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EXHIBIT 10.6
AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER
This Amended and Restated Agreement and Plan of Merger (the
"Agreement"), dated as of August 31, 1998, is made by and between The Peoples
Publishing Group, Inc., a Delaware corporation ("PPG"), and Concourse
Corporation, a Minnesota corporation ("Concourse") and Peoples Acquisition
Corporation, a Minnesota corporation and wholly-owned subsidiary of Concourse
("PAC").
BACKGROUND
Concourse is currently engaged in the business of providing consulting
services and publishing educational materials (the "Concourse Business"). PPG is
in the educational publishing business (the "PPG Business"). On June 4, 1998,
Concourse and PPG entered into a Merger Agreement, and effective August 31,
1998, amended and restated the Merger Agreement to reflect the structure and
terms contained in this Agreement.
The Boards of Directors of Concourse and PPG have each determined that
it is in the best interest of their respective shareholders for PAC to merge
with and into PPG, which merger will be accomplished upon the terms and subject
to the conditions set forth in this Agreement and in the Plan of Merger attached
as Exhibit A.
It is the intention of the parties that, following the merger (taking
into consideration the effect of any exercise of outstanding options for capital
stock), PPG shareholders shall collectively hold approximately 95% of the voting
power of the issued and outstanding capital stock of Concourse in the form of
capital stock convertible into common stock; Concourse shareholders shall
collectively hold approximately 5% of the voting power of such issued and
outstanding capital stock in the form of existing common stock; and that the
Concourse capital stock held by the PPG shareholders shall be convertible into a
number of shares of Concourse common stock equal to its voting power.
Now, therefore, the parties agree as follows:
TERMS
1. THE MERGER
1.1 TERMS OF THE MERGER. Subject to the terms and conditions of
this Agreement, at the Effective Time (as defined in Section
1.3):
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(A) THE MERGER. PAC will be merged with and into PPG (the
"Merger") in accordance with the Delaware General
Corporation Law (the "DGCL") and the Minnesota
Business Corporation Act (the "MBCA"). The separate
existence of PAC will cease, and PPG will continue as
the surviving corporation (the "Surviving
Corporation").
(B) CERTIFICATE AND BYLAWS OF SURVIVING CORPORATION. The
Certificate of Incorporation and Bylaws of the
Surviving Corporation will initially be the same as
the Certificate of Incorporation and Bylaws,
respectively of PPG in effect immediately prior to
the Merger.
(C) DIRECTORS AND OFFICERS OF SURVIVING CORPORATION. The
directors of the Surviving Corporation will be the
directors of PPG immediately prior to the Merger, and
the officers of the Surviving Corporation will be the
officers of PPG immediately prior to the Merger.
(D) CONVERSION OF PPG COMMON STOCK. Each share of common
stock, $.001 par value, of PPG ("PPG Common Stock")
outstanding immediately prior to the Effective Time
will, by virtue of the Merger and without any action
on the part of the holder thereof, be converted into
one (1) share of newly authorized $.01 par value 1998
Convertible Stock of Concourse ("1998 Convertible
Stock"), the terms of which are more particularly
described in the attached Exhibit 1.1(D).
(E) CONVERSION OF PPG PREFERRED STOCK. Each share of 1990
Redeemable Cumulative Convertible preferred stock,
$.001 par value, of PPG (the "1990 Preferred Shares)
outstanding immediately prior to the Effective Time,
will, by virtue of the Merger and without any action
on the part of the holder thereof, be converted into
one (1) share of newly created 1990 Convertible Stock
of Concourse (the "1990 Convertible Stock"), the
terms and conditions of which are described on the
attached Exhibit 1.1(E), and each share of 1993
Redeemable Cumulative Convertible preferred stock,
$.001 par value, of PPG (the "1993 Preferred Shares")
(the 1990 Preferred Shares, together with the 1993
Preferred Shares, are referred to herein as the "PPG
Preferred Stock"), outstanding immediately prior to
the Effective Time will, by virtue of the Merger and
without any action on the part of the holder thereof,
be converted into one (1) share of newly created 1993
Convertible Stock of Concourse (the "1993 Convertible
Stock"), the terms and conditions of which are
described on the attached Exhibit 1.1(E) (the 1990
Convertible Stock, together with the 1993 Convertible
Stock and the 1998 Convertible Stock are referred to
herein as the "Concourse Convertible Stock").
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(F) CONVERSION OF PPG OPTIONS. Each option to purchase
PPG Common Stock pursuant to PPG's 1993 Stock Option
Plan (the "PPG Stock Options") outstanding
immediately prior to the Effective Time, will, by
virtue of the Merger and without any action on the
part of the holder thereof, be converted into an
option to purchase 21.75 shares of Concourse Common
Stock at an exercise price equal to 1/21.75 of the
exercise price of the PPG stock options immediately
prior to the Effective Time, and otherwise on terms
and conditions identical to the PPG Stock Options
(the Concourse Options") and pursuant to an option
plan of Concourse substantially identical to the PPG
1993 Stock Option Plan.
(G) EFFECT OF MERGER. All of the respective property,
rights, privileges, powers and franchises of PAC and
PPG will vest in the Surviving Corporation, and all
of the respective debts, liabilities and duties of
PAC and PPG will become the debts, liabilities and
duties of the Surviving Corporation. The Merger will
have all of the effects provided by applicable law."
1.2 DEFINITION OF MERGER CONSIDERATION. The 1998 Convertible
Stock, 1990 Convertible Stock, and the 1993 Convertible Stock
being issued upon conversion of PPG Common Stock and PPG
Preferred Stock, respectively, together with the Concourse
Options being issued upon conversion of the PPG Stock Options,
shall collectively be referred to herein as the "Merger
Consideration."
1.3 FILING OF ARTICLES OF MERGER. As soon as practicable after
satisfaction, or, to the extent permitted under this
Agreement, the written waiver, of all conditions to the Merger
set forth in Section 3, the parties must cause the Merger to
be consum mated by filing appropriate articles of merger (the
"Articles of Merger") with each of the Minnesota Secretary of
State and the Delaware Secretary of State, in such form as
required by, and executed in accordance with, the relevant
provisions of the MBCA and the DGCL, and the parties must make
all other filings or recordings required by the MBCA and the
DGCL in connection with the Merger and the transactions
contemplated by this Agreement. The Merger is effective when
the Articles of Merger are duly filed with the Minnesota
Secretary of State and the Delaware Secretary of State or such
later date as may be set forth in the Articles of Merger (the
"Effective Time").
1.4 "NEW SHARE CERTIFICATES; TREATMENT OF PPG AND PAC SHARES.
Promptly following the Effective Time, Concourse shall issue
to holders of PPG Common Stock and PPG Preferred Stock,
certificates representing one (1) share of 1998 Convertible
Stock, 1990 Convertible Stock, and 1993 Convertible Stock, in
exchange for each outstanding certificate representing one
share of PPG Common Stock and PPG Preferred Stock, as
applicable, and the certificates representing PPG Common Stock
and PPG Preferred Stock shall be canceled. All shares of PAC
common stock
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which at the Effective Time are issued and outstanding shall,
by virtue of the Merger, become an equal number of shares of
the Surviving Corporation."
2. CLOSING. Unless otherwise terminated under Section 10 or agreed by PPG
and Concourse, the closing (the "Closing") of the Merger will be held at the
offices of Xxxxxxxxx & Xxxxxx P.L.L.P., 0000 XXX Xxxxxx, Xxxxxxxxxxx, XX 00000,
at a time and date agreed by the parties, which shall be promptly following
satisfaction of the Closing Conditions in Section 3 hereof (the "Closing Date").
