Exhibit 2.3
EXECUTION COPY
CONTRIBUTION AGREEMENT
This Contribution Agreement (the "Agreement") is entered into as of
the 24th day of February, 2003, by and among EMP Merger Corporation, a Delaware
corporation (the "Company"), and the persons set forth on the signature pages
hereto as "Transferors" and each person who becomes a party to this Agreement in
accordance with the terms of Section 1.3 hereof upon execution of an Instrument
of Accession to this Agreement in the form attached hereto as Exhibit B
(collectively, the "Transferors" and, each individually, a "Transferor").
WHEREAS, pursuant to that certain Merger Agreement of even date
herewith (the "Merger Agreement") by and among the Company and EMP Group L.L.C.,
a Delaware limited liability company (the "LLC"), the issued and outstanding
interests of the LLC set forth on Schedule A attached hereto (each such
reference to Schedule A attached hereto shall mean and refer to such Schedule A
as amended from time to time in accordance with Section 1.3 hereof) (the
"Contribution Interests") owned by the Transferors set forth on Schedule A
attached hereto (collectively, the "Interests Transferors" and each
individually, an "Interests Xxxx sferor") will be contributed to the Company.
Capitalized terms used herein but not defined shall have the meaning ascribed to
them in the Merger Agreement;
WHEREAS, each Interests Transferor desires to make a capital
contribution of the Contribution Interests set forth opposite the name of such
Interests Transferor on Schedule A attached hereto to the Company in exchange
for shares of the Company's Class B Common Stock, par value $0.01 per share (the
"Company Common Stock"), on the terms and conditions contained herein;
WHEREAS, each Transferor set forth on Schedule B attached hereto (each
such reference to Schedule B attached hereto shall mean and refer to such
Schedule B as amended from time to time in accordance with Section 1.3 hereof)
(the "Cash Transferors") desires to make a capital contribution to the Company
in cash in the amount set forth opposite the name of such Cash Transferor on
Schedule B attached hereto (the "Cash Contribution") in exchange for shares of
Company Common Stock on the terms and conditions contained herein;
WHEREAS, the Company desires to issue Company Common Stock to the
Transferors in exchange for the Contribution Interests and the Cash
Contribution; and
WHEREAS, the Company is a transitory entity formed solely for the
purposes of effecting (i) the acquisition of Units pursuant to the Merger by the
Cash Transferors from certain Members and (ii) a recapitalization of the LLC.
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in this
Agreement, the parties to this Agreement, intending to be legally bound,
mutually agree as follows:
ARTICLE I
Contribution and Issuance of Shares of Company Common Stock
1.1 Transfer of Contribution Interests. Subject to the terms and
conditions, relying on the representations and warranties and in consideration
of the covenants and agreements set forth herein, each Interests Transferor
severally agrees irrevocably to contribute, convey, grant, transfer and deliver
at the Closing Time (as defined below) to the Company, and the Company agrees to
accept and take delivery at the Closing Time from the Interests Transferors of,
the Contribution Interests, free and clear of any lien, claim or encumbrance of
any nature whatsoever, except for Company's obligations hereunder. The transfer
of the Contribution Interests by each Interests Transferor pursuant to the terms
of this Agreement shall constitute a contribution transaction under which all
the benefits and risks relating to the Contribution Interests shall pass from
the Interests Transferors to the Company conclusively at the Closing Time and
shall not constitute in any way a lending transaction or any other transaction.
1.2 Cash Contribution. Subject to the terms and conditions,
relying on the representations and warranties and in consideration of the
covenants and agreements set forth herein, each Cash Transferor severally agrees
irrevocably to contribute, convey, grant, transfer and deliver at the Closing
Time hereof to the Company, and the Company does hereby agree to accept and take
delivery at the Closing Time of cash in the amount set forth opposite the name
of each Cash Transferor on Schedule B attached hereto by wire transfer of
immediately available funds denominated in U.S. dollars to an account to be
established with wiring instructions set forth on Exhibit A which will be
attached hereto prior to April 9, 2003.
1.3 Instruments of Accession; Amendment to Schedules.
(a) The Company may, from time to time prior to April 9, 2003,
execute and deliver Instruments of Accession in the form of Exhibit B attached
hereto with additional Transferors pursuant to which such Transferors shall be
made parties to this Agreement and shall agree to contribute the Contribution
Interests and/or Cash Contributions set forth in such Instruments of Accession.
Additional Transferors will be made parties hereto upon execution and delivery
to the Company (a) by such additional Transferor and the Company of an
Instrument of Accession to this Agreement in the form of Exhibit B attached
hereto and (b) by such additional Transferor of a counterpart signature page to
the Amended LLC Agreement.
