STOCK AND ASSET PURCHASE AGREEMENT
among
XXXX XXXXXXXXXX,
GLOBE INTERNATIONAL PUBLISHING INC.,
GLOBE INTERNATIONAL INC.
EMP GROUP L.L.C.
and
AMERICAN MEDIA OPERATIONS, INC.
Dated as of November 1, 1999
TABLE OF CONTENTS
Page
1. SALE AND TRANSFER OF GCC STOCK...........................................................................1
2. SALE OF ASSETS AND ASSUMPTION OF LIABILITIES.............................................................1
2.1 Sale of GII Assets.............................................................................1
2.2 Excluded Assets................................................................................2
2.3 Assumed Liabilities............................................................................2
2.4 Excluded Liabilities...........................................................................2
2.5 Third Party Consents...........................................................................3
2.6 Instruments of Conveyance......................................................................3
3. PURCHASE PRICE...........................................................................................4
3.1 Purchase Price.................................................................................4
3.2 Equity Position................................................................................4
3.3 Purchase Price Adjustment......................................................................4
3.4 GST and QST....................................................................................6
3.5 GST and QST Elections..........................................................................6
4. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER, PARENT AND GII........................................6
4.1 Corporate Existence............................................................................6
4.2 Authority......................................................................................7
4.3 GCC Company Stock..............................................................................7
4.4 Governmental Approvals; Consents. ............................................................7
4.5 Financial Statements; Book Value; No Undisclosed Liabilities...................................8
4.6 Absence of Changes. ..........................................................................8
4.7 Real and Personal Properties. ................................................................8
4.8 Contracts.....................................................................................10
4.9 Inventory.....................................................................................10
4.10 Receivables...................................................................................10
4.11 Litigation....................................................................................10
4.12 Intellectual Property.........................................................................10
4.13 Insurance. ...................................................................................12
4.14 Tax Matters. ................................................................................12
4.15 Employment and Benefits.......................................................................14
4.16 Compliance with Laws..........................................................................15
4.17 Finders; Brokers..............................................................................16
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4.18 Environmental Matters.........................................................................16
4.19 Entire Business...............................................................................17
4.20 Termination of GCC Affiliate Arrangements.....................................................17
4.21 Year 2000 Compliance..........................................................................17
4.22 Solvency......................................................................................18
4.23 Spin-off of Certain Assets....................................................................18
4.24 Condition of Assets...........................................................................18
4.25 Labor and Employment Matters..................................................................18
4.26 Certain Information...........................................................................18
4.27 Sellers' Canadian Assets......................................................................19
4.28 No Other Representations or Warranties........................................................19
5. REPRESENTATIONS OF BUYER AND EMP........................................................................19
5.1 Buyer Corporate Existence.....................................................................19
5.2 EMP Existence.................................................................................19
5.3 Authority. ..................................................................................20
5.4 Governmental Approvals; Consents. ...........................................................20
5.5 Finders; Brokers. ...........................................................................20
5.6 Access to Information. ......................................................................20
5.7 Purchase for Investment.......................................................................20
5.8 EMP Units.....................................................................................21
5.9 GST and QST Registration......................................................................21
5.10 Buyer's and EMP's Canadian Assets.............................................................21
5.11 No EMP Indebtedness...........................................................................21
5.12 EMP Operations................................................................................21
5.13 No Other Representations or Warranties........................................................21
6. AGREEMENTS OF BUYER.....................................................................................22
6.1 Access to Records and Personnel...............................................................22
6.2 Tax Matters...................................................................................22
6.3 Montreal Operations...........................................................................25
6.4 Employee Matters..............................................................................25
6.5 Use of "Globe" Name...........................................................................26
6.6 Discharge of Obligations When Due.............................................................26
7. INDEMNIFICATION.........................................................................................26
7.1 Sellers Indemnity.............................................................................26
7.2 Buyer Indemnity...............................................................................28
7.3 Procedures for Indemnification................................................................28
7.4 Additional Agreements.........................................................................30
8. MISCELLANEOUS AGREEMENTS OF THE PARTIES.................................................................32
8.1 Notices.......................................................................................32
8.2 Bulk Transfers................................................................................33
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8.3 Further Assurances; Asset Returns; Securities Law Requirements................................33
8.4 Other Covenants...............................................................................34
8.5 Expenses......................................................................................34
8.6 Transaction Taxes.............................................................................34
8.7 Non-Assignability; Binding Agreement..........................................................34
8.8 Amendment; Waiver.............................................................................34
8.9 Schedules and Exhibits........................................................................35
8.10 Third Parties.................................................................................35
8.11 Governing Law.................................................................................35
8.12 Consent to Jurisdiction; Waiver of Jury Trial.................................................35
8.13 Certain Definitions...........................................................................35
8.14 Section 1445 Withholding......................................................................36
8.15 Entire Agreement..............................................................................36
8.16 Section Headings; Table of Contents...........................................................36
8.17 Severability..................................................................................36
8.18 Counterparts; Execution by Facsimile Signature................................................37
8.19 Public Announcements..........................................................................37
8.20 Dollar Amounts................................................................................37
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Schedules
Schedule A - Business
Schedule 2.1 - Acquired Assets
Schedule 2.2 - Excluded Assets
Schedule 2.3 - Assumed Liabilities
Schedule 2.4(i) - GII Affiliate Agreements
Schedule 2.4(j) - Certain Excluded Liabilities
Schedule 3.1(a) - Estimated Purchase Price Deductions
Schedule 3.1(b) - Stock/Asset Purchase Price Allocation
Schedule 3.1(c) - Asset Purchase Price Allocation
Schedule 3.2 - Equity Position
Schedule 3.3 - Closing Statement Methodologies and Accounting Exceptions
Schedule 4.2 - Required Consents
Schedule 4.5 - Financial Statements
Schedule 4.7(b) - Certain Consents
Schedule 4.7(c) - Real Property
Schedule 4.7(d) - Certain property options
Schedule 4.8(a) - Disclosed Contracts
Schedule 4.11 - Litigation
Schedule 4.12(a) - Intellectual Property
Schedule 4.12(b) - Limitations with respect to Intellectual Property
Schedule 4.13 - Insurance
Schedule 4.14 - Tax Matters
Schedule 4.15(a) - Employee Benefit Plans
Schedule 4.18 - Environmental Matters
Schedule 4.20 - Termination of GCC Affiliate Agreements
Schedule 4.21 - Year 2000 Compliance
Schedule 4.23 - GCC Excluded Assets
Schedule 4.25 - List of Certain Employees
Schedule 4.26(a) - Audit Reports and Publishers' Statements
Schedule 4.26(b) - Subscription and Circulation Information
Schedule 4.26(c) - Advertising Contracts
Schedule 4.26(d) - Rate Cards
Schedule 5.8 - EMP Capitalization
Schedule 6.3 - Montreal Operations
Schedule 6.4(a) - Certain Employees
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STOCK AND ASSET PURCHASE AGREEMENT
Stock and Asset Purchase Agreement, dated as of November 1, 1999
(hereinafter "Agreement"), among Xxxx Xxxxxxxxxx ("Stockholder"), Globe
International Publishing Inc., a corporation organized under the laws of Canada
("Parent"), Globe International Inc., a corporation organized under the laws of
Canada ("GII," and together with Parent and Stockholder, the "Sellers"), EMP
Group L.L.C., a limited liability company organized under the laws of Delaware
("EMP") and American Media Operations, Inc., a Delaware corporation ("Buyer").
W I T N E S S E T H:
WHEREAS, Globe Communications Corp., a Delaware corporation ("GCC") and
GII are engaged in the business of publishing, distributing and providing
services with respect to certain publications as more fully described in
Schedule A hereto (which business is hereinafter referred to as the "Business");
and
WHEREAS, Buyer desires to purchase from Parent and Parent desires to
sell, or to cause its direct or indirect subsidiaries to sell, to Buyer, on the
terms and subject to the conditions of this Agreement, (i) all of the
outstanding shares of capital stock of GCC (such purchase, the "Stock
Purchase"), and (ii) certain of the assets and liabilities of GII (such
purchase, the "Asset Purchase" and, together with the Stock Purchase, the
"Purchase") upon the terms and subject to the conditions of this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
promises contained herein, the parties hereby agree as follows:
1. SALE AND TRANSFER OF GCC STOCK. Immediately after the execution hereof,
Parent shall deliver to Buyer certificates representing 95% and to EMP
certificates representing 5% of the outstanding shares of capital stock of GCC
(the "GCC Company Stock") duly endorsed, or accompanied by stock powers duly
executed, with all necessary stock transfer stamps attached thereto and
canceled, or such other assignments, deeds, share transfer forms, endorsements,
notarial deeds of transfer or other instruments or documents, duly stamped where
necessary as required pursuant to applicable law and such shares shall be
delivered free and clear of all liens, claims, charges, security interests,
options or other legal or equitable encumbrances (with the exception of those
restrictions arising from the registration requirements of any applicable
federal or state securities laws).
2. SALE OF ASSETS AND ASSUMPTION OF LIABILITIES
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2.1 Sale of GII Assets. On and as of the date hereof (the "Closing
Date"), GII shall sell, assign, transfer, convey and deliver to Buyer, and Buyer
shall purchase or assume, as the case may be, the assets, interests, rights,
properties, claims, contracts and business of GII as described in Schedule 2.1
hereof (the "Assets"). On and as of the Closing Date, title to the Assets and
risk of loss as to the Assets shall pass from Sellers to Buyer.
2.2 Excluded Assets. It is expressly agreed that GII will retain and
Buyer will not acquire the assets set forth in Schedule 2.2 (the "Excluded
Assets").
2.3 Assumed Liabilities. Buyer hereby assumes and agrees to pay,
perform and discharge when due the liabilities and obligations of GII
specifically set forth in Schedule 2.3 ("Assumed Liabilities"), but only to the
extent that such liabilities do not give rise to an indemnity obligation under
Section 7.1 hereof and are not Excluded Liabilities (as defined in Section 2.4
below) and the liabilities so assumed shall constitute Assumed Liabilities
hereunder. Notwithstanding any other provisions in this Agreement, all
liabilities, debts and obligations of GCC are transferred pursuant to the Stock
Purchase by operation of law and shall constitute Assumed Liabilities hereunder,
subject to the indemnity provisions contained in Section 7.
2.4 Excluded Liabilities. It is expressly agreed that GII will retain
and Buyer shall not assume any liabilities not specifically assumed pursuant to
Section 2.3, including but not limited to the following liabilities (the
"Excluded Liabilities"):
(a) all obligations and liabilities arising out of or relating
to the Excluded Assets;
(b) all obligations and liabilities of GII, whether accrued,
absolute, fixed, contingent or otherwise, relating to any litigation, claim,
suit, action, proceeding, investigation or any other matter arising from the
publishing of any material prior to the Closing Date or any events occurring
before the Closing Date that give rise to obligations or liability on the part
of GII, except for up to $500,000 of aggregate GCC and/or GII liability in
accordance with, and subject to, the indemnity provisions set forth in Section
7.2(iii);
(c) all debts, liabilities or obligations of GII that do not
arise out of or are not related to the Business and all Retained Benefits
Liabilities (as defined in Section 6.4(b)(ii));
(d) all obligations and liabilities of GII retained pursuant
to Section 6.3 hereof;
(e) except as provided in Section 8.6, all obligations and
liabilities of GII for Taxes, including, without limitation, (i) any Tax
liability of GII relating to, pertaining to, imposed on, or arising out of the
Business or the Assets with respect to periods or portions thereof ending prior
to the Closing Date and (ii) any Tax liability of GII arising in connection with
the transactions contemplated hereby and under any agreements entered into in
connection herewith;
(f) all obligations and liabilities under any bond, note,
debenture or similar instrument or other security or any other indebtedness for
borrowed money of GII;
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(g) all obligations and liabilities arising out of the conduct
of operations of GII after the Closing Date;
(h) all obligations and liabilities of GII, whether accrued,
absolute, fixed, contingent, or otherwise, under any applicable Environmental
Law (as defined in Section 4.18 below) or with respect to any Materials of
Environmental Concern (as defined in Section 4.18 below);
(i) all agreements and arrangements between GII and any
affiliate of any of the Sellers other than those set forth on Schedule 2.4(i);
(j) all obligations and liabilities arising out of those
liabilities specifically set forth on Schedule 2.4(j); and
(k) any other obligations and liabilities not expressly
assumed by Buyer pursuant to this Agreement.
2.5 Third Party Consents. Notwithstanding any provision to the contrary
contained herein, to the extent that assignment hereunder by the Sellers to the
Buyer of any contract is not permitted or is not permitted without the consent
of a third party, this Agreement shall not be deemed to constitute an
undertaking to assign the same if such consent is not given or if such an
undertaking otherwise would constitute a breach of, or cause a loss of benefits
under, any such contract. The Sellers shall use their reasonable best efforts,
at their expense but without the obligation to incur any material expense, to
obtain any and all such consents required for assignment of such contracts.
Without in any way limiting the Sellers' obligation to use their reasonable best
efforts to obtain all consents and waivers necessary for the sale, transfer,
assignment and delivery of the contracts to be delivered to the Buyer, if such
consent is not obtained or if such assignment is not permitted irrespective of
consent, the Sellers shall cooperate with the Buyer in any reasonable lawful
arrangement designed to provide for Buyer the benefit under any such contract,
including enforcement for the benefit of the Buyer, acting as agent on behalf of
the Buyer, or as the Buyer shall otherwise reasonably require. If the Sellers
provide to Buyer the benefits under any such contract, (i) the Buyer shall be
responsible for, and shall pay, all obligations relating thereto on the same
basis as if such contract had been assigned to and assumed by the Buyer, (ii)
the Buyer shall reimburse the Sellers for any payments made by the Sellers
pursuant to the terms of any such contract after the Closing Date and (iii) the
Buyer shall indemnify the Sellers for the Buyer's failure to make such payments
or discharge such obligations as if the same were Assumed Liabilities hereunder;
provided, however, that Buyer shall only be liable for any obligations under
such contract to the extent it receives the benefits under such contract.