3. CLOSING CONDITIONS.
3.1 PPG'S OBLIGATIONS. The obligation of PPG to consummate the
Merger is subject to the satisfaction, or written waiver by
PPG, of all of the following conditions as of the Closing
Date:
(A) REPRESENTATIONS AND WARRANTIES. The representations
and warranties made by Concourse in this Agreement
must be true and correct as of the date of this
Agreement and, except as specifically contemplated by
this Agreement, on and as of the Closing Date as
though made on and as of the Closing Date, and
Concourse must have performed or complied in all
material respects with all obligations and covenants
required by this Agreement to be performed or
complied with by Concourse by the Closing Date.
(B) NO ADVERSE ACTIONS. There must be no injunction or
order of any court or administrative agency of
competent jurisdiction in effect as of the Closing
Date which restrains or prohibits the Merger;
(C) OPINION OF COUNSEL. Concourse must have delivered to
PPG an opinion dated as of the Closing Date of
Xxxxxxxx & Xxxx, Ltd., counsel for Concourse, as to
the matters set forth in Exhibit 3.1(C), which
opinion must be reasonably satisfactory to PPG;
(D) MODIFICATIONS OF SCHEDULES. All modifications made by
Concourse to the Schedules to this Agreement, taken
as a whole, must not be material to the Concourse
Business, taken as a whole;
(E) DOCUMENTATION. Concourse must have delivered to PPG
all documents as are specifically required under this
Agreement to be delivered by Concourse to PPG, in a
form and substance reasonably satisfactory to PPG;
(F) [Reserved]
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(G) FINANCIAL AUDIT. Concourse shall have caused an
accounting firm acceptable to PPG to conduct
financial audits of Concourse for its fiscal years
1995, 1996 and 1997, and the audited balance sheet of
Concourse as of December 31, 1997 shall not vary
materially and adversely from the unaudited balance
sheet provided in Schedule 3.1(G) (the "1997
Unaudited Balance Sheet");
(H) SEC AND OTHER REQUIRED FILINGS. Concourse shall have
caused any and all filings to be made with the
Securities and Exchange Commission (the "SEC") which
are necessary to be considered by the SEC as current
in its SEC filings as of the Closing Date and PPG's
legal counsel must have concurred that Concourse has
achieved such current status;
(I) [Reserved]
(J) RESIGNATION OF CONCOURSE OFFICERS AND DIRECTORS. At
Closing, Concourse shall deliver to PPG the written
resignation of each officer and director of
Concourse, with the exception of Xxxxxxx Xxxxxxxx,
and resolutions appointing Xxxx X. Xxxxxxxxx, Xxxx X.
Xxxxxxxxxxxx, Xxx Xxxxxx, Xxxxx X. Xxxxxx, and Xxxxx
X. Xxxxxxx, as new Concourse directors.
(K) [Reserved]
(L) INVESTMENT BANKING SUPPORT. PPG shall be satisfied in
its sole discretion, with the general reputation of
Concourse in the investment banking community, and
that there exists a reasonable prospect of the
Surviving Corporation achieving a listing on the
Nasdaq system (assuming sufficient additional capital
investment) within a year of the Effective Time.
3.2 CONCOURSE'S OBLIGATION. The obligation of Concourse to
consummate the Merger is subject to the satisfaction or
written waiver by Concourse of all of the following conditions
as of the Closing Date:
(A) REPRESENTATIONS AND WARRANTIES. The representations
and warranties of PPG made in this Agreement must be
true and correct as of the date of this Agreement and
on and as of the Closing Date, as though made on and
as of the Closing Date, and PPG, must have performed
or complied in all material respects with all
obligations and covenants required by this Agreement
to be performed or complied with by PPG by the
Closing Date;
(B) NO ADVERSE ACTIONS. There must be no injunction or
order of any court or administrative agency of
competent jurisdiction in effect as of the Closing
Date which restrains or prohibits the Merger;
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(C) OPINION OF COUNSEL. PPG must have delivered to
Concourse an opinion dated as of the Closing Date of
Xxxxxxxxx & Xxxxxx, P.L.L.P., counsel for PPG, as to
the matters set forth in Exhibit 3.2(C), which
opinion must be reasonably satisfactory to Concourse;
(D) DOCUMENTATION. PPG must have delivered to Concourse
all documents as are specifically required under this
Agreement to be delivered by PPG to Concourse, all in
a form and substance reasonably satisfactory to
Concourse.
(E) [Reserved]
4. REPRESENTATIONS AND WARRANTIES OF CONCOURSE. Concourse represents and
warrants to PPG as follows:
4.1 ORGANIZATION AND AUTHORITY. Concourse is, or will be prior to
the Closing Date, a corporation duly organized, validly
existing and in good standing under the laws of the State of
Minnesota, and is, or will prior to the Closing Date, be
qualified as a foreign corporation in every jurisdiction where
failure to so qualify would result in a Material Adverse
Effect on Concourse. All corporate acts and proceedings
required to be taken by Concourse to authorize the execution,
delivery and performance of, and the consummation of the
transactions contemplated by this Agreement have been duly and
properly taken.
4.2 DUE EXECUTION. This Agreement has been duly executed and
delivered by Concourse and constitutes a valid and binding
obligation of Concourse, enforceable against Concourse in
accordance with its terms.
4.3 NO CONFLICTS. The execution and delivery of this Agreement
does not, and the consummation of the transactions
contemplated by, and the compliance with the terms of this
Agreement will not, conflict with, or result in any violation
of or default (with or without notice or lapse of time, or
both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation or to loss of a
benefit under, or require any consent, authorization or
approval under
(A) any provision of the articles of incorporation or
bylaws of Concourse,
(B) any Material Contract, or
(C) any judgment, order or decree or any statute, law,
ordinance, rule or regulation applicable to the
Concourse Business, other than those that may be
required solely by reason of PPG's (as opposed to any
other party's) participation in the transactions
contemplated by this Agreement; and
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necessary filings with the Secretary of State of
Minnesota in connection with the Merger.
4.4 GOVERNMENTAL CONSENTS. No consent, approval, license, permit,
order or authorization of, or registration, declaration or
filing with, any court, administrative agency or commission or
other governmental authority or instrumentality, domestic or
foreign, is required to be obtained or made by or with respect
to Concourse in connection with the execution and delivery of
this Agreement, or the consummation by Concourse of the
transactions contemplated by this Agreement, other than: those
that may be required solely by reason of PPG's (as opposed to
any other party's) participation in the transactions
contemplated by this Agreement; necessary filings with the
Secretary of State of Delaware and Minnesota in connection
with the Merger; such filings as may be required pursuant to
Section 14 of the Securities Exchange Act of 1934 and the
regulations thereunder; and such filings and approvals as may
be applicable under state securities laws.
4.5 CAPITALIZATION. There are 2,688,585 shares of the $0.01 par
value common stock (the "Concourse Stock") currently
outstanding, which constitutes 100% of the currently issued
and outstanding capital stock of Concourse. All of the issued
and outstanding shares of the capital stock of Concourse are
validly issued, fully paid and nonassessable. There are
4,000,000 shares of undesignated stock, of which 1,300,000
shares have been duly designated in compliance with Minnesota
law as 1990 Convertible Stock, 700,000 shares have been
designated as 1993 Convertible Stock, and 600,000 shares have
been designated as 1998 Convertible Stock. There are no
outstanding subscriptions, options, warrants, calls, rights,
convertible securities or other agreements or commitments of
any character relating to the capital stock of Concourse, or
any other securities of Concourse or otherwise obligating
Concourse to issue, transfer, register or sell any such
securities, except for the obligation to issue approximately
378,927 shares of Concourse Stock for services rendered to
Concourse, which shares will be issued prior to the Closing
and except for the obligation to issue Concourse options to
PPG option holders as contemplated by this Agreement. With the
exception of PAC, Concourse does not hold, directly or
indirectly, any outstanding equitable, legal or beneficial
interests in any corporation or other entity. All shares of
the Concourse capital stock and options received by PPG
shareholders as contemplated by this Amendment shall be duly
authorized, validly issued, fully paid, non-assessable shares
not subject to any preemptive rights.