(b) Schedule A and Schedule B shall be amended from time to time
prior to April 9, 2003, upon execution and delivery by the Company and any such
additional Transferors of an Instrument of Accession, to reflect additional
Contribution Interests or Cash Contributions, as appropriate, and such
additional Transferor. The aggregate amount of all Cash Contributions (i) shall
be increased by any additional Cash Contributions reflected on Schedule B
attached hereto in accordance with the first sentence of this Section 1.3(b)
after the date hereof, and (ii) shall be decreased, with any such decreases
reflected in the Cash Contributions by such Cash Transferors as provided in the
next sentence, by the Units Value (as defined below) of any additional
Contribution Interests reflected on Schedule A attached hereto in accordance
with the first sentence of this Section 1.3(b) after the date hereof. In
addition, each time Schedule A or
2
Schedule B is amended in accordance with the first sentence of this Section
1.3(b), Schedule B shall be automatically amended such that, after the
adjustments required by the immediately preceding sentence, the sum of all Cash
Contributions shall equal $435,058,272 (the "Aggregate Cash Contribution
Amount"). In order to effect the adjustment provided by the immediately
preceding sentence, only the amounts to be contributed by the THLee Transferors
(as defined below), on a pro-rata basis, shall be adjusted (upward and downward)
such that the sum of all Cash Contributions equals the Aggregate Cash
Contribution Amount; provided, further, that the aggregate Cash Contributions by
the THLee Transferors shall in any event be at least $253,920,000 and shall not
exceed $301,946,353. The "THLee Transferors" shall include Xxxxxx X. Xxx Equity
Fund V, L.P., Xxxxxx X. Xxx Parallel Fund V, L.P., Xxxxxx X. Xxx Equity (Cayman)
Fund V, L.P., Xxxxxx Investments Holdings, LLC, Xxxxxx Investments Employees'
Securities Company I LLC, Xxxxxx Investments Employees' Securities Company II
LLC, 1997 Xxxxxx X. Xxx Nominee Trust, and Xxxxxx X. Xxx Investors Limited
Partnership. The "Units Value" shall mean $1,605.272 with respect to each Class
A Unit and Class A-1 Unit, $1,726.370 with respect to each Class C Unit, $913.10
with respect to each Class E Unit, $1,751.138 with respect to each Class F Unit
and $1,683.803 with respect to each Class H Unit.
(c) Schedule B shall be amended to reflect amendments to the Cash
Contribution amount of any Evercore Member or THLee Transferor; provided, that
aggregate Cash Contributions of the Evercore Members and THLee Transferors shall
not be changed, except, with respect to the THLee Transferors, as expressly
provided herein.
(d) The parties hereto acknowledge and agree that (i) there are no
side letter agreements as of the date hereof providing for any benefit, right or
entitlement to any one Initial Co-Investor that is more beneficial to,
preferential to, greater than or superior to, the benefits, rights or
entitlements granted to any other Initial Co-Investor and (ii) if, after the
date hereof, any additional Cash Transferor contributes an amount equal to or
less than $20,000,000 pursuant to the terms hereof and is granted rights
superior to any Cash Transferor making a Cash Contribution equal to or in excess
of $20,000,000 pursuant to the terms hereof (each a "Qualifying Co-Investor"),
then each Qualifying Co-Investor shall receive notice of, and be entitled to,
such superior rights.
1.4 Consideration. Subject to the terms and conditions, relying on
the representations and warranties and in consideration of the covenants and
agreements set forth herein, in consideration of the transfer of the cash and
Contribution Interests to the Company by each Transferor as set forth in
Sections 1.1 and 1.2, the Company agrees to issue such number of shares of the
Company Common Stock (a) to each Cash Transferor equal to a fraction, the
numerator of which is the aggregate cash contributed by such Cash Transferor and
the denominator of which is $1,000, and (b) to each Interests Transferor
determined as follows:
(i) 1.605272 shares of Company Common Stock shall be issued for
each Class A Unit of the LLC, being contributed to the Company by such Interests
Transferor;
(ii) 1.605272 shares of Company Common Stock shall be issued for
each Class A-1 Unit of the LLC being contributed to the Company by such
Interests Transferor;
3
(iii) 1.72637 shares of Company Common Stock shall be issued for
each Class C Unit of the LLC, if any, being contributed to the Company by such
Interests Transferor;
(iv) 0.9131 shares of Company Common Stock shall be issued for each
Class E Unit of the LLC being contributed to the Company by such Interests
Transferor;
(v) 1.751138 shares of Company Common Stock shall be issued for
each Class F Unit of the LLC being contributed to the Company by such Interests
Transferor; and
(vi) 1.683803 shares of Company Common Stock shall be issued for
each Class H Unit of the LLC being contributed to the Company by such Interests
Transferor.
