PURCHASE AND SALE AGREEMENT by and among ZIFF DAVIS MEDIA INC., ENTERPRISE MEDIA GROUP, INC., ZIFF DAVIS DEVELOPMENT INC., ZIFF DAVIS INTERNET INC., ZIFF DAVIS PUBLISHING INC., and ZIFF DAVIS PUBLISHING HOLDINGS INC. Dated as of: June 20, 2007
Execution Copy
Exhibit 10.1
by and among
ZIFF XXXXX MEDIA INC.,
ENTERPRISE MEDIA GROUP, INC.,
ZIFF XXXXX DEVELOPMENT INC.,
ZIFF XXXXX INTERNET INC.,
ZIFF XXXXX PUBLISHING INC.,
and
ZIFF XXXXX PUBLISHING HOLDINGS INC.
Dated as of:
June 20, 2007
\
TABLE OF CONTENTS
Page | ||||
ARTICLE 1 PURCHASE AND SALE |
1 | |||
1A. Purchase and Sale of the Purchased Assets |
1 | |||
1B. Closing Payments |
1 | |||
1C. The Closing |
2 | |||
1D. Purchase Price Adjustment |
2 | |||
1E. Earnout |
6 | |||
1F. Purchased Assets; Excluded Assets; Retained Liabilities; Assumed Liabilities |
8 | |||
ARTICLE 2 CONDITIONS TO CLOSING |
15 | |||
2A. Conditions to All Parties’ Obligations |
15 | |||
2B. Conditions to Buyer’s Obligations |
15 | |||
2C. Conditions to Seller’s Obligations |
18 | |||
ARTICLE 3 COVENANTS PRIOR TO THE CLOSING |
19 | |||
3A. Access |
19 | |||
3B. Ordinary Conduct of Seller |
20 | |||
3C. Distribution of Cash and Other Used Assets |
22 | |||
3D. Cancellation of Inter-company Accounts and Services |
22 | |||
3E. Exclusive Transaction |
24 | |||
3F. Assistance with Financing |
24 | |||
3G. GT Audit Report |
24 | |||
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF SELLER WITH RESPECT TO ENTERPRISE GROUP |
25 | |||
4A. Organization and Corporate Power |
25 | |||
4B. Subsidiaries. Each of the Seller Subs is a direct or indirect
wholly-owned subsidiary of Seller |
25 | |||
4C. Authorization; No Breach |
25 | |||
4D. Litigation Affecting Transaction |
26 | |||
4E. Xxxxxxxxx |
00 | |||
0X. Financial Statements |
26 | |||
4G. No Other GAAP Liabilities |
26 | |||
4H. Absence of Certain Developments |
27 | |||
4I. Title to Properties |
27 | |||
4J. Tax Matters |
28 | |||
4K. Enterprise Xxxxx Xxxxxxxx Contracts |
29 | |||
4L. Intellectual Property |
30 | |||
4M. Litigation |
31 | |||
4N. Xxxxxxxxx |
00 | |||
0X. Employee Benefit Plans |
31 | |||
4P. Insurance |
32 | |||
4Q. Sufficiency of Assets |
33 | |||
4R. Compliance with Applicable Laws |
33 | |||
4S. Environmental |
33 | |||
4T. Employees |
34 |
-i-
TABLE OF CONTENTS
(Continued)
(Continued)
Page | ||||
4U. Affiliate Transactions |
34 | |||
4V. Permits |
34 | |||
4W. Customers and Suppliers |
34 | |||
4X. Software |
34 | |||
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF BUYER |
35 | |||
5A. Organization and Corporate Power |
35 | |||
5B. Authorization; No Breach |
35 | |||
5C. Litigation |
36 | |||
5D. Brokerage |
36 | |||
5E. Xxxxxxxx |
00 | |||
0X. Financing |
36 | |||
5G. Investment |
37 | |||
ARTICLE 6 TERMINATION |
37 | |||
6A. Termination |
37 | |||
6B. Effect of Termination |
38 | |||
ARTICLE 7 INDEMNIFICATION |
38 | |||
7A. Claims against the Indemnity Escrow Funds |
38 | |||
7B. Indemnification by Buyer |
39 | |||
7C. Exclusive Remedy |
39 | |||
7D. Termination of Indemnification |
39 | |||
7E. Procedures Relating to Xxxxxxxxxxxxxxx |
00 | |||
0X. Certain Additional Matters |
41 | |||
ARTICLE 8 ADDITIONAL AGREEMENTS |
43 | |||
8A. Survival |
43 | |||
8B. Press Release and Announcements |
44 | |||
8C. Confidentiality |
44 | |||
8D. Notification |
45 | |||
8E. Consents |
45 | |||
8F. Commercially Reasonable Efforts |
46 | |||
8G. Regulatory Act Compliance |
46 | |||
8H. Financing Matters |
46 | |||
8I. Tax Matters |
47 | |||
8J. Employee Benefits Matters |
48 | |||
8K. Facility Closings; Employee Layoffs |
49 | |||
8L. Provision Respecting Representation of Seller |
49 | |||
8M. Post-Closing Access |
49 | |||
8N. Expenses |
50 | |||
8O. Further Assurances |
50 | |||
8P. Use of Certain Names |
50 | |||
8Q. Litigation Support |
51 | |||
8R. Mutual Non-Solicitation Period |
51 |
-ii-
TABLE OF CONTENTS
(Continued)
(Continued)
Page | ||||
8S. Post-Closing Record Retention and Access |
52 | |||
8T. Shared Contracts; Reinvestment Credits; Seller Benefits |
52 | |||
8U. Use of Proceeds |
55 | |||
8V. ZIPS License |
55 | |||
8W. Rights Under Certain Agreements |
55 | |||
8X. License to Seller of Certain Software |
56 | |||
ARTICLE 9 MISCELLANEOUS |
56 | |||
9A. Amendment and Waiver |
56 | |||
9B. Notices |
56 | |||
9C. Assignment |
58 | |||
9D. Severability |
58 | |||
9E. No Strict Construction |
59 | |||
9F. Captions |
59 | |||
9G. Complete Agreement |
59 | |||
9H. Seller Disclosure Letter |
59 | |||
9I. No Additional Representations; Disclaimer |
60 | |||
9J. Counterparts |
61 | |||
9K. Governing Law |
61 | |||
9L. Payments under Agreement |
61 | |||
9M. Third-Party Beneficiaries and Obligations |
61 | |||
9N. Waiver of Bulk Sales Laws |
61 | |||
9O. CONSENT TO JURISDICTION |
61 | |||
9P. WAIVER OF JURY TRIAL |
62 | |||
9Q. Arbitration |
62 | |||
9R. Relationship of Parties |
64 | |||
9S. Usage |
64 |
-iii-
THIS PURCHASE AND SALE AGREEMENT (this “Agreement”) is made as of June 20, 2007, by
and among Ziff Xxxxx Media Inc., a Delaware corporation (“Seller”), Enterprise Media Group,
Inc., a Delaware corporation (“Buyer”), Ziff Xxxxx Development Inc., a Delaware corporation
(“Devco”), Ziff Xxxxx Internet Inc., a Delaware corporation (“Netco”), Ziff Xxxxx
Publishing Inc., a Delaware corporation (“Pubco”), and Ziff Xxxxx Publishing Holdings Inc.
(“Pubco Holdings”).
WHEREAS, Seller and Buyer desire to enter into this Agreement whereby, on the terms and
subject to the conditions set forth in this Agreement,. Seller desires to, and/or cause its
Subsidiaries to, (i) sell, transfer and assign to Buyer all of its right, title and interest in and
to the Purchased Assets and (ii) assign to Buyer the Assumed Liabilities.