4.6 NO RESTRICTIONS. Other than transfer restrictions imposed by
applicable state or federal securities laws, or by contracts
which will be terminated on or prior to the Closing Date,
there are no transfer restrictions, subscriptions, options,
warrants, rights, calls, contracts, voting trusts, irrevocable
proxies, voting arrangements, commitments, understandings or
agreements which have been imposed, issued or
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entered into by Concourse, and which relate to the sale,
voting or transfer of any of the shares of the capital stock
of Concourse, except as disclosed in this Agreement. To the
knowledge of Concourse, and except as otherwise provided
herein, there are no agreements among Concourse shareholders
relating to the sale, voting or transfer of any capital stock
of Concourse.
4.7 FINANCIAL STATEMENTS. The 1997 Unaudited Balance Sheet has
been prepared in accordance with the applicable books and
records of Concourse, and fairly represents the financial
condition of Concourse as of December 31, 1997, subject to
changes in subsequent periods occurring in the ordinary course
of business.
4.8 UNDISCLOSED LIABILITIES. Concourse has no liabilities or
obligations, except for (i) those reflected on or reserved
against in the 1997 Unaudited Balance Sheet; (ii) those
incurred in the ordinary course of business since December 31,
1997; (iii) those set forth on any Schedule to this
Agreement;(iv) those which would not have a Material Adverse
Effect on Concourse; or (v) those incurred as expenses in
connection with the contemplated Merger (not to exceed $5,000
as contemplated by Section 7.2; the remaining Merger expenses
have been paid with the proceeds of the Loan referred to in
Section 7.1).
4.9 ABSENCE OF CERTAIN CHANGES. Since December 31, 1997, Concourse
has incurred no debts, obligations or liabilities, absolute,
accrued or contingent and whether due or to become due, except
in the ordinary course of business, none of which would have a
Material Adverse Effect on Concourse; paid no obligation or
liability, or discharged or satisfied any Liens other than in
the usual and ordinary course of business; entered into no
Material Contract other than in the ordinary course of
business; declared or made no payment to or distribution to
its shareholders as such, or purchased or redeemed none of its
shares of capital stock or obligated itself to do so;
mortgaged, pledged or subjected to Lien no material asset of
Concourse except in the ordinary course of business; sold,
transferred or leased no material asset except in the ordinary
course of business; suffered no physical damage, destruction
or loss not covered by insurance which would have a Material
Adverse Effect on Concourse; encountered no strike or labor
union organizing activities, or issued or sold any shares of
capital stock or other securities or granted any options with
respect thereto; nor has Concourse agreed to do any of the
foregoing, other than as disclosed in or as part of this
Agreement.
4.10 TITLE TO PROPERTIES AND ENCUMBRANCES. Concourse has good and
valid title to all of its properties and assets, including
without limitation the properties and assets reflected in the
1997 Unaudited Balance Sheet.
4.11 CONTRACTS. Concourse has no Material Contracts as of the
Effective Time.
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4.12 INTELLECTUAL PROPERTY. Concourse owns no material Intellectual
Property. Neither the Business nor any products sold by the
Business infringes on the intellectual property rights of any
Person. No claims are pending or, to the knowledge of
Concourse, threatened in writing against Concourse by any
Person with respect to the ownership, validity, enforceability
or use of any of the Intellectual Property or otherwise
challenging or questioning the validity or effectiveness of
any of the Intellectual Property.
4.13 LITIGATION.
(A) There are no claims, actions, suits, proceedings or
investigations pending or, to the knowledge of
Concourse, threatened against Concourse before any
court or any administrative, governmental or
regulatory body or authority, domestic or foreign;
(B) Except as reflected on Schedule 4.13(B), neither
Concourse nor any of its officers, directors, agents
or employees (in their capacities as such) is subject
to any order, judgment, injunction or decree relating
to the Concourse Business;
(C) No complaint has been filed, and there is no pending,
or to the knowledge of Concourse, threatened
proceeding or investigation, involving an alleged
violation of any federal, state, local or foreign law
related to the Concourse Business; and
(D) To the knowledge of Concourse, there is no basis for
any such claim, action suit, proceeding,
investigation, order, judgment, injunction, decree or
complaint which could reasonably be expected to have
a Material Adverse Effect on the Concourse Business,
except as a result of the failure to file periodic
reports as required under the Securities Exchange Act
of 1934.
4.14 COMPLIANCE WITH APPLICABLE LAWS.
(A) NON-ENVIRONMENTAL MATTERS. Concourse is being
operated in compliance with all applicable statutes,
laws, ordinances, rules, orders and regulations of
any governmental authority or instrumentality,
domestic or foreign.
(B) ENVIRONMENTAL MATTERS. Concourse has received no
communication from a governmental authority that
alleges that the Concourse Business is not in
compliance with any Environmental Laws, including the
rules and regulations relating thereto; the Concourse
Business is in compliance with the Environmental Laws
and all permits, licenses and governmental
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authorizations required to be held by Concourse to
conduct the Concourse Business under Environmental
Laws.
(C) PERMITS. Other than a state of Minnesota Sales and
Use Tax permit, there are no material permits,
licenses or governmental authorizations required and
relating to the current conduct of the Concourse
Business.
4.15 TAXES. Concourse has timely filed all tax or assessment
reports and tax returns that are required by any law or
regulation to be filed by Concourse, and all those reports and
returns are accurate in all respects. Concourse has duly paid
or deposited all taxes due and payable pursuant to those
reports and returns, or which have been assessed against
Concourse or which Concourse is obligated to withhold from
amounts owing to any employee. All material taxes relating to
the current year operations through the end of the most
recently concluded fiscal month of Concourse prior to the
Closing Date have been accrued or reflected in the books and
records of Concourse. No taxing or assessment authority has
indicated to Concourse any intent to conduct an audit or other
investigation or asserted any unresolved deficiencies with
respect to tax liabilities of Concourse for any period and
Concourse has no knowledge of any facts or circumstances which
would give rise thereto.
4.16 LABOR RELATIONS. Concourse has no:
(A) unfair labor practice charge or complaint or other
proceeding pending or, to its knowledge, threatened
against it before the National Labor Relations Board;
(B) labor strike, slowdown or stoppage pending or, to the
knowledge of Concourse, threatened against or
affecting it;
(C) pending collective bargaining negotiations relating
to the employees of Concourse;
(D) pending petitions for recognition of a labor union or
association as the exclusive bargaining agent for any
or all of the employees of Concourse, and, to the
knowledge of Concourse, there has not been any
general solicitation of representation cards by any
union seeking to represent the employees of Concourse
as their exclusive bargaining agent;
(E) collective bargaining agreements; or
(F) material arbitrations, grievances, suits or
administrative proceedings before any government
entity relating to labor or employment matters
involving any employees of Concourse.
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4.17 ERISA.
