to, enter into the BJALP Stock Option Agreement
substantially in the form attached hereto as Annex 8.11(a)(ii)
granting the Purchaser the right to purchase 3,885,105 Company
Shares, representing all of the Company Shares owned by BJALP.
(b) Immediately following the execution of this
Agreement or at such other time as Purchaser may reasonably
request, BJALP shall deliver to the Company at its principal
place of business the BJALP Irrevocable Written Consent,
substantially in the form attached hereto as Annex 8.11(b), such
delivery to be as described in such BJALP Irrevocable Written
Consent, thereby consenting to the adoption of this Agreement;
provided, however, that to the extent it shall become necessary
for the Company to seek to obtain stockholder approval of this
Agreement and the Merger pursuant to the provisions of Section
8.3(b) hereof, BJALP hereby irrevocably agrees that, in lieu of
the BJALP Irrevocable Written Consent, it shall vote the
3,885,105 Company Shares owned by BJALP in favor of approval of
this Agreement and the Merger at the meeting of stockholders
called for such purpose as contemplated by Section 8.3(b).
8.12. Survival of Indemnification Obligations. The
Purchaser and Merger Sub hereby acknowledge and agree that they
will cause the Surviving Corporation to (i) maintain for six (6)
years after the Effective Time all indemnification obligations
currently owed by the Company to its directors and officers in
respect of events occurring on or prior to the Effective Time to
the extent that the Company owed such indemnification obligations
prior to the Effective Time pursuant to the terms of the
Company's Certificate of Incorporation, bylaws or the DGCL, and
(ii) maintain directors' and officers' liability insurance
comparable to that currently maintained by the Company with
respect to actions prior to the Effective Time for a period of
two years following the Effective Time; provided, however, that
the Purchaser will not be required to maintain or obtain policies
providing such coverage except to the extent that such coverage
can be provided at an annual cost no greater than $80,000, and
provided further that if the Purchaser shall be unable to
maintain or obtain such insurance coverage as called for by this
Section, the Purchaser will maintain or obtain for such two year
period as much comparable insurance as shall be available for
$80,000 per year. The provisions of this Section 8.12 shall
survive the Effective Time and shall be enforceable by the
beneficiaries of such indemnification rights.
8.13 Funding. The Purchaser and Merger Sub hereby
acknowledge and agree that as of the Closing Date, Purchaser and
Merger Sub will have available sufficient funding to enable
Purchaser and Merger Sub to consummate the transactions
contemplated by this Agreement and otherwise to perform all their
respective obligations under this Agreement.
8.14. Takeover Statute. The Board of Directors of the
Company has taken all appropriate action to exempt the
transactions contemplated by this Agreement, the Company Stock
Option Agreement, and the BJALP Stock Option Agreement from
Section 203 of the
-28-
DGCL ("Section 203"). Without limiting the
generality of the foregoing, the Company hereby acknowledges and
agrees that the approval of this Agreement by the Board of
Directors of the Company constitutes, for purposes of subsection
(a)(1) of Section 203, approval of (a) the "business combination"
(as defined in Section 203) contemplated by this Agreement, the
Company Stock Option Agreement and the BJALP Stock Option
Agreement, and (b) the transactions whereby Purchaser and, as
applicable, the Merger Sub may become "interested stockholders"
(as defined in Section 203) of the Company, including the
execution and delivery of the Company Stock Option Agreement and
the BJALP Stock Option Agreement.
8.15. Fairness Opinion. On or immediately prior to the
date hereof, the Company shall have received an opinion from an
investment banking firm in form and substance reasonably
satisfactory to the Company, that the Merger Consideration to be
received by the holders of Company Shares pursuant to the Merger
is fair to such holders from a financial point of view.
8.16. SLBJ and SLM Option Agreement. The Company shall not
obtain any release of the optionee's rights under the SLBJ and
SLM Option Agreement, dated September 28, 1986, as amended,
between Xxxx X. Xxxxxxx and Xxxxx Xxxxxxx (as assignees of Xxxx
Xxxxxxx, the "Optionee") and Business Journal Publications
Corporation, a wholly-owned Subsidiary of the Company or
otherwise effect any buy out of the Optionee's rights thereunder
without obtaining the prior written consent of the Purchaser.
ARTICLE IX
Conditions
9.1. Conditions to Obligations of the Company. The
obligation of the Company to consummate the Merger is subject to
the fulfillment of each of the following conditions, any or all
of which may be waived in whole or in part by the Company to the
extent permitted by applicable law:
(a) this Agreement shall have been duly approved
by the holders of a majority of the outstanding Company
Shares, in accordance with applicable law and the Company's
Certificate of Incorporation and bylaws;
(b) the waiting period applicable to the
consummation of the Merger under the HSR Act shall have
expired or been terminated and, other than the filing of the
Certificate of Merger, all Regulatory Filings and other
filings required to be made prior to the Effective Time by the
Company with, and all consents, approvals and authorizations
required to be obtained prior to the Effective Time by the
Company from, governmental and regulatory authorities in
connection with the execution and delivery of this Agreement
by the Company
-29-
and the consummation of the transactions contemplated hereby
by the Company, Purchaser and Merger Sub shall have been made
or obtained (as the case may be);
(c) no United States or state court or
governmental or regulatory authority of competent jurisdiction
shall have enacted, issued, promulgated, enforced or entered
any Order;
(d) the representations and warranties of the
Purchaser and the Merger Sub made in this Agreement shall be
true and correct as of the Closing Date with the same effect
as if made on the Closing Date and the Purchaser and Merger
Sub shall have provided a certificate of an authorized officer
certifying to such effect, provided that the condition set
forth in this subparagraph (d) shall be deemed to have been
satisfied unless the matter, development or event causing such
representations and warranties not to be true and correct as
of the Closing Date, individually or in the aggregate,
has had or is reasonably likely to have a material adverse effect
on the Company and its stockholders;
(e) the Purchaser and Merger Sub shall have
performed and complied in all material respects with all
obligations and covenants required to be performed and
completed by them under this Agreement at or prior to the
Effective Time and the Purchaser and the Merger Sub shall have
provided a certificate of an authorized officer certifying to
such effect;
(f) the Company shall have received from the
Purchaser and the Merger Sub the opinion of Xxxxx, Xxxxxxx &
Xxxxx in a form reasonably satisfactory to the Company;
(g) the Purchaser and Merger Sub shall have
provided the Company with certified copies of the resolutions
duly adopted by the respective Boards of Directors of the
Purchaser and Merger Sub, and by Purchaser as the sole
stockholder of Merger Sub, approving this Agreement and the
consummation of the transactions contemplated hereby; and
(h) the Paying Agent shall have provided a
certificate to the Company certifying that the Purchaser and the
Merger Sub have transferred the requisite funds to the Paying
Agent pursuant to Section 4.3(a).