2.6 Instruments of Conveyance. Sellers have executed and delivered or
caused to be executed and delivered bills of sale, endorsements, assignments and
other good and sufficient instruments of sale, transfer, conveyance and
assignment as shall be effective to vest in Buyer good title to the Assets other
than the Owned Real Property.
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3. PURCHASE PRICE
3.1 Purchase Price. On the Closing Date, Buyer shall deliver to the
Sellers pursuant to the allocations set forth below (i) an amount of immediately
available funds equal to $87,500,000 less $2,627,300, representing the estimate
of the deductions from the purchase price (such estimate, the "Estimated
Purchase Price Deductions") calculated in accordance with Schedule 3.1(a), (ii)
plus the Equity Position described in Section 3.2 (as finally adjusted pursuant
to Section 3.3, the "Purchase Price"). The cash portion of the Purchase Price
will be paid and documents pursuant to which Sellers will receive limited
liability company units representing the Equity Position will be delivered by
the Buyer to the Sellers. The parties to this Agreement agree to allocate the
Purchase Price between the GCC Company Stock and the Assets as set forth in
Schedule 3.1(b). The parties to this Agreement agree to allocate the portion of
the Purchase Price attributable to the Assets (the "Asset Purchase Price") in
accordance with the rules under Section 1060 of the Code, and the Treasury
Regulations promulgated thereunder and the provisions of the Income Tax Act
(Canada) (the "Canadian Tax Act"). Such allocation is set forth in Schedule
3.1(c) (such allocation to be modified in accordance with the rules under
Section 1060 of the Code, and the Treasury Regulations promulgated thereunder
and the provisions of the Canadian Tax Act to take into account any Purchase
Price Adjustment as described in Section 3.3); the parties recognize that the
Purchase Price does not include Buyer's acquisition expenses and that Buyer will
allocate such expenses appropriately. Sellers and Buyer agree to act in
accordance with the computations and allocations contained in Schedules 3.1(b)
and 3.1(c) in any relevant Tax Returns or filings, including any forms or
reports required to be filed pursuant to Section 1060 of the Code, the Treasury
Regulations promulgated thereunder or any provisions of local, state and foreign
law ("1060 Forms"), and to cooperate in the preparation of any 1060 Forms and to
file such 1060 Forms in the manner required by applicable law including IRS Form
8594, and neither Sellers nor Buyer shall, after filing IRS Form 8594, revoke or
amend IRS Form 8594 without the prior written consent of the other. The cash
portion of the Purchase Price is payable in immediately available federal funds
to such bank account or accounts, in the United States, as have been designated
by Parent.
3.2 Equity Position. The Equity Position shall consist of $5,000,000
(5,000 Units) of Class A-1 limited liability company interests in EMP as
described on Schedule 3.2 (the "EMP Units") to be issued to Sellers in exchange
for 5% of the GCC Company Stock. The Equity Position shall not be increased or
decreased in any way pursuant to Section 3.3.
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3.3 Purchase Price Adjustment. (a) Within seventy-five (75) days after
the Closing Date, Sellers will prepare, or cause to be prepared, a statement as
of the Closing Date (the "Closing Statement") containing a calculation of the
actual net tangible book value of the assets being transferred pursuant to this
Agreement (including the assets of GCC) calculated in accordance with the
methodologies set forth in Schedule 3.3 (the "Actual Net Tangible Book Value")
and the actual amount of the deductions from the Purchase Price (the "Actual
Purchase Price Deductions," and together with the Actual Net Tangible Book
Value, the "Actual Adjustment Amounts"). Sellers and Buyer shall adjust the
allocations set forth in Schedules 3.1(b) and 3.1(c) to the extent necessary to
reflect the impact of the Actual Adjustment Amounts. Buyer will assist and
cooperate with Sellers in the preparation of the Closing Statement, including by
providing Sellers and their accountants access to the books and records of the
Business and to any other information necessary to prepare the Closing
Statement. Except as set forth on Schedule 3.3, the Closing Statement shall be
prepared on a basis consistent with the Company's Financial Statements, the
methodologies set forth on Schedules 3.1 (a) and 3.3 and otherwise in accordance
with Canadian GAAP.
(b) The Buyer shall, within forty-five (45) days after the
delivery by Sellers of the Closing Statement and calculation of the Actual
Adjustment Amounts, complete its review of the Closing Statement and the
calculation of such Actual Adjustment Amounts. In the event that the Buyer
determines that the Actual Adjustment Amounts have not been determined on a
basis consistent with the requirements of Section 3.3(a), Buyer shall inform
Sellers in writing (the "Objection"), setting forth a specific description of
the basis of the Objection, the adjustments to the applicable Actual Adjustment
Amounts, which Buyer believes should be made, and Buyer's calculation of the
applicable Actual Adjustment Amounts, as the case may be, on or before the last
day of such 45-day period and Buyer shall be deemed to have accepted any items
not disputed in the Objection. Failure to so notify Sellers shall constitute
acceptance and approval of Sellers' calculation of the applicable Actual
Adjustment Amounts. Sellers shall then have 30 days from the date they receive
the Objection to review and respond to the Objection. If Sellers and Buyer are
unable to resolve all of their disagreements with respect to the determination
of the foregoing items within 30 days following the completion of Sellers'
review of the Objection, after having used their good faith best efforts to
reach a resolution they shall refer their remaining differences to the Montreal
office of KPMG Peat Marwick LLP or another internationally recognized firm of
independent public accountants as to which Sellers and Buyer mutually agree (the
"CPA Firm"), who shall, acting as experts in accounting and not as arbitrators,
determine on a basis consistent with the requirements of Section 3.3(a), and
only with respect to the specific remaining accounting related differences so
submitted, whether and to what extent, if any, the Actual Adjustment Amounts
require adjustment. Sellers and Buyer shall request the CPA Firm to use its best
efforts to render its determination within 45 days. The CPA Firm's determination
shall be conclusive and binding upon Sellers and Buyer. Sellers and Buyer shall
make reasonably available to the CPA Firm all relevant books and records, any
work papers (including those of the parties' respective accountants) and
supporting documentation relating to the Closing Statement, the calculation of
the Actual Adjustment Amounts and all other items reasonably requested by the
CPA Firm. The applicable Actual Adjustment Amounts shall ultimately be equal to
(i) the Actual Adjustment Amounts in the event that (x) no Objection is
delivered to Sellers during the 45-day period specified above, or (y) Sellers
and Buyer so agree, (ii) the applicable Actual Adjustment Amount, adjusted in
accordance with the Objection in the event that Sellers do not respond to the
Objection within the 30-day period following receipt by Sellers of the
Objection, or (iii) the applicable Actual Adjustment Amount, as adjusted by
either (x) the agreement of Sellers and Buyer or (y) the CPA Firm. All fees and
disbursements of the CPA Firm, if any, shall be shared equally by Sellers and
Buyer.
5
(c) Sellers shall provide Buyer and its accountants access to
the books and records of the Business, to any other information, including work
papers of their accountants, and to employees of the Business who participated
in the calculation of the Adjustment Amounts to the extent necessary for Buyer
to review the Closing Statement and the calculation of the Actual Adjustment
Amounts.
(d) If the Actual Net Tangible Book Value is less than
$3,512,100, Sellers shall pay the amount of such deficiency in cash to Buyer
within 3 business days after the ultimate determination of the Actual Net
Tangible Book Value as provided in this Section 3.3. If the Actual Net Tangible
Book Value is greater than $3,512,100, no adjustment payment by the Buyer shall
be required.
(e) If the amount of Actual Purchase Price Deductions is less
than the amount of Estimated Purchase Price Deductions, Buyer shall pay the
amount of such difference in cash to the Sellers within 3 business days after
the ultimate determination of the Actual Purchase Price Deductions. If the
amount of Actual Purchase Price Deductions is greater than the amount of
Estimated Purchase Price Deductions, the Sellers shall pay the amount of such
difference in cash to Buyer within 3 business days after the ultimate
determination of the Actual Purchase Price Deductions.
(f) In the event that the financial impact of a matter changes
the amount required to be paid by or to the Buyer in connection with the
provisions of this Section 3.3, any such matter shall not give rise to an
indemnification obligation on the part of Sellers to the extent the financial
impact of such matter changed such payment obligation, unless the Sellers fail
to pay any amounts required to paid pursuant to this Section 3.3.
3.4 GST and QST. The amount of the consideration for purpose of the
goods and services tax ("GST") levied under subsection 165(l) of the Excise Tax
Act (Canada), and the amount of the consideration for purposes of the Quebec
sales tax ("QST") levied under Section 16 of the Quebec Sales Tax Act, do not
include any GST and QST payable by the Buyer in respect of the sale of the
Assets.
3.5 GST and QST Elections. GII and the Buyer will on or before the
Closing Date jointly execute elections, in the prescribed form and containing
the prescribed information, to have subsections 167(1.1) of the Excise Tax Act
(Canada) and Section 75 of the Quebec Sales Tax Act apply to the sale and
purchase of the Assets hereunder so that no tax is payable in respect of such
sale and purchase under Part IX of the Excise Tax Act (Canada) or under the
Quebec Sales Tax Act. The Buyer will file such elections with the appropriate
authority within the time prescribed for doing so by the particular statute.
4. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER, PARENT AND GII. Except as
set forth in the disclosure schedules referenced herein, the Stockholder, Parent
and GII each jointly and severally represent and warrant to Buyer as of the date
hereof and as of the Closing Date that:
6
4.1 Corporate Existence. Each of the corporate Sellers and GCC are
corporations duly organized and validly existing and in good standing under the
laws of the jurisdiction of its incorporation and each of said corporations has
the requisite power and authority to own, lease and operate the properties and
assets used in the Business being sold hereunder and to carry on the Businesses
as the same is now being conducted. The corporate Sellers and GCC are each duly
authorized, qualified or licensed to do business as a foreign corporation and in
good standing in every jurisdiction wherein, by reason of the nature of the
Business or the character of the Assets such qualifications are required. GII
has no subsidiaries.
4.2 Authority. This Agreement and the consummation of all of the
transactions provided for herein have been duly authorized by the Boards of
Directors of Parent and GII, by all requisite corporate, shareholder, or other
action prior to the Closing Date by such corporations, and Parent, GII and the
Stockholder have full power and authority to execute and deliver this Agreement
and to perform their obligations hereunder. This Agreement has been duly
executed and delivered by each of Parent, GII and the Stockholder, and
constitutes a valid and legally binding obligation of each of Parent, GII and
the Stockholder, enforceable in accordance with its terms except as
enforceability may be (i) limited by bankruptcy, insolvency or other similar
laws affecting the enforcement of creditor's rights, or (ii) subject to general
principles of equity. Except as set forth in Schedule 4.2, the execution and
delivery of this Agreement by Parent and the consummation by Sellers of the
transactions contemplated hereby will not violate or conflict with any provision
of the respective Articles of Incorporation or By-Laws of any Seller, or result
in any breach or constitute any default under any contract, indenture, mortgage,
lease, note or other agreement, instrument arrangement or understanding to which
any Seller is subject or a party.
4.3 GCC Company Stock. All of the GCC Company Stock has been validly
issued and is fully paid and nonassessable and is owned by Parent free and clear
of all liens, claims, charges, security interests, options or other legal or
equitable encumbrances (with the exception of those restrictions arising from
the registration requirements of any applicable federal or state securities
laws). The GCC Company Stock is the only authorized class of capital stock of
GCC, 84 shares of which are issued and outstanding. There are no outstanding
options, warrants or other rights of any kind relating to the sale, issuance or
voting of GCC Company Stock which have been issued, granted or entered into by
any Seller or any securities convertible into or evidencing the right to
purchase any GCC Company Stock. GCC does not own shares or interests in any
other corporation or entity. Upon delivery to Buyer of the GCC Company Stock,
good and valid title to the shares of GCC Company Stock will pass to Buyer free
and clear of any mortgages, security interests, liens, charges or any other
encumbrances (with the exception of those restrictions arising from the
registration requirements of any applicable federal or state securities laws).
7
4.4 Governmental Approvals; Consents. The Sellers and GCC are not
subject to any order, judgement or decree which would prevent the consummation
of the transactions contemplated hereby. No claim, legal action, suit,
arbitration, governmental investigation, action, or other legal or
administrative proceeding is pending or, to the knowledge of the Sellers and
GCC, threatened against any Seller, Buyer or GCC which would enjoin or delay the
transactions contemplated hereby. No consent, approval, order or authorization
of, license or permit from, notice to or registration, declaration or filing
with, any governmental authority or entity, domestic or foreign, or of any third
party, is or has been required on the part of Sellers or GCC in connection with
the execution and delivery of this Agreement or the consummation of the
transactions contemplated hereby which has not been obtained.
4.5 Financial Statements; Book Value; No Undisclosed Liabilities. (a)
Parent has furnished Buyer with the audited financial statements of GCC and GII
in respect of their fiscal years ended August 31, 1999 and 1998, together with
the notes thereto, copies of which are attached hereto as Schedule 4.5 (the
"Financial Statements"). Subject to the qualifications, assumptions and other
limitations specified in the Financial Statements and the notes thereto, the
Financial Statements have been prepared in accordance with Canadian GAAP and
present fairly, in all material respects, the financial condition and results of
operations of GCC and GII, respectively, as of the dates and for the periods
indicated.