1.5 Closing. Subject to the terms set forth herein, the
contribution of the Contribution Interests and the Cash Contribution and
issuance of the shares of Company Common Stock hereunder shall occur at a
closing (the "Closing") to be held at the offices of Weil, Gotshal & Xxxxxx LLP,
000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, immediately prior to the Effective Time,
but in no event later than June 30, 2003 (the "Closing Time"). Upon delivery by
wire transfer of same day funds denominated in U.S. dollars to the account set
forth on Exhibit A attached hereto by each Cash Transferor in the amount set
forth opposite the name of each Cash Transferor on Schedule B attached hereto,
(i) the Contribution Interests of each Interests Transferor will be
automatically transferred and contributed to the Company, and each Interests
Transferor hereby assigns the Contribution Interests to the Company as of the
Closing Time and (ii) the Company shall deliver a share certificate representing
the Company Common Stock issuable to each Transferor in accordance with Section
1.4.
1.6 Cash Merger Consideration. Each party hereto acknowledges and
agrees that the aggregate Cash Merger Consideration payable by Merger Corp upon
consummation of the Merger shall be paid to the persons and in the amounts set
forth on Schedule C attached hereto. Schedule C shall be automatically amended
from time to time to reflect adjustments required as a result of the
contribution of additional Contribution Interests by Interests Transferors in
accordance with Section 1.3 hereof.
ARTICLE II
Representations and Warranties of the Company
The Company makes the following representations and warranties, which
representations and warranties shall be true, correct and complete in all
respects on the date hereof and shall be true, correct and complete in all
material respects as of the Closing (except for those representations and
warranties that address matters only as of a particular date or only with
respect to a specific period of time, which representations and warranties shall
be true and correct as of such particular date or period of time) to each
Transferor that:
2.1 Organization and Standing. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite corporate power and authority to carry on its
business as now conducted and as proposed to be conducted.
4
2.2 Authorization. All corporate action on the part of the Company
necessary for the authorization, execution, delivery and performance of this
Agreement by the Company, and for the authorization, issuance and delivery of
the shares of Company Common Stock being sold under this Agreement has been
taken. This Agreement, when executed and delivered by all parties hereto, shall
constitute the valid and legally binding obligation of the Company, except to
the extent the enforceability thereof may be limited by bankruptcy laws,
insolvency laws, reorganization laws, moratorium laws or other laws affecting
creditors' rights generally or by general equitable principles.
2.3 Validity of Company Common Stock. The shares of Company Common
Stock, when issued, sold and delivered in accordance with the terms of this
Agreement, shall be duly and validly issued, and fully paid and nonassessable.
2.4 Securities Act. Subject to the completion of any post-sale
Blue Sky filings, which filings the Company agrees it will complete, the
issuance of the shares of the Company Common Stock in accordance with the terms
of this Agreement (assuming the accuracy of the representations and warranties
of each Transferor contained in Article III hereof) is exempt from the
registration requirements of the Securities Act of 1933, as amended (the "1933
Act").
ARTICLE III
Representations, Warranties and Agreements of
the Transferors
Each Transferor, separately and not jointly, makes the following
representations and warranties, which representations and warranties shall be
true, correct and complete in all respects on the date hereof and shall be true,
correct and complete in all material respects as of the Closing (except for
those representations and warranties that address matters only as of a
particular date or only with respect to a specific period of time, which
representations and warranties shall be true and correct as of such particular
date or period of time) to the Company and each other Transferor that:
3.1 Authorization. Such Transferor has full legal capacity and
unrestricted power to execute and deliver this Agreement to which he, she or it
is a party, and any other agreements or instruments executed by it in connection
herewith or therewith and to consummate the transactions contemplated herein or
therein. This Agreement, when executed and delivered by each Transferor, will
constitute its valid and legally binding obligation, except to the extent the
enforceability thereof may be limited by bankruptcy laws, insolvency laws,
reorganization laws, moratorium laws or other laws affecting creditors' rights
generally or by general equitable principles.