NOW, THEREFORE, in consideration of the premises and the mutual representations, warranties
and covenants herein contained, and intending to be legally bound, the parties hereto hereby agree
as follows:
ARTICLE 1
PURCHASE AND SALE
1A. Purchase and Sale of the Purchased Assets. On the terms and conditions set
forth in this Agreement, at the Closing and upon payment of the Estimated Closing Purchase Price by
Buyer in accordance with Section 1B hereof, Seller shall and shall cause the Seller Subs to
(i) sell, transfer and assign to Buyer all of their right, title and interest in and to the
Purchased Assets and Buyer shall purchase and accept from Seller and the Seller Subs the Purchased
Assets and (ii) assign to Buyer, and Buyer shall assume from Seller and the Seller Subs, solely the
Assumed Liabilities.
1B. Closing Payments. At the Closing, Buyer shall pay to (i) Seller and the Seller
Subs, by wire transfer of immediately available funds from Buyer to an account designated by Seller
(such designation to be made at least one (1) Business Day prior to the Closing Date), an aggregate
amount in cash equal to the Estimated Closing Purchase Price (with the allocation among Seller and
Seller Subs to be made by Seller within five Business Days after the Allocation is finally
determined in accordance with Section 8I(iii)), (ii) the Escrow Agent, by wire transfer of
immediately available funds from Buyer to an account designated by the Escrow Agent (such
designation to be made at least one (1) Business Day prior to the Closing Date), the Adjustment
Escrow Amount for deposit into a separate escrow account established pursuant to the terms of the
Adjustment Escrow Agreement, (iii) the Escrow Agent, by wire transfer of immediately available
funds from Buyer to an account designated by the Escrow Agent (such designation to be made at least
one (1) Business Day prior to the Closing Date), the Indemnity Escrow Amount for deposit into a
separate escrow account established pursuant to the terms of the Indemnity Escrow Agreement, and
(iv) the Transferred Employees identified by Seller, by wire transfer of immediately
available funds from Buyer to the accounts designated by Seller (such designation to be made
at least one (1) Business Day prior to the Closing Date), the Transaction Bonuses Amount as
specified by Seller; provided that the Transaction Bonuses may
be paid by Buyer pursuant to
such alternative arrangements as are mutually agreed upon by Buyer and Seller in writing.
1C. The Closing. The closing of the purchase and sale of the Purchased Assets and the
assignment and assumption of the Assumed Liabilities at the Closing in exchange for the Estimated
Closing Purchase Price (the “Closing”) shall occur at the offices of Xxxxxxxx & Xxxxx LLP,
000 Xxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, at 9:00 a.m. local time on the second Business
Day following satisfaction or waiver of each of the conditions to Closing specified in Article
2 hereof, other than conditions to Closing which by their terms or their nature require
performance at the Closing (but subject to the satisfaction or waiver of such conditions at the
Closing). The date and time of the Closing are herein referred to as the “Closing Date.”
At the Closing, (i) Buyer shall (a) deliver to Seller the Estimated Closing Purchase Price in
accordance with Section 1B, (b) deliver to the Escrow Agent the Adjustment Escrow Amount in
accordance with Section 1B, (c) deliver to the Escrow Agent the Indemnity Escrow Amount in
accordance with Section 1B, and (d) deliver the Transaction Bonuses Amount in accordance
with Section 1B, and (ii) Seller and/or the Seller Subs shall sell, transfer to Buyer, and
Buyer shall purchase from Seller and/or the Seller Subs, the Purchased Assets and assume solely the
Assumed Liabilities. On the Business Day immediately prior to the Closing Date, Buyer and Seller
shall conduct a pre-Closing at the same location as the Closing, commencing at 9:00 a.m. local
time, at which each party shall present for review by the other parties copies in execution form of
all documents required to be delivered by such party at or in connection with the Closing. Each
party will, and will cause its Affiliates to, at the Closing execute and deliver the agreements,
documents, certificates and other deliveries (including the Ancillary Agreements) required by such
party (or its Affiliates) to be executed and/or delivered at the Closing or for which such
execution and/or delivery is a condition to another party’s obligations to consummate the Closing.
Without limiting the generality of the foregoing, in furtherance of the assignment, transfer and
conveyance of the Purchased Assets and the assumption of Assumed Liabilities at the Closing (a)
Seller shall execute and deliver, and shall cause the Seller Subs to execute and deliver, such
bills of sale, deeds, lease assignments and assumptions, leases, subleases, stock powers,
certificates of title, assignments of contracts and other instruments of transfer, conveyance and
assignment as and to the extent necessary to evidence the transfer, conveyance and assignment of
Seller’s and each of the Seller Sub’s right, title and interest in and to the Purchased Assets to
Buyer (collectively, the “Asset Conveyance Documents”), and (b) Buyer shall execute and
deliver to Seller and each of the Seller Subs such assignments of contracts and other instruments
of assumption as and to the extent necessary to evidence the valid and effective assumption by
Buyer of the Assumed Liabilities (collectively, the “Liabilities Assumption Documents”).
Each Asset Conveyance Document and Liabilities Assumption Document shall be in form and substance
reasonably satisfactory to Seller and Buyer; provided that such instruments and other
documents shall not require Seller or any Seller Subs to make any additional representations,
warranties or covenants, express or implied, not contained in this Agreement.
1D. Purchase Price Adjustment.
(i) Within sixty (60) days following the Closing Date, Seller shall prepare and deliver
to Buyer (a) a balance sheet of the Enterprise Group as of 11:59 p.m. New York time on the
day before the Closing (the “Closing Balance Sheet”), and (b) a statement
-2-
(the “Closing Statement”) setting forth Seller’s calculation of Closing Net Working
Capital and the resulting Closing Purchase Price as calculated with reference to such
amounts and any other components thereof in accordance with the definition thereof. The
Closing Balance Sheet shall be prepared, and Closing Net Working Capital shall be
calculated, in accordance with GAAP applied on a basis consistent with the methodologies,
practices, estimation techniques, assumptions and principles used in the preparation of the
2006 Statement of Net Assets (except as otherwise provided in the definition of Closing Net
Working Capital and without regard to any purchase accounting adjustments arising out of the
transactions contemplated hereby) and the portion of the Closing Statement related to
Closing Net Working Capital shall be derived from the Closing Balance Sheet (except as
otherwise provided in the definition of Closing Net Working Capital). During the
preparation of the Closing Balance Sheet and the Closing Statement and the period of any
dispute with respect thereto, Buyer shall (A) reasonably assist Seller and its
representatives in the preparation of the Closing Balance Sheet and the Closing Statement
and provide Seller and its representatives with reasonable access during normal business
hours to the books, records (including work papers, schedules, memoranda and other
documents), facilities and employees of Buyer and its Subsidiaries and the Enterprise Group
for such purpose, and, without limiting the generality of the foregoing, make available
employees of any of the foregoing (including employees who are knowledgeable with respect to
the matters to be set forth in the Closing Balance Sheet or the Closing Statement) to assist
in the preparation of the Closing Balance Sheet and the Closing Statement, the review of any
Notice of Disagreement, and otherwise in connection with the matters contemplated by this
Section 1D (including any dispute relating to the Closing Balance Sheet or the
Closing Statement), and (B) reasonably cooperate with Seller and its representatives in
connection therewith, including the provision on a timely basis of all other information
necessary or useful in connection with the preparation of the Closing Balance Sheet and the
Closing Statement or the review of any Notice of Disagreement; provided that such
access described in clause (A) above does not unreasonably interfere with the normal
operations of Buyer or its Affiliates. During the thirty (30) days immediately following
Buyer’s receipt of the Closing Balance Sheet and the Closing Statement, Buyer and its
representatives shall be permitted to review Seller’s working papers relating to the Closing