(A) PLANS. Schedule 4.17 accurately identifies all Plans
in existence on the date of this Agreement or at any
time during the history of Concourse. Concourse has
delivered or caused to be delivered to PPG a copy of
each Plan; and (i) no Plan has been terminated within
the past twenty-four months; and, (ii) there is no
investigation, action, suit, arbitration or other
legal, administrative or other proceeding pending, or
to the knowledge of Concourse, threatened, against
any Plan or any assets of any Plan.
(B) COMPLIANCE. Each Plan is in compliance in all
material respects with all applicable provisions of
the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), and the Internal Revenue Code
of 1986, as amended (the "Code"), as well as each
Plan's terms and conditions. There have been no
"prohibited transactions" and no "reportable events"
within the meaning of the ERISA and the Code within
the last twenty-four months with respect to any Plan.
Concourse has incurred no "accumulated funding
deficiency" within the meaning of ERISA nor any
liability to the Pension Benefit Guaranty Corporation
in connection with a Plan (or other benefit that the
Pension Benefit Guaranty corporation has elected to
insure).
4.18 BROKERS OR FINDERS. Concourse has not engaged the services of
any broker or finder with respect to the transactions
contemplated by this Agreement.
4.19 TRANSACTIONS WITH AFFILIATES. Other than as specified in
Schedule 4.19, no director or officer of Concourse (i) has any
contractual relationship or arrangements with, or commitments
to, nor has any claim against Concourse; (ii) has any direct
or indirect interest in any right, property or assets which
are used by Concourse in the conduct of its business; or (iii)
owns any securities of, or has any direct or indirect interest
in, any entity which conducts a material amount of business
with Concourse.
4.20 ADDITIONAL ACQUISITION CORPORATION REPRESENTATIONS AND
WARRANTIES. As applicable, the foregoing representations and
warranties in this Section 4 shall be deemed to be made by
Concourse on behalf of Concourse and PAC. In addition,
Concourse makes the following representations and warranties
for PAC:
(A) ORGANIZATION AND AUTHORITY. PAC is a corporation duly
organized, validly existing and in good standing
under the laws of the State of Minnesota, and is
qualified as a foreign corporation in every
jurisdiction where failure to so qualify would result
in a Material Adverse Effect on Concourse or PAC. All
corporate acts and proceedings required to be taken
by PAC to authorize the execution, delivery and
performance of, and the consummation of the
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transactions contemplated by this Amendment have been
duly and properly taken.
(B) CAPITALIZATION. There are 1,000 shares of the $0.01
par value common stock authorized, of which 100
shares will be issued or outstanding and held of
record and beneficially owned by Concourse. There are
and will be no outstanding subscriptions, options,
warrants, calls, rights, convertible securities or
other agreements or commitments of any character
relating to the capital stock of PAC, or any other
securities of PAC or otherwise obligating of PAC to
issue, transfer, register or sell any such
securities. PAC does not and will not hold, directly
or indirectly, any outstanding equitable, legal or
beneficial interests in any corporation or other
entity.
(C) DUE EXECUTION. This Agreement has been duly executed
and delivered by PAC and constitutes a valid and
binding obligation of PAC, enforceable against PAC in
accordance with its terms.
(D) NO CONFLICTS. The execution and delivery of this
Agreement does not, and the consummation of the
transactions contemplated by, and the compliance with
the terms of this Agreement will not, conflict with,
or result in any violation of or default (with or
without notice or lapse of time, or both) under, or
give rise to a right of termination, cancellation or
acceleration of any obligation or to loss of a
benefit under, or require any consent, authorization
or approval under
(i) any provision of the articles of
incorporation or bylaws of PAC,
(ii) any Material Contract, or
(iii) any judgment, order or decree or any
statute, law, ordinance, rule or regulation
applicable to the Concourse Business, other
than those that may be required solely by
reason of PPG's (as opposed to any other
party's) participation in the transactions
contemplated by this Agreement; and
necessary filings with the Secretary of
State of Minnesota in connection with the
Merger.
(E) NO ASSETS OR LIABILITIES. PAC has no assets,
liabilities, or business other than as may be
required to effect the Merger.
5. REPRESENTATIONS AND WARRANTIES OF PPG. PPG represents and warrants to
Concourse as follows:
5.1 ORGANIZATION AND AUTHORITY. PPG is a corporation duly
organized, validly existing and in good standing under the
laws of the state of Delaware. PPG is duly qualified
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as a foreign corporation in every jurisdiction where failure
to so qualify would result in a Material Adverse Effect on
PPG. All corporate acts and proceedings required to be taken
by PPG to authorize the execution, delivery and performance of
the transactions contemplated by this Agreement have been duly
and properly taken.
5.2 DUE EXECUTION. This Agreement has been duly executed and
delivered by PPG and constitutes a valid and binding
obligation of PPG, enforceable in accordance with its terms.
5.3 NO CONFLICTS. Except as identified in Schedule 5.3, the
execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated by, and the
compliance with the terms of this Agreement will not conflict
with, or result in any violation of or default (with or
without notice or lapse of time, or both) under, or give rise
to a right of termination, cancellation or acceleration of any
obligation or to loss of a benefit under, or result in the
creation of any Lien upon any of the properties or assets of
PPG under any provision of, or require any consent,
authorization or approval under
(A) any provision of the articles of incorporation or
bylaws of PPG;
(B) any Material Contract, agreement, instrument or other
document to which PPG is a party or by which its
properties or assets are bound; or
(C) any judgment, order or decree or any material
statute, law, ordinance, rule or regulation
applicable to PPG or its assets, other than those
that may be required solely by reason of Concourse's
(as opposed to any other party's) participation in
the transactions contemplated by this Agreement and
necessary filings with the Secretary of State of
Minnesota or of Delaware in connection with the
Merger.
5.4 GOVERNMENTAL CONSENTS. No consent, approval, license, permit,
order or authorization of, or registration, declaration or
filing with, any court, administrative agency or commission or
other governmental authority or instrumentality, domestic or
foreign, is required to be obtained or made by or with respect
to PPG in connection with the execution and delivery of this
Agreement, or the consummation by PPG of the transactions
contemplated by this Agreement, other than those that may be
required solely by reason of Concourse's (as opposed to any
other party's) participation in the transactions contemplated
by this Agreement; and necessary filings with the Secretary of
State of Minnesota or of Delaware in connection with the
Merger.
5.5 CAPITALIZATION. Schedule 5.5 accurately identifies and sets
forth all of the authorized capital stock of PPG and the
rights of the holders thereof, the number of shares of such
capital stock outstanding, the record holders of that stock,
and the number of
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options outstanding, as well as the record holders of such
options. The capital stock identified constitutes 100% of the
issued and outstanding capital stock of PPG. All of the issued
and outstanding shares of the capital stock are validly
issued, fully paid and nonassessable. Except as identified on
Schedule 5.5, there are no outstanding subscriptions, options,
warrants, calls, rights, convertible securities or other
agreements or commitments of any character relating to the
capital stock, or any other securities of PPG or otherwise
obligating PPG to issue, transfer, register or sell any such
securities. PPG does not hold, directly or indirectly, any
outstanding equitable, legal or beneficial interests in any
corporation or other entity.
5.6 NO RESTRICTIONS. Other than transfer restrictions imposed by
applicable state or federal securities laws, or by contracts
which will be terminated on or prior to the Closing Date,
there are no transfer restrictions, subscriptions, options,
warrants, rights, calls, contracts, voting trusts, irrevocable
proxies, voting arrangements, commitments, understandings or
agreements which have been imposed, issued or entered into by
PPG and which relate to the sale, voting or transfer of any of
the shares of the capital stock of PPG, except as disclosed in
this Agreement.