3.2 Investment Representations.
(a) The shares of Company Common Stock to be received by
each Transferor will be acquired by such Transferor for investment for his, her
or its own account, not as a nominee or agent, and not with a view to the sale
or distribution of any part thereof in violation of applicable federal and state
securities laws, and such Transferor has no current intention of
5
selling, granting participation in or otherwise distributing the same, in each
case, in violation of applicable federal and state securities laws. By executing
this Agreement, such Transferor further represents that such Transferor does not
have any contract, undertaking, agreement or arrangement with any person to
sell, transfer or grant participation to such person, or to any third person,
with respect to any of the shares of Company Common Stock, in each case, in
violation of applicable federal and state securities laws.
(b) Such Transferor understands that the shares of Company
Common Stock have not been registered under the 1933 Act on the basis that the
issuance provided for in this Agreement and the issuance of securities hereunder
is exempt from registration under the 1933 Act pursuant to Section 4(2) thereof
and regulations issued thereunder.
(c) Such Transferor has such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of his, her or its investment. Such Transferor further represents that
such Transferor has had access, during the course of the transactions
contemplated hereby and prior to its purchase of shares of Company Common Stock,
to the same kind of information that is specified in Part I of a registration
statement under the 1933 Act and that it has had, during the course of the
transactions contemplated hereby and prior to his, her or its investment of the
shares of Company Common Stock, the opportunity to ask questions of, and receive
answers from, the Company concerning the terms and conditions of the offering
and to obtain additional information (to the extent the Company possessed such
information or could acquire it without unreasonable effort or expense)
necessary to verify the accuracy of any information furnished to it or to which
it had access. Such Transferor understands that no federal or state agency has
passed upon this investment or upon the Company, nor has any such agency made
any finding or determination as to this investment.
(d) Such Transferor understands that the shares of Company
Common Stock may not be sold, transferred or otherwise disposed of without
registration under the 1933 Act or an exemption therefrom, and that in the
absence of an effective registration statement covering the shares of Company
Common Stock or an available exemption from registration under the 1933 Act, the
shares of Company Common Stock must be held indefinitely. Such Transferor must
be prepared to bear the economic risk of this investment for an indefinite
period of time. In particular, such Transferor acknowledges that it is aware
that the shares of Company Common Stock may not be sold pursuant to Rule 144
promulgated under the 1933 Act unless all of the conditions of that Rule are
met. Among the current conditions for use of Rule 144 by certain holders is the
availability to the public of current information about the Company. Such
information is not now available, and the Company has no current plans to make
such information available. Such Transferor represents that, in the absence of
an effective registration statement covering the shares of Company Common Stock,
such Transferor will sell, transfer or otherwise dispose of the shares of
Company Common Stock only in a manner consistent with his, her or its
representations set forth herein.
(e) Such Transferor acknowledges that this investment is
not recommended for investors who have any need for a current return on this
investment or who cannot bear the risk of losing their entire investment. Such
Transferor acknowledges that: (i) such Transferor has adequate means of
providing for his, her or its current needs and possible personal contingencies
and has no need for liquidity in this investment; (ii) his, her or its
commitment to
6
investments which are not readily marketable is not disproportionate to his, her
or its net worth; and (iii) his, her or its investment in the shares of Company
Common Stock will not cause his, her or its overall financial commitments to
become excessive.
(f) Such Transferor has not retained any finder, broker,
agent, financial advisor, Purchaser Representative (as defined in Rule 501(h) of
Regulation D of the 0000 Xxx) or other intermediary in connection with the
transactions contemplated by this Agreement and agrees to indemnify and hold
harmless the Company from any liability for any compensation to any such
intermediary retained by such Transferor and the fees and expenses of defending
against such liability or alleged liability
(g) Such Transferor is an "Accredited Investor" as defined
in Rule 501(a) promulgated under Regulation D of the 1933 Act.
3.3 Title to Shares. Such Transferor, to the extent that such
Transferor is an Interests Transferor, owns good and marketable title to the
Contribution Interests set forth opposite such Interests Transferor's name on
Schedule A hereto, free and clear of all liens, pledges, charges, security
interests, restrictions on transfer and other encumbrances. Other than as
contemplated by this Agreement, there is no subscription, option, warrant, call,
right, agreement or commitment relating to the issuance, sale, delivery,
repurchase or transfer by the Interests Transferor (including any right of
conversion or exchange under any outstanding security or other instrument) of
such Contribution Interests. Upon the contribution of the Contribution Interests
to the Company at Closing, and subject to applicable securities laws, such
Interests Transferor will transfer to the Company his, her or its entire legal
and beneficial interest in the Contribution Interests, free and clear of any
liens, pledges, charges, security interests, restrictions on transfer and other
encumbrances by or through such Interests Transferor. Such Interests Transferor
is not party to and is not aware of any voting trusts, proxies or any other
agreements or understandings with respect to the voting of the Contribution
Interests.