(b) The gross book value of the Assets, as accounted for in
the audited balance sheet of GII dated as of August 31, 1999, is less than
Canadian $5 million. There has been no more recent audit of GII's accounts.
(c) The Business has no direct or indirect liability or
obligation of any nature, whether accrued, absolute, fixed or unfixed,
contingent or otherwise of the type required to be reflected or disclosed in a
balance sheet (or the notes thereto) prepared in accordance with Canadian GAAP
that is not fully and adequately reflected or reserved against in the financial
statements dated as of August 31, 1999, except (i) those liabilities incurred
since August 31, 1999 in the ordinary course of business consistent with past
practice or (ii) those matters specifically referred to in this Agreement or the
Schedules including liabilities incurred pursuant to the Disclosed Contracts (as
defined in Section 4.8(a)).
4.6 Absence of Changes. Except as otherwise contemplated by this
Agreement, since August 31, 1999, (i) the Business has been conducted in all
material respects in the ordinary course consistent with past practice and (ii)
there has not been any material adverse change in the Business or its assets,
properties, businesses, prospects, results of operations or condition (financial
or otherwise) taken as a whole.
8
4.7 Real and Personal Properties. (a) The Sellers and GCC have good,
valid and, in the case of Owned Real Property (as defined below), marketable fee
title to, or, in the case of Leased Real Property (as defined below), a valid
and binding leasehold interest in all of the real or personal property included
in the Assets, except leasehold interests terminated in the ordinary course of
business, free and clear of all mortgages, security interests, liens, charges
and other similar restrictions and encumbrances, except (i) as disclosed in the
Financial Statements; (ii) liens for Taxes, assessments and other governmental
charges not yet due and payable or that are being contested in good faith; and
(iii) mechanics', construction, workmen's, repairmen's, warehousemen's,
carriers' or other like liens arising or incurred in the ordinary course of
business if the underlying obligations are not past due, original purchase price
conditional sales contracts and equipment leases with third parties entered into
in the ordinary course of business, purchase money security interests,
easements, reservations, rights-of-way, restrictions, covenants, conditions and
other similar encumbrances whether of record or apparent on premises and defects
in chain of title which do not materially or adversely affect the present use of
such real property (such liens, charges and encumbrances described in clauses
(i)-(iii) hereof are referred to herein as "Permitted Liens"); provided that no
representation is made in this Section 4.7(a) with respect to the title of the
Sellers or GCC in and to any of the Business IP except to the extent otherwise
specifically provided in Section 4.12.
(b) (i) Each of the agreements by which the Sellers and GCC
have obtained a leasehold interest in each Leased Real Property (individually, a
"Lease" and collectively, the "Leases") is in full force and effect in
accordance with its respective terms and the Sellers and GCC are the holders of
the lessee's or tenant's interest thereunder; (ii) there exists no default by
the Sellers or GCC under any Lease and no circumstance exists which, with the
giving of notice, the passage of time or both, would result in such a default;
(iii) the Sellers and GCC have complied with and timely performed all
conditions, covenants, undertakings and obligations on their parts to be
complied with or performed under each of the Leases; (iv) the Sellers and GCC
have paid all rents and other charges to the extent due and payable under the
Leases; (v) there are no leases, subleases, licenses, concessions or any other
contracts or agreements granting to any person or entity other than the Sellers
or GCC any right to the possession, use, occupancy or enjoyment of any Real
Property or any portion thereof; (vi) the current operation and use of the Real
Properties by the Sellers or GCC does not violate in any material respect any
statute, law, regulation, rule, ordinance, permit, requirement, order or decree
now in effect; (vii) the use being made of each Real Property by the Sellers or
GCC at present is in conformity with the certificate of occupancy issued for
such Real Property; (viii) there are no existing, or to the knowledge of the
Sellers and GCC, threatened, condemnation or eminent domain proceedings (or
proceedings in lieu thereof) affecting in any material respect the Real
Properties or any portion thereof; (ix) no default or breach exists under any of
the covenants, conditions, restrictions, rights-of-way, or easements, if any,
affecting all or any portion of a Real Property, which are to be performed or
complied with by the Sellers or GCC; and (x) except as set forth on Schedule
4.7(b), no consent or approval is required to be obtained under any Lease by or
with respect to the Sellers or GCC, and no right of termination shall arise
under any Lease in connection with the execution and delivery of this Agreement
by the Sellers or the consummation by the Sellers of the transactions
contemplated hereby. Schedule 4.7(b) sets forth a true and complete list of each
"sublease" that GCC or any of its Subsidiaries is a party to or otherwise
relating to the Business.
(c) Schedule 4.7(c) contains a list of all of Sellers' and
GCC's right, title and interest in real property principally used by Sellers or
GCC in the Business ("Owned Real Property") and all leased real property
principally used by Sellers or GCC in the Business ("Leased Real Property" and
together with Owned Real Property, the "Real Property"), including all
buildings, structures and other improvements situated thereon (including
individually, a "Facility" and collectively, the "Facilities") except for real
property relating to the Montreal Operations (as defined in Section 6.3) or
other real property which are Excluded Assets.
(d) The Sellers and GCC are not obligated under or bound by
any option, right of first refusal, purchase contract, or other contractual
right to sell or dispose of any Owned Real Property or any portions thereof or
interests therein which property, portions and interests, individually or in the
aggregate, are material to the Sellers or GCC other than as set forth on
Schedule 4.7(d).
9
(e) The Sellers and GCC do not have an ownership, financial or
other interest in the landlord under any of the Sellers' or GCC's Leases, which
exceeds a 50% ownership, financial or other interest in such landlord.
4.8 Contracts. (a) Except as disclosed in Schedule 4.8(a) (the
"Disclosed Contracts"), there are no outstanding commitments, contracts,
indentures and agreements (including, but not limited to, employment
agreements), written or oral ("Contracts"), to which any Seller is party to or
by which any Seller is bound that relate to the Business including, without
limitation, personal property leases, purchase orders for inventory, service or
maintenance agreements, broker agreements, sales representative agreements,
licensing agreements or arrangements, subscription agency relationships or
Contracts that involve the distribution of publications, subscription servicing,
Internet distribution, incentive sales programs that (i) have a duration in
excess of one year, (ii) involve the payment or receipt of more than US$52,000
or (iii) were entered into outside of the ordinary course of business. No
contracting party with any Seller or GCC has given written or oral notification
of its intent to cancel any Contract. Each subscription agency agreement and
each distribution agreement relating to the Business is also set forth on
Schedule 4.8(a).
(b) Parent has furnished or made available to Buyer a true and
correct copy of each Disclosed Contract. Each Contract which is to be assigned
to or otherwise acquired by Buyer pursuant to this Agreement is valid and in
full force and effect according to its terms, and to the knowledge of Sellers
and GCC, the parties thereto are not in material default or breach under any
such Contract and there are no claims affecting the same of any kind pending.
4.9 Inventory. The inventories included in the Financial Statements are
stated at a value determined in accordance with Canadian GAAP consistently
applied.
4.10 Receivables. Except to the extent to be reserved against in the
Closing Statement, all of the Business' receivables are valid and collectible in
the aggregate amount thereof in the ordinary course of business consistent with
past practice, subject to normal and customary trade discounts.
4.11 Litigation. Except as set forth in Schedule 4.11, there is no
litigation, claim, suit, action, proceeding, tax audit or governmental
investigation relating to the Business to which any Seller or GCC is a party
pending or, to the knowledge of the Sellers or GCC, threatened in writing in the
past twelve months against it or any of its subsidiaries relating to the
Business or the transactions contemplated by this Agreement.
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4.12 Intellectual Property. (a) Schedule 4.12(a) hereto sets forth a
list, as of the Closing Date, with respect to all Intellectual Property (as
defined below) of which GCC, GII or the Business is the registered owner or has
made application to become the registered owner ("Business IP"), including of
the patents, patent applications, trademark registrations and applications,
copyright registrations and applications, domain name registrations and
applications and Schedule 4.12(a) sets forth a description of any and all
actions that Sellers would have been required to take in the ordinary course and
which must be taken by the Buyer within six (6) months of the date hereof to
maintain or preserve the registration or validity of the Business IP or to
register Intellectual Property then contemplated to be registered, as the case
may be; provided that the Business IP shall not include commercially available
off-the-shelf software created by third parties of which GCC, GII or the
Business are the licensee. "Intellectual Property"shall mean all United States
and foreign intellectual property in any format, media or language, including
all (i) patents, inventions, discoveries, processes, designs, techniques,
developments, technology, and related improvements and know-how; (ii)
copyrights, rights under copyright and works of authorship, including computer
hardware, software, systems (including management information and IT systems),
databases and elements thereof, multimedia and Internet site content, editorial
materials and formats, drafts, photographs, graphics and artwork, catalogues,
advertising, promotional and marketing materials, whether published or
unpublished; (iii) trademarks, service marks, trade names, brand names,
corporate names, domain names, e-mail addresses, URLs, logos and trade dress,
together with the goodwill of the Business symbolized thereby; (iv) trade
secrets, research and development materials, customer, subscriber, vendor and
advertiser lists and confidential or proprietary (including business, technical,
quality control, mailing lists, advertising and sales) materials or data,
business or strategic plans; (v) rights of privacy and publicity, moral rights
and any other rights of authors and artists; and (vi) all registrations,
applications, recordings, licenses and other rights related to any of the
foregoing.
(b) Except as set forth in Schedule 4.12(b), (i) GII and GCC
own or have the right to use all the Intellectual Property used to conduct their
businesses as currently conducted and consistent with past practice, free and
clear of all Liens; (ii) all of the Business IP is valid, enforceable and
unexpired, has not been abandoned, and does not infringe or otherwise violate
the Intellectual Property of any third party and, to the knowledge of the
Sellers, is not being infringed or impaired by any third party; (iii) no
judgment, order, settlement, decree or action is pending, or to the knowledge of
the Sellers or GCC, threatened, that limits or challenges the ownership, use,
validity or enforceability of any Business IP; (iv) the Sellers and GCC have
taken all reasonable steps to protect, maintain and safeguard the Business IP,
including the Business IP that is confidential in nature; (v) any Business IP
that is owned by a Seller is owned exclusively by such Seller, and valid
documentation supports such ownership and the Sellers are not obligated to pay
any royalties or other compensation to any third party in respect of their
ownership, use or license of the Business IP; (vi) all Business IP is included
in the Assets or in the assets of GCC; (vii) none of the Business IP has been
licensed or granted to any third party; and (viii) the Buyer will be entitled to
continue to use and practice the Business IP to the same extent and under the
same conditions that it has heretofore been used and practiced by the Sellers,
without financial obligations to any third party. To the knowledge of the
Sellers and GCC, no employee, officer or consultant of the Sellers or GCC is in
violation of any term of any employment or consulting contract, proprietary
information and inventions agreement, non-competition agreement, or any other
contract or agreement relating to a relationship of any such employees, officers
or consultant with the Sellers; and none of the Business IP has been developed
by or for the Sellers with the assistance of funding from third parties or third
party agencies including, but not limited to, funding from any government
authority, domestic or foreign.
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4.13 Insurance. The Sellers and GCC have in full force and effect with
respect to the Business policies of insurance in amounts and of the types set
forth on Schedule 4.13.
4.14 Tax Matters. Except as set forth on Schedule 4.14:
(a) All Tax Returns required to be filed prior to the Closing Date by
or with respect to GCC and GII have been timely filed (subject to permitted
extensions applicable to such filing) and all such Tax Returns are complete and
accurate in all material respects. Each of GCC and GII has timely paid all Taxes
that are due, or that have been asserted in writing by any taxing authority to
be due. Each of GCC and GII has made adequate provision (to the extent required
by, and in accordance with, Canadian GAAP) for all Taxes not yet due and
payable;
(b) No claim for unpaid Taxes has become a lien against the Assets or
any property of GCC or is being asserted against either GCC or GII except for
liens for property taxes not yet due and payable;
(c) There are no outstanding agreements, waivers or arrangements
extending the statutory period of limitation applicable to any claim for, or the
period for the collection or assessment of, Taxes due from or with respect to
GCC or GII for any taxable period, and no power of attorney granted by or with
respect to GCC or GII relating to Taxes is currently in force;
(d) No audit or other proceeding by any governmental entity has
commenced and no notification has been given to GCC or GII that such an audit or
other proceeding is pending or, to the knowledge of GCC or the Sellers,
threatened with respect to any Taxes due from or with respect to GCC or GII or
any Tax Return filed by or with respect to either GCC or GII. No assessment of
Tax has been proposed in writing to GCC or GII against GCC, GII or any of their
assets or properties (including the Assets);
(e) As of the Effective Time, GCC shall not be a party to, be bound by
nor have any obligation under, any Tax sharing agreement or similar contract or
arrangement;
(f) There is no contract or agreement, plan or arrangement by GCC
covering any person that, individually or collectively, could give rise to the
payment of any amount that would not be deductible by GCC by reason of Section
280G of the Code;
(g) GCC (i) is not currently and has never been a member of an
affiliated group (other than a group the common parent of which is GCC) filing a
consolidated federal income tax return, and (ii) has no liability for the Taxes
of any person under Treasury Regulation 1.1502-6 (or any similar provision of
state, local or foreign law), or as a transferee or successor, by contract or
otherwise;
(h) no consent under Section 341(f) of the Code has been filed with
respect to GCC;
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(i) all Taxes required to be withheld, collected or deposited by or
with respect to GCC and GII have been timely withheld, collected or deposited,
as the case may be, and, to the extent required, have been paid to the relevant
taxing authority;
(j) GCC has not agreed to make and is not required to make any
adjustment under Section 481(a) of the Code, by reason of a change in accounting
method or otherwise, except as might be required as a result of any transaction
contemplated by this Agreement;
(k) No closing agreement pursuant to Section 7121 of the Code (or any
similar provision of state, local or foreign law) has been entered into by or
with respect to GCC or GII;
(l) Each of GCC and GII has collected substantially all sales and use
taxes required to be collected, and has remitted on a timely basis such amounts
to the appropriate taxing authorities, or has been furnished properly completed
exemption certificates;
(m) GCC has not been a United States real property holding corporation
within the meaning of Section 897(c)(2) of the Code during the applicable period
specified in Section 897(c)(1)(a)(ii) of the Code. None of the Assets constitute
"United States real property interests" within the meaning of Section
897(c)(1)(A) of the Code; and
(n) None of the Assets and none of the assets or properties of GCC is
an asset or property that is or will be required to be treated as described in
Section 168(f)(8) of the Internal Revenue Code of 1954, as amended and as in
effect immediately before the enactment of the Tax Reform Act of 1986, or
tax-exempt use property within the meaning of Section 168(h)(1) of the Code.