9.2. Conditions to Obligations of Purchaser and
Merger Sub. The obligation of Purchaser and Merger Sub to
consummate the Merger is subject to the fulfillment of the
following conditions, any or all of which may be waived in whole
or in part by Purchaser or Merger Sub, as the case may be, to the
extent permitted by law:
(a) this Agreement shall have been duly approved
by the holders of a majority of the outstanding Company
Shares, in accordance with applicable law and the Company's
Certificate of Incorporation and bylaws and as contemplated by
Section 8.3;
-30-
(b) the waiting period applicable to the
consummation of the Merger under the HSR Act shall have
expired or been terminated and all Regulatory Filings and
other filings required to be made prior to the Effective Time
by the Company with, and all consents, approvals and
authorizations required to be obtained prior to the Effective
Time by the Company from, governmental and regulatory
authorities in connection with the execution and delivery of
this Agreement by the Company and the consummation of the
transactions contemplated hereby by the Company, Purchaser and
Merger Sub shall have been made or obtained (as the case may
be);
(c) (i) no United States or state court or
governmental or regulatory authority of competent jurisdiction
shall have enacted, issued, promulgated, enforced or entered
an Order and (ii) no governmental or regulatory authority,
agency, department or commission shall have instituted any
action, suit or proceeding, or, with respect to any such
authority, agency, department or commission validly exercising
jurisdiction over the transaction with respect to antitrust
considerations, threatened to institute any action, suit or
proceeding, seeking (A) an Order or (B) to impose on the
Company, Purchaser, Merger Sub or any of their respective
Affiliates, any terms or conditions that in the good faith
judgment of the Board of Directors of the Purchaser are
reasonably likely to adversely affect in any significant
manner the economic benefits of the transactions contemplated
by this Agreement to the Purchaser and its stockholders;
provided, however, that clause (ii) of this Section 9.2(c)
shall not be available to Purchaser if it shall not have made
the Section 8.4 Offer prior to its seeking to delay the
Closing on the basis of such condition;
(d) the representations and warranties of the
Company made in this Agreement shall be true and correct as of
the Closing Date with the same effect as if made on the
Closing Date and the Company shall have provided a certificate
of an authorized officer certifying to such effect, provided
that the condition set forth in this subparagraph (d) shall be
deemed to have been satisfied unless the matter, development
or event causing such representations and warranties not to be
true and correct as of the Closing Date, individually or in
the aggregate, has had or is reasonably likely to have a
Material Adverse Effect;
(e) the Company shall have performed and complied
in all material respects with all obligations and covenants
required to be performed or completed by it under this Agreement
at or prior to the Effective Time and the Company shall have
provided a certificate of an authorized officer certifying to
such effect;
(f) no Material Adverse Effect shall have occurred
on or prior to the Closing Date;
(g) the Company shall have obtained all Requisite
Consents and provided satisfactory evidence thereof to the
Purchaser and Merger Sub;
(h) the Company shall have provided the Purchaser
with certified copies
-31-
of the resolutions of the Board of Directors and of the
minutes and record of the vote of the Company's stockholders
authorizing the execution, delivery and performance of this
Agreement in accordance with the terms hereof;
(i) the Company shall have delivered to the
Purchaser a certificate of good standing issued by the
secretary of state of the State of Delaware and a certificate
of qualification of good standing in each of the states in
which the Company is required to be qualified to transact
business issued by the secretary of state or other appropriate
authority of each such state, except where the failure to be
so qualified would not have a Material Adverse Effect, in each
case dated no more than thirty days in advance of the Closing;
(j) Purchaser and Merger Sub shall have received
the opinion of Xxxxxxx X. Xxxx, Esq. in a form reasonably
satisfactory to the Purchaser;
(k) Purchaser and Merger Sub shall have received
the opinion of Parker, Poe, Xxxxx & Xxxxxxxxx L.L.P. in a form
reasonably satisfactory to the Purchaser; and
(l) There shall be no more than fifteen percent
(15%) of the total issued and outstanding Company Shares (taking
account of all Company Shares issued pursuant to Stock Options
and the Convertible Debentures) which shall have exercised
appraisal rights pursuant to Section 262 of the DGCL.
ARTICLE X
Termination
10.1. Termination by Mutual Consent. This Agreement may be
terminated and the Merger may be abandoned at any time prior to
the filing of the Certificate of Merger, before or after approval
by the holders of Company Shares, by the mutual consent of
Purchaser, the Merger Sub and the Company.
10.2. Termination by Either Party. This Agreement may
be terminated and the Merger may be abandoned by either Purchaser
or the Company if (i) the Merger shall not have been consummated
by December 31, 1995 (unless the failure to consummate the Merger
by such date is due to a breach or violation of this Agreement by
the party seeking to terminate), (ii) any permanent Order shall
have become final and non-appealable, or (iii) there has been a
material breach by either Purchaser or the Company of any of its
covenants or obligations set forth in this Agreement, but such
termination shall not be effective unless and until the
non-breaching party has given written notice to the breaching
party of such breach and of its intention to terminate this
Agreement in accordance with the provisions hereof and the
breaching party fails to cure such breach within ten (10)
calendar days following such notice.
-32-
10.3. Termination by Company. This Agreement may be
terminated and the Merger may be abandoned by the Company at any
time prior to the filing of the Certificate of Merger, before or
after the approval by holders of Company Shares, if (i) the
Company is not in material breach of any of the terms of this
Agreement, (ii) the Board of Directors of the Company approves,
and the Company enters into, a binding written agreement
concerning a Substantial Transaction which constitutes a Superior
Proposal and (iii) the Board of Directors of the Company prior to
such termination determines in good faith that approval,
acceptance or recommendation of such Superior Proposal is
required by fiduciary obligations under applicable law. Any
termination pursuant to this Section 10.3 by action of the
Company's Board of Directors shall be effective upon written
notice to the Purchaser, but only if the Purchaser receives a
separate written notification at least three (3) business days
prior to entering into such a binding written agreement of the
Company's possible intention to enter into such agreement, which
notice shall set forth the terms of any such Superior Proposal
(it being agreed that the Company shall give immediate notice to
Purchaser should such intention change at any time after the
giving of such notification).
10.4. Termination by Purchaser and Merger Sub. This
Agreement may be terminated by the Purchaser if (i) BJALP fails
to deliver to the Company the BJALP Irrevocable Written Consent
substantially in the form attached hereto as Annex 8.11(b)
promptly after being requested to do so by Purchaser; (ii) a
United States or state court or governmental or regulatory
authority of competent jurisdiction shall have enacted, issued,
promulgated, enforced or entered an Order; (iii) a governmental
or regulatory authority, agency, department or commission shall
have instituted any action, suit or proceeding seeking (A) an
Order or (B) to impose on the Company, Purchaser, Merger Sub or
any of their respective Affiliates, any terms or conditions that
in the good faith judgment of the Board of Directors of the
Purchaser are reasonably likely to adversely affect in any
significant manner the economic benefits of the transactions
contemplated by this Agreement to the Purchaser and its
stockholders; provided, however, Purchaser shall not be entitled
to terminate the Agreement pursuant to clauses (ii) or (iii) of
this Section 10.4 if prior to the entering of such Order or
institution of such action, suit or proceeding referred to in
clause (iii) it shall not have made the Section 8.4 Offer; or
(iv) (A) the Company or any other Persons described in Section
8.2(a) shall engage in any negotiations or provide any
confidential information concerning the Company to any Person
that would be prescribed by Section 8.2(a) but for the proviso
therein allowing certain actions to be taken if required by
fiduciary duties under applicable law as advised by outside legal
counsel, and (B) the Purchaser has not exercised an option under
either the BJALP Stock Option Agreement or the Company Stock
Option Agreement.