3.4 No Violation. Neither the execution and delivery of this
Agreement by such Transferor nor the transactions contemplated herein will (a)
result in a default (or give rise to any right of termination, cancellation or
acceleration) under any of the terms, conditions or provisions of any agreement,
lease or other instrument or obligation to which such Transferor is a party,
except for such defaults (or rights of termination, cancellation or
acceleration) as to which requisite waivers or consents have been or shall prior
to the Closing be obtained, or (b) violate any order, writ, injunction or decree
applicable to such Transferor or any of such Transferor's assets.
3.5 Government Approvals. No consent, approval, license or
authorization of, or designation, declaration or filing with, any court or
governmental authority or regulatory agency is or will be required on the part
of such Transferor in connection with the execution, delivery and performance by
such Transferor of this Agreement and any other agreements or instruments
executed by such Transferor in connection herewith or therewith, except for the
following: (i) those which have already been made or granted, and (ii)
post-issuance filings pursuant to applicable state and federal securities laws
(which filings will be made by the Company following the Closing in accordance
with applicable requirements).
7
3.6 Litigation. There are no judicial or administrative actions,
proceedings or investigations pending or, to such Transferor's knowledge,
threatened that question the validity of this Agreement or any action taken or
to be taken by Interests Transferor in connection with this Agreement. There are
no lawsuits, claims, judgments, orders, decrees, administrative or other
proceedings or investigations relating to the ownership of the Contribution
Interests held by such Interests Transferor or otherwise affecting the
Contribution Interests pending, or, to such Transferor's knowledge, threatened
against Transferor.
3.7 Broker. Except as set forth on Schedule 3.7 attached hereto,
no broker, investment banker, financial advisor or other person is entitled to
any broker's, finder's, financial advisor's or other similar fee or commission
in connection with the transactions contemplated by this Agreement, based upon
arrangements made by or on behalf of such Transferor.
ARTICLE IV
Mutual Conditions Precedent
The obligations of the Company and the Transferors under Article I of
this Agreement are subject to the fulfillment or waiver on or before the Closing
of the conditions precedent to the consummation of the Merger set forth in
Section 6 of the Merger Agreement pursuant to the terms set forth therein.
ARTICLE V
Miscellaneous
5.1 No Waiver; Modifications in Writing. This Agreement sets forth
the entire understanding of the parties, and supersedes all prior agreements,
arrangements and communications, whether oral or written, with respect to the
subject matter hereof. No waiver of or consent to any departure from any
provision of this Agreement shall be effective unless signed in writing by the
party entitled to the benefit thereof, provided that notice of any such waiver
shall be given to each party hereto as set forth below. Except as otherwise
provided herein, no amendment, modification or termination of any provision of
this Agreement shall be effective unless signed in writing by or on behalf of
the Company and the Transferors entitled to a majority of the shares of Company
Common Stock issuable hereunder. Any amendment, supplement or modification of or
to any provision of this Agreement, any waiver of any provision of this
Agreement, and any consent to any departure by the Company from the terms of any
provision of this Agreement, shall be effective only in the specific instance
and for the specific purpose for which made or given. Except where notice is
specifically required by this Agreement, no notice to or demand on the Company
in any case shall entitle the Company to any other or further notice or demand
in similar or other circumstances.
5.2 Notices. All notices, requests, consents and other
communications hereunder to any party shall be deemed to be sufficient if
contained in a written instrument delivered in person or sent by telecopy,
nationally-recognized overnight courier or first class registered or certified
mail, return receipt requested, postage prepaid, addressed to such party at the
address set forth below or such other address as may hereafter be designated in
writing by such party to the other parties:
8
If to the Company: EMP Merger Corp.
c/o Xxxxxx X. Xxx Partners, L.P.
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. XxXxxx
Xxxxx Xxxxx
Facsimile: (000) 000-0000
If to the Transferors: To the address set forth below such
Transferor's name on Schedule A attached
hereto and/or Schedule B attached hereto
With a copy to: Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
and
Xxxxxxx Xxxxxxx & Xxxxxxxx
0000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
All such notices, requests, consents and other communications shall be
deemed to have been delivered (a) in the case of personal delivery or delivery
by telecopy, on the date of such delivery, (b) in the case of dispatch by
nationally-recognized overnight courier, on the next business day following such
dispatch and (c) in the case of mailing, on the third business day after the
posting thereof.