5.7 FINANCIAL STATEMENTS. The audited financial statements of PPG
for the years ended December 31, 1995, 1996 and 1997, attached
hereto as Schedule 5.7, fairly represent the financial
operations and condition of PPG for and as of the dates
indicated. The balance sheet of PPG as of December 31, 1997
(the "1997 PPG Balance Sheet") fairly represents the financial
condition of PPG as of that date, subject to changes in
subsequent periods occurring in the ordinary course of
business.
5.8 UNDISCLOSED LIABILITIES. PPG has no liabilities or
obligations, except for (i) those reflected on or reserved
against in the 1997 PPG Balance Sheet; (ii) those incurred in
the ordinary course of business since December 31, 1997; (iii)
those set forth on any Schedule to this Agreement; (iv) those
which would not have a Material Adverse Effect on PPG; or (v)
those incurred as expenses in connection with the contemplated
Merger.
5.9 ABSENCE OF CERTAIN CHANGES. Other than as disclosed in the
schedules to this Agreement, since December 31, 1997, PPG has
incurred no debts, obligations or liabilities, absolute,
accrued or contingent and whether due or to become due, except
in the ordinary course of business, none of which would have a
Material Adverse Effect on PPG; paid no obligation or
liability, or discharged or satisfied any Liens other than in
the usual and ordinary course of business; entered into no
Material Contract other than in the ordinary course of
business; declared or made no payment to or distribution to
its shareholders as such, or purchased or redeemed none of its
shares of capital stock or obligated itself to do so;
mortgaged, pledged or subjected to Lien no material asset of
PPG except in the ordinary course of business; sold,
transferred or leased no material asset except in the ordinary
course of business; suffered no physical damage, destruction
or loss not covered by insurance which
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would have a Material Adverse Effect on PPG; encountered no
strike or labor union organizing activities, or issued or sold
any shares of capital stock or other securities or granted any
options with respect thereto; nor has PPG agreed to do any of
the foregoing, other than as disclosed in or as part of this
Agreement.
5.10 TITLE TO PROPERTIES AND ENCUMBRANCES. PPG has good and valid
title to all of its properties and assets, including without
limitation the properties and assets reflected in the 1997
Unaudited Balance Sheet.
5.11 [Reserved]
5.12 BROKERS OR FINDERS. PPG has not engaged the services of any
broker or finder with respect to the transactions contemplated
by this Agreement.
5.13 LITIGATION.
(A) There are no claims, actions, suits, proceedings or
investigations pending or, to the knowledge of PPG,
threatened against PPG before any court or any
administrative, governmental or regulatory body or
authority, domestic or foreign;
(B) Neither PPG nor any of its officers, directors,
agents or employees (in their capacities as such) is
subject to any order, judgment, injunction or decree
relating to the PPG Business;
(C) No complaint has been filed, and there is no pending,
or to the knowledge of PPG, threatened proceeding or
investigation, involving an alleged violation of any
federal, state, local or foreign law related to the
PPG Business; and
(D) To the knowledge of PPG, there is no basis for any
such claim, action suit, proceeding, investigation,
order, judgment, injunction, decree or complaint
which could reasonably be expected to have a Material
Adverse Effect on the PPG Business.
6. COVENANTS OF CONCOURSE. Concourse covenants and agrees as follows:
6.1 ACCESS. Prior to the Closing, Concourse shall give PPG, and
PPG's representatives, employees, counsel and accountants,
reasonable access, during normal business hours and upon
reasonable notice, to all personnel, properties, books and
records of Concourse.
6.2 ORDINARY CONDUCT. Except as permitted by the terms of this
Agreement, from the date of this Agreement to the Closing
Date, Concourse will conduct the Concourse
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Business in the ordinary course consistent with past practice.
Without the prior written consent of PPG, Concourse will not
do any of the following:
(A) sell, lease, license or otherwise dispose of, or
agree to sell, lease, license or otherwise dispose
of, any interest in any of Concourse's assets that
are material, individually or in the aggregate, to
the Concourse Business, except with respect to the
transfer of assets as set forth in Schedule 4.11;
(B) create, incur, assume or guarantee any indebtedness
for money borrowed or increase the amount of any
indebtedness outstanding under any line of credit,
loan agreement, mortgage, or other borrowing
arrangement in existence on the date of this
Agreement;
(C) amend any existing Material Contract, or enter into
any new contract that would constitute a Material
Contract;
(D) except as specifically contemplated in this
Agreement, declare or pay any dividend or other
distribution on its capital stock, issue or agree to
issue any such stock or other securities or redeem or
repurchase any of its securities; or
(E) enter into any agreement to do any of the foregoing.
7. COVENANTS OF PPG. PPG covenants and agrees as follows:
7.1 LOAN TO CONCOURSE. PPG shall, promptly following the execution
of this Agreement, Loan to Concourse an aggregate of up to
$25,000 due one year from the date of this Agreement, with
interest at the rate of 8% per annum, which sum will be
applied by Concourse to pay the legal ($10,000 payable to
Xxxxxxxx & Xxxx upon execution of this Agreement) and
accounting ($10,000 payable to McGladrey & Xxxxxx upon
execution of this Agreement) fees and expenses, and other
expenses (up to $5,000), incurred by Concourse in connection
with the negotiation and compliance with the terms of this
Agreement. If the Merger is not completed as a result of PPG's
action or failure to meet the closing obligations set forth in
Section 3.2 (including a termination pursuant to Section
3.1(L)), the Loan will be forgiven. The Loan will be evidenced
by a Note substantially in the form of the attached Exhibit
7.1.
7.2 PAYMENT BY PPG OF CERTAIN CONCOURSE EXPENSES. Upon completion
of the Merger, PPG will honor and pay up to $5,000 of
Concourse legal expenses, (in addition to those paid with the
proceeds of the Loan, which Loan will be assumed by the
Surviving Corporation as a result of the Merger).
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8. MUTUAL COVENANTS. The parties jointly and severally covenant and agree with
each other as follows:
8.1 PUBLICITY. Concourse and PPG agree that, from the date of this
Agreement through the Closing Date, no public release or
announcement concerning the transactions contemplated by this
Agreement may be issued by Concourse, on the one hand, or PPG,
on the other, without the prior written consent of the other
parties (which consent may not be unreasonably withheld),
except as such release or announcement may be required by law,
in which case the party required to make the release or
announcement must allow the other party reasonable time to
comment on such release or announcement in advance of such
issuance.
8.2 BEST EFFORTS; FURTHER ASSURANCES. Subject to the terms of this
Agreement, each party will use its best efforts to cause the
closing of the transactions contemplated in this Agreement to
occur by the Closing Date. From time to time, as and when
requested by any party, any other party must execute and
deliver, or cause to be executed and delivered, all such
documents and instruments and must take, or cause to be taken,
all such further or other actions, as such other party may
reasonably deem necessary or desirable to consummate the
transactions contemplated by this Agreement.
8.3 [Reserved]
8.4 [Reserved]
8.5 [Reserved]
9. INDEMNIFICATION.
9.1 INDEMNIFICATION OF PPG. Subject to the provisions of this
Section 9, PPG shall be indemnified by Concourse and its
principal shareholders (the Inside Group), to the extent of
their holdings, against any damages, claims, liabilities,
losses and expenses, including without limitation reasonable
attorney's fees related thereto, of any kind or nature
whatsoever which may be sustained or suffered by PPG as a
result of any material breach of any representation, warranty
or covenant made by Concourse in this Agreement (each a "Loss"
and collectively "Losses").