10.5. Effect of Termination and Abandonment. In the event
of termination of this Agreement and abandonment of the Merger
pursuant to this Article X, no party hereto (or any of its
directors or officers) shall have any liability or further
obligation to any other party to this Agreement, except as
provided in Section 8.8 and except that nothing will relieve any
party from liability for any breach of this Agreement.
-33-
ARTICLE XI
Miscellaneous
11.1. Survival. The representations, warranties,
agreements, and covenants in this Agreement shall not survive the
consummation of the Merger or the termination of this Agreement,
except that the agreements set forth in Sections 8.10, 8.12 and
11.11 hereof shall survive the consummation of the Merger and
except that the agreement set forth in Section 8.8 hereof shall
survive termination.
11.2. Modification or Amendment. Subject to the applicable
provisions of the DGCL, at any time prior to the filing of the
Certificate of Merger, the parties hereto may modify or amend
this Agreement only by written agreement executed and delivered
by duly authorized officers of the respective parties.
11.3. Waiver of Conditions. The conditions to each of the
parties' obligations to consummate the Merger are for the sole
benefit of such party and may be waived by such party in whole or
in part to the extent permitted by applicable law.
11.4. Counterparts. This Agreement may be executed in any
number of counterparts, and any such counterpart hereof shall be
deemed to be an original instrument, but all such counterparts
together shall constitute but one agreement.
11.5. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of
Delaware, without giving effect to the principles of conflicts of
laws thereof.
11.6. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed
to have been duly given, if delivered in person, by overnight
courier, by facsimile transmission, telexed or mailed by
certified or registered mail, postage prepaid, return/receipt
requested, as follows (or at such other address for a party as
shall be specified by like notice; provided that notice of a
change of address shall be effective only upon receipt thereof):
(a) If to Purchaser or Merger Sub:
Advance Publications, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: X.X. Xxxxxxxx, Jr.
Fax: (000) 000-0000
With a copy to:
-00-
Xxxxx, Xxxxxxx & Xxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
And to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
(b) If to the Company:
American City Business Journals, Inc.
000 X. Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, XX 00000
Attention: A. Xxx Xxxx
Fax: (000) 000-0000
With a copy to:
Parker, Poe, Xxxxx & Xxxxxxxxx, L.L.P.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx, Xx., Esq.
Fax: (000) 000-0000
(c) If to BJALP:
Business Journal Associates Limited Partnership
000 X. Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, XX 00000
Attention: A. Xxx Xxxx
Fax: (000) 000-0000
11.7. Obligation of Purchaser. Whenever this Agreement
requires Merger Sub to take any action (including, without
limitation, the making of payment for the Company
-35-
Shares), such requirement shall be deemed to include an
undertaking on the part of Purchaser to cause Merger Sub to
take such action.
11.8. Captions. The Article, Section and paragraph
captions herein are for convenience of reference only, do not
constitute part of this Agreement and shall not be deemed to
limit or otherwise affect any of the provisions hereof.
11.9. Severability. The invalidity or unenforceability of
any provision of this Agreement shall not affect the validity or
enforceability of any other provisions of this Agreement, which
shall remain in full force and effect.
11.10. Entire Agreement; Assignment. This Agreement
(including any schedules, exhibits or annexes hereto) and the
Confidentiality Agreement (i) constitute the entire agreement,
and supersede all other prior agreements, understandings,
representations and warranties both written and oral among the
parties, with respect to the subject matter hereof, (ii) shall
not be assignable by operation of law or otherwise and (iii) are
not intended to create any obligations to, or rights in respect
of, any persons other than the parties hereto; provided, however,
that Purchaser may cause Merger Sub to assign its rights and
obligations hereunder to Purchaser or any subsidiary controlled
by Purchaser, but no such assignment shall relieve Purchaser and
Merger Sub of their obligations hereunder.
11.11. Tax Filing Consistency. The parties agree that
Purchaser's acquisition of the Company through the Merger
constitutes, for income tax purposes, a purchase of the Company's
outstanding stock for cash. The parties agree that all of their
income tax filings relative to the Merger shall be consistent
with a sale of Company stock by its stockholders and a purchase
of Company stock by Purchaser for cash.
-36-
IN WITNESS WHEREOF, this Agreement has been duly executed
and delivered by the duly authorized officers of the parties
hereto on the date first hereinabove written.
AMERICAN CITY BUSINESS JOURNALS, INC.
By: /s/ Xxx Xxxx
Name: Xxx Xxxx
Title: Chief Executive Officer
BUSINESS JOURNAL ASSOCIATES
LIMITED PARTNERSHIP
By: OPUBCO Enterprises, Inc.,
Its general partner
By: /s/ Xxxxxx X. Xxxxxxx
ADVANCE PUBLICATIONS, INC.
By: /s/ X.X. Xxxxxxxx, Jr.
Name: X.X. Xxxxxxxx, Jr.
Title: Chairman
ADVANCE ACQUISITION SUB. INC.
By: /s/ X.X. Xxxxxxxx, Jr.
Name: X.X. Xxxxxxxx, Jr.
Title: President
-37-
Exhibit A
Certificate of Merger
of
Advance Acquisition Sub. Inc.
into
American City Business Journals, Inc.
The undersigned corporation organized and existing under
and by virtue of the General Corporation Law of the State of
Delaware does hereby certify:
FIRST: That the name and state of incorporation of each
of the constituent corporations of the merger is as follows:
Name State of Incorporation
American City Business Journals, Inc. Delaware
Advance Acquisition Sub. Inc. Delaware
SECOND: That an Agreement and Plan of Merger between the
parties to the merger has been approved, adopted, certified,
executed and acknowledged by each of the constituent corporations
in accordance with the requirements of Section 251 of the General
Corporation Law of the State of Delaware. Written consent has been
given in accordance with Section 228 of the General Corporation Law
of the State of Delaware and written notice has been given as
provided in such Section 228.
THIRD: That the name of the surviving corporation of the
merger is American City Business Journals, Inc.
FOURTH: That the certificate of incorporation of American
City Business Journals, Inc., the surviving corporation, shall be
its certificate of incorporation, except that Article Four of the
certificate of incorporation shall be amended to read in its
entirety as follows:
"The aggregate number of shares which the
Corporation shall have authority to issue is 1,000 shares
of Common Stock, par value $1.00 per share."