Balance Sheet and the Closing Statement. The Closing Balance Sheet, the Closing Statement
and the resulting calculation of Closing Purchase Price shall become final and binding upon
the parties thirty (30) days following Buyer’s receipt thereof unless Buyer gives written
notice of its disagreement (the “Notice of Disagreement”) to Seller prior to such
date. Any Notice of Disagreement shall (x) specify in reasonable detail the nature and
amount of any disagreement so asserted, and (y) only include disagreements based on
mathematical errors or based on the Closing Balance Sheet or the Closing Statement not being
prepared in accordance with this Agreement. If a timely Notice of Disagreement is received
by Seller, then the Closing Balance Sheet, the Closing Statement and the resulting
calculation of Closing Purchase Price (as revised in accordance with clause (1) or (2)
below) shall become final and binding upon the parties on the earlier of (1) the date
Seller and Buyer resolve in writing any and all differences they have with respect to any
matter specified in the Notice of Disagreement and (2) the date the Accounting Firm delivers
its final resolution in writing to Buyer and Seller (which final resolution shall be
requested
-3-
by the parties to be delivered not more than forty-five (45) days following
submission of such disputed matters), and such resolution by the Accounting Firm shall not
be subject to court review, collateral attack or otherwise be appealable. During the thirty
(30) days immediately following the delivery of a Notice of Disagreement, Seller and Buyer
shall seek in good faith to resolve in writing any differences which they may have with
respect to any matter specified in the Notice of Disagreement, and all such discussions
related thereto shall (unless otherwise agreed by Buyer and Seller in writing) be governed
by Rule 408 of the Federal Rules of Evidence and any applicable similar state rule. During
any period of dispute, each of the parties shall be permitted to review the working papers
of the other parties and their representatives relating to the Notice of Disagreement. At
the end of such thirty (30) day period, Seller and Buyer shall submit to KPMG LLP US
(subject to Section 1D(iv), the “Accounting Firm”) for review and resolution
of any and all matters (but only such matters) which remain in dispute and which were
properly included in the Notice of Disagreement. Buyer and Seller shall instruct the
Accounting Firm to, and the Accounting Firm shall, make a final determination of the items
included in the Closing Statement (to the extent such amounts are in dispute) in accordance
with the guidelines and procedures set forth in this Agreement. Buyer and Seller shall
cooperate with the Accounting Firm during the term of its engagement (including by executing
an engagement letter in customary form with the Accounting Firm reflecting the terms of this
Agreement and other customary provisions mutually agreed upon by Buyer and Seller). Buyer
and Seller shall instruct the Accounting Firm not to, and the Accounting Firm shall not,
assign a value to any item in dispute greater than the greatest value for such item assigned
by Buyer, on the one hand, or Seller, on the other hand, or less than the smallest value for
such item assigned by Buyer, on the one hand, or Seller, on the other hand. Buyer and
Seller shall also instruct the Accounting Firm to make its determination based solely on
presentations by Buyer and Seller which are in accordance with the guidelines and procedures
set forth in this Agreement (i.e., not on the basis of an independent review). The
fees and expenses of the Accounting Firm pursuant to this Section 1D(i) shall be
paid by Seller, on the one hand, and Buyer, on the other hand, based on the ratio of the
disputed amount not awarded to such Person to the total amount actually disputed by Seller
and Buyer. For example, if the aggregate amount disputed by Buyer is $1,000, and if Seller
contests only $500 of the amount disputed by Buyer, and if the Accounting Firm ultimately
resolves the dispute by finding that Buyer properly disputed $300 of the $500, then the fees
and expenses of the Accounting Firm will be paid 60% (i.e., 300÷500) by Seller and 40%
(i.e., 200÷500) by Buyer.
(ii) If the Estimated Closing Purchase Price is less than the Closing Purchase Price
(such shortfall, the “Adjustment Amount”), Buyer shall, within five (5) Business
Days after the Closing Statement becomes final and binding on the parties, make payment to
Seller of the Adjustment Amount by wire transfer in immediately available funds, and Buyer
and Seller shall, within five (5) Business Days after the Closing Statement becomes final
and binding on the parties, deliver joint written instructions to the Escrow Agent to cause
the Escrow Agent to pay to Seller all of the Adjustment
Escrow Funds from the Adjustment Escrow Account by wire transfer in immediately
available funds and Seller agrees that payment of the Adjustment Amount to Seller and
release of the Adjustment Escrow Funds to Seller shall be Seller’s sole and exclusive source
of recovery for any amounts owing to Seller pursuant thereto; provided that, for
-4-
the avoidance of doubt and without limiting the generality of the foregoing, no claim by Seller
for the payment or non-payment of the Adjustment Amount or with respect to release of the
Adjustment Escrow Funds shall be asserted against any Person other than Buyer. If the
Estimated Closing Purchase Price is greater than the Closing Purchase Price (such excess,
the “Excess Amount”), Buyer and Seller shall, within five (5) Business Days after
the Closing Statement becomes final and binding on the parties, deliver joint written
instructions to the Escrow Agent to cause the Escrow Agent to pay to Buyer the Excess Amount
from the Adjustment Escrow Funds in the Adjustment Escrow Account by wire transfer in
immediately available funds and if the Excess Amount is less than the Adjustment Escrow
Funds, to make payment to Seller of all remaining Adjustment Escrow Funds in the Adjustment
Escrow Account. If the Excess Amount exceeds the Adjustment Escrow Funds in the Adjustment
Escrow Account (such excess, the “Remaining Excess Amount”), Buyer and Seller shall,
within five (5) Business Days after the Closing Statement becomes final and binding on the
parties, deliver joint written instructions to the Escrow Agent to cause the Escrow Agent to
pay to Buyer the Remaining Excess Amount from the Indemnity Escrow Funds in the Indemnity
Escrow Account. Any payment pursuant to this Section 1D(ii) (other than payments
from the Adjustment Escrow Account to Seller) shall be made together with interest thereon
at the rate per annum equal to the rate of interest published by the Wall Street Journal as
the “prime rate” at large U.S. money center banks on the Closing Date (the “Applicable
Rate”), calculated on the basis of the number of days elapsed from the Closing Date to
the date of payment. Buyer agrees that the payment of the Excess Amount (if any) from the
Adjustment Escrow Funds in the Adjustment Escrow Account in accordance with the Adjustment
Escrow Agreement and the payment of the Remaining Excess Amount (if any) from the Indemnity
Escrow Funds in the Indemnity Escrow Account in accordance with the Indemnity Escrow
Agreement shall be the sole and exclusive remedy of Buyer for payment of the Excess Amount
(if any) and payment of the Remaining Excess Amount (if any), respectively, and the
Adjustment Escrow Funds in the Adjustment Escrow Account and, to the extent there is any
Remaining Excess Amount, the Indemnity Escrow Funds in the Indemnity Escrow Account shall be
Buyer’s sole and exclusive source of recovery for any amounts owing to Buyer pursuant
thereto; provided that, for the avoidance of doubt, and without limiting the
generality of the foregoing, no such claim by Buyer for the payment or non-payment of the
Excess Amount or the Remaining Excess Amount shall be asserted against Seller, any current
or former Affiliate of Seller (other than Seller Subs) or any of its or their respective
officers, directors, employees, partners, stockholders, members, agents, attorneys
representatives, successors or permitted assigns (collectively, the “Equityholder
Parties”).
(iii) Buyer agrees that following the Closing it will not take any actions with respect
to the accounting books, records, policies and procedures of the Enterprise Group that would
obstruct or prevent the preparation of the Closing Statement as provided in this Section
1D. Buyer will cooperate in the preparation of the Closing Balance Sheet and the
Closing Statement and the review of any Notice of Disagreement. The parties
agree that, from and after the Closing, the provisions of this Section 1D and
the arbitration provisions contemplated hereby shall be the exclusive remedy and exclusive
forum of the parties with respect to the matters that are or that may be addressed through
the working capital adjustment contemplated hereby.