(o) GII is a registrant both for purposes of the Taxes imposed under
Part IX of the Excise Tax Act (Canada) (Registration No. 102121324) and for
purposes of the Taxes imposed under the Quebec Sales Tax Act (Registration No.
1000035897).
(p) GII is not a nonresident of Canada within the meaning of the
Canadian Tax Act.
For purposes of this Agreement, "Taxes" shall mean all United States or
Canadian federal, state, provincial, local or any foreign income, profits,
estimated, gross receipts, windfall profits, environmental, severance, property,
intangible property, occupation, production, sales, capital, use, license,
excise, franchise, capital gains, capital stock, employment, withholding, social
security (or similar), disability, transfer, registration, stamp, payroll, goods
and services, value added, alternative or add-on minimum tax, or any other tax,
custom, duty or governmental fee, or other like assessment or charge of any kind
whatsoever, together with any interest, penalties, fines, related liabilities or
additions to tax that may become payable in respect thereof imposed by any
governmental body, whether disputed or not. For purposes of this Agreement, "Tax
Return" shall mean any return, declaration, report or similar statement required
to be filed with respect to any Taxes (including any attached schedules)
including, without limitation, any information return, notice, form, claim for
refund, amended return and declaration of estimated Tax.
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4.15 Employment and Benefits. (a) The term "Employee Plan" shall
hereinafter refer to each "employee benefit plan" (within the meaning of section
3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), including, without limitation, multiemployer plans within the meaning
of ERISA section 3(37)), stock purchase, stock option, severance, employment,
change-in-control, fringe benefit, health and welfare benefit, collective
bargaining, bonus, incentive, deferred compensation, pension, retirement and any
other employee benefit plan, agreement, program, policy, whether or not subject
to ERISA (including any funding mechanism therefor now in effect or required in
the future as a result of the transaction contemplated by this Agreement or
otherwise), whether formal or informal, oral or written, legally binding or not,
under which Stockholder or any current or former employee or director of GCC,
GII or any of their respective subsidiaries has any present or future right to
benefits or under which Parent, GCC, GII or any of GCC's or GII's respective
subsidiaries has any present or future liability. Schedule 4.15(a) contains a
true and complete list of each Employee Plan which is maintained or contributed
to by GCC or its subsidiaries for the benefit of its current or former employees
or directors (the "Stock Sale Plans," and all other Employee Plans shall be
hereinafter referred to as the "Asset Sale Plans").
(b) (i) Each Employee Plan has been established, registered, qualified
and administered in accordance with its terms, and in material compliance with
the applicable provisions of ERISA, the Code and other applicable laws, rules
and regulations including all tax laws where same is required for preferential
tax treatment; (ii) each Employee Plan which is intended to be qualified within
the meaning of Code section 401(a) has received a favorable determination letter
as to its qualification, and nothing has occurred, whether by action or failure
to act, that could reasonably be expected to cause the loss of such
qualification; (iii) no event has occurred and no condition exists that would
subject Parent or any of its subsidiaries, either directly or by reason of their
affiliation with any member of their "Controlled Group" (defined as any
organization which is a member of a controlled group of organizations within the
meaning of Code sections 414(b), (c), (m) or (o)), to any tax, fine, lien,
penalty or other liability imposed by ERISA, the Code or other applicable laws,
rules and regulations; and (iv) no Employee Plan (x) is subject to Title IV of
ERISA or (y) constitutes a "multiemployer plan" within the meaning of Section
3(37) of ERISA, a multiple employer plan of the type described in Section 413 of
the Code or Sections 4063, 4064 or 4066 of ERISA or a "multiple employer welfare
arrangement" as defined in Section 3(40) of ERISA or a multi-employer plan as
defined in the Canadian Tax Act.
(c) With respect to each Employee Plan, Parent has delivered to the
Buyer a current, accurate and complete copy (or, to the extent no such copy
exists, an accurate description) thereof and, to the extent applicable: (i) any
related trust agreement or other funding instrument; (ii) the most recent
determination letter, if applicable; (iii) any summary plan description and
other written interpretations or communications (or a description of any oral
communications) by Parent or its Affiliates to their employees concerning the
extent of the benefits provided thereunder; and (iv) for the most recent one
year (A) the Form 5500 and attached schedules, (B) audited financial statements,
(C) actuarial valuation reports and (D) attorney's response to an auditor's
request for information.
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(d) With respect to each Employee Plan (i) no "reportable event" (as
such term is defined in ERISA section 4043) or "prohibited transaction" (as such
term is defined in ERISA section 406 and Code section 4975) has occurred; (ii)
all awards, grants or bonuses made have been, or will be, fully deductible to
GCC or its subsidiaries notwithstanding the provisions of Sections 162(m) and
280G of the Code and the regulations promulgated thereunder; and (iii) as a
result of the transaction contemplated by this Agreement (whether or not some
additional event must occur in conjunction with such transaction), no payment of
any money or other property or acceleration or provision of any other rights or
benefits to any current or former employee or director of GCC or GII or their
respective subsidiaries shall result, whether or not such payment, acceleration
or provision would constitute a parachute payment within the meaning of Code
Section 280G.
(e) Neither Parent nor any member of its Controlled Group has engaged
in, or is a successor entity to an entity that engaged in, a transaction
described in Sections 4069 or 4212(c) or ERISA, or incurred or reasonably
expects to incur any liability under Title IV of ERISA or Section 4971 of the
Code.
(f) Neither the Parent nor any of its subsidiaries has any current or
projected liability in respect of post-employment or post-retirement health,
medical or life insurance benefits for retired, former or current employees of
the Parent or any of its subsidiaries, except as required to avoid excise tax
under Section 4980B of the Code.
(g) No Employee Plan is subject to any pending investigation,
examination or other proceeding, action or claim initiated by any regulatory
authority, or by any other party (other than routine claims for benefits), and
there exists no state of facts which could reasonably be expected to give rise
to any such investigation, examination or other proceeding, action or claim or
to affect the registration of any Employee Plan required to be registered.
(h) None of the Employee Plans (other than pension plans) in respect of
GII or its subsidiaries provide benefits to retired employees or to the
beneficiaries or dependents of retired employees.
(i) No Employee Plan is subject to Title IV ERISA or Section 412 of the
Code and no Employee Plan is a "defined benefit plan" as defined in Section
3(35) of ERISA.
4.16 Compliance with Laws. Sellers and GCC have all licenses, permits,
consents, approvals, authorizations, qualifications and orders of governmental
authorities (collectively "Licenses and Permits") required for the conduct of
the Business as presently conducted. The Business is and has been conducted so
as to comply in all material respects with all applicable laws, ordinances,
regulations or orders or other requirements of any governmental, regulatory or
administrative agency or authority or court, rights of concession, licenses,
know-how or other proprietary rights of others.
15
4.17 Finders; Brokers. Sellers and GCC are not party to any agreement
with any finder or broker, or in any way obligated to any finder or broker for
any commissions, fees or expenses in connection with the origin, negotiation,
execution or performance of this Agreement.
4.18 Environmental Matters. (a) (i) GCC and the Business comply, and
have complied during all applicable statute of limitations periods, with all
applicable Environmental Laws; and possess and comply, and have possessed and
complied during all applicable statute of limitations periods, with all
Environmental Permits; (ii) all Environmental Permits may be validly transferred
without material expense to the Buyer in the ordinary course of business, and
such transfer shall not require or otherwise result in any change in the terms
or conditions of any such Environmental Permits, or are held by GCC and will
continue in full force and effect without being adversely affected by the
transactions contemplated by this Agreement; (iii) there are and have been no
Materials of Environmental Concern or other conditions at any property owned,
operated, or otherwise used by GCC or the Business now or in the past, or at any
other location (including without limitation any facility to which Materials of
Environmental Concern from GCC or the Business have been sent), that are in
circumstances that could reasonably be expected to give rise to any liability of
GCC or the Business under any Environmental Law or result in costs arising out
of any Environmental Law; (iv) no judicial, administrative, or arbitral
proceeding (including any notice of violation or alleged violation), under any
Environmental Law or with respect to any Materials of Environmental Concern to
which GCC is, or to the knowledge of GCC or the Sellers will be, named as a
party, or affecting the Business, is pending or, to the knowledge of GCC or the
Sellers, threatened; nor is GCC or the Business the recipient of any request for
information or, to the knowledge of GCC or the Sellers, the subject of any
investigation, in connection with any such proceeding or potential proceeding;
(v) there are no orders, judgments, decrees, or agreements under any
Environmental Law or with respect to any Materials of Environmental Concern to
which GCC is a party materially and adversely affecting the Business, and there
are no orders, judgments, decrees or agreements (other than those of
applicability to the industry generally) under any Environmental Law or with
respect to any Materials of Environmental Concern materially and adversely
affecting the Business; (vi) to the knowledge of the Sellers or GCC, there are
no events, conditions, circumstances, practices, plans, or legal requirements
(in effect or reasonably anticipated), that could be expected to prevent GCC or
the Business from, or materially increase the burden on GCC or the Business of,
complying with applicable Environmental Laws, or obtaining, renewing, or
complying with all Environmental Permits; and (vii) to the knowledge of the
Sellers or GCC, each of the foregoing representations and warranties is true and
correct with respect to any entity for which GCC or the Business has assumed or
retained liability, whether by contract or operation of law.
(b) Sellers have furnished Buyer with true and complete copies
of all Environmental Reports.
(c) for purposes of this Agreement, the terms below are
defined as follows:
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"Environmental Laws" shall mean any and all laws, rules,
orders, regulations, statutes, ordinances, guidelines, codes, decrees,
or other legally enforceable requirement (including, without
limitation, common law) of any foreign government, the United States,
or any state, local, municipal or other governmental authority,
regulating, relating to or imposing liability or standards of conduct
concerning protection of the environment or of human health, or
employee health and safety.
"Environmental Permits" shall mean any and all permits,
licenses, registrations, notifications, approvals, exemptions and any
other authorizations required under any Environmental Law of GCC or the
Business.
"Environmental Report" shall mean any report, study,
assessment, audit, or other similar document in the possession or
control of the Sellers or GCC that addresses any issue of actual or
potential noncompliance with, actual or potential liability under or
cost arising out of, or actual or potential impact on business in
connection with, any Environmental Law or any proposed or anticipated
change in or addition to Environmental Law, that may in any way affect
GCC or the Business or any entity for which any of them may be liable.
"Materials of Environmental Concern" shall mean any gasoline
or petroleum (including crude oil or any fraction thereof) or petroleum
products, polychlorinated biphenyls, urea-formaldehyde insulation,
asbestos, pollutants, contaminants, radioactivity, and any other
substances or forces of any kind, whether or not any such substance or
force is defined as hazardous or toxic under any Environmental Law,
that is regulated pursuant to or could give rise to liability under any
Environmental Law.
4.19 Entire Business. Except for the Excluded Assets, the Assets and
the assets held by GCC constitute all the assets, properties and rights utilized
by the Sellers or GCC to conduct the Business in all respects as currently
conducted.
4.20 Termination of GCC Affiliate Arrangements. The Sellers have
terminated all agreements and arrangements between GCC and any affiliate of any
of the Sellers other than those set forth on Schedule 4.20.
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4.21 Year 2000 Compliance. Schedule 4.21 sets forth all actions taken
by Sellers to ensure that all computer hardware, software, databases, automated
systems and other computer and telecommunications equipment owned or licensed by
the Business and all products designed, manufactured, distributed or sold by the
Business can be used prior to, during and after the calendar year 2000 A.D., and
will operate during each such time period, either on a stand-alone basis or by
interacting or interoperating with third-party software (provided that such
third-party software is Year 2000 Compliant (as defined below)), without
material error relating to the processing, calculating, comparing, sequencing or
other use of date-related data. To the knowledge of Sellers and GCC, all
computer hardware, software, databases, automated systems and other computer and
telecommunications equipment owned or licensed by the Business ("Systems") and
all products designed, manufactured, distributed or sold by the Business
("Products") can be used prior to, during and after the calendar year 2000 A.D.,
and will operate during each such time period, either on a stand-alone basis or
by interacting or interoperating with third-party software (provided that such
third-party software is Year 2000 Compliant), without material error relating to
the processing, calculating, comparing, sequencing or other use of date-related
data (the foregoing ability, "Year 2000 Compliant").