FIFTH: That the executed Agreement and Plan of Merger is
on file at the principal place of business of the surviving
corporation. The address of the principal place of business of the
surviving corporation is 000 X. Xxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000.
SIXTH: That a copy of the Agreement and Plan of Merger
will be furnished by the surviving corporation, on request and
without cost, to any stockholder of any constituent corporation.
SEVENTH: That this Certificate of Merger shall be
effective as of ____ p.m. Eastern Time on the ___ day of ________,
1995.
AMERICAN CITY BUSINESS JOURNALS, INC.
By: _____________________________________
President
ATTEST:
By: ____________________
Secretary
Annex 8.11(a)(i)
STOCK OPTION AGREEMENT, dated as of August 3, 1995,
(the "Agreement"), among Advance Publications, Inc., a New York
corporation (the "Purchaser"), and American City Business
Journals, Inc., a Delaware corporation (the "Company").
WHEREAS, immediately prior to the execution and
delivery of this Agreement, the Purchaser, Advance Acquisition
Sub. Inc., a Delaware corporation and the wholly-owned subsidiary
of Purchaser (the "Merger Sub"), the Company, and Business
Journal Associates Limited Partnership, a Delaware limited
partnership and the principal stockholder of the Company
("BJALP"), are entering into an Agreement and Plan of Merger,
dated as of the date hereof (the "Merger Agreement"), which
provides, among other things, that at the Effective Time Merger
Sub shall be merged with and into the Company and the separate
corporate existence of the Merger Sub shall thereupon cease (the
"Merger");
WHEREAS, as a condition to their willingness to enter
into the Merger Agreement, the Purchaser and Merger Sub have
requested that the Company grant to the Purchaser an option to
purchase up to 1,376,000 shares of Common Stock, par value $.01
per share, of the Company (the "Common Stock"), upon the terms
and subject to the conditions hereof; and
WHEREAS, in order to induce the Purchaser and Merger
Sub to enter into the Merger Agreement, the Company is willing to
grant the Purchaser the requested option.
NOW, THEREFORE, in consideration of the premises and
the mutual covenants and agreements set forth herein, the parties
hereto agree as follows:
1. The Option; Exercise; Adjustments. Subject to the
terms and conditions hereof, the Company hereby grants to the
Purchaser an irrevocable option (the "Option") to purchase up to
1,376,000 shares of Common Stock (the "Shares") at a purchase
price of $28.00 per Share (the "Purchase Price"). Subject to the
terms and conditions hereof, the Option may be exercised by the
Purchaser, in whole or in part, at any time after the date hereof
and prior to the termination of the Option in accordance with the
terms of this Agreement.
In the event the Purchaser wishes to exercise the
Option, the Purchaser shall send a written notice to the Company
(the "Stock Exercise Notice") specifying a date (subject to the
HSR Act (as defined below), not later than 20 business days and
not earlier than the next business day following the date such
notice is given) for the closing of such purchase. In the event
of any change in the number of issued and outstanding shares of
Common Stock by reason of any stock dividend, stock split, split-
up, recapitalization, merger or other change in the corporate or
capital structure of the Company, the number of Shares and the
Purchase Price shall be appropriately adjusted to restore the
Purchaser to its rights hereunder, including its right to
purchase approximately 19.9% of the capital stock of the Company
entitled to vote generally for the election of the directors of
the Company which is issued and outstanding immediately prior to
the exercise of the Option at an aggregate purchase price of
approximately $38,528,000.
2. Conditions to Exercise of Option and
Delivery of Shares. The Company's obligation to deliver Shares
upon exercise of the Option is subject only to the conditions
that:
(i) No preliminary or permanent injunc-
tion or other order issued by any federal or
state court of competent jurisdiction in the
United States prohibiting the exercise of the
Option and/or the delivery of the Shares
shall be in effect;
(ii) Any applicable waiting periods
under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 0000 (xxx "XXX Xxx")
shall have expired or been terminated; and
(iii) One or more of the following
events shall have occurred on or after the
date hereof: (1) any person, firm,
corporation, partnership, association or
other entity or group, other than the
Purchaser (or an affiliate of the Purchaser)
(such person, firm, corporation, partnership,
association or other entity or group being
referred to hereinafter, singularly or
collectively, as a "Person") shall have
become the beneficial owner of 20% or more of
the shares of Common Stock outstanding at the
time of such acquisition or commenced a
tender or exchange offer for 20% or more of
the outstanding shares of Common Stock; (2)
the Company or BJALP shall have entered into
an agreement, including without limitation an
agreement in principle, providing for or
relating to a merger or other business
combination involving the Company or a
subsidiary of the Company or the acquisition
of Common Stock or a material portion of the
assets, business or operations of the Company
or any subsidiary, other than the acquisition
contemplated by the Merger Agreement and the
BJALP Stock Option Agreement; or (3) there is
a public announcement or other public
disclosure with respect to an ongoing or
continuing plan or intention by the Company
or any Person to propose or effect any of the
foregoing transactions. For purposes of this
Agreement, the terms "group" and "beneficial
owner" shall have the meanings assigned
thereto in Section 13(d) of the Securities
Exchange Act of 1934, as amended, and the
rules and regulations thereunder (the
"Exchange Act").
Purchaser's right to exercise the Option shall be subject
only to the conditions set forth in clauses (i) and (iii)
above.
3. The Closing. (a) Any closing hereunder shall
take place on the date specified by the Purchaser in its
Stock Exercise Notice delivered pursuant to Section 1 at
9:00 A.M., local time, at the offices of Xxxxxxxx &
Xxxxxxxx, 125 Broad Street, New York, New York, or at such
other time and place as the parties hereto may agree (the
"Closing Date"). On the Closing Date, the Company will
deliver to the Purchaser a certificate or certificates, duly
endorsed (or accompanied by duly executed stock powers),
representing the Shares in the denominations designated by
the Purchaser in its Stock Exercise Notice and the Purchaser
will purchase such Shares from the Company at the price per
Share equal to the Purchase Price. Any payment made by the
Purchaser to the Company pursuant to this Agreement shall be
made by certified or official bank check or by wire transfer
of federal funds to a bank designated by the Company.
(b) The certificates representing the Shares may
bear an appropriate legend relating to the fact that such
Shares have not been registered under the Securities Act of
1933, as amended (the "Securities Act").