-5-
(iv) If the Accounting Firm identified in Section 1D(i) (or any other
Accounting Firm selected pursuant to this Section 1D(iv) cannot, or is not willing
to, act as the Accounting Firm in accordance with the provisions of this Agreement, then
upon Buyer’s or Seller’s written notice to the other party, Buyer and Seller shall, within
five (5) days after delivery of such notice (or such other mutually agreed upon longer
period), jointly select a nationally recognized independent accounting firm that is not the
independent auditor of either of the parties or any other nationally recognized firm with
experience in analyzing and making determinations concerning the matters in this Section
1D (an “Eligible Firm”) to act as the Accounting Firm pursuant to the provisions
of this Agreement; provided that if Buyer and Seller are unable to jointly select
such an Eligible Firm to act as the Accounting Firm within such time period, then Buyer and
Seller shall each select an Eligible Firm at the end of such time period and such Eligible
Firms shall, within five (5) days after their selection, jointly select a third Eligible
Firm to act as the Accounting Firm pursuant to the provisions of this Agreement. Any
Eligible Firm selected pursuant to this Section 1D(iv) shall be deemed the
Accounting Firm for all purposes of this Agreement.
1E. Earnout.
(i) If EBITDA for the Earnout Period equals or exceeds the EBITDA Target, then Buyer
shall pay to Seller an aggregate amount equal to the Earnout Amount in accordance with the
terms and conditions of this Section 1E.
(ii) For purposes of such calculation, EBITDA for the Earnout Period shall be
determined on the basis of the financial statements for the Enterprise Group for the Earnout
Period (with it being understood and agreed that whenever there is a reference to financial
statements for the Earnout Period (whether audited or unaudited), such financial statements
shall be deemed to include references to both predecessor and successor financial statements
and that the financial statements so delivered shall be for the Enterprise Group alone (or
the Person(s) owning the Enterprise Group, as long as such financial statements reflect only
the results of the Enterprise Group)). Promptly after such audited financial statements are
finalized (but in no event later than June 30, 2008), Buyer shall deliver such audited
financial statements (or, to the extent that audited financial statements are not delivered
on or prior to such date, Buyer shall deliver to Seller the unaudited financial statements
of the Enterprise Group for the Earnout Period and as soon as completed, the audited
financial statements for the Enterprise Group for the Earnout Period) and any and all work
papers or back-up documentation reasonably requested by Seller. Buyer’s calculation of any
payment under this Section 1E shall be conclusive and binding upon the parties
unless within thirty (30) calendar days following Seller’s receipt of the audited financial
statements (or, at Seller’s election, unaudited financial statements), schedules, work
papers and back-up documentation, Seller notifies Buyer in writing that it disagrees with
Buyer’s computation of EBITDA for the Earnout
Period. Such notice by Seller shall include a schedule setting forth Seller’s
computation of EBITDA, together with a copy of any financial information, other than that
previously supplied by Buyer to Seller, used in making Seller’s computation. Buyer and
Seller will use commercially reasonable efforts to resolve any disagreement as to the
computation of EBITDA for the Earnout Period as soon as practicable, but if they cannot
reach a final
-6-
resolution within thirty (30) calendar days after Buyer has received Seller’s
notice, then Buyer and Seller will jointly select a nationally recognized independent
accounting firm that is not the independent auditor of either of the parties or any other
nationally recognized firm with experience in analyzing and making determinations concerning
the matters in this Section 1E (the “Earnout Firm”) to resolve their
disagreement. If the Earnout Firm selected by the parties cannot, or is not willing to, act
as the Earnout Firm in accordance with the provisions of this Agreement, then Buyer and
Seller shall each select a Person that meets the criteria for an Earnout Firm (each, an
“Eligible Earnout Firm”) at the end of such time period and such Eligible Earnout
Firms shall, within five (5) days after their selection, jointly select a third Eligible
Earnout Firm to act as the Earnout Firm pursuant to the provisions of this Agreement. Any
Earnout Firm selected pursuant to this Section 1E(ii) shall be deemed the Earnout
Firm for all purposes of this Agreement. Buyer and Seller will direct the Earnout Firm to
render a determination within thirty (30) calendar days of its retention, and Buyer, Seller
and their respective agents will cooperate with the Earnout Firm during its engagement. The
Earnout Firm’s determination will be based solely on the presentations and supporting
material provided by Buyer and Seller and on this Agreement and not pursuant to any
independent review. The determination of EBITDA for the Earnout Period by the Earnout Firm
will be conclusive and binding upon Buyer and Seller and shall be non-appealable (absent
manifest error). The fees and expenses of the Earnout Firm pursuant to this Section
1E shall be paid by Seller, on the one hand, and Buyer, on the other hand, based on the
ratio of the disputed amount not awarded to such Person to the total amount actually
disputed by Seller and Buyer. For example, if the aggregate amount disputed by Seller is
$1,000, and if Buyer contests only $500 of the amount disputed by Seller, and if the Earnout
Firm ultimately resolves the dispute by finding that Seller properly disputed $300 of the
$500, then the fees and expenses of the Earnout Firm will be paid 60% (i.e., 300÷500) by
Buyer and 40% (i.e., 200÷500) by Seller. The date that the computation of EBITDA becomes
final in accordance with this Agreement is referred to herein as the “EBITDA
Determination Date.”
(iii) During the Earnout Period, Buyer shall not, and shall cause its controlled
Affiliates not to, take any action with a principal purpose to reduce EBITDA for the Earnout
Period. Unless such election would contravene, or be inconsistent with, GAAP (as applied by
Seller in prior fiscal years), all available accounting elections (including those relating
to the capitalization of charges and the setting up of reserves) shall, solely for purposes
of this Section 1E, be made consistent with the 2006 Statement of Revenues and
Expenses. In the event that, prior to the end of the Earnout Period, there is any (w) sale,
license or transfer of any material portion of the assets of the Enterprise Group to a
Person (including DevShed) (other than sales of assets in the ordinary course of business
consistent with past practice), (x) reorganization, merger or consolidation involving the
Enterprise Group or any assets with or into any other Person constituting a separate
business (including DevShed), (y) acquisition of all of, or any significant portion of, the
assets of any other Person by Buyer, or (z) entry into any joint venture, partnership,
strategic alliance or other similar business arrangement involving the Enterprise Group with
any other Person, the parties shall cooperate in good faith and effect an appropriate
adjustment to the EBITDA Target.
-7-
(iv) Notwithstanding anything in this Section 1E to the contrary, in the event
that prior to June 30, 2008, Buyer or any Affiliate thereof that, directly or indirectly,
owns or operates the Enterprise Group, (A) files a registration statement with respect to an
initial public offering of its equity securities (an “IPO”) or (B) enters into a
definitive agreement with an unaffiliated third party (it being understood that DevShed is
an Affiliate of Buyer) for the sale, transfer or license (however structured and whether
direct or indirect) of all or substantially all of the assets of the Enterprise Group or all
or substantially all of the equity securities of the Person that owns the assets of the
Enterprise Group (a “Sale Event”), then on the date the registration statement filed
in connection with the IPO is declared effective by the SEC, or the closing of a Sale Event,
as the case may be, Buyer shall pay to Seller an amount equal to $10,000,000 less any
Earnout Amount previously paid by Buyer to Seller. Notwithstanding anything herein to the
contrary, with respect to a Sale Event, Buyer shall not be obligated to pay any amount to
Seller upon the closing of a Sale Event unless the consideration received in connection with
such Sale Event or the enterprise valuation implied by the IPO for the Person selling equity
securities therein exceeds $200,000,000.
(v) If earned, the Earnout Amount shall be paid by Buyer to Seller not later than the
2nd business day after the EBITDA Determination Date and any amount required to be paid
pursuant to Section 1E(iv) shall be paid when required thereunder. If not paid when
due, without limiting the rights of Seller to make claim for payment of the Earnout Amount
or other amount required to be paid pursuant to Section 1E(iv), the amount owed
shall accrue interest on a daily basis at the Prime Rate per annum, calculated on the basis
of the number of days from and after the date such payment is required to be made to the
date of payment. Amounts paid to Seller pursuant to this Section 1E shall be an
adjustment to the Closing Purchase Price.
1F. Purchased Assets; Excluded Assets; Retained Liabilities; Assumed Liabilities.