5.3 Taxes. The Company shall pay any and all stamp, transfer and
other similar taxes payable or determined to be payable in connection with the
execution and delivery of this Agreement or the issuance of the shares of
Company Common Stock but excluding all federal, state and local income or
similar taxes and shall save and hold the Transferors harmless from and against
any and all liabilities with respect to or resulting from any delay in paying,
or omission to pay, such taxes.
5.4 Execution of Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed to be an original and all of which counterparts, taken together, shall
constitute but one and the same Agreement.
5.5 Binding Effect; Assignment. The rights and obligations of the
Transferors under this Agreement may not be assigned to any other person. Except
as expressly provided in this Agreement, this Agreement shall not be construed
so as to confer any right or benefit upon any
9
person other than the parties to this Agreement, and their respective successors
and assigns. This Agreement shall be binding upon the Company and each
Transferor and its and their respective successors and assigns.
5.6 Governing Law. This Agreement shall be governed by the laws of
the State of Delaware as to all matters, including but not limited to matters of
validity, construction, effect, performance and remedies.
5.7 Severability of Provisions. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
5.8 Exhibits and Headings. All Exhibits to this Agreement shall be
deemed to be a part of this Agreement. The Article and Section headings used or
contained in this Agreement are for convenience of reference only and shall not
affect the construction of this Agreement.
5.9 Injunctive Relief. Each of the parties to this Agreement
hereby acknowledges that in the event of a breach by any of them of any material
provision of this Agreement, the aggrieved party may be without an adequate
remedy at law. Each of the parties therefore agrees that, in the event of a
breach of any material provision of this Agreement, the aggrieved party may
elect to institute and prosecute proceedings to enforce specific performance or
to enjoin the continuing breach of such provision, as well as to obtain damages
for breach of this Agreement. By seeking or obtaining any such relief, the
aggrieved party will not be precluded from seeking or obtaining any other relief
to which it may be entitled.
5.10 Attorneys' Fees. In any action or proceeding brought to
enforce any provision of this Agreement, or where any provision hereof or
thereof is validly asserted as a defense, the successful party shall be entitled
to recover reasonable attorneys' fees in addition to any other available remedy.
5.11 Survival of Agreements, Representations and Warranties. All
agreements, representations and warranties contained herein or made in writing
by or on behalf of the Company or the Transferors, as the case may be, in
connection with the transactions contemplated by this Agreement shall survive
the execution and delivery of this Agreement and the issuance of the shares of
Company Common Stock.
10
CONTRIBUTION AGREEMENT
COUNTERPART SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as an instrument under seal, as of the date first above written.
EMP MERGER CORPORATION
By: /s/ Xxxxxxx X. XxXxxx
-------------------------------
Name: Xxxxxxx X. XxXxxx
Title: President
TRANSFERORS:
XXXXXX X. XXX EQUITY FUND V, L.P.
By: THL Equity Advisors V, LLC, its general partner
By: Xxxxxx X. Xxx Partners, L.P., its sole member
By: Xxxxxx X. Xxx Advisors, LLC, its general partner
/s/ Xxxxxxx X. XxXxxx
-----------------------------------
Name: Xxxxxxx X. XxXxxx
Principal Managing Director
XXXXXX X. XXX PARALLEL FUND V, L.P.
By: THL Equity Advisors V, LLC, its general partner
By: Xxxxxx X. Xxx Partners, L.P., its sole member
By: Xxxxxx X. Xxx Advisors, LLC, its general partner
/s/ Xxxxxxx X. XxXxxx
-----------------------------------
Name: Xxxxxxx X. XxXxxx
Principal Managing Director
XXXXXX X. XXX EQUITY (CAYMAN) FUND V, L.P.
By: THL Equity Advisors V, LLC, its general partner
By: Xxxxxx X. Xxx Partners, L.P., its sole member
By: Xxxxxx X. Xxx Advisors, LLC, its general partner
/s/ Xxxxxxx X. XxXxxx
-----------------------------------
Name: Xxxxxxx X. XxXxxx
Principal Managing Director
XXXXXX INVESTMENTS HOLDINGS, LLC
By: /s/ Xxxxxx Xxxxxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title:
XXXXXX INVESTMENTS EMPLOYEES' SECURITIES
COMPANY I LLC
By: /s/ Xxxxxx Xxxxxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title:
XXXXXX INVESTMENTS EMPLOYEES' SECURITIES
COMPANY II LLC
By: /s/ Xxxxxx Xxxxxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title:
1997 XXXXXX X. XXX NOMINEE TRUST
By: US Bank, N.A. (successor to State Street Bank and
Trust Company), not personally, but solely as Trustee
under the 1997 Xxxxxx X. Xxx Nominee Trust
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
XXXXXX X. XXX INVESTORS LIMITED PARTNERSHIP
By: THL Investment Management Corp., its general
partner
By: /s/ Xxxxxx X. Xxx
---------------------------------------
Xxxxxx X. Xxx, Chief Executive Officer
PPM AMERICA PRIVATE EQUITY FUND L.P.