4. Representations and Warranties of the Company.
The Company represents and warrants to the Purchaser that
(a) the Company is a corporation duly organized, validly
existing and in good standing under the laws of its
jurisdiction of organization and has the requisite corporate
power and authority to enter into and perform this
Agreement; (b) the execution and delivery of this Agreement
by the Company and the consummation by it of the
transactions contemplated hereby have been duly authorized
by the Board of Directors of the Company and this Agreement
has been duly executed and delivered by a duly authorized
officer of the Company and constitutes a valid and binding
obligation of the Company; (c) except as required by the HSR
Act, the Company has the power and authority to issue and
deliver the Shares and has taken all necessary corporate
action to authorize and reserve the Shares issuable upon
exercise of the Option; (d) the Shares, when issued and
delivered by the Company upon exercise of the Option, will
be duly authorized, validly issued, fully paid and non-
assessable and free of preemptive rights; and (e) no form of
stockholder rights plan or "fair price", "moratorium",
"control share acquisition" or other form of antitakeover
statute or regulation (including, without limitation,
Section 203 of the Delaware General Corporation Law) is or
shall be applicable to the acquisition of shares of Common
Stock pursuant to this Agreement or the BJALP Stock Option
Agreement.
5. Representations and Warranties of the Purchas-
er. The Purchaser represents and warrants to the Company
that (a) the execution and delivery of this Agreement by the
Purchaser and the consummation by it of the transactions
contemplated hereby have been duly authorized by all neces-
sary corporate action on the part of the Purchaser, and (b)
this Agreement has been duly executed and delivered by a
duly authorized officer of the Purchaser and constitutes a
valid and binding obligation of the Purchaser.
6. Listing of Shares; HSR Act Filings; Govern-
mental Consents. The Company will effect as promptly as
practicable after the date hereof all necessary filings by
the Company under the HSR Act. Each of the parties will use
its reasonable efforts to obtain consents of all third
parties and governmental authorities, if any, necessary to
the consummation of the transactions contemplated herein.
7. Expenses. Each party hereto shall pay its own
expenses incurred in connection with this Agreement.
8. Company's Covenants. From and after the date
of this Agreement, the Company agrees to keep reserved for
issuance a number of authorized but unissued shares of
Common Stock equal to the number of Shares subject to option
hereunder.
9. Specific Performance. The Company
acknowledges that if the Company fails to perform any of its
obligations under this Agreement immediate and irreparable
harm or injury would be caused to the Purchaser for which
money damages would not be an adequate remedy. In such
event, the Company agrees that the Purchaser shall have the
right, in addition to any other rights it may have, to
specific performance of this Agreement. Accordingly, if the
Purchaser should institute an action or proceeding seeking
specific enforcement of the provisions hereof, the Company
hereby waives the claim or defense that the Purchaser has an
adequate remedy at law and hereby agrees not to assert in
any such action proceeding the claim or defense that such a
remedy at law exists. The Company further agrees to waive
any requirements for the securing or posting of any bond in
connection with obtaining any such equitable relief.
10. Notice. All notices, requests, demands and
other communications hereunder shall be deemed to have been
duly given and made if in writing and if served by personal
delivery upon the party for whom it is intended or delivered
by registered or certified mail, return receipt requested,
or if sent by telecopier or rapifax, upon receipt of oral
confirmation that such transmission has been received, to
the person at the address set forth below, or such other
address as may be designated in writing hereafter, in the
same manner, by such person:
If to Purchaser or Merger Sub:
Advance Publications, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: X.X. Xxxxxxxx, Jr.
Fax: (000) 000-0000
With a copy to:
Xxxxx, Bermant & Xxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx
Fax: (000) 000-0000
And to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx
Fax: (000) 000-0000
If to the Company:
American City Business Journals, Inc.
000 X. Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, XX 00000
Attention: A. Xxx Xxxx
Fax: (000) 000-0000
With a copy to:
Parker, Poe, Xxxxx & Xxxxxxxxx, L.L.P.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx, Xx., Esq.
Fax: (000) 000-0000
11. Parties in Interest. This Agreement shall
inure to the benefit of and be binding upon the parties
named herein and their respective successors and assigns.
Nothing in this Agreement, express or implied, is intended
to confer upon any Person other than the Company or the
Purchaser, or their successors or assigns, any rights or
remedies under or by reason of this Agreement.
12. Entire Agreement; Amendments. This Agree-
ment, together with the Merger Agreement and the other
documents referred to therein, contains the entire agreement
between the parties hereto with respect to the subject
matter hereof and supersedes all prior and contemporaneous
agreements and understandings, oral or written, with respect
to such transactions. This Agreement may not be changed,
amended or modified orally, but may be changed only by an
agreement in writing signed by the party against whom any
waiver, change, amendment, modification or discharge may be
sought.
13. Assignment. No party to this Agreement may
assign any of its rights or obligations under this Agreement
without the prior written consent of the other parties
hereto, except that the Purchaser may assign its rights and
obligations hereunder to any of its direct or indirect
wholly owned subsidiaries (including Merger Sub), but no
such transfer shall relieve the Purchaser of its obligations
hereunder if such transferee does not perform such
obligations.
14. Headings. The section headings herein are
for convenience only and shall not affect the construction
of this Agreement.
15. Counterparts. This Agreement may be executed
in any number of counterparts, each of which, when executed,
shall be deemed to be an original and all of which together
shall constitute one and the same document.
16. Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the
State of Delaware without giving effect to the principles of
conflicts of laws thereof.
17. Termination. The right to exercise the
Option granted pursuant to this Agreement shall terminate at
the earlier of (i) the Effective Time (as defined in the
Merger Agreement), (ii) termination of the Merger Agreement
in accordance with its terms other than pursuant to
Section 10.3 thereof, or (iii) sixty (60) days after the
termination of the Merger Agreement in accordance with the
terms of Section 10.3 thereof; provided that, if the Option
cannot be exercised or the Shares cannot be delivered to
Purchaser upon such exercise by reason of any applicable
judgment, decree or order or because the condition set forth
in Section 2(ii) is not yet satisfied, the expiration date
of this Agreement shall be extended until thirty days after
such impediment to exercise has been removed.
All representations and warranties contained in
this Agreement shall survive delivery of and payment for the
Shares.
18. Severability. If any term, provision,
covenant or restriction of this Agreement is held by a court
of competent jurisdiction to be invalid, void or unenforce-
able, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force
and effect and shall in no way be affected, impaired or
invalidated.
IN WITNESS WHEREOF, the Purchaser and the Company
have caused this Agreement to be duly executed and delivered
on the day and year first above written.
ADVANCE PUBLICATIONS, INC.
By:
Name:
Title: Chairman
AMERICAN CITY BUSINESS JOURNALS, INC.
By:
Name:
Title: Chief Executive Officer
Annex 8.11(a)(ii)
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, dated as of August 3, 1995
(this "Agreement"), between Business Journal Associates Limited
Partnership, a Delaware limited partnership ("Stockholder"), The
Oklahoma Publishing Company, a Delaware corporation ("OPUBCO"),
and Advance Publications, Inc., a New York corporation
("Purchaser").