4.22 Solvency. On the Closing Date, each of the Sellers and GCC is
solvent, has tangible and intangible assets having a fair value in excess of the
amount required to pay its probable liabilities on its existing debts as they
become absolute and matured, and has access to adequate capital for the conduct
of its business and the ability to pay its debts from time to time incurred in
connection therewith as such debts mature.
4.23 Spin-off of Certain Assets. All right, title and interest in the
assets identified on Schedule 4.23 (the "GCC Excluded Assets") were transferred
from GCC to the parties identified on such schedule pursuant to the terms and
agreements identified on such schedule (all such transactions the "Excluded
Asset Reorganization").
4.24 Condition of Assets. To the knowledge of the Sellers, there are no
defects in the normal operating condition and repair of the Assets and the
assets of GCC, which defects would individually or in the aggregate materially
impair the operations of the Business.
4.25 Labor and Employment Matters. There are no labor controversies or
unfair labor practice complaints pending or, to the knowledge of the Sellers,
threatened in writing against the Sellers or GCC or otherwise relating to the
Business. None of the Sellers or GCC is a party to a collective agreement with
any trade union, council of trade unions or employee association in respect of
the Business. Sellers have not suffered any strike, slowdown, picketing or work
stoppage affecting or related to the Business since 1990. The Sellers and GCC
are in compliance in all material respects with all laws relating to employment
and labor practices, workers compensation and pay equity in respect of the
Business. No notice has been received by the Sellers or GCC of any complaint
filed by any employee employed in the Business claiming that the Sellers or GCC
have violated any legislation or applicable laws in respect of employment and
labor matters. Schedule 4.25 is an accurate and complete list of all employees
of GII who will be offered employment pursuant to Section 6.4, setting forth the
material terms and conditions of their employment with GII.
4.26 Certain Information. (a) Audit Reports and Publishers' Statements.
The number of paid subscribers of the periodicals of the Business of the last
issue mailed prior to June 30, 1999 for Audit Bureau of Circulations ("ABC")
purposes (i.e., exclusive of grace copies, newsstand sales and other single copy
sales) was not less in any material respect than the number of subscribers for
such issue set forth on Schedule 4.26(a). Included in Schedule 4.26(a) hereto
are true and accurate copies of the ABC Annual Audit Reports for the twelve
month period ended June 30, 1999 for the periodicals of the Business. Included
Schedule 4.26(a) are true and accurate copies of the 1998 Publishers' Statements
for the periodicals of the Business. The information in such ABC Annual Audit
Report for each of the periodicals of the Business and the 1998 Publishers'
Statements is true and correct in all material respects.
18
(b) Subscription and Circulation Information. Sellers have
heretofore provided to Buyer a true, complete and correct copy of the most
recent reports with respect to subscription and circulation data. Schedule
4.26(b) is a summary of the most current available subscription and circulation
data with respect to the periodicals of the Business prepared by Sellers. Other
than as reflected on Schedule 4.26(b) hereto, all current subscriptions to the
periodicals of the Business have been sold in material compliance with the ABC
rules and regulations for qualified circulation.
(c) Advertising Contracts. Sellers have heretofore delivered
to Buyer a complete and correct list for each of the periodicals of the Business
of the largest (in terms of each of pages and advertising revenue) 19
advertisers for fiscal 1999. Except as set forth and described on Schedule
4.26(c) hereto, no advertiser which was one of the largest (in terms of pages
and/or advertising revenue) 19 advertisers for fiscal 1999 for any of the
periodicals of the Business has given written or oral notification of its intent
to cancel advertising placed or to suspend (other than for seasonal reasons),
for more than three issues of a periodical, or otherwise terminate its
relationship with such publication.
(d) Rate Cards. All rate cards currently in effect with
respect to the periodicals of the Business have been previously delivered to
Buyer and all circulated written general policies pursuant to which advertising
is sold other than pursuant to the rate card rates, and all changes proposed to
be made to any current rate card rates are annexed hereto as Schedule 4.26(d).
4.27 Sellers' Canadian Assets. The aggregate book value of the assets
in Canada of Sellers and their affiliates within the meaning of the Competition
Act (Canada), and the aggregate value of the gross revenues of Sellers and their
affiliates from sales in, from or into Canada, in each case determined in
accordance with the Competition Act (Canada) and the Notifiable Transactions
Regulations issued thereunder, is less than Canadian $270 million.
4.28 No Other Representations or Warranties. Except for the
representations and warranties contained in this Section 4, no Seller, nor any
other person on behalf of Sellers makes any other express or implied
representation or warranty.
50 REPRESENTATIONS OF BUYER AND EMP. Buyer and EMP each represents and
warrants that, as of the date of this Agreement and as of the Closing Date:
5.1 Buyer Corporate Existence. Buyer is a corporation duly organized
and validly existing and in good standing under the laws of Delaware and has the
requisite power and authority to own, lease and operate the properties and
assets used in the Business being purchased hereunder and to carry on the
Business as the same are now being conducted. Buyer is duly authorized,
qualified or licensed to do business as a foreign corporation and in good
standing in every jurisdiction wherein, by reason of the nature of the Business
or the character of the Assets such qualification is required.
19
5.2 EMP Existence. EMP is a limited liability company duly organized
and validly existing and in good standing under the laws of Delaware and has the
requisite power and authority to own, lease and operate the properties and
assets used in the Business being purchased hereunder and to carry on the
Business as the same are now being conducted. EMP is duly authorized, qualified
or licensed to do business as a foreign corporation and in good standing in
every jurisdiction wherein, by reason of the nature of the Business or the
character of the Assets such qualification is required.
5.3 Authority. This Agreement and the consummation of all of the
transactions provided for herein have been duly authorized by the Boards of
Directors of Buyer and EMP and by all requisite corporate, shareholder, or other
action, and Buyer and EMP have full power and authority to execute and deliver
this Agreement and to perform their obligations hereunder. This Agreement has
been duly executed and delivered by each of Buyer and EMP, and constitutes a
valid and legally binding obligation of each of Buyer and EMP, enforceable in
accordance with its terms except as enforceability may be (i) limited by
bankruptcy, insolvency or other similar laws affecting the enforcement of
creditor's rights, or (ii) subject to general principles of equity. The
execution and delivery of this Agreement by Buyer and EMP or the consummation by
Buyer and EMP of the transactions contemplated hereby will not violate or
conflict with any provision of the Articles of Incorporation or By-Laws of Buyer
or of the Amended and Restated LLC Agreement or the Investor Rights Agreement of
EMP, or result in any breach or constitute any material default under any
contract, indenture, mortgage, lease, note or other agreement or instrument to
which Buyer or EMP is subject or is a party.
5.4 Governmental Approvals; Consents. Buyer and EMP are not subject to
any order, judgement, injunction, review or decree which would prevent the
consummation of the transactions contemplated hereby. No claim, legal action,
suit, arbitration, governmental investigation, review, action, or other legal or
administrative proceeding or review is pending or, to the knowledge of the Buyer
and EMP, threatened against Buyer or EMP which would enjoin or delay the
transactions contemplated hereby. No consent, approval, order or authorization
of, license or permit from, notice to or registration, declaration or filing
with, any governmental authority or entity, domestic or foreign, or of any third
party, is or has been required on the part of Buyer or EMP in connection with
the execution and delivery of this Agreement or any of the transaction
documents, or the consummation of the transactions contemplated hereby and
thereby.
5.5 Finders; Brokers. Buyer and EMP are not a party to any agreement
with any finder or broker, or in any way obligated to any finder or broker for
any commissions, fees or expenses, in connection with the origin, negotiation,
execution or performance of this Agreement.
5.6 Access to Information. Buyer confirms that Sellers have made
available to Buyer and its representatives and agents the opportunity to ask
questions of the officers and management employees of the Business and to
acquire such additional information about the business and financial condition
of the Business as Buyer has requested and all such information has been
received.
20
5.7 Purchase for Investment. Buyer is aware that no shares of capital
stock or other securities being acquired pursuant to the transactions
contemplated hereby are registered under the Securities Act of 1933, as amended
(the "Securities Act"), or under any state or foreign securities laws. Buyer is
not an underwriter, as such term is defined under the Securities Act, and is
purchasing such shares solely for investment, with no present intention to
distribute any such shares to any person, and Buyer will not sell or otherwise
dispose of shares except in compliance with the registration requirements or
exemption provisions under the Securities Act and the rules and regulations
promulgated thereunder, or any other applicable securities laws.
5.8 EMP Units. Upon delivery, the EMP Units will be duly and validly
issued interests in EMP and will be free and clear of any liens, claims,
charges, security interests, options or other legal or equitable encumbrances
(with the exception of those restrictions set forth in the Amended and Restated
LLC Agreement and the Investor Rights Agreement of EMP or arising from the
registration requirements of any applicable federal or state securities laws).
The Units of EMP are fully described on Schedule 5.8. There are no outstanding
options, warrants or other rights of any kind relating to the sale, issuance or
voting of interests in EMP which have been issued, granted or entered into by
EMP or any securities convertible into or evidencing the right to purchase any
interests in EMP other than as set forth on Schedule 5.8. Upon delivery to
Sellers of the EMP Units, good and valid title to the EMP Units will pass to
Sellers free and clear of any mortgages, security interests, liens, charges or
any other encumbrances (with the exception of those restrictions set forth in
the Amended and Restated LLC Agreement and the Investor Rights Agreement of EMP
or arising from the registration requirements of any applicable federal or state
securities laws).
5.9 GST and QST Registration. Buyer is a registrant both for purposes
of the Taxes imposed under Part IX of the Excise Tax Act (Canada) (Registration
No. 133912394) and for purposes of the Taxes imposed under the Quebec Sales Tax
Act (Registration No. 1022882402TQ001).
5.10 Buyer's and EMP's Canadian Assets. The aggregate book value of the
assets in Canada of Buyer and EMP and their affiliates within the meaning of the
Competition Act (Canada), and the aggregate value of the gross revenues of Buyer
and EMP and their affiliates from sales in, from or into Canada, in each case
determined in accordance with the Competition Act (Canada) and the Notifiable
Transactions Regulations issued thereunder, is less than Canadian $130 million.
5.11 No EMP Indebtedness. EMP has no indebtedness for borrowed money
that EMP has directly or indirectly created, incurred, assumed, or guaranteed,
or with respect to which EMP has otherwise become directly or indirectly liable.
5.12 EMP Operations. EMP currently has no operations other than in
connection with holding the common stock of American Media, Inc.
5.13 No Other Representations or Warranties. Except for the
representations and warranties contained in this Section 5, neither Buyer nor
any other person makes any other express or implied representation or warranty
on behalf of Buyer.
21
60 AGREEMENTS OF BUYER AND SELLERS
6.1 Access to Records and Personnel. (a) The parties shall retain the
books, records, documents, instruments, accounts, correspondence, writings,
evidences of title and other papers relating to the Business and the Assets in
their possession (the "Books and Records") for the period of time set forth in
their respective records retention policies on the Closing Date or for such
longer period as may be required by law or any applicable court order.
(b) The parties will allow each other reasonable access to
such Books and Records, and to personnel having knowledge of the whereabouts
and/or contents of such Books and Records, for legitimate business reasons, such
as the preparation of tax returns or the defense of litigation. Each party shall
be entitled to recover its out-of-pocket costs (including, without limitation,
copying costs) incurred in providing such records and/or personnel to the other
party. The requesting party will hold in confidence all confidential information
identified as such by, and obtained from, the disclosing party, any of its
officers, agents, representatives or employees, provided, however, that
information which (i) was in the public domain; (ii) was in fact known to the
requesting party prior to disclosure by the disclosing party, its officers,
agents, representatives or employees; (iii) becomes known to the requesting
party from or through a third party not under an obligation of non-disclosure to
the disclosing party; or (iv) was independently developed by the requesting
party shall not be deemed to be confidential information.
6.2 Tax Matters. (a) Buyer and Sellers agree to furnish or cause to be
furnished to each other, upon request, as promptly as practicable, such
information and assistance relating to the Business and GCC (including, without
limitation, access to books and records, employees, contractors and
representatives) as is reasonably necessary for the preparation, review and
filing of all Tax Returns, the making of any election related to Taxes, the
preparation for any audit by any taxing authority, and the prosecution or
defense of any claim, suit or proceeding relating to any Tax Return. Buyer and
Sellers shall retain all books and records with respect to Taxes pertaining to
the Business and GCC until the expiration of all relevant statutes of
limitations (and, to the extent notified by Sellers or Buyer, any extensions
thereof). At the end of such period, each party shall provide the other with at
least ten days prior written notice before destroying any such books and
records, during which period the party receiving such notice can elect to take
possession, at its own expense, of such books and records.
22
(b) Sellers shall prepare, or cause to be prepared, all Tax
Returns in respect of GCC for all taxable periods ending on or before the
Closing Date (a "Pre-Closing Period") which are filed after the Closing Date.