By: PPM AMERICA CAPITAL PARTNERS, LLC
Its: General Partner
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------------
Its: Partner
-------------------------------------
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------
Its: Senior Partner
-------------------------------------
EVERCORE CAPITAL PARTNERS (NQ) L.P.
By: Evercore Partners L.L.C., its General Partner
By: /s/ Xxxx Xxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxx
Title: Managing Member
EVERCORE CAPITAL OFFSHORE PARTNERS L.P.
By: Evercore Partners L.L.C., its Investment General
Partner
By: /s/ Xxxx Xxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxx
Title: Managing Member
By: Evercore Offshore Partners Ltd., its
Administrative General Partner
By: /s/ Xxxx Xxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxx
Title: Director
EVERCORE CO-INVESTMENT PARTNERSHIP L.P.
By: Evercore Co-Investment GP L.L.C., its General
Partner
By: Evercore Partners L.L.C., its Managing Member
By: /s/ Xxxx Xxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxx
Title: Managing Member
EVERCORE CAPITAL PARTNERS L.P.
By: Evercore Partners L.L.C., its General Partner
By: /s/ Xxxx Xxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxx
Title: Managing Member
EVERCORE CAPITAL PARTNERS II L.P.
By: Evercore Partners II L.L.C., its General Partner
By: /s/ Xxxx Xxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxx
Title: Managing Member
EVERCORE CO-INVESTMENT PARTNERSHIP II L.P.
By: Evercore Co-Investment XX XX L.L.C., its General
Partner
By: Evercore Partners II L.L.C., its Managing Member
By: /s/ Xxxx Xxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxx
Title: Managing Member
THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED
STATES
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Investment Officer
Xxxxx X. Xxxxxx, on behalf of the DJP Members
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
BG MEDIA INVESTORS, L.P., as a Member
By: BG Media Investors L.L.C., as General Partner
By: /s/ Xxxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxx
Title: General Partner
BG MEDIA INTERMEDIATE FUND, L.P., as a Member
By: BG Media Investors L.L.C., as General Partner
By: /s/ Xxxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxx
Title: General Partner
WEIDER HEALTH AND FITNESS, LLC
By: /s/ Xxxx Xxxxxx
-------------------------------------
Name: Xxxx Xxxxxx
Title: President
WEIDER INTERACTIVE NETWORKS, INC.
By: /s/ Xxxx Xxxxxx
-------------------------------------
Name: Xxxx Xxxxxx
Title:
SCHEDULE A
Class and Number of Interests Number of shares of Company
Name and Address of Interests Transferor Contributed Stock Issuable
-------------------------------------------------------------------------------------------------------------
Evercore Capital Partners L.P. 2,208.062 Class A Units 3,544.54
67.200 Class A-1 Units 107.874
493.462 Class H Units 830.892
-------------------------------------------------------------------------------------------------------------
Evercore Capital Partners (NQ) L.P. 2,518.950 Class A Units 4,043.601
76.751 Class A-1 Units 123.207
562.959 Class H Units 947.9120
-------------------------------------------------------------------------------------------------------------
Evercore Capital Offshore Partners L.P. 619.096 Class A Units 993.818
18.818 Class A-1 Units 30.208
138.352 Class H Units 232.957
-------------------------------------------------------------------------------------------------------------
Evercore Co-Investment Partnership L.P. 600.125 Class A Units 963.364
-------------------------------------------------------------------------------------------------------------
DJP 614.251 Class E Units 560.872
-------------------------------------------------------------------------------------------------------------
BG Media Investor, L.P. 12,199.821 Class A Units 19,584.035
-------------------------------------------------------------------------------------------------------------
BG Media Intermediate Fund, L.P. 259.124 Class A-1 Units 415.965
-------------------------------------------------------------------------------------------------------------
Weider Health and Fitness, LLC 6,361.116 Class H Units 10,710.865
-------------------------------------------------------------------------------------------------------------
Weider Interactive Networks, Inc. 64.001 Class H Units 107.765
-------------------------------------------------------------------------------------------------------------
SCHEDULE B
Number of shares of Company
Name and Address of Cash Transferor Cash Contribution Amount Stock Issuable
---------------------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxx Equity Fund V, L.P. $ 232,679,860.00 232,679.860
---------------------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxx Parallel Fund V, L.P. $ 60,389,271.00 60,389.271