(i) For purposes of this Agreement, “Purchased Assets” means the properties,
assets, privileges, claims, contracts, goodwill and rights of every kind and nature, real
and personal, tangible and intangible, absolute or contingent, wherever located, of Seller
and/or any of the Seller Subs primarily used or held for use in the operation of the
Enterprise Group, including:
(a) all leaseholds and other interests in real property of Seller and/or any of
the Seller Subs pursuant to the Contracts listed in Section 1F(i)(a) of the
Seller Disclosure Letter, in each case together with the right, title and interest
of Seller and/or any of the Seller Subs in, to and under all buildings, improvements
and fixtures thereon and all other appurtenances thereto (the “Transferred Real
Property”);
(b) all inventories (“Inventory”) owned by Seller and/or any of the
Seller Subs as of the Closing Date that are used or held for use primarily in the
operation of the Enterprise Group (the “Transferred Inventory”);
-8-
(c) the Computer Hardware listed on Section 1F(i)(c) of the Seller
Disclosure Letter (the “Transferred Computer Hardware”);
(d) the Computer Software listed on Section 1F(i)(d) of the Seller
Disclosure Letter (the “Transferred Computer Software”);
(e) all other tangible personal property and interests therein (specifically
excluding Computer Hardware and Computer Software, which are addressed in
Section 1F(i)(c) — (d)), including all equipment, furniture, and
furnishings, of Seller and/or any of the Seller Subs that are used or held for use
primarily in the operation of the Enterprise Group (the “Transferred
Equipment”);
(f) all accounts receivable of Seller and/or any of the Seller Subs as of the
Closing Date to the extent arising out of the operation of the Enterprise Group (the
“Transferred Receivables”);
(g) all Intellectual Property Rights listed on Section 1F(i)(g) of the
Seller Disclosure Letter (the “Transferred Intellectual Property”);
(h) a copy of any and all research records, test information, customer lists,
subscription lists, information databases, and market surveys (“Technology”)
owned by Seller and/or any of the Seller Subs that are used or held for use
primarily in the operation of the Enterprise Group (the “Transferred
Technology”);
(i) all permits, licenses, franchises, approvals, consents, filings,
certificates, easements or authorizations from any Governmental Entity
(“Permits”) issued to Seller and/or any of the Seller Subs that are used or
held for use primarily in the operation of the Enterprise Group (the
“Transferred Permits”);
(j) all written contracts, leases, subleases, licenses, sublicenses,
agreements, commitments and all other legally binding instruments (in each case
other than leases and subleases and interests in respect of real property) to which
Seller and/or any of the Seller Subs is a party or by which Seller and/or any of the
Seller Subs is bound that are listed in Section 1F(i)(j) of the Seller
Disclosure Letter, and all other written contracts, leases, subleases, licenses,
sublicenses, agreements, commitments and all other legally binding instruments to
which Seller and/or any of the Seller Subs is a party or by which Seller and/or any
of the Seller Subs is bound that are used or held for use primarily in the operation
of the Enterprise Group (collectively, the “Transferred Contracts”);
provided that “Transferred Contracts” shall not include Shared
Contracts listed on Section 8T(iii) of the Seller Disclosure Letter or
Ongoing Shared Contracts (which Ongoing Shared Contracts shall be governed by
Section 8T(iv) of this Agreement);
-9-
(k) all rights of Seller and/or any of the Seller Subs in and to products sold
(including products returned after the Closing Date) in the operation of the
Enterprise Group;
(l) all credits, prepaid expenses, deferred charges, advance payments, security
deposits and prepaid items of Seller and/or any of the Seller Subs that are used,
held for use or intended to be used primarily in, or that arise primarily out of,
the operation of the Enterprise Group;
(m) all rights, claims, rights to setoff, and credits to the extent relating to
any Purchased Asset or any Assumed Liability, including any such items arising under
any guarantees, warranties, indemnities and similar rights in favor of Seller and/or
any of the Seller Subs in respect of any Purchased Asset or any Assumed Liability;
(n) a copy of all books of account, ledgers, general, financial, accounting and
personnel records, files, invoices, suppliers’ lists, vendor lists, other
distribution lists, cost and pricing information, business plans, reference
catalogs, billing records, sales and promotional literature (in all cases, in any
form or medium) that are used, held for use or intended to be used primarily in, or
that arise primarily out of, the operation of the Enterprise Group, in each case to
the extent applicable to the Enterprise Group (the “Records”);
(o) all stationery, sales and purchase order forms, labels, shipping material,
catalogs, brochures, art work, photographs and advertising material that are used,
held for use or intended to be used primarily in, or that arise primarily out of,
the operation of the Enterprise Group;
(p) all other properties, assets, goodwill and rights of whatever kind and
nature, real or personal, tangible or intangible, that are owned by Seller and/or
one of the Seller Subs as of the Closing Date and used or held for use primarily in
the operation of the Enterprise Group (specifically excluding all Excluded Assets);
(q) all goodwill of Seller primarily generated by or associated with the
Enterprise Group or the Purchased Assets; and
(r) all prepaid Taxes (other than income Taxes) that are imposed with respect
to a Purchased Asset, but only to the extent included or, prior to the final
determination thereof, to be included, as an asset in the computation of Closing Net
Working Capital.
Notwithstanding anything herein to the contrary, in no event shall the “Purchased
Assets” include the Excluded Assets.
(ii) For the purposes of this Agreement, “Excluded Assets” shall mean:
-10-
(a) all assets listed on Section 1F(ii)(a) of the Seller Disclosure
Letter;
(b) all cash and cash equivalents of Seller or any of its Affiliates;
(c) all bank accounts of Seller or any of its Affiliates;
(d) all insurance policies of Seller or any of its Affiliates and, subject to
Section 3D(ii), all rights and claims thereunder;
(e) all rights, claims and credits of Seller or any of its Affiliates to the
extent relating to any Excluded Asset or any Retained Liability, including any such
rights, claims and credits arising under any guarantees, warranties, indemnities and
similar rights in favor of Seller or any of its Affiliates in respect of any
Excluded Asset or any Retained Liability and any claims for and rights to receive
Tax refunds or credits or other reimbursements attributable to Taxes for pre-Closing
Date periods (or pre-Closing Date portions of periods ending after the Closing
Date);
(f) any shares of capital stock of, or other equity interests in, any Affiliate
of Seller or any other Person, which are owned by Seller or any of its Affiliates;
(g) except as expressly contemplated by Section8J(iii), any assets
relating to any current, former or future Employee Benefit Plan in which any
employees of Seller or any of its Affiliates participate;
(h) all financial and Tax Records, including any notes, worksheets, files or
documents relating thereto (except to the extent specifically identified as a
Purchased Asset);
(i) all Records of Seller or any of its Affiliates prepared in connection with
the sale of the Enterprise Group, including bids received from third parties and
analyses relating to the Enterprise Group;
(j) all rights of Seller and the Seller Subs under this Agreement, the
Ancillary Agreements and any other agreements, certificates and instruments
delivered in connection with this Agreement;
(k) all leaseholds and other interests in real property of Seller or any of its
Affiliates not listed on Section 1F(i)(a) of the Seller Disclosure
Letter, in each case together with Seller’s and its Affiliates’ right, title and
interest in, to and under all buildings, improvements and fixtures thereon and all
other appurtenances thereto;
-11-
(l) Intellectual Property Rights owned by Seller or any of its Affiliates that
are not Transferred Intellectual Property;
(m) all Technology owned by Seller or any of its Affiliates that is not
Transferred Technology;
(n) all Permits issued to Seller or any of its Affiliates that are not used or
held for use in the operation or conduct of the Enterprise Group;
(o) all Contracts to which Seller or any of its Affiliates is a party or by
which Seller or any of its Affiliates is bound that are not Transferred Contracts;
(p) all Computer Hardware of Seller or any of its Affiliates that is not
Transferred Computer Hardware;
(q) all Computer Software of Seller or any of its Affiliates that is not
Transferred Computer Software;
(r) all accounts receivable of Seller or any of its Affiliates that are not
Transferred Receivables or pursuant to which a payment is owed to a member of the
Seller Group by a Subsidiary of Seller;
(s) except to the extent specifically identified as a Purchased Asset, all
properties, assets, privileges, claims, contracts, goodwill and rights of every kind
and nature, real and personal, tangible and intangible, absolute or contingent,
wherever located, of Seller and/or any of the Seller Subs primarily used or held for
use in the operation of Seller’s Other Businesses, taken together;
(t) any other property or assets of Seller and its Affiliates not specifically
included as Purchased Assets; and
(u) all corporate-level services of the type provided as of the date of this
Agreement or as of the Closing Date to the Enterprise Group by Seller or any of its
Affiliates (including assets used or held for use by Seller in connection with such
corporate-level services, but excluding services provided under the TSA and any
services shared by Seller and Buyer after Closing).