Sellers shall provide Buyer with copies of such completed Tax Returns at least
thirty (30) days prior to the filing date for such Tax Returns for Sellers'
review and approval. Buyer shall provide Sellers with any reasonable comments to
such Tax Returns within fifteen (15) days of receipt and Sellers shall revise
such Tax Returns to reflect the reasonable comments of Buyer. In the event that
Buyer and Sellers disagree about any comments of Buyer, they shall attempt in
good faith to resolve any disagreements. Any disagreements regarding such
computations which are not resolved prior to five (5) days prior to the due date
for the Tax Return related to such payment shall be promptly resolved pursuant
to Section 6.2(g). Buyers shall prepare or cause to be prepared, all Tax Returns
in respect of GCC for all taxable periods beginning before and ending after the
Closing Date (a "Straddle Period"). Buyer shall provide Sellers with copies of
such completed Straddle Period Tax Returns at least thirty (30) days prior to
the filing date for such Straddle Period Tax Returns for Sellers' review and
approval. Sellers shall provide Buyer with any reasonable comments to such
Straddle Period Tax Returns within fifteen (15) days of receipt and Buyer shall
revise such Straddle Period Tax Returns to reflect the reasonable comments of
Sellers. In the event that Buyer and Sellers disagree about any comments of
Sellers, they shall attempt in good faith to resolve any disagreements. Any
disagreements regarding such computations which are not resolved prior to five
(5) days prior to the due date for the Straddle Period Tax Return related to
such payment shall be promptly resolved pursuant to Section 6.2(g).
(c) Buyer shall timely file, or cause to be timely filed, all
Tax Returns prepared pursuant to this Section 6.2 that are to be filed after the
Closing Date. Buyer shall timely pay to the relevant taxing authority all Taxes
due in connection with any such Tax Return. Parent shall reimburse Buyer for
Taxes of GCC with respect to all Pre-Closing Periods excluding the Taxes listed
on Schedule 3.1(a) within fifteen (15) days of payment by Buyer or GCC of such
Taxes. Additionally, Sellers shall pay to Buyer, within five (5) days of the
date on which Taxes are paid with respect to a Straddle Period, an amount equal
to the portion of such Taxes which relates to the portion of such taxable period
ending on the Closing Date excluding the Taxes listed on Schedule 3.1(a). The
portion of such Tax which relates to the portion of such taxable period ending
on the Closing Date shall (x) in the case of any Taxes other than Taxes based
upon or related to income or receipts, be deemed to be the amount of such Tax
for the entire taxable period multiplied by a fraction, the numerator of which
is the number of days in the portion of the taxable period ending on the Closing
Date and the denominator of which is the number of days in the entire taxable
period, and (y) in the case of any Tax based upon or related to income or
receipts, be deemed equal to the amount which would be payable if the relevant
taxable period ended on the Closing Date. The Sellers and Buyer shall, to the
extent permitted by applicable law, elect with the relevant Tax authority to
close the taxable period of GCC at the end of the day on the Closing Date. Buyer
shall provide Sellers with a schedule showing the computation of any amounts
owed by Sellers to Buyer hereunder at least thirty (30) days prior to the due
date for the filing of the Tax Return. The Sellers shall have the right to
review any such computation and provide Buyer with any reasonable comments to
such computation within fifteen (15) days of receipt. In the event that Buyer
and Sellers disagree about any comments of Sellers, they shall attempt in good
faith to resolve any disagreements. Any disagreements regarding such
computations which are not resolved prior to five (5) days prior to the due date
for the Tax Return related to such payment shall be promptly resolved pursuant
to Section 6.2(g).
(d) Any refund or credit of Taxes actually received or
actually utilized by GCC after the Closing Date relating to a Pre-Closing Period
or to the portion of a Straddle Period ending on the Closing Date, shall be
reimbursed by GCC to the Sellers. Buyer shall, if Sellers so request in writing,
cause GCC to file for any refund or credit to which Sellers are entitled
pursuant to this Section 6.2(d). All costs and expenses incurred in obtaining
such refunds or credits shall be borne by the Sellers.
23
(e) Sellers and Buyer agree to cooperate in the filing of any
Tax Return and the conduct of any audit or other proceeding relating to Taxes
involving the Business or GCC, provide timely notice to the other in writing of
any pending or threatened Tax audits or assessments with respect to the Business
and GCC and furnish the other with copies of all correspondence received from
any taxing authority in connection with any Tax audit or information request
with respect to any taxable period for which the other may have a liability
under this Section 6.2.
(f) In the case of any audit, examination, litigation or other
proceeding (a "Tax Proceeding") with respect to Taxes for which the Sellers are
or may be liable pursuant to this Agreement (other than a Proceeding relating to
Straddle Period Taxes), Buyer shall promptly notify Sellers, and Buyer shall
execute or cause to be executed powers of attorney or other documents necessary
to enable Sellers to take all actions desired by Sellers with respect to such
Proceeding to the extent such Proceeding may affect the amount of Taxes for
which Sellers are liable pursuant to this Agreement. Sellers shall have the
right to control any such Proceedings. All costs and expenses incurred in
connection with any such Proceeding shall be borne solely by Sellers, and Buyer
and GCC shall be reimbursed by Sellers for any and all direct costs and expenses
incurred by them in connection with such Proceedings. Sellers shall not settle
any such Proceeding without Buyer's prior written consent, which consent may not
be unreasonably withheld. Buyers shall have the right to participate fully in
the Tax Proceeding, including through separate counsel of its own choosing at
its sole cost and expense, (y) the right to receive reasonable advance notice
from the Sellers of any meetings, hearings or proceedings, and (z) the right to
review in advance and comment on any pleadings, briefs, or other documents to be
filed. Notwithstanding the foregoing, Sellers and Buyer shall jointly control
all Proceedings in connection with (i) any Tax claim relating to Taxes involving
GCC or the Business for any Straddle Period and (ii) any Tax claim that could
reasonably be expected to have a material adverse effect on the business,
financial condition or results of operation of Buyer, GCC or the Business for
any taxable periods including or ending after the Closing Date. In the event
that a Proceeding is subject to joint control, as described in the previous
sentence, Buyer and Sellers shall cooperate with each other, at their own
expense, and there shall be no settlement or closing or other agreement with
respect thereto without the consent of the other party, which consent shall not
be unreasonably withheld. The Sellers shall promptly notify the Buyer if the
Sellers decide not to control the defense or settlement of any Proceeding which
they are entitled to control pursuant to this Agreement and the Buyer thereupon
shall be permitted to defend and settle such Proceeding.
24
(g) In the event of any dispute among the parties regarding
the preparation of any Tax Return or the calculation of any Taxes owed by
Sellers to Buyer, such dispute shall be submitted to KPMG Peat Marwick LLP or,
by agreement between Sellers and Buyer, another independent nationally
recognized accounting firm with no material relationship to Sellers or Buyer.
Within the earlier of fifteen days and the filing deadline for the Tax Return,
the accounting firm shall determine the disputed issues and report to Sellers
and Buyer in writing with respect to such items. The accounting firm shall, in
connection with the resolution of any dispute, have access to all books and
records, documents, work papers, facilities and personnel necessary to perform
its functions hereunder. The accounting firm's decision shall be in writing and
shall be final, conclusive and binding on all parties. The fees and expenses of
the accounting firm in connection with the resolution of disputes hereunder
shall be borne equally by Sellers and Buyer.
6.3 Montreal Operations. Following the Closing Date, the Buyer shall
have no responsibility for the Montreal Operations listed on section (a) of
Schedule 6.3 (the "Montreal Operations"), except as is set forth on section (b)
of Schedule 6.3.
6.4 Employee Matters. (a) Transferred Employees and Offers of
Employment. (i) Buyer shall reimburse GII for salaries, benefits and other
amounts relating to compensation paid to, for the benefit of, or on account of
employees of GII listed on Schedule 6.4(a) (the "GII Employees") during the
period (the "Employment Period") from the Closing Date to the earlier of January
1, 2000 or a date otherwise specified by Buyer (the "Offer Date"); provided,
however, that Sellers shall not increase or improve such salaries, benefits or
other amounts during the Employment Period. On the Offer Date, Buyer shall offer
employment to GII Employees, if any, who Buyer so elects; provided, that such
offer shall be for employment with salary and benefits no less advantageous than
those enjoyed by such GII Employee as of the Offer Date. Such GII Employees who
accept such offer and commence employment with the Buyer and its Affiliates are
herein referred to as "Asset Sale Employees," and together with the individuals
who on the Closing Date are active employees of GCC or its subsidiaries, are
herein collectively referred to as "Transferred Employees," and the date of each
Transferred Employee's commencement of employment with Buyer is hereinafter
referred to as the "Commencement Date". Buyer shall indemnify GII for all costs
of every nature whatsoever associated with or arising out of the termination of
GII Employees, if any, who are not offered employment by Buyer or who do not
accept employment by Buyer, and such employees shall be entitled to receive
severance benefits in accordance with the practices listed on Schedule 4.15(a).
(ii) Non-Interference. Sellers will not take, and will cause
each of its Affiliates not to take, any action which would impede, hinder,
interfere or otherwise compete with Buyer's effort to hire the Asset Sale
Employees as contemplated above.
(b) Sellers' Employee Benefit Plans. (i) Except as otherwise
required by applicable law, as of each Asset Sale Employee's Commencement Date,
the Asset Sale Employee shall cease to accrue further benefits under the Asset
Sale Plans.
(ii) Sellers shall retain all obligations and liabilities in
respect of (A) each Asset Sale Employee attributable to the period prior to the
Employment Period, (B) each employee or former employee, including any
beneficiary or dependent thereof, who is not a Transferred Employee, and (C) any
claims under the Asset Sale Plan, regardless of when incurred, and neither Buyer
nor any of its Affiliates shall have any liability with respect thereto ((A),
(B) and (C) collectively, the "Retained Benefits Liabilities"). For purposes of
this Section 6.4(b)(ii), a claim shall be deemed to be incurred when (x) with
respect to medical or dental benefits, the medical or dental services giving
rise to such claim are performed and (y) with respect to life, accident or
disability benefits, the event giving rise to such claim occurs.
25
(c) Buyer's Employee Benefit Plans. (i) As of each Transferred
Employee's Commencement Date, such Transferred Employee shall be entitled to
participate in Buyer's or its subsidiary's employee benefit plans and
arrangements in accordance with the terms thereof and applicable law; provided
that nothing contained herein shall obligate Buyer to adopt or continue any
Employee Plan or any other employee benefit plan after the Closing Date. In the
event that any Transferred Employee becomes a participant in an employee benefit
plan, program or arrangement maintained or contributed to by Buyer or its
subsidiaries, Buyer shall cause such plan, program or arrangement to treat the
prior service of such Transferred Employee with GII, GCC or their affiliates, as
applicable, to the extent such prior service was recognized under the comparable
Employee Plan, as service rendered to Buyer or its subsidiaries, as the case may
be, solely for purposes of eligibility to participate and vesting of benefits;
provided, however, that Buyer or its subsidiaries may cause a reduction of
benefits under any such plans, programs or arrangements to the extent necessary
to avoid duplication of benefits with respect to the same covered matter or
years of service.
(ii) To the extent that a Transferred Employee or his or her
dependent becomes eligible to participate in benefit plans sponsored by Buyer or
its subsidiaries (other than Employee Plans), Buyer shall (i) waive all
limitations as to preexisting condition exclusions and waiting periods with
respect to participation and coverage requirements applicable to such
Transferred Employee or dependent, but only to the extent that such exclusions
and waiting periods were inapplicable or satisfied under the analogous Employee
Plan; and (ii) provide each such Transferred Employee or dependent with credit
for any co-payments, deductibles and out-of-pocket amounts paid prior to the
Closing Date, in respect of the plan year during which the Closing Date occurs,
for satisfying any applicable co-payment, deductible or out-of-pocket
requirement under welfare plans of Buyer, but only to the extent such credit
would have been applied in such year to satisfy such requirements under the
analogous Employee Plan.
6.5 Use of "Globe" Name. Sellers shall cease all use of the name
"Globe" in commerce except for such use outside the media business as would not
reasonably be expected to have an adverse effect on the business of Buyer or its
affiliates or in any manner that infringes, dilutes or otherwise impairs the
rights in any GLOBE trademark the ownership of which is transferred pursuant to
this Agreement, including, but not limited to, those trademarks listed on
Schedule 4.12(a).
6.6 Discharge of Obligations When Due. Sellers shall discharge when due
all obligations and liabilities of GII not assumed by Buyer hereunder.