9.2 INDEMNIFICATION OF CONCOURSE. Subject to the provisions of
this Section 9, Concourse, its officers, directors, agents and
legal counsel shall be indemnified by PPG against any damages,
claims, liabilities, losses and expenses, including without
limitation reasonable attorney's fees related thereto, of any
kind or nature whatsoever which may be sustained or suffered
by Concourse, its officers, directors, agents and legal
counsel as a result of any material breach of any
representation, warranty or
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covenant made by PPG in this Agreement (each a "Loss" and
collectively "Losses"); provided that after the Effective
Time, Concourse's right to recovery on any such
indemnification claim or other claim involving breach of this
Agreement shall be limited to a total of Twenty-five Thousand
Dollars ($25,000).
9.3 NOTICE OF INDEMNIFICATION CLAIMS. Promptly after the receipt
by an indemnified party of notice from any third party of any
suit, claim, demand or investigation as to which such party
may seek indemnification under this Agreement, the party
receiving such notice shall notify the party or parties from
whom it is seeking indemnification (the "Indemnifying Party").
In the case of a claim asserted by a third party, such
Indemnifying Party shall have the right to defend at its own
expense by its own counsel such matter to the extent of the
potential indemnification liability of the Indemnifying Party.
If the Indemnifying Party shall undertake to defend the
matter, it shall promptly notify the other party or parties of
such determination.
9.4 LIMITATIONS ON INDEMNIFICATION CLAIMS. The right to
indemnification under this Agreement shall be limited as
follows:
(A) No claims for indemnification shall be made more than
two years after the Closing Date, and any such claims
which have been made and remain outstanding two years
after the Closing Date shall be processed to a
conclusion.
(B) Any proceeds from insurance paid to the party seeking
indemnification as a result of the Loss shall
constitute a reduction of the amount of the Loss for
purposes of indemnification.
(C) The calculation of the Loss shall take into account
any tax liabilities and/or tax benefits attributable
to the Loss.
(D) No claim for indemnification shall be made unless the
amount of the Loss for which the claim is made, after
any reductions as provided in (B) and (C) above,
exceeds a threshold of $10,000 and the claim shall be
only for the amount of the Loss in excess of such
$10,000 threshold.
10. TERMINATION.
10.1 Notwithstanding any provision in this Agreement contrary, this
Agreement may be terminated, and the transactions contemplated
by this Agreement abandoned, at any time on or prior to the
Closing Date
(A) by mutual written consent of Concourse and PPG;
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(B) by Concourse if any of the conditions set forth in
Section 3.2 have not been satisfied, or waived in
writing by Concourse, on the Closing Date;
(C) by PPG if any of the conditions set forth in Section
3.1 have not been satisfied, or waived in writing by
PPG, on the Closing Date; or
(D) by either Concourse or PPG in writing if the Closing
does not occur on or prior to December 31, 1998.
10.2 If Concourse or PPG desires to terminate this Agreement
pursuant to Section 10.1, that party must give written notice
to the other party. Upon receipt of that notice, this
Agreement will be terminated without further action by any
party.
10.3 If this Agreement is terminated as provided in this Section
10, this Agreement will become void and of no further force
and effect, except for the provisions of:
(A) Section 8.2 (Publicity);
(B) this Section 10;
(C) Section 11.2 (Certain Expenses);
(D) Section 11.3 (Attorneys' Fees and Expenses);
(E) Section 11.4 (Notices); and
(F) Section 11.5 (Miscellaneous).
10.4 Nothing contained in this Section 10 will release any party
from any liability for any breach by such party of any of the
terms or provisions of this Agreement or impair the right of
any party to compel specific performance by another party of
its obligations under this Agreement.
11. GENERAL PROVISIONS.
11.1 NON-SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Except as
specifically contemplated by this Agreement, none of the
representations and warranties in this Agreement, or in any
instrument delivered pursuant to this Agreement, will survive
the Effective Time.
11.2 CERTAIN EXPENSES. Whether or not the transactions contemplated
by this Agreement are consummated, and except as otherwise
provided in this Agreement, all costs and expenses incurred in
connection with this Agreement and the transactions
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contemplated by this Agreement must be paid by the party
incurring those costs or expenses.
11.3 ATTORNEYS' FEES. Should any litigation be commenced concerning
this Agreement, or the rights and duties of any party with
respect to it, the party prevailing will be entitled, in
addition to such other relief as may be granted, to a
reasonable sum for such party's attorneys' fees and expenses
determined by the court in such litigation or in a separate
action brought for that purpose. This Section 11.3 will
survive the Merger indefinitely.
11.4 NOTICES. All notices, and replies to such notices, required
under this Agreement must be in writing, properly addressed to
the other party, signed by the party giving notice, and may be
delivered by hand, sent by facsimile transaction, sent by a
nationally-recognized overnight delivery service, or sent by
certified mail, return receipt requested. Notices are
effective upon receipt. Notices sent by mail are deemed to be
received on the date of receipt indicated by the return
verification provided by the U.S. Postal Service. Notice sent
by a nationally-recognized overnight delivery service are
deemed to be received on the next business day after date of
sending. Notices sent by facsimile are deemed to be received
the date on which sent and are conclusively presumed to have
been received if the sender's copy of the facsimile
transaction contains the "answer back" of the other party's
facsimile transaction. Notice must be given, mailed or sent to
the parties at the following addresses, or at such other
address as may be given by proper notice. This Section 11.4
will survive the Merger indefinitely.
If to Concourse addressed to:
Concourse Corporation
0000 Xxxxxxxx Xxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxx
Fax No.: 000-000-0000
with a copy to (which copy does not constitute notice):
Xxxxxxxx & Xxxx, Ltd.
000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxx
Fax No.: 000-000-0000
If to PPG, addressed to:
The Peoples Publishing Group, Inc.
000 X. Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
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Attn: Xxxxx X. Xxxxxxx
Fax No.: 000-000-0000
with a copy to (which copy does not constitute notice):
Xxxxxxxxx & Xxxxxx P.L.L.P.
0000 XXX Xxxxxx
00 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx
Fax No.: 000-000-0000
11.5 MISCELLANEOUS. No amendment to this Agreement is effective
unless it is in writing and signed by each party. The headings
contained in this Agreement, or in any Schedule or Exhibit,
are for reference purposes only and do not affect in any way
the meaning or interpretation of this Agreement. This
Agreement may be executed in one or more counterparts, all of
which are considered one and the same agreement, and are
effective when one or more of those counterparts have been
signed by each of the parties and delivered to the other
parties. This Agreement constitutes the entire agreement and
understanding between the parties with respect to the subject
matter of this Agreement and supersedes all prior agreements
and understandings relating to that subject matter. If any
provision of this Agreement, or the application of any such
provision to any Person or circumstance, is held invalid,
illegal or unenforceable in any respect by a court of
competent jurisdiction, such invalidity, illegality or
unenforceability will not affect any other provision of this
Agreement. No party may assign or otherwise transfer any of
its rights or obligations under this Agreement without the
prior written consent of each of the other parties; provided,
however, that PPG may assign its rights hereunder to an
affiliate or subsidiary without the consent of Concourse. This
Agreement is for the sole benefit of the parties and their
permitted assigns, and nothing in this Agreement is intended
to give to any Person, other than such parties and persons,
any legal or equitable rights under this Agreement. This
Agreement is governed in accordance with the internal laws of
the State of Minnesota, without regard to the conflict of laws
statutes or provisions of any jurisdiction. This Section 11.5
will survive the Closing Date indefinitely.