(iii) For the purposes of this Agreement, “Assumed Liabilities” shall mean all
obligations, liabilities and commitments of Seller and the Seller Subs of any nature,
whether known or unknown, express or implied, primary or secondary, direct or indirect,
liquidated, absolute, accrued, contingent or otherwise and whether due or to become due,
arising out of or relating to the Purchased Assets, the Enterprise Group or the
operation of the Enterprise Group prior to, on or after the Closing Date, excluding any
Retained Liabilities of the type described in clauses (a) — (l) of Section 1F(iv),
including:
-12-
(a) all obligations, liabilities and commitments of Seller and/or any of the
Seller Subs under the Transferred Contracts and the Transferred Permits, including
(to the extent included in the calculation of Estimated Closing Purchase Price and,
without duplication, the Closing Purchase Price) the obligation to pay the Medford
Lease Amount when required pursuant to the Medford Lease Termination Agreement;
(b) all accounts payable and accrued liabilities of Seller and/or any of the
Seller Subs arising out of, relating to or otherwise in any way in respect of the
operation of the Enterprise Group or otherwise in respect of the Enterprise Group
(“Transferred Accounts Payable”);
(c) all obligations, liabilities and commitments of Seller and/or any of the
Seller Subs arising out of, relating to or otherwise in any way in respect of any
and all products manufactured or sold or services rendered by the Enterprise Group
at any time at or prior to the Closing, including obligations, liabilities and
commitments for credits, refunds, adjustments, allowances, exchanges, returns and
warranty, merchantability and other claims relating to such products (including all
obligations, liabilities and commitments consisting of deferred revenues and/or
unexpired subscriptions, if any);
(d) all obligations, liabilities and commitments of Seller and/or any of the
Seller Subs arising as a result of at any time being the lessee or occupant of, or
the operator of the activities conducted at, the Transferred Real Property;
(e) all obligations, liabilities and commitments of Seller and/or any of the
Seller Subs in respect of any suit, action or proceeding (a “Proceeding”),
pending or threatened, and claims, whether or not presently asserted, at any time
arising out of or relating to or otherwise in any way in respect of the Enterprise
Group or the operation of the Enterprise Group (but only to the extent arising out
of or relating to the Enterprise Group), including the Proceedings listed on
Section 1F(iii)(e) of the Seller Disclosure Letter (but only to the extent
arising out of or relating to the Enterprise Group);
(f) any liability, obligation or commitment of Seller and/or any of the Seller
Subs to pay to any Transferred Employee any salary, commission, vacation pay or
other compensation earned or accrued as of the Closing Date to the extent included
in the computation of Closing Net Working Capital;
(g) all liabilities and obligations to the extent included or, prior to the
final determination thereof, to be included in the computation of Closing Net
Working Capital; and
(h) all agreements, obligations and liabilities of Buyer or any of its
Subsidiaries under this Agreement and the Ancillary Agreements.
-13-
(iv) For the purposes of this Agreement, “Retained Liabilities” shall mean all
obligations, liabilities and commitments of Seller and its Affiliates of any nature, whether
known or unknown, express or implied, primary or secondary, direct or indirect, liquidated,
absolute, accrued, contingent or otherwise and whether due or to become due, other than
Assumed Liabilities. For avoidance of doubt, and without limiting the generality of the
foregoing, “Retained Liabilities” shall include the following:
(a) all obligations, liabilities and commitments of Seller or any of its
Subsidiaries to the extent not related to the Enterprise Group or the Purchased
Assets;
(b) all obligations, liabilities and commitments of Seller or any of its
Subsidiaries to the extent relating to or arising out of Excluded Assets;
(c) all obligations, liabilities and commitments in respect of or arising under
any Employee Benefit Plan (other than liabilities of the type described in
Section 1F(iii)(f));
(d) all agreements and obligations of Seller or any of its Subsidiaries under
this Agreement and the Ancillary Agreements;
(e) any obligations or liabilities of Seller or any of its Subsidiaries with
respect to Taxes imposed on Seller or any of its Subsidiaries with respect to
periods ending on or prior to or including the Closing Date (other than (i) Taxes to
the extent included as a liability or a contra-asset in the computation of Closing
Net Working Capital (it being understood and agreed that Buyer shall pay all such
Taxes) and (ii) Transfer Taxes arising as a result of the transactions contemplated
by this Agreement);
(f) any liabilities arising from the gross negligence or willful misconduct of
Seller and its Subsidiaries with respect to the operation of the Enterprise Group
prior to Closing;
(g) liabilities or obligations in respect of indebtedness for borrowed money or
capital stock of Seller or any of its Affiliates, including claims by any holders of
such indebtedness or capital stock related to the transactions contemplated hereby;
(h) all accounts payable of Seller or any of its Subsidiaries that are not
Transferred Accounts Payable;
(i) Xxxxxxxxx Expense Liabilities;
(j) all liabilities and obligations related to the Transferred Inactive Titles
to the extent relating to periods prior to the Closing Date;
-14-
(k) all liabilities and obligations related to the Acxiom Claim; and
(l) all liabilities of the Enterprise Group (other than liabilities under the
Medford Lease Termination Agreement) existing on or prior to the date of this
Agreement that would be required to be reflected as long-term liabilities on a
balance sheet prepared as of the date of this Agreement in accordance with GAAP
ARTICLE 2
CONDITIONS TO CLOSING
2A. Conditions to All Parties’ Obligations. The obligation of each of Seller and
Buyer to consummate the Closing is subject to the satisfaction of the following conditions as of
immediately prior to the Closing:
(i) No injunction or order of any court or administrative agency of competent
jurisdiction shall be in effect as of the Closing which restrains or prohibits the
consummation of the transactions contemplated by this Agreement;
(ii) All waiting period requirements, if any, shall have expired or been terminated
under the HSR Act (the “HSR Approval”); and
(iii) This Agreement shall not have been terminated in accordance with Section
6A.
Any condition specified in this Section 2A may be waived prior to Closing only by a
written instrument signed by Seller and Buyer.