WHEREAS, Stockholder, American City Business Journals,
Inc., a Delaware corporation (the "Company"), Purchaser and
Advance Acquisition Sub. Inc., a Delaware corporation and a
wholly owned subsidiary of Purchaser ("Merger Sub") are entering
into an Agreement and Plan of Merger, dated as of the date hereof
(the "Merger Agreement"), which provides, among other things,
that Purchaser, on the terms and subject to the conditions
thereof, will acquire the Company by means of a merger (the
"Merger") in which Merger Sub will be merged with and into the
Company;
WHEREAS, as a condition to their willingness to enter
into the Merger Agreement, Purchaser and Merger Sub have
requested that Stockholder grant to Purchaser an option to
purchase 3,885,105 shares of Common Stock, par value $.01 per
share ("Shares"), of the Company (the "Stockholder Shares") and
that OPUBCO deliver to Purchaser the consents, waivers and
releases specified herein, in each case, upon the terms and
subject to the conditions hereof;
WHEREAS, Stockholder has granted OPUBCO certain rights,
title and interests in, including a pledge of, the Stockholder
Shares pursuant to the Pledge Agreement, dated October 31, 1992
(the "Pledge Agreement"), by and between Stockholder and OPUBCO;
WHEREAS, in order to induce Purchaser and Merger Sub to
enter into the Merger Agreement Stockholder is willing to grant
Purchaser an option on the Stockholder Shares; and
WHEREAS, in order to induce Purchaser to enter into the
Merger Agreement and this Agreement, OPUBCO is willing to deliver
to Purchaser the consents, waivers and releases specified herein.
NOW, THEREFORE, in consideration of the premises and
the mutual covenants and agreements set forth herein, the parties
hereto agree as follows:
1. The Option; Exercise; Adjustments; Note Payment.
(a) Subject to the terms and conditions hereof, Stockholder here-
by grants to Purchaser an irrevocable option (the "Option") to
purchase the Stockholder Shares at a purchase price of $28.00 per
Share (the "Purchase Price"). Subject to the terms and
conditions hereof, the Option may be exercised by Purchaser at
any time after the date hereof and prior to the termination of
the Option in accordance with the terms of this Agreement.
(b) In the event Purchaser wishes to exercise the
Option, Purchaser shall send a written notice to Stockholder and
OPUBCO (the "Stock Exercise Notice") specifying a date (subject
to the HSR Act (as defined below), not later than 20 business
days and not earlier than the next business day following the
date such notice is given) for the closing of such purchase. In
the event of any change in the number of issued and outstanding
Shares by reason of any stock dividend, stock split, split-up,
recapitalization, merger or other change in the corporate or
capital structure of the Company, the number of Stockholder
Shares subject to this Agreement and this Option and the Purchase
Price shall be appropriately adjusted. For purposes of this
Agreement, Stockholder Shares shall include any distributions of
securities, cash, property or other assets or rights in respect
of such Stockholder Shares distributed or issued by the Company
on or after the date of this Agreement.
(c) On or prior to the Closing, Stockholder shall pay
OPUBCO the principal amount together with any accrued and unpaid
interest owed to OPUBCO under the Promissory Note, dated October
31, 1992 (the "Note") executed by Stockholder in favor of OPUBCO
in connection with the Pledge Agreement or shall otherwise obtain
the consents, waivers and releases of OPUBCO specified in
Section 4 hereof. If prior to the Closing, Stockholder has not
satisfied its obligation pursuant to the first sentence of this
Section 1(c), Purchaser, at its option, may pay OPUBCO that
portion of the aggregate Purchase Price for the Stockholder
Shares pursuant to this Agreement necessary to satisfy such
obligation and the condition to OPUBCO's obligations set forth in
Section 3. Any payments made by Purchaser to OPUBCO pursuant to
this Section 1(c) shall be credited against the aggregate
Purchase Price payable to Stockholder for the Stockholder Shares
pursuant to this Agreement. Notwithstanding anything in this
Agreement to the contrary, Purchaser shall have no obligation to
make any payments to OPUBCO.
2. Conditions to Exercise of Option and
Delivery of Stockholder Shares. The obligation of Stockholder to
deliver the Stockholder Shares upon exercise of the Option is
subject only to the conditions that:
(a) No preliminary or permanent injunction or other
order issued by any federal or state court of competent
jurisdiction in the United States prohibiting the exercise of the
Option and/or the delivery of the Shares shall be in effect;
(b) Any applicable waiting periods under the Xxxx-
Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the
"HSR Act"), shall have expired or been terminated; and
(c) One or more of the following events shall have
occurred on or after the date hereof: (1) any person, firm,
corporation, partnership, association or other entity or group,
other than the Purchaser (or an affiliate of the Purchaser) (such
person, firm, corporation, partnership, association or other
entity or group being referred to hereinafter, singularly or
collectively, as a "Person") shall have become the beneficial
owner of 20% or more of the shares of Common Stock outstanding at
the time of such acquisition or commenced a tender or exchange
offer for 20% or more of the outstanding shares of Common Stock;
(2) the Company or Stockholder shall have entered into an
agreement, including without limitation an agreement in prin-
ciple, providing for or relating to a merger or other business
combination involving the Company or a subsidiary of the Company
or the acquisition of Common Stock or a material portion of the
assets, business or operations of the Company or any subsidiary,
other than the acquisition contemplated by the Merger Agreement
and this Agreement; or (3) there is a public announcement or
other public disclosure with respect to an ongoing or continuing
plan or intention by the Company or any Person to propose or
effect any of the foregoing transactions. For purposes of this
Agreement, the terms "group" and "beneficial owner" shall have
the meanings assigned thereto in Section 13(d) of the Securities
Exchange Act of 1934, as amended, and the rules and regulations
thereunder (the "Exchange Act").
Purchaser's right to exercise the Option is subject
only to the conditions set forth in clauses (a) and (c) above.
3. Conditions to Delivery of the Consents, Waivers and
Releases. The obligation of OPUBCO to deliver the consents,
waivers and releases specified in Section 4 shall be subject only
to the condition that Stockholder (or Purchaser on its behalf)
shall have satisfied its obligation pursuant to Section 1(c).
4. The Closing. The closing (the "Closing") hereunder
shall take place on the date specified by Purchaser in its Stock
Exercise Notice delivered pursuant to Section 1(b) at 9:00 A.M.,
local time, at the offices of Xxxxxxxx & Xxxxxxxx, 125 Broad
Street, New York, New York, or at such other time and place as
the parties hereto may agree (the "Closing Date"). On the
Closing Date (a) Stockholder will deliver to Purchaser a
certificate or certificates, duly endorsed (or accompanied by
duly executed stock powers), representing the Stockholder Shares,
free and clear of all Liens (as defined below), in the
denominations designated by Purchaser in its Stock Exercise
Notice, (b) OPUBCO shall deliver (i) to Purchaser, an
unconditional and irrevocable consent, waiver and release,
effectively consenting to the transfer of the Stockholder Shares
to Purchaser and waiving and releasing all of OPUBCO's rights,
title and interests in the Stockholder Shares pursuant to the
Pledge Agreement or otherwise, and (ii) to Stockholder, the Note
marked "Cancelled, Satisfied in Full," against payment of the
amount required to be paid to OPUBCO pursuant to the first
sentence of Section 1(c), if full payment is made, or appropriate
documentation of any partial payment of the Note. Any payment
made by Purchaser to the Stockholder or OPUBCO pursuant to this
Agreement shall be made by certified or official bank check or by
wire transfer of federal funds to a bank designated by
Stockholder or OPUBCO, as the case may be. In this Agreement,
"Lien" shall mean any lien, claim, charge, encumbrance, pledge,
security interest or restriction of any nature whatsoever.