12. CERTAIN DEFINITIONS.
12.1 "CONFIDENTIAL INFORMATION"
(A) "Confidential Information" means
(1) all written financial, technical, commercial
or other information disclosed by one party
to the other, its directors, officers,
employees, advisors or affiliates (such
Person is referred to as a "Recipient") in
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connection with the transactions
contemplated by this Agreement, which
information is marked "Confidential";
(2) the fact of the transactions contemplated by
this Agreement; and
(3) each of the terms, conditions and other
provisions contained in this Agreement and
the agreements or documents delivered
pursuant to this Agreement.
(B) Notwithstanding Section 12.1(A), Confidential
Information does not include any information that
(1) is in the public domain at the time of
disclosure to the Recipient or becomes part
of the public domain after such disclosure
through no action or fault of any Recipient;
(2) is already know by Recipient from
independent sources at the time of
disclosure to such Recipient other than as a
result of a breach of any provision of this
Agreement; or from any source who, after
reasonable investigation by Recipient, is
not bound by any confidentiality agreement
with, or other contractual, legal or
fiduciary duty of confidentiality to the
party to this Agreement who made the
disclosure; or
(3) is subsequently disclosed to a Recipient by
any Person who is not a party to this
Agreement (but only if that Recipient does
not have actual knowledge after reasonable
investigation that such Person is prohibited
from disclosing such information, either by
reason of contract or legal or fiduciary
obligation) and who has a legal right to
transmit that information.
12.2 "ENVIRONMENTAL LAWS" means all applicable federal, state and
local laws and regulations now in effect relating to pollution
or the protection of the environment (including, without
limitation, ambient air, surface water, groundwater, land
surface or subsurface strata), including, without limitation,
the Comprehensive Environmental Response, Compensation, and
Liability Act, 42 U.S.C.A. Sections 9601 et seq., the Resource
Conversation and Recovery Act, 42 U.S.C.A. Sections 6901 et
seq., the Clean Water Act, 33 U.S.C.A. Sections 1251 et seq.,
the Clean Air Act 42 U.S.C.A. Sections 7401 et seq., and The
Toxic Substances Control Act, 15 U.S.C. Sections 2601 et seq.
12.3 "INTELLECTUAL PROPERTY" means all of the following (and all
amendments, modifications, and improvements thereto):
(A) letters patent and patent applications;
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(B) tradenames, trademarks or service marks, and all
registrations and applications related thereto,
common law trademarks, and all goodwill associated
therewith;
(C) copyrights and copyright registrations and
applications; and
(D) discoveries, ideas, technology, know-how, trade
secrets, processes, formulas, drawings and designs,
computer programs or software.
12.4 "KNOWLEDGE" means the actual knowledge of the officers of
Concourse or PPG, as applicable.
12.5 "LIEN" means any lien, encumbrance, security interest, pledge,
mortgage, option, charge or similar restriction.
12.6 "MATERIAL CONTRACTS" means those contracts and agreements that
(A) relate to the borrowing of money or the guaranty of
any obligation for the borrowing of money;
(B) involve the receipt or payment of more than $5,000
($25,000 in the case of PPG) in any one year;
(C) prohibits or limits the ability of either party to
engage in any business or compete with any Person; or
(D) obligates a party to purchase goods or services for
consideration in excess of $5,000 ($25,000 in the
case of PPG).
12.7 "MATERIAL ADVERSE EFFECT" means any effect on any entity that
is, in the aggregate, materially adverse to the business,
operations or financial condition of that entity, other than
an effect which is the result of changes in (i) the general
economic conditions affecting the industry in which the entity
operates, (ii) applicable laws or regulations or the official
interpretations of such law or regulations, or (iii) generally
accepted accounting principles.
12.8 "PERSON" means any natural person or entity.
12.9 "PLAN" means any "employee benefit plan," "employee pension
benefit plan," "defined benefit plan" or "multiemployer
benefit plan" which Concourse maintains, contributes to, or is
required to maintain or contribute to. As used in this
Agreement, the terms "employee benefit plan," "employee
pension benefit plan," "defined benefit plan," and
"multiemployer benefit plan" have the respective meanings
assigned to
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each of them in Section 3 of ERISA and any applicable rules
and regulations promulgated under ERISA.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
THE PEOPLES PUBLISHING GROUP, INC.
By
-----------------------------------
Its
---------------------------------
CONCOURSE CORPORATION
By
-----------------------------------
Its
---------------------------------
PEOPLES ACQUISITION CORPORATION
By
-----------------------------------
Its
---------------------------------
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INDEX OF SCHEDULES AND EXHIBITS
EXHIBITS
Exhibit A Articles and Plan of Merger
Exhibit 1.1(D) Terms of 1998 Convertible Stock
Exhibit 1.1(E) Terms of 1990 and 1993 Convertible Stock
Exhibit 3.1(C) Opinion of Counsel for Concourse
Exhibit 3.2(C) Opinion of Counsel for PPG
Exhibit 7.1 Loan Note
SCHEDULES
Schedule 3.1(G) Concourse Financial Statements
Schedule 4.13(B) Concourse Litigation
Schedule 4.17 Concourse ERISA Plans
Schedule 4.19 Concourse Transactions with Affiliates
Schedule 5.3 PPG Conflicts
Schedule 5.5 PPG Capitalization
Schedule 5.7 PPG Financial Statements
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EXHIBIT A
ARTICLES OF MERGER
OF
PEOPLES ACQUISITION CORPORATION,
A MINNESOTA CORPORATION
INTO
THE PEOPLES PUBLISHING GROUP, INC.,
A DELAWARE CORPORATION
These Articles of Merger are adopted pursuant to Minnesota Statute
302A.615 by Peoples Acquisition Corporation, a Minnesota corporation, (the
"Merging Corporation") and The Peoples Publishing Group, Inc., a Delaware
corporation, (the "Surviving Corporation").
The Surviving Corporation and the Merging Corporation do hereby agree
and certify that:
1. Attached hereto and incorporated herein is the Plan of Merger dated
__________, 1998 (the "Plan of Merger") for the merger of the Merging
Corporation with and into the Surviving Corporation.
2. The Plan of Merger has been duly adopted and approved by the Board
of Directors and sole shareholder of the Surviving Corporation pursuant to
Section 302A.613 of the Minnesota Business Corporation Act and by the Board of
Directors and shareholders of the Merger Corporation pursuant to Section 252 of
the General Corporation Law of the State of Delaware. The Plan of Merger has
been duly signed and delivered.
IN WITNESS WHEREOF, the parties have caused this instrument to be
executed this _____ day of ______________, 1998.
THE PEOPLES PUBLISHING GROUP, INC.
By
-----------------------------
Its
----------------------------
PEOPLES ACQUISITION CORPORATION
By
-----------------------------
Its
----------------------------
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PLAN OF MERGER
This Plan of Merger (the "Plan"), dated as of __________, 1998, is
among The Peoples Publishing Group, Inc., a Delaware corporation ("PPG"),
Concourse Corporation, a Minnesota corporation ("Concourse"), and Peoples
Acquisition Corporation ("Acquisition Corporation"), a Minnesota corporation
that is a wholly-owned subsidiary of Concourse. In this Plan, PPG, Concourse and
Acquisition Corporation are sometimes collectively referred to as the
"Constituent Corporations" and individually as a "Constituent Corporation".
BACKGROUND
PPG, Concourse, and Acquisition Corporation entered into an Amended and
Restated Agreement and Plan of Merger, dated as of August 31, 1998 (the
"Agreement"), which contemplates the merger (the "Merger") referred to in this
Plan.
The respective boards of directors of the Constituent Corporations deem
it desirable and in the best interests of each corporation and its shareholders
that Acquisition Corporation be merged with and into PPG. PPG will be the
surviving corporation (the "Surviving Corporation"), in accordance with the laws
of the states of Minnesota and Delaware and on the terms set forth in this Plan.