2B. Conditions to Buyer’s Obligations. The obligation of Buyer to consummate the
Closing is subject to the satisfaction of each of the following additional conditions as of
immediately prior to the Closing:
(i) Each of the representations and warranties of Seller and the Seller Subs contained
in Article 4 of this Agreement, taken together, excluding for purposes of this
Section 2B(i) any reference to any materiality, “Enterprise Xxxxx Xxxxxxxx Adverse
Effect” or similar standard or qualifier, shall be true and correct as of the date hereof
and as of the Closing Date as if made anew as of such date (except to the extent any such
representation and warranty expressly relates to an earlier date (in which case such
representation and warranty shall be true and correct as of such earlier date)), except to
the extent of changes or developments after the date of this Agreement contemplated by
the terms of this Agreement, and except for failures of such representations and warranties
to be so true and correct as have not had and would not reasonably be expected to have,
individually or in the aggregate, an Enterprise Xxxxx Xxxxxxxx Adverse Effect;
-15-
(ii) Each of the covenants and agreements of Seller and the Seller Subs to be complied
with and/or performed as of or prior to the Closing under this Agreement and the Ancillary
Agreements shall have been performed in all material respects;
(iii) Seller shall have delivered to Buyer a certificate in the form of Exhibit
A attached hereto dated as of the Closing Date and signed by a senior executive officer
of Seller on behalf of Seller and the Seller Subs certifying as to the fulfillment of the
conditions in Section 2B(i) and Section 2B(ii);
(iv) All Liens (other than Permitted Encumbrances) on the Purchased Assets shall have
been released effective as of the Closing and evidence of the release of such Liens
effective as of the Closing, in customary form, from the Persons required to deliver such
release(s) shall have been delivered to Buyer;
(v) The Adjustment Escrow Agreement in substantially the form of Exhibit B
attached hereto (the “Adjustment Escrow Agreement”) shall have been executed by the
Escrow Agent and Seller and shall have been delivered to Buyer;
(vi) The Indemnity Escrow Agreement in substantially the form of Exhibit C
attached hereto (the “Indemnity Escrow Agreement”) shall have been executed by the
Escrow Agent and Seller and shall have been delivered to Buyer;
(vii) The Real Estate Sublease Agreements in substantially the form of Exhibit
D and Exhibit E attached hereto (the “Subleases”) shall have been
executed by Seller and delivered to Buyer;
(viii) The Transition Services Agreement in substantially the form of Exhibit F
attached hereto (the “TSA”) shall have been executed by Seller and shall have been
delivered to Buyer;
(ix) The License Agreement in substantially the form of Exhibit G attached
hereto (the “License Agreement”) shall have been executed by Seller and shall have
been delivered to Buyer;
(x) All notices set forth on Section 2B(x) of the Seller Disclosure Letter
required to be given prior to the Closing to, and all consents, approvals, authorizations,
waivers and amendments set forth on Section 2B(x) of the Seller Disclosure Letter
required to be obtained prior to the Closing from, any Person in connection with the
consummation of the transactions contemplated by this Agreement shall have been given or
obtained, as the case may be;
(xi) No event, change, effect or development shall have occurred after the date of this
Agreement and be continuing that, individually or in the aggregate, has had or would
reasonably be expected to have an Enterprise Xxxxx Xxxxxxxx Adverse Effect;
(xii) Buyer shall have received the Debt Financing or Alternative Financing on terms
not materially less favorable to Buyer than those set forth in the Debt Commitment Letter
(as may be modified by the exercise of any “market flex” provisions to which the
-16-
Debt Commitment Letter may subject (which “market flex” provisions (if any) were provided by
Buyer to Seller prior to the date of this Agreement)); provided that the condition
in this Section 2B(xii) shall be deemed satisfied if a reason the Buyer did not
receive such Debt Financing for the transactions contemplated hereby was (a) the failure of
funding pursuant to the Equity Commitment Letter when required thereby or the failure of any
equity funding condition of similar effect in the Debt Commitment Letter, (b) the failure to
deliver documents by Buyer, the Equity Sponsors or any of their respective Affiliates at the
Closing, (c) the failure to pay costs, fees, expenses and other compensation contemplated by
the Debt Commitment Letter or related letters (including the confidential fee letter
attached to the Debt Commitment Letter, which shall not be attached to this Agreement or in
any manner be required to be disclosed to Seller or its Affiliates (the “Fee
Letter”)) payable by Buyer (or other borrower thereunder), the Equity Sponsors or any of
their respective Affiliates to the lead arrangers, other lenders and administrative agents
or any other Person, (d) a breach in any material respect by Buyer (or other borrower
thereunder), the Equity Sponsors or any of their respective Affiliates under the Debt
Commitment Letter or related letters (including the Fee Letter), or (e) as a result of the
DevShed Full Contribution (as defined in the Debt Commitment Letter) or the DevShed 75%
Contribution (as defined in the Debt Commitment Letter) having occurred and the conditions
in the Debt Commitment Letter not having been satisfied as a result of a fact, event or
circumstance involving DevShed); provided further that, notwithstanding the
immediately foregoing proviso, this Section 2B(xii) shall continue to be a condition
precedent to the Closing to the extent that the failure to satisfy conditions to the Debt
Financing or Alternative Financing resulted from (x) a breach or breaches by Seller that
would cause the failure of the conditions set forth in Section 2B(i) or Section
2B(ii) or (y) the occurrence of any event that would cause the failure of the condition
set forth in Section 2B(xi);
(xiii) The mutual release in substantially the form of Exhibit H attached
hereto (the “Mutual Release”) shall have been executed by Seller and delivered to
Buyer;
(xiv) Buyer shall have received, in form and substance reasonably satisfactory to
Buyer, an opinion, dated as of the Closing Date, from counsel for Seller and the Sellers
Subs solely with respect to matters agreed between counsel for Buyer and counsel for Seller
and the Seller Subs on or prior to the date of this Agreement, and subject to assumptions,
reasoning, analysis, qualifications and exclusions discussed and substantively agreed
between counsel for Buyer and counsel for Seller and the Seller Subs on or prior to the date
of this Agreement;
(xv) Seller shall have delivered to Buyer certified copies of the resolutions or
written consents of (A) the board of directors of Seller and each Seller Sub authorizing
Seller and each Seller Sub to enter into this Agreement and the Ancillary Agreements to
which it is a party and (B) Seller, in its capacity as (directly or indirectly) sole
shareholder of each of the Seller Subs, approving this Agreement and the transactions
contemplated hereby;
(xvi) Seller shall have delivered to Buyer a short-form certificate of good standing of
Seller, certified by the Secretary of State of Seller’s jurisdiction of
-17-
incorporation as of a reasonable date (not to exceed 15 Business Days) prior to the Closing Date;
(xvii) Seller shall have delivered a certificate to Buyer, dated as of the Closing Date
and signed by an authorized officer of Seller on behalf of Seller, certifying that Seller is
not a foreign person in form and substance consistent with Section 1445 of the Code and the
Treasury Regulations thereunder; and
(xviii) Seller shall have delivered to Buyer, with respect to the Enterprise Group, an
audited Statement of Net Assets Sold at each of, and an audited Statement of Revenues and
Expenses for the 12 month period ended as of each of, December 31, 2006 and December 31,
2005, together with an accompanying opinion of Xxxxx Xxxxxxxx LLP (the “GT Audit
Report”) and the GT Audit Report shall not, from the perspective of the Enterprise Group
and taking the financial statements included in the GT Audit Report as a whole, materially
adversely deviate from the Preliminary Audit Report; provided that the condition
specified in this Section 2B(xviii) shall automatically be deemed satisfied on the
14th calendar day after delivery of the GT Audit Report to Buyer unless prior to such 14th
calendar day, Buyer has terminated this Agreement in accordance with Article 6
hereof; provided further that, in no event shall the GT Audit Report be deemed to
materially adversely deviate from the Preliminary Audit Report for purposes of this
Section 2B(xviii) or Section 6A(v) as a result of any change in the
property, plant and equipment line (or any resulting change in the depreciation expense).
Any condition specified in this Section 2B may be waived prior to Closing only by a
written instrument signed by Buyer.