5. Representations and Warranties of Stockholder.
Stockholder represents and warrants to Purchaser that:
(a) Organization. Stockholder is a limited partnership
duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization.
(b) Authority. Subject to the HSR Act, Stockholder
has the requisite power and authority and has taken all action
necessary under the Stockholder's Limited Partnership Agreement
and Certificate of Limited Partnership of Stockholder and
applicable law to authorize, execute and deliver this Agreement,
to perform its obligations pursuant to this Agreement and to
consummate the transactions contemplated hereby. This Agreement
is a valid and binding agreement of Stockholder enforceable
against Stockholder in accordance with its terms.
(c) Brokers and Finders. Neither Stockholder nor any
of its general or limited partners, officers or employees has
employed any broker or finder or incurred any liability for any
brokerage fees, commissions or finders, fees in connection with
the transactions contemplated herein, except that Stockholder has
employed Lazard Freres & Co. LLC as its financial advisors.
(d) Stockholder Shares. As of the date of this
Agreement, Stockholder is the record holder of, and has good and
valid title to, the Stockholder Shares, free and clear of all
Liens other than Liens held by OPUBCO pursuant to the Pledge
Agreement. At the Closing, Stockholder shall deliver to
Purchaser good and valid title to the Stockholder Shares to
Purchaser, free and clear of all Liens. There are no options or
rights to acquire or other contracts (including proxies, voting
trusts or voting agreements) relating to the Stockholder Shares
to which Stockholder is a party other than the Pledge Agreement.
6. Representations and Warranties of OPUBCO. OPUBCO
represents and warrants to Purchaser that:
(a) Organization. OPUBCO is a corporation duly
organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation.
(b) Authority. OPUBCO has the requisite corporate
power and authority and has taken all corporate action to
authorize, execute and deliver this Agreement, to perform its
obligations pursuant to this Agreement and to consummate the
transactions contemplated hereby. This Agreement is a valid and
binding agreement of OPUBCO enforceable against OPUBCO in
accordance with its terms.
(c) Stockholder Shares. OPUBCO has not sold,
transferred, assigned or otherwise disposed of any portion of its
rights, title and interests in the Stockholder Shares and will
not sell, transfer, assign or otherwise dispose of any such
rights, title and interests or grant any proxies with respect to
any Stockholder Shares, deposit any such Shares into a voting
trust or enter into any voting agreement with respect to any such
Shares (except as set forth herein) during the term of this
Agreement. Upon delivery of the consents, waivers and releases
to be delivered by OPUBCO to Purchaser pursuant to Section 3,
OPUBCO will have no rights, title or interests in the Stockholder
Shares.
(d) Promissory Note. Payment to OPUBCO of the amount
set forth in the first sentence of Section 1(c) shall satisfy and
discharge in full all of Stockholder's obligations pursuant to
the Pledge Agreement and the Promissory Note relating to the
Stockholder Shares.
7. Representations and Warranties of Purchaser.
Purchaser represents and warrants to the Company that the
execution and delivery of this Agreement by Purchaser and the
consummation by it of the transactions contemplated hereby have
been duly authorized by all necessary corporate action on the
part of Purchaser and this Agreement has been duly executed and
delivered by a duly authorized officer of Purchaser and will
constitute a valid and binding obligation of Purchaser
enforceable against Purchaser in accordance with its terms.
8. HSR Act Filings; Governmental Consents.
Stockholder and/or OPUBCO, as applicable, will effect as promptly
as practicable after the date hereof all necessary filings by
Stockholder and/or OPUBCO under the HSR Act. Each of the parties
hereto will use its reasonable efforts to obtain the consents of
all third parties and governmental authorities, if any, necessary
to the consummation of the transactions contemplated hereby.
9. Expenses. Each party hereto shall pay its own
expenses incurred in connection with this Agreement.
10. Covenants. From and after the date of this
Agreement, Stockholder agrees not to (i) sell, transfer, pledge,
assign, hypothecate or otherwise dispose of, or enter into any
contract with respect to the sale, transfer, pledge, assignment,
hypothecation or other disposition of any Stockholder Shares;
(ii) grant any proxies with respect to any Stockholder Shares,
deposit any such Shares into a voting trust or enter into a
voting agreement with respect to any of such Shares; or (iii)
take any action which would make any representation or warranty
of Stockholder herein untrue or incorrect or prevent, burden or
materially delay the consummation of the transactions
contemplated by this Agreement.
11. Voting Agreements; Proxy.
(a) For so long as this Agreement is in effect, in any
meeting of stockholders of the Company, however called, and in
any action by consent of the stockholders of the Company,
Stockholder and/or OPUBCO, if applicable, shall vote all of the
Stockholder Shares (i) in favor of the Merger Agreement and the
Merger contemplated thereby, (ii) against any transaction
involving the sale of all or a material portion of the Company's
assets, a merger or other form of business consolidation
involving the Company or any of its subsidiaries, the sale of 15%
or more of the Common Stock or other equity securities of the
Company (by means of a stock sale or other transaction) or any
other transaction or series of transactions effecting a change in
control of the Company, other than the Merger.
(b) Upon the written request of Purchaser, Stockholder
and/or OPUBCO, if applicable, shall grant Purchaser an
irrevocable proxy and irrevocably appoint Purchaser or its
designees, with full power of substitution, its attorney and
proxy to vote all Stockholder Shares with regard to any of the
matters referred to in paragraph (a) above at any meeting of the
stockholders of the Company however called, or in connection with
any action by written consent by the stockholders of the Company.
Stockholder acknowledges and agrees that such proxy, if and when
given, will be coupled with an interest, will be irrevocable and
shall not be terminated by operation of law or otherwise upon the
occurrence of any event and that no subsequent proxies will be
given (and if given will not be effective).
12. Specific Performance. Each of Stockholder and
OPUBCO acknowledges and agrees that if they fail to perform any
of their respective obligations under this Agreement immediate
and irreparable harm or injury would be caused to Purchaser for
which money damages would not be an adequate remedy. In such
event, each of Stockholder and OPUBCO agrees that Purchaser shall
have the right, in addition to any other rights it may have, to
specific performance of this Agreement. Accordingly, if
Purchaser should institute an action or proceeding seeking
specific enforcement of the provisions hereof, each of
Stockholder and OPUBCO hereby waives the claim or defense that
Purchaser has an adequate remedy at law and hereby agrees not to
assert in any such action or proceeding the claim or defense that
such a remedy at law exists. Each of Stockholder and OPUBCO
further agrees to waive any requirements for the securing or
posting of any bond in connection with obtaining any such
equitable relief.
13. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed
to have been duly given, if delivered in person, by overnight
courier, by facsimile transmission, telexed or mailed by
certified or registered mail, postage prepaid, return receipt
requested, as follows (or at such other address for a party as
shall be specified by like notice; provided that notice of a
change of address shall be effective only upon receipt thereof):
If to the Purchaser or Merger Sub:
Advance Publications, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: X.X. Xxxxxxxx, Jr.
Fax: (000) 000-0000
With a copy to:
Xxxxx, Bermant & Xxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx
Fax: (000) 000-0000
And to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx
Fax: (000) 000-0000
If to the Company:
American City Business Journals, Inc.
000 X. Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, XX 00000
Attention: A. Xxx Xxxx
Fax: (000) 000-0000
With a copy to:
Parker, Poe, Xxxxx & Xxxxxxxxx, L.L.P.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx, Xx., Esq.
Fax: (000) 000-0000
If to BJALP:
Business Journal Associates Limited Partnership
000 X. Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, XX 00000
Attention: A. Xxx Xxxx
Fax: (000) 000-0000
14. Parties in Interest. This Agreement shall inure
to the benefit of and be binding upon the parties named herein
and their respective successors and assigns. Nothing in this
Agreement, express or implied, is intended to confer upon any
Person other than Purchaser, Stockholder or OPUBCO, or their
successors or assigns, any rights or remedies under or by reason
of this Agreement.
15. Entire Agreement; Amendments. This Agreement,
together with the Merger Agreement, the BJALP Irrevocable Written
Consent (as defined in the Merger Agreement) and the other
documents referred to in the Merger Agreement, contains the
entire agreement between Stockholder, OPUBCO and Purchaser with
respect to the subject matter hereof and supersedes all prior and
contemporaneous agreements and understandings, oral or written,
with respect to such transactions. This Agreement may not be
changed, amended or modified orally, but may be changed only by
an agreement in writing signed by the party against whom any
waiver, change, amendment, modification or discharge may be
sought.
16. Assignment. No party to this Agreement may assign
any of its rights or obligations under this Agreement without the
prior written consent of the other party hereto, except that
Purchaser may assign its rights and obligations hereunder to any
of its direct or indirect wholly owned subsidiaries (including
Merger Sub), but no such transfer shall relieve Purchaser of its
obligations hereunder if such transferee does not perform such
obligations.
17. Headings. The section headings herein are for
convenience only and shall not affect the construction of this
Agreement.
18. Counterparts. This Agreement may be executed in
any number of counterparts, each of which, when executed, shall
be deemed to be an original and all of which together shall
constitute one and the same document.
19. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of
Delaware.
20. Termination. The right to exercise the Option
granted herein shall terminate at the earlier of (i) sixty (60)
days after the termination of the Merger Agreement in accordance
with the terms of Section 10.3 thereof; (ii) termination of the
Merger Agreement in accordance with its terms other than pursuant
to Section 10.3 thereof; and (iii) the Effective Time (as defined
in the Merger Agreement); provided that, if the Option cannot be
exercised or the Shares cannot be delivered to Purchaser upon
such exercise by reason of any applicable judgment, decree or
order or because the condition set forth in Section 2(b) has not
yet been satisfied, the expiration date of this Agreement shall
be extended until thirty days after such impediment to exercise
has been removed.
All representations and warranties contained in this
Agreement shall survive delivery of and payment for the
Stockholder Shares.
21. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder
of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
IN WITNESS WHEREOF, Purchaser, Stockholder and OPUBCO
have caused this Agreement to be duly executed and delivered on
the day and year first above written.
BUSINESS JOURNAL ASSOCIATES
LIMITED PARTNERSHIP
BY: OPUBCO Enterprises, Inc.,
its general partner
By:
Name:
Title: Chairman
ADVANCE PUBLICATIONS, INC.
By:
Name:
Title: Chairman
THE OKLAHOMA PUBLISHING
COMPANY
By:
Name:
Title: Chairman
Annex 8.11(b)
CONSENT SOLICITED BY ADVANCE PUBLICATIONS, INC.
IRREVOCABLE WRITTEN CONSENT OF MAJORITY STOCKHOLDER
OF
AMERICAN CITY BUSINESS JOURNALS, INC.
(Pursuant to Sections 228 and 251 of
the Delaware General Corporation Law)
Pursuant to Sections 228 and 251 of the Delaware
General Corporation Law (the "DGCL"), the undersigned, being the
holder of 3,885,105 shares of Common Stock, par value $.01 per
share ("Shares"), of American City Business Journals, Inc., a
Delaware corporation (the "Company"), being a majority of the
issued and outstanding Shares of the Company (such Shares having
not less than the minimum number of votes that would be necessary
to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted), hereby
irrevocably consents to (i) the adoption of the Agreement and
Plan of Merger, dated as of August 3, 1995 (the "Merger
Agreement"), among the undersigned, the Company, Advance
Publications, a New York corporation ("Purchaser"), and ACBJ
Acquisition Corp., a Delaware corporation and a wholly owned
subsidiary of Purchaser, and (ii) the adoption of the Option
Agreement, dated as of August 3, 1995 (the "Company Stock Option
Agreement"), among the Company, Purchaser and Merger Sub.
In accordance with Section 228 of the DGCL, this
written consent is being delivered to the Company by delivery to
its registered office in the State of Delaware, the Company's
principal place of business or an officer or agent of the Company
having custody of the book in which proceedings of meetings of
stockholders of the Company are recorded. If delivery is being
made to the Company's registered office in the State of Delaware,
it is being made by hand or by certified or registered mail,
return receipt requested.
In accordance with Section 228(d) of the DGCL, the
Company is required to give prompt notice of the taking of this
action to all other stockholders of the Company. In accordance
with Section 262(d) of the DGCL, the Company is required, either
before the effective date of the Merger (as defined in the Merger
Agreement) or within ten days thereafter, to notify to each
stockholder of the Company entitled to appraisal rights under
Section 262 of the DGCL of the effective date of the Merger and
that appraisal rights are available for any or all of their
Shares. The notices sent pursuant to Section 262 of the DGCL are
required to include a copy of Section 262 of the DGCL and must be
sent by certified or registered mail, return receipt requested,
addressed to each stockholder of the Company at their address as
it appears on the records of the Company.
Pursuant to Section 228(d) of the DGCL, the Certificate
of Merger to be filed by the Company pursuant to Sections 251(c)
and 103 of the DGCL to effect the Merger is required to state
that written consent to the adoption of the Merger Agreement has
been given in accordance with Section 228(d) of the DGCL and that
written notice of such action has been given to all other
stockholders of the Company in accordance with such Section.
Dated: August , 1995
BUSINESS JOURNAL ASSOCIATES
LIMITED PARTNERSHIP
BY: OPUBCO Enterprises, Inc.,
its general partner
By: ____________________
Name:
Title:
-2-