---------------------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxx Equity (Cayman) Fund V, L.P. $ 3,200,631.00 3,200.631
---------------------------------------------------------------------------------------------------------------------
Xxxxxx Investments Holdings, LLC $ 1,811,678.00 1,811.678
---------------------------------------------------------------------------------------------------------------------
Xxxxxx Investments Employees' Securities Company I LLC $ 1,570,121.00 1,570.121
---------------------------------------------------------------------------------------------------------------------
Xxxxxx Investments Employees' Securities Company II LLC $ 1,388,953.00 1,388.953
---------------------------------------------------------------------------------------------------------------------
1997 Xxxxxx X. Xxx Nominee Trust $ 513,309.00 513.309
---------------------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxx Investors Limited Partnership $ 392,530.00 392.530
---------------------------------------------------------------------------------------------------------------------
Evercore Capital Partners II L.P. $ 107,544,931.00 107,544.931
---------------------------------------------------------------------------------------------------------------------
Evercore Co-Investment Partnership II L.P. $ 566,988.00 566.988
---------------------------------------------------------------------------------------------------------------------
PPM America Private Equity Fund L.P. $ 20,000,000.00 20,000
---------------------------------------------------------------------------------------------------------------------
The Equitable Life Assurance Society of the Unites States $ 5,000,000.00 5,000
---------------------------------------------------------------------------------------------------------------------
AGGREGATE CASH CONTRIBUTION AMOUNT $ 435,058,272.00
=================
---------------------------------------------------------------------------------------------------------------------
AGGREGATE SHARES OF COMPANY COMMON STOCK 435,058.272
===========
---------------------------------------------------------------------------------------------------------------------
SCHEDULE C
Evercore Capital Partners L.P. $ 114,674,877
Evercore Capital Partners (NQ) L.P. $ 23,598,646
Evercore Capital Offshore Partners L.P. $ 30,152,548
Evercore Co-Investment Partnership L.P. $ 6,501,714
Tandem Journalism Investment, L.P. $ 65,576,978
Circulation, LLC $ 45,620,762
XX Xxxxxx Partners (BCHA), L.P. $ 49,253,242
BG Media Investors, L.P. $ 20,547,772
BG Media Intermediate Fund, L.P. $ 436,435
DB Capital Investors, L.P. $ 16,393,041
BancBoston Investments Inc. $ 9,039,188
Caravelle Investment Fund, L.L.C. $ 8,026,361
Xxxxxx Holdings, L.L.C. $ 5,797,521
Xxxxx X. Xxxxxx $ 10,724,903
Other Management $ 5,714,284
Aggregate Cash Merger Consideration $ 412,058,272
=============
SCHEDULE 3.7
to the
CONTRIBUTION AGREEMENT
BROKERAGE FEES
1. The fees paid to UBS Warburg LLC in connection with its delivery of the
fairness opinion to the Advisory Committee of Evercore Capital Partners
L.P.
2. The fees paid to JPMorgan in connection with the transactions contemplated
by this Agreement.
3. The fees paid to Bear Xxxxxxx in connection with the transactions
contemplated by this Agreement.
EXHIBIT A
BANK ACCOUNT AND WIRING INSTRUCTIONS
[To be attached prior to April 9, 2003]
EXHIBIT B
EMP MERGER CORPORATION
INSTRUMENT OF ACCESSION
The undersigned, _________________, hereby agrees to become a party to
and be bound by that certain Contribution Agreement, dated as of February 24,
2003 (the "Contribution Agreement"), by and among EMP Merger Corporation and the
other Transferors named therein, as a "[Interests][Cash] Transferor". Any
capitalized terms used herein and not otherwise defined shall have the meanings
assigned to them in the Contribution Agreement. This Instrument of Accession
shall take effect and shall become an integral part of the said Contribution
Agreement immediately upon (i) execution and delivery by the undersigned to the
Company and (ii) execution on behalf of the Company of this Instrument.
IN WITNESS WHEREOF, this INSTRUMENT OF ACCESSION has been duly
executed by or on behalf of the undersigned, as a sealed instrument under the
laws of the State of Delaware, as of the date below written.
EMP MERGER CORPORATION [Number of Contribution Interests:_______]
[Type of Contribution Interests:__________]
[Amount of Cash Contribution:______________]
By:
------------------------
Name:
Title:
By:
--------------------------------------
Print Name:
------------------------------
Date:
----------
Address:
--------------------------------
--------------------------------
--------------------------------