The parties agree as follows:
ARTICLE 1
MERGER OF PPG INTO ACQUISITION CORPORATION
At the Effective Time (as defined in Article 4), Acquisition
Corporation will be merged into PPG in accordance with the laws of the states of
Minnesota and Delaware, the separate existence of Acquisition Corporation will
then cease, and PPG will be the Surviving Corporation. The Surviving Corporation
will continue its corporate existence under the laws of the state of Delaware
under the name "The Peoples Publishing Group, Inc." and will possess all the
rights, privileges, power and franchises of each of PPG and Acquisition
Corporation.
ARTICLE 2
CERTIFICATE OF INCORPORATION; BYLAWS; OFFICERS AND DIRECTORS
The Certificate of Incorporation of PPG in effect at the Effective Time
will be the Certificate of Incorporation of the Surviving Corporation until
amended in accordance with applicable law. The Bylaws of PPG in effect at the
Effective Time will be the Bylaws of the Surviving Corporation, until amended in
accordance with applicable law.
ARTICLE 3
EXCHANGE OF SHARES AND OPTIONS
The manner of exchanging the shares of PPG at the Effective Time will
be as follows:
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At the Effective Time, each issued and outstanding share of common
stock of PPG will, by virtue of the Merger and without any action on the part of
the holder thereof, be converted into one (1) share of 1998 Convertible Stock of
Concourse; each issued and outstanding share of 1990 convertible preferred stock
of PPG will, by virtue of the Merger and without any action on the part of the
holder thereof, be converted into one (1) share of 1990 Convertible Stock of
Concourse; each issued and outstanding share of 1993 convertible preferred stock
of PPG will, by virtue of the Merger and without any action on the part of the
holder thereof, be converted into one (1) share of 1993 Convertible Stock of
Concourse; and, each option issued and outstanding for the purchase of a share
of common stock of PPG will, by virtue of the Merger and without any action on
the part of the holder hereof, be converted into an option to purchase 21.75
shares of Concourse common stock at an exercise price equal to 1/21.75 of the
exercise price of the outstanding options to purchase common stock of PPG, and
otherwise on identical terms and conditions as the outstanding options to
purchase PPG common stock. Following the Merger, certificates and agreements
representing new Convertible Stock of Concourse and options, as applicable, will
be mailed to holders of PPG common and preferred stock and options, PPG common
and preferred stock certificates will be canceled, and issued and outstanding
shares of Acquisition Corporation common stock will become an equal number of
shares of common stock of the Surviving Corporation.
ARTICLE 4
EFFECTIVE DATE OF MERGER
If this Plan is not terminated or abandoned as provide in Article 5 of
this Plan, as soon as practicable after the conditions provided for in the
Agreement have been satisfied or waived in writing, this Plan of Merger must be
filed, certified and acknowledged in compliance with the provisions of the
Minnesota Business Corporation Act and the Delaware General Corporation Law to
be effective upon such filings (such hour and date of filing being referred to
as the "Effective Time").
ARTICLE 5
ABANDONMENT OF MERGER; AMENDMENT OF AGREEMENT
5.1 This Plan may be terminated and the Merger abandoned at any time
prior to the Effective Time, whether before or after submission to or adoption
by the shareholders of the Constituent Corporations, only in accordance with the
provisions of the Agreement.
5.2 This Plan may be amended or modified at any time prior to the
Effective Time by the mutual agreement of the boards of directors of the
Constituent Corporations, whether before or after adoption thereof by the
shareholders of the Constituent Corporations. But, no such amendment or
modification may be made which may affect the rights of the shareholders of the
Constituent Corporations in a manner which, in the judgment of the respective
boards of directors, is materially adverse to such shareholders.
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ARTICLE 6
COUNTERPARTS
This Plan may be executed in any number of counterparts, each of which
when executed is deemed to be an original, and such counterparts will together
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Plan as of the day
and year first above written.
THE PEOPLES PUBLISHING GROUP, INC.
By
------------------------------------
Its
-----------------------------------
CONCOURSE CORPORATION
By
------------------------------------
Its
-----------------------------------
PEOPLES ACQUISITION CORPORATION
By
------------------------------------
Its
-----------------------------------
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Exhibit 1.1(D)
Terms of 1998 Convertible Stock of Concourse
(Attached)
31
Exhibit 1.1(E)
Terms of 1990 and 1993 Convertible Stock of Concourse
(Attached)
32
Exhibit 3.1(C)
Opinion of Counsel for Concourse
1. Concourse and Peoples Acquisition are corporations validly existing and
in good standing under the laws of the state of Minnesota, and have
full corporate power to own and hold their respective properties and to
carry on their respective businesses as now conducted.
2. The authorized capital stock of Concourse consists of 10,000,000 shares
having a par value of $0.01 per share, 6,000,000 of which are common
shares, and 4,000,000 of which are undesignated shares. In compliance
with Minnesota Statutes, Section 302A.401, the Board of Directors of
Concourse has designated 1,300,000 shares as 1990 Redeemable
Convertible Stock, 700,000 shares as 1993 Redeemable Convertible Stock
and 600,000 shares as 1998 Convertible Stock.
3. There are 3,067,512 common shares issued and oustanding; and no shares
of 1990 Redeemable Convertible Stock or 1993 Redeemable Convertible
Stock are issued or outstanding. All of the oustanding shares of the
Concourse common stock or 1998 Convertible Stock are duly authorized,
validly issued, and, to our knowledge, fully paid for and
non-assessable. To our knowledge, there are no outstanding
subscriptions, options, warrants, calls, rights, convertible securities
or other agreements or commitments of any character relating to the
capital stock of Concourse, other than as contemplated by the
Agreement. To our knowledge, with the exception of Peoples Acquisition,
Concourse does not hold, directly or indirectly, any outstanding
equitable, legal or beneficial interests in any corporation or other
entity.
4. The authorized capital stock of Peoples Acquisition consists of 1,000
shares of common stock, $0.01 par value per share, of which 100 shares
are issued and outstanding and held of record and beneficially owned by
Concourse. To our knowledge, there are no outstanding subscriptions,
options, warrants, calls, rights, convertible securities or other
agreements or commitments of any character relating to the capital
stock. To our knowledge, Peoples Acquisition Corporation does not hold,
directly or indirectly, any outstanding equitable, legal or beneficial
interests in any corporation or other entity.
5. All shares of the capital stock of Concourse received by PPG
shareholders as contemplated by the Agreement will, when issued and
delivered in accordance with the Agreement, be duly authorized, validly
issued, fully paid and non-assessable shares not subject to any
preemptive rights.
6. Concourse and Peoples Acquisition have full corporate power and
authority to execute and deliver the Agreement and to carry out the
transactions contemplated therein. All actions required to be taken by
Concourse and Peoples Acquisition to authorize the execution and
delivery of the Agreement and the performance of the transactions
contemplated thereby have been duly taken in compliance with all
applicable laws. The Agreement has been duly
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executed and delivered by the Concourse and Peoples Acquisition and
constitutes legal, valid and binding obligations of Concourse and
Peoples Acquisition, which are enforceable in accordance with their
terms.
7. Except as disclosed in the schedules to the Agreement, to our knowledge
there are no legal, administrative, arbitration or other proceedings or
governmental investigations pending or threatened against Concourse or
Peoples Acquisition which, if resolved unfavorably would have a
material adverse effect on Concourse or Peoples Acquisition.
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Exhibit 3.2(C)
Opinion of Counsel for PPG