70 INDEMNIFICATION
26
7.1 Sellers Indemnity. Subject to the provisions set forth in this
Agreement, (a) each Seller, including the Stockholder, jointly and severally
agrees to indemnify and hold Buyer and its affiliates harmless against and in
respect of (i) all obligations and liabilities of any Sellers or any of its
affiliates, whether accrued, absolute, fixed, contingent or otherwise, not
assumed by Buyer pursuant to this Agreement (including but not limited to those
liabilities or obligations related to the GCC Excluded Assets) or under any
other agreement executed and delivered by the parties in furtherance of the
transactions described herein, (ii) any Taxes of GCC with respect to any Tax
year or portion thereof ending on or before the Closing Date (or for any Tax
year beginning before and ending after the Closing Date, to the extent
allocable, pursuant to Section 6.2(c) herein, to the portion of such period
beginning before and ending on the day prior to the Closing Date) and any and
all Taxes arising out of, resulting from or caused by the Excluded Asset
Reorganization including any and all Taxes of GCC incurred with respect to or as
a result of the sale of Bridal Guide assets pursuant to the Asset Purchase
Agreement, dated as of October 30, 1999 between GCC and RFP Inc. or pursuant to
any other disposition of assets by GCC on or prior to the Closing date and any
Taxes incurred by GCC with respect to distributions of RFP Inc. stock to Sellers
but excluding any such Taxes set forth on Schedule 3.1(a), (iii) any Taxes of
any person (other than GCC) incurred by the Buyer, any of the Buyer's affiliates
or GCC under Treasury Regulation section 1.1502-6 (or any similar provision of
state, local or foreign law), or as a transferee or successor, by contract or
otherwise, (iv) any payments required to be made after the Closing Date under
any Tax sharing, Tax indemnity, Tax allocation or similar contracts (whether or
not written) to which GCC was obligated, or was a party, on or prior to the
Closing Date, (v) any Excluded Liabilities, (vi) any claim, cost, loss,
liability, Taxes or damage incurred or sustained by Buyer or its affiliates as a
result of the operation of the Business by the Sellers or their affiliates prior
to the opening of business on the Closing Date, except to the extent assumed by
Buyer hereunder; (vii) all obligations, liabilities, losses or damages arising
out of or relating to any litigation, claim, suit, action, proceeding or
investigation arising from the assets or operations of GCC with respect to
events occurring prior to the Closing Date (including, without limitation, any
indemnification obligations of GCC in favor of employees or others in connection
with such matters) except for up to $500,000 of aggregate GCC and/or GII
liability in accordance with, and subject to, the indemnity provision set forth
in Section 7.2(iii); (viii) all obligations and liabilities under any applicable
Environmental Law or with respect to any Materials of Environmental Concern
arising out of (X) any condition existing prior to the Closing Date at any of
the assets or operations of GCC and (Y) any act or omission of GCC or the
Business, at any location, prior to the Closing Date; (ix) any claim, cost,
loss, liability, Taxes or damage incurred or sustained by Buyer or its
affiliates as a result of any misrepresentation or breach of warranty by any
Seller contained in Section 4.14; (x) all Retained Benefits Liabilities and (xi)
all reasonable costs and expenses (including reasonable attorneys' fees and
disbursements) incurred by Buyer or its affiliates in connection with any
action, suit, proceeding, demand, assessment or judgment incident to any of the
matters indemnified against in this Section 7.1(a). In the event that the
financial impact of a matter changes the amount required to be paid by the Buyer
in connection with the Adjustment Amount, any such matter shall not give rise to
an indemnification obligation on the part of Sellers pursuant to this Section
7.1 to the extent the financial impact of such matter changed such payment
obligation unless Sellers fail to pay any portion of the Adjustment Amount
pursuant to Section 3.3.
27
(b) Each Seller, including the Stockholder, jointly and
severally agrees to indemnify and hold Buyer and its affiliates harmless against
and in respect of (i) any claim, cost, loss, liability, Taxes or damage incurred
or sustained by Buyer or its affiliates as a result of any misrepresentation or
breach of warranty by any Seller (other than in Section 4.14) or a breach by any
Seller of any covenant or other agreement contained herein or under any other
agreement executed and delivered by the parties in furtherance of the
transactions described herein and (ii) all reasonable costs and expenses
(including reasonable attorneys' fees and disbursements) incurred by Buyer or
its affiliates in connection with any action, suit, proceeding, demand,
assessment or judgment incident to any of the matters indemnified against in
this Section 7.1(b).
(c) Buyer shall not be entitled to indemnity hereunder if and
to the extent that any indemnifiable loss, cost or liability is offset by any
additional or incremental asset or reduced liability which is directly
attributable to such loss, cost or liability.
7.2 Buyer Indemnity. Buyer agrees to indemnify and hold each Seller and
their respective affiliates harmless against and in respect of (i) any claim,
cost, loss, liability or damage incurred or sustained by any Seller or their
respective affiliates as a result of any misrepresentation or breach of warranty
by Buyer or EMP or a breach by Buyer or EMP of any covenant or other agreement
contained herein or under any other agreement executed and delivered by the
parties in furtherance of the transactions described herein; (ii) any claim,
cost, loss, liability or damage incurred or sustained by any Seller as a result
of the operation of the Business and Assets by Buyer following the opening of
business on the Closing Date, except for any matters giving rise to an indemnity
claim under Section 7.1; (iii) the first $500,000 of aggregated liability
(including professional and expert fees and disbursements) of GCC and GII under
any litigation, claim, suit, action, proceeding, investigation or any other
matter arising from the publishing of any material prior to the Closing Date or
any events occurring before the Closing Date that are not covered by insurance
policies (which may include Sellers' share of any Mandatory Settlement) together
with Buyer's share of any Mandatory Settlement (which shall be borne by the
Buyer pursuant to the terms of Section 7.3), provided, however, that the Sellers
shall retain all responsibility for the payment of liabilities in connection
with the Xxxxxxxxxxxxxx Litigation and Buyer's indemnification obligation for up
to $500,000 of litigation shall not extend to the Xxxxxxxxxxxxxx Litigation;
(iv) any claim, cost loss, liability or damage incurred by reason of Buyer's
failure to pay or discharge any Assumed Liabilities in accordance with their
terms; and (v) all reasonable costs and expenses (including reasonable
attorneys' fees and disbursements) incurred by any Seller or its affiliates in
connection with any action, suit, proceeding, demand, assessment or judgment
incident to any of the matters indemnified against in this Section 7.2.
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7.3 Procedures for Indemnification. Promptly after receipt by an
indemnified party under this Section 7 of notice of any claim, the commencement
of any action, or the discovery of any facts or circumstances which could
reasonably result in, if not attended to, a claim or commencement of any action,
the indemnified party shall, if a claim in respect thereof is to be or may be
made against the indemnifying party under this Section 7, notify the
indemnifying party in writing of the claim, the commencement of that action or
state of facts or circumstances; provided that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have to
the indemnified party except to the extent that such failure to notify shall
materially prejudice the indemnifying party. If any such claim shall be brought
against an indemnified party, it shall notify the indemnifying party thereof and
the indemnifying party shall be entitled, subject to the provisions hereinafter
set forth, to control the indemnified party's defense, settlement or other
disposition of any such claim with counsel reasonably satisfactory to the
indemnified party so long as the indemnifying party acknowledges their indemnity
obligation in writing to such indemnified party. With respect to any such claim
relating solely to the payment of money damages and no public admission of guilt
or liability and which will not result in the indemnified party's becoming
subject to injunctive or other relief or otherwise adversely affect the business
of the indemnified party in any manner (it being understood that a confidential
settlement involving solely the payment of monetary damages will not be deemed
to "adversely" affect the business), and as to which the indemnifying party
shall have acknowledged in writing the obligation to indemnify the indemnified
party hereunder subject to the Deductible (as defined in Section 7.4(b)), the
indemnifying party shall have the sole right to defend, settle or otherwise
dispose of such claim, on such terms as the indemnifying party, in its sole
discretion, shall deem appropriate; provided, however, that the indemnifying
party shall obtain the written consent of the indemnified party, which shall not
be unreasonably withheld, prior to ceasing to defend, settling or otherwise
disposing of any such claim if as a result thereof the indemnified party would
become subject to injunctive or other equitable relief or the business of the
indemnified party would be adversely affected in any manner. After notice from
the indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation. The parties each agree to
render to the other parties such assistance as may reasonably be requested in
order to insure the proper and adequate defense of any such claim or proceeding.
Sellers agree that in connection with any defense of a claim relating to the
Business that they shall not agree to any settlement that could reasonably be
expected to adversely affect the Business without the prior written consent of
Buyer which consent shall not be unreasonably withheld. Notwithstanding the
foregoing, Buyer shall have the right to appoint counsel at Buyer's expense to
represent Buyer's interests and to serve as co-counsel of record in any claim
pending against Sellers or that is asserted against Sellers and arises from acts
that occurred prior to the Closing Date; provided that in such instance Buyer
and counsel for Buyer shall not be entitled to prevent Sellers' counsel from
taking any actions that are otherwise permitted under this Agreement. Legal
counsel for Sellers and Buyer shall consult in advance on the terms and
placement of any retraction that Sellers propose in connection with the
settlement of any pending or threatened litigation or request for correction
("Retraction"). In the event that Buyer withholds consent to Sellers' timely
request that Buyer publish a Retraction that is consistent with Sellers' or
Buyer's past practices (including with respect to the terms, location and
frequency with which such Retractions have been published), Buyer shall be
responsible for the incremental cost, if any, to Seller of the refusal to
publish such Retraction. For this purpose, the incremental cost to Seller shall
29
be defined to mean (i) the cost of any damage award that would have been barred
by statute if the Retraction had been published (the "Barred Award") that is not
covered by insurance proceeds or, (ii) in the event that the total cost of the
case exceeds the applicable insurance deductible, the total cost of the case
(including legal fees) not covered by insurance proceeds multiplied by a
fraction, the numerator of which is the Barred Award, if any, and the
denominator of which is the total cost of the case (including legal fees). With
respect to such cases, Buyer and Sellers shall cooperate in good faith to
dispose of such cases on a mutually satisfactory basis; provided that Buyer may
require the settlement of any particular case if Buyer agrees to pay 50% of the
cost of such settlement (the "Mandatory Settlement") in addition to Buyer's
obligation to indemnify Sellers, if any, in respect of Sellers' portion of any
Mandatory Settlement in accordance with the provisions of Section 7.2(iii).
Notwithstanding the foregoing, no indemnity payment shall be due from Sellers to
Buyer for any Taxes pursuant to Section 7.1 (an "Indemnifiable Tax") if Sellers
contest such Indemnifiable Tax pursuant to Section 6.2 in a Tax Proceeding and,
as a result of such Tax Proceeding, GCC's or Buyer's obligation to pay such
Indemnifiable Tax is stayed pending the outcome of such Tax Proceeding. The
Sellers shall be obligated to pay such Indemnifiable Tax pursuant to Section 7.1
upon the earlier of the resolution of the Tax Proceeding or the termination of
the stay. Nothing contained in this Section 7.3 shall require a procedure with
respect to Tax-related indemnification contrary to the procedures set forth in
Section 6.2.
7.4 Additional Agreements. (a) The indemnities, covenants and
agreements contained herein, including the indemnities provided in this Section
7, shall survive the Closing, except that: (i) the Sellers shall not be liable
for any indemnification claim hereunder with respect to a misrepresentation or a
breach of any warranty contained in (1) Section 4.15 or Section 4.18, unless
notice of such claim shall have been delivered in accordance with this Section 7
on or before the fifth anniversary of the Closing Date, (2) Section 4.14, unless
notice of such claim shall have been delivered in accordance with this Section 7
on or before the date which is 60 days after the expiration of the longest
statute of limitations applicable to claims against the Sellers by any relevant
taxing authority and (3) any other subsection of Section 4 (other than Sections
4.14, 4.15 and 4.18), unless notice of such claim shall have been delivered in
accordance with this Section 7 on or before the date that is 18 months after the
Closing Date; and (ii) Buyer shall not be liable for any indemnification claim
hereunder with respect to a misrepresentation or a breach of any warranty
contained in Section 5, unless notice of such claim shall have been delivered in
accordance with this Section 7 on or before the date that is 18 months after the
Closing Date.
(b Notwithstanding the foregoing, the aggregate non-Tax
related indemnification obligations of the Sellers pursuant to Section
7.1(a)(i), Section 7.1(a)(v), Section 7.1(a)(vi), Section 7.1(a)(vii), Section
7.1(a)(viii), Section 7.1(a)(x), Section 7.1(a)(xi) (with respect to costs
relating to the aforementioned non-tax related sections) and Section 7.1(b)
shall not exceed $30,000,000. The tax related indemnification obligations of the
Sellers pursuant to Section 7.1(a)(ii), Section 7.1(a)(iii), Section 7.1(a)(iv),
Section 7.1(a)(ix) and Section 7.1(a)(xi) (with respect to costs relating to the
aforementioned tax related sections) are without limit. Notwithstanding the
foregoing, the indemnification obligations of Buyer hereunder shall not exceed
$5,000,000. The Sellers shall not be liable for any misrepresentation or a
breach of any warranty pursuant to Section 7.1(b) or its indemnification
obligations pursuant to Section 7.1(a)(viii) and Buyer shall not be liable for
any misrepresentation or a breach of any warranty pursuant to Section 7.2 until
the aggregate amount of all such losses and claims referred to in such sections
exceeds $1,000,000 against Sellers or Buyer, at which time such parties shall be
liable in respect of all such losses and claims, less such $1,000,000 (the
"Deductible"). The parties agree that the $1,000,000 basket shall not apply to
any misrepresentation or breach of warranty claims that give rise to a separate
indemnity claim under Section 7.1(a). Nothing herein shall limit the liability
of any party for failure to perform its covenants and obligations hereunder
(other than, as expressly provided herein, with respect to representations and
warranties).
30
(c If the payment of the amount with respect to which any
claim is made under this Section 7 ("Indemnity Claim"), gives rise to a
currently realizable Tax Benefit (as defined below) to the party making the
claim, the indemnity payment shall be reduced by the amount of the Tax Benefit
available to the party making the claim. The net amount of any loss, liability,
claim, damage, expense or Tax (collectively, a "Loss") for which indemnification
is provided under this Section 7 shall be increased to take account of any net
Tax cost incurred by the indemnified party arising from the receipt of indemnity
payments hereunder. To the extent such Indemnity Claim does not give rise to a
currently realizable Tax Benefit, if the amount with respect to which any
Indemnity Claim is made gives rise to a subsequently realized Tax Benefit to the
party that made the claim, such party shall refund to the indemnifying party the
amount of such Tax Benefit when, as and if realized. For the purposes of this
Agreement, any subsequently realized Tax Benefit shall be treated as though it
were a reduction in the amount of the initial Indemnity Claim, and the
liabilities of the parties shall be redetermined as though both occurred at or
prior to the time of the indemnity payment. For purposes of this subsection
7.4(c), a "Tax Benefit" means an amount by which the tax liability of the party
(or group of corporations including the party) is reduced (including without
limitation, by deduction, reduction of income by virtue of increased tax basis
or otherwise, entitlement to refund, credit or otherwise) plus any related
interest received from the relevant taxing authority. Where a party has other
losses, deductions, credits or items available to it, the Tax Benefit from any
losses, deductions, credits or items relating to the Indemnity Claim shall be
deemed to be realized last after any other losses, deductions, credits or items
are realized. For the purposes of this subsection 7.4(c), a Tax Benefit is
"currently realizable" to the extent that it can be reasonably anticipated that
such Tax Benefit will be realized in the current taxable period or year or in
any tax return with respect thereto (including through a carryback to a prior
taxable period) or in any taxable period or year prior to the date of the
Indemnity Claim. In the event that there should be a determination disallowing
the Tax Benefit, the indemnifying party shall be liable to refund to the
indemnified party the amount of any related reduction previously allowed or
payments previously made to the indemnifying party pursuant to this subsection
7.4(c). The amount of the refunded reduction or payment shall be deemed a
payment under Section 7 of this Agreement and thus shall be paid subject to any
applicable reductions under this subsection 7.4(c).
(d The parties agree that any indemnification payments made
pursuant to this Agreement shall be treated for tax purposes as an adjustment to
the Purchase Price, unless otherwise required by applicable law.
(e The parties agree that no indemnified party shall be
entitled to receive any consequential or punitive damages or lost profits in
connection with any indemnification claim under this Section 7, unless such
damages are awarded or otherwise payable in connection with a "third party"
claim.
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(f Any party receiving notice of any claim by any taxing
authority that such party owes or may in the future owe Taxes shall, if the
claim to which such notice relates could, if resolved against such party,
reasonably be expected to have adverse consequences for other parties to this
Agreement, notify all other parties of such notice. Any party may, at its own
expense, be entitled to participate as an observer in the proceedings with
respect to any such claim.
(g Each indemnified party and its affiliates shall be
obligated in connection with any claim for indemnification under this Section 7
to use all commercially reasonable efforts to obtain any insurance proceeds
available to such indemnified party with regard to the applicable claims. The
amount which the indemnifying party is or may be required to pay to any
indemnified party pursuant to this Section 7 shall be reduced (retroactively, if
necessary) by any insurance proceeds or other amounts actually recovered by or
on behalf of such indemnified party in reduction of the related loss, net of any
expenses actually incurred in obtaining such recovery. If any indemnified party
shall have received the payment required by this Agreement from an indemnifying
party in respect of Losses and shall subsequently receive insurance proceeds or
other amounts in respect of such Losses, then such indemnified party shall
promptly repay to the indemnifying party a sum equal to the amount of such
insurance proceeds or other amounts actually received.
(h Each indemnified party shall be obligated in connection
with any claim for indemnification under this Section 7 to use all commercially
reasonable efforts to mitigate Losses upon and after becoming aware of any event
which could reasonably be expected to give rise to such Losses.
(i The indemnification provisions of this Section 7 shall be
the exclusive remedy of the parties with respect to the matters referred to in
Sections 7.1 and 7.2, except for matters relating to fraud or active breach of
covenants or agreements.
8. MISCELLANEOUS AGREEMENTS OF THE PARTIES
8.1 Notices. All communications provided for hereunder shall be in
writing and shall be deemed to be given when delivered in person or by private
courier with receipt, when telefaxed and received, or three (3) days after being
deposited in the United States mail, first-class, registered or certified,
return receipt requested, with postage paid and,
if to Buyer:
American Media Operations, Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxx Xxxxx, Esq.
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
32
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx, Esq.
if to Sellers:
Globe International Inc.
0000 Xxxxxxxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxx, Xxxxxx X0X 0X0
Telecopy: (000) 000-0000
Attention: Xxxx Xxxxxxxxxx
with a copy to:
Xxxxxxx Xxxxxxxx & Xxxxxxxx
0000 XxXxxx Xxxxxxx
00xx Xxxxx
Xxxxxxxx, Xxxxxx X0X 0X0
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx
or to such other address as any such party shall designate by written notice to
the other parties hereto.
8.2 Bulk Transfers. Buyer acknowledges that GII will not comply with
the provisions of any bulk transfer or sales laws of any jurisdiction in
connection with the transactions contemplated by this Agreement. Sellers shall
jointly and severally indemnify Buyer on an after-tax basis, for any claim,
cost, loss, liability or damage incurred or sustained by Buyer or its affiliates
as a result of any failure to comply with such bulk transfer or sales laws,
except in respect to Assumed Liabilities.
8.3 Further Assurances; Asset Returns; Securities Law Requirements. (a)
Upon request from time to time, Sellers shall execute and deliver all documents,
take all rightful oaths, and do all other acts that may be reasonably necessary
or desirable, in the reasonable opinion of counsel for Buyer, to perfect or
record the title of Buyer, or any successor of Buyer, to the Assets transferred
or to be transferred under this Agreement, or to aid in the prosecution,
defense, or other litigation of any rights arising from said transfer (provided
that Buyer shall reimburse Sellers for all out of pocket costs and expenses
resulting from any such request). In the event that Buyer receives any assets of
Sellers that are not intended to be transferred pursuant to the terms of this
Agreement, whether or not related to the Business, Buyer agrees to promptly
return such assets to Sellers at Sellers' expense.
33
(b) Sellers shall use their reasonable best efforts to assist
Buyer in complying with disclosure obligations under applicable securities laws,
including but not limited to, by providing any required information for public
filings and in the procurement of any required consents of auditors.
8.4 Other Covenants. To the extent that any consents needed to assign
to Buyer any of the Assets have not been obtained on or prior to the Closing
Date this Agreement shall not constitute an assignment or attempted assignment
thereof if such assignment or attempted assignment would constitute a breach
thereof. If any such consent shall not be obtained on or prior to the Closing
Date, then (i) Sellers and Buyer, if required under applicable law, shall use
their reasonable efforts in good faith to obtain such consent as promptly as
practicable thereafter and (ii) if in the reasonable judgment of Buyer such
consent may not be obtained, the parties shall use reasonable efforts in good
faith to cooperate, and to cause each of their respective affiliates to
cooperate, in any lawful arrangement designed to provide for Buyer the benefits
under any such Assets.
8.5 Expenses. Sellers and Buyer shall each pay their respective
expenses (such as legal, investment banker and accounting fees) incurred in
connection with the origination, negotiation, execution and performance of this
Agreement, except that Buyer shall be responsible for the Payment on any filing
fee under the Xxxx-Xxxxx Act.
8.6 Transaction Taxes. Subject to Sellers' compliance with their
obligations under Section 3.5, the Buyer shall be liable for and shall pay all
Taxes including sales, goods and services, health services, use, transfer,
documentation, recording and similar Taxes (including, without limitation, title
recording or filing fees, mutation taxes and other amounts payable in respect of
transfer filings) payable upon and in connection with the conveyance and
transfer of the Assets by the Sellers to the Buyer. The Buyer and the Sellers
shall consult with each other in good faith and shall cooperate fully with each
other in planning for the reduction or elimination of any such Taxes. Buyer
agrees to pay to, forthwith upon the written request of GII, and indemnify GII
for any amount, including GST, QST, interest and penalties, claimed from GII by
any taxation authority and which relate to GST or QST payable by the Buyer with
respect to the purchase and transfer of the Assets.
8.7 Non-Assignability; Binding Agreement. This Agreement shall inure to
the benefit of and be binding on the parties hereto and their respective
successors and permitted assigns (including, but not limited to, the heirs,
trustees, legal representatives and the estate of Stockholder). This Agreement
shall not be assigned by either party hereto without the express prior written
consent of the other party, and any attempted assignment, without such consents,
shall be null and void.
34
8.8 Amendment; Waiver. This Agreement may be amended, supplemented or
otherwise modified only by a written instrument executed by the parties hereto.
No waiver by either party of any of the provisions hereof shall be effective
unless explicitly set forth in writing and executed by the party so waiving.
Except as provided in the preceding sentence, no action taken pursuant to this
Agreement, including without limitation, any investigation by or on behalf of
any party, shall be deemed to constitute a waiver by the party taking such
action of compliance with any representations, warranties, covenants, or
agreements contained herein, and in any documents delivered or to be delivered
pursuant to this Agreement. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach.
8.9 Schedules and Exhibits. All exhibits and schedules hereto are
hereby incorporated by reference and made a part of this Agreement. Any fact or
item which is clearly disclosed on any Schedule or Exhibit to this Agreement or
in the Financial Statements in such a way as to make its relevance to a
representation or representations made elsewhere in this Agreement or to the
information called for by another Schedule or other Schedules (or Exhibit or
other Exhibits) to this Agreement readily apparent shall be deemed to be an
exception to such representation or representations or to be disclosed on such
other Schedule or Schedules (or Exhibit or Exhibits), as the case may be,
notwithstanding the omission of a reference or cross-reference thereto. Any fact
or item disclosed on any Schedule or Exhibit hereto shall not by reason only of
such inclusion be deemed to be material and shall not be employed as a point of
reference in determining any standard of materiality under this Agreement.
8.10 Third Parties. This Agreement does not create any rights, claims
or benefits inuring to any person that is not a party hereto nor create or
establish any third party beneficiary hereto.
8.11 Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York.
8.12 Consent to Jurisdiction; Waiver of Jury Trial. (a) With respect to
any suit, action or proceeding relating to this Agreement or to the transactions
contemplated hereby ("Proceedings"), each party irrevocably (i) submits to the
non-exclusive jurisdiction of the courts of the State of New York and the United
States District Court located in the borough of Manhattan in New York City; and
(ii) waives any objection which it may have at any time to the laying of venue
of any Proceedings brought in any such court, waives any claim that such
Proceedings have been brought in an inconvenient forum and further waives the
right to object, with respect to such proceedings, that such court does not have
jurisdiction over such party. (b) EACH PARTY HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING IN
RELATION TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
8.13 Certain Definitions. For purposes of this Agreement, the term:
"affiliate" of a person means a person that directly or
indirectly, through one or more intermediaries, controls, is controlled
by, or is under common control with, the first mentioned person;
"Canadian GAAP" means generally accepted accounting principles
in Canada applied on a consistent basis.
"Code" shall mean the Internal Revenue Code of 1986, as
amended;
35
"Controlled Affiliate" of a person shall mean a person that
such first person (either by itself or jointly with one or more persons
that are not Controlled Affiliates), directly or indirectly Controls,
but shall in no event include persons under common Control. "Control"
means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a person, whether
through the ability to exercise voting power, by contract or otherwise.
"knowledge" means, with respect to Sellers and GCC, the actual
knowledge, after reasonable inquiry, of the Stockholder or of any
executive officer or department head of any of the Sellers or GCC and,
with respect to Buyer and EMP, the actual knowledge, after reasonable
inquiry, of any executive officer or department head of Buyer or of any
member of EMP.
"person" means an individual, corporation, partnership,
association, trust, incorporated organization, other entity or group
(as defined in Section 13(d)(3) of the Exchange Act);
"subsidiary" or "subsidiaries" of Buyer, any of the Sellers or
any other person means any corporation, partnership, joint venture or
other legal entity of which Buyer, Parent or such other person, as the
case may be (either alone or through or together with any other
subsidiary), owns, directly or indirectly, 50% or more of the stock or
other equity interests the holder of which is generally entitled to
vote for the election of the board of directors or other governing body
of such corporation or other legal entity; and
8.14 Section 1445 Withholding. There shall be no withholding pursuant
to Section 1445 of the Code if and to the extent that the Sellers have delivered
to Buyer certificates, in form and substance satisfactory to Buyer, duly
executed and acknowledged, certifying necessary facts that would exempt the
transactions contemplated hereby from such withholding.
8.15 Entire Agreement. This Agreement, and the Schedules and Exhibits
hereto set forth the entire understanding of the parties hereto and no
modifications or amendments to this Agreement shall be binding on the parties
unless in writing and signed by the party or parties to be bound by such
modification or amendment. This Agreement supersedes the letter of intent
executed by the parties on September 4, 1999.
8.16 Section Headings; Table of Contents. The section headings
contained in this Agreement and the Table of Contents to this Agreement are for
reference purposes only and shall not affect the meaning or interpretation of
this Agreement.
8.17 Severability. If any provision of this Agreement shall be declared
by any court of competent jurisdiction to be illegal, void or unenforceable, all
other provisions of this Agreement shall not be affected and shall remain in
full force and effect.
36
8.18 Counterparts; Execution by Facsimile Signature. This Agreement may
be executed in any number of counterparts, each of which shall be deemed to be
an original and all of which together shall be deemed to be one and the same
instrument. This Agreement may be executed by facsimile signature(s).
8.19 Public Announcements. The initial press release pertaining to the
transactions contemplated by this Agreement shall be a joint press release and
thereafter Buyer and Sellers shall consult with each other before issuing any
press release or otherwise making any public statements with respect to the
transactions and shall not issue any such press release or make any such public
statement, except as may be required by law.
8.20 Dollar Amounts. Unless otherwise specified, all statements of or
references to dollar amounts in this Agreement shall mean lawful money of the
United States of America.
37
IN WITNESS WHEREOF, the parties have caused this Stock and Asset
Purchase Agreement to be duly executed as of the date first above written.
XXXX XXXXXXXXXX
---------------------------
GLOBE INTERNATIONAL PUBLISHING INC.
By: /s/ Xxxx Xxxxxxxxxx
---------------------------
Name:
Title:
GLOBE INTERNATIONAL INC.
By: /s/ Xxxx Xxxxxxxxxx
---------------------------
Name:
Title:
EMP GROUP L.L.C.
By: /s/ Xxxxxx Xxxxxxx
---------------------------
Name:
Title:
AMERICAN MEDIA OPERATIONS, INC.
By: /s/ Xxxxx Xxxxxx
---------------------------
Name:
Title:
38