2C. Conditions to Seller’s Obligations. The obligation of Seller to consummate the
Closing is subject to the satisfaction of each of the following additional conditions as of
immediately prior to the Closing:
(i) Each of the representations and warranties of Buyer contained in Article 5
of this Agreement, taken together, excluding for purposes of this Section 2C(i) any
reference to any materiality, “Buyer Material Adverse Effect” or similar standard or
qualifier, shall be true and correct as of the Closing Date as if made anew as of such date
(except to the extent any such representation and warranty expressly relates to an earlier
date (in which case such representation and warranty shall be true and correct as of such
earlier date)), except to the extent of changes or developments after the date of this
Agreement contemplated by the terms of this Agreement, and except for failures of such
representations and warranties to be so true and correct as have not had and would not
reasonably be expected to have, individually or in the aggregate, a Buyer Material
Adverse Effect;
(ii) Each of the covenants and agreements of Buyer to be complied with and/or performed
under this Agreement and the Ancillary Agreements as of or prior to the Closing shall have
been performed in all material respects;
-18-
(iii) Buyer shall have delivered to Seller a certificate in the form of Exhibit
I attached hereto dated the Closing Date and signed by a senior executive officer of
Buyer on behalf of Buyer certifying as to the fulfillment of the conditions in Section
2C(i) and Section 2C(ii);
(iv) The Adjustment Escrow Agreement shall have been executed by the Escrow Agent and
Buyer and shall have been delivered to Seller;
(v) The Indemnity Escrow Agreement shall have been executed by the Escrow Agent and
Buyer and shall have been delivered to Seller;
(vi) The Subleases shall have been executed by Buyer and shall have been delivered to
Seller;
(vii) The TSA shall have been executed by Buyer and shall have been delivered to
Seller;
(viii) The License Agreement shall have been executed by Buyer and shall have been
delivered to Seller;
(ix) The Mutual Release shall have been executed by Buyer and shall have been delivered
to Seller; and
(x) Buyer shall have delivered to Seller copies of the resolutions or written consents
of Buyer’s board of directors authorizing Buyer to enter into this Agreement and the
Ancillary Agreements to which it is a party.
Any condition specified in this Section 2C may be waived prior to Closing only by a
written instrument signed by Seller.
ARTICLE 3
COVENANTS PRIOR TO THE CLOSING
3A. Access. During the period from the date of this Agreement to the earlier of the
Closing and the date that this Agreement is terminated in accordance with its terms, Seller shall
grant or cause to be granted to Buyer and its financing sources and their authorized
representatives (including accountants, consultants and attorneys) reasonable access, during normal
business
hours and upon reasonable notice, to the personnel, properties, books and records (including
the records of independent certified public accountants) of Seller and its Subsidiaries relating to
the Enterprise Group (including the Purchased Assets) that are in the possession or under the
control of Seller or its Subsidiaries; provided that (i) such access does not unreasonably
interfere with the normal operations of Seller or any of its Affiliates, (ii) such access shall
occur in such a manner as Seller reasonably determines to be appropriate to protect the
confidentiality of the transactions contemplated by this Agreement and the information sought,
(iii) all requests for access shall be directed to Xxxxxx Xxxxxxxx, Xxxxxxx Xxxxxx, Xxxx Xxxxx or
such individuals as Seller may designate in writing from time to time, and (iv) nothing herein
shall require Seller or any of its Subsidiaries to provide access to, or to disclose any
information to, Buyer if such access or disclosure would be in violation of applicable laws or
-19-
regulations of any Governmental Entity (including the HSR Act and other anti-competition laws or
laws regarding employee rights of privacy) or, to the extent it relates to any contract or
agreement with Google, unless Seller has received Google’s prior written consent thereto;
provided further that Buyer is not authorized to, and Buyer shall not (and Buyer
shall not permit any of its or its financing sources employees, representatives or Affiliates to),
without the presence of Evercore Partners, contact any officer, director, employee, supplier,
distributor, lessee, lessor, licensee, licensor, lender, customer or other material business
relation of Seller or any of its Affiliates prior to the Closing without the prior written consent
of Seller (provided that the foregoing shall not restrict contacts in the ordinary course of
business (including by DevShed or other portfolio company of any financing source of Buyer) that
are not related to or in connection with the transactions contemplated by this Agreement and do not
make any reference to the transactions contemplated by this Agreement). Buyer shall, and shall
cause its Affiliates and financing sources and its and their agents and representatives to, abide
by the terms of the Confidentiality Agreement with respect to such access and any information
furnished to any of the foregoing pursuant to this Section 3A.
3B. Ordinary Conduct of Seller. During the period from the date of this Agreement to
the earlier of the Closing and the date that this Agreement is terminated in accordance with its
terms, except as set forth on Section 3B of the Seller Disclosure Letter, or as otherwise
consented to by Buyer in writing (which consent shall not be unreasonably withheld, delayed or
conditioned) or as otherwise contemplated by this Agreement,
(i) Seller shall (with respect to the Enterprise Group), and shall cause each of its
Subsidiaries (with respect to the Enterprise Group) to, (x) operate the Enterprise Group
business in the ordinary course of business in accordance with past practice in all material
respects and in accordance in all material respects with laws applicable to the Enterprise
Group, and (y) use its commercially reasonable efforts to (A) preserve the Enterprise
Group’s present business operations, (B) preserve the Purchased Assets (other than sales of
magazines, services and inventory in the ordinary course of business and sales of depleted
or worn assets) and (C) preserve all Permits held by Seller and its Subsidiaries that are
required for the conduct of the Enterprise Group business as presently conducted, and
(ii) Seller shall not (with respect to the Enterprise Group), and shall cause each of
its Subsidiaries (with respect to the Enterprise Group) not to:
(a) make any material change in the conduct of the Enterprise Group
business, except for changes that are in the ordinary course of business or
not inconsistent in material respects with past practice;
(b) enter into a new agreement that would be included in the definition
of Enterprise Xxxxx Xxxxxxxx Contracts if it had been entered into as of the
date of this Agreement, modify or amend any agreement that is included in
the Purchased Assets in a manner materially adverse to the Enterprise Group,
or terminate any agreement that is included in the Purchased Assets or
waive, release or assign any rights thereunder;
-20-
(c) acquire by merging or consolidating with, or agreeing to merge or
consolidate with, or purchase substantially all the assets of, or otherwise
acquire any business or any corporation, partnership, association or other
business organization or division thereof, other than any such transaction
not involving the Enterprise Group or the Purchased Assets;
(d) except for sales of magazines, services and inventory in the
ordinary course of business, sell, lease, sublease, mortgage, pledge or
otherwise encumber or dispose of any Purchased Assets (including any
Enterprise Group Intellectual Property included in the Purchased Assets) or
any of the other material assets of the Enterprise Group, or enter into any
agreement regarding the foregoing;
(e) except in the ordinary course of business or as required by law or
contractual obligations or other agreements existing on the date hereof,
increase in any manner the compensation of, or enter into or agree to enter
into any new bonus, incentive, employee benefits, severance or termination
agreement or any similar agreement or arrangement with, any of the
Transferred Employees;
(f) other than as required by applicable law, make any material change
to any election in respect of Taxes of the Enterprise Group, materially
amend any Tax Return previously filed with respect to the Enterprise Group,
adopt, or make any material change to, any accounting method in respect of
Taxes of the Enterprise Group, enter into any closing agreement, settle any
material claim or material assessment in respect of Taxes of the Enterprise
Group, or consent to any extension or waiver of the limitation period
applicable to any material claim or material assessment in respect of Taxes
of the Enterprise Group;
(g) make any material change to Seller’s accounting methods or
practices with respect to the Enterprise Group, except as may be required by
GAAP or applicable law;
(h) cause any joint venture or partnership agreement to be entered into
with respect to the Enterprise Group;
(i) except (A) as otherwise required by applicable law or by an
existing Employee Benefit Plan (which shall, for the avoidance of doubt,
include existing written agreements that are included in the definition of
“Employee Benefit Plan”), (B) as set forth on Section 3B of the
Seller Disclosure Letter, (C) increases in salary and bonus compensation for
employees of the Enterprise Group to the extent contemplated by the budget
for the Enterprise Group, or (D) as entered into in connection with
arrangements for the liabilities included as part of Transaction Bonus
-21-
Amount, adopt, enter into, or amend in any material respect, any Employee
Benefit Plan;
(j) enter into, with respect to the Enterprise Group, any contract with
any Affiliate of Seller or any executive officer of Seller or any of its
Subsidiaries;
(k) initiate or commence any material litigation involving the
Enterprise Group;
(l) adopt a plan of liquidation or approve resolutions providing for
the complete or partial liquidation or dissolution, or other merger,
consolidation or reorganization; or
(m) permit or cause the Enterprise Group to make any loan, advance or
capital contribution to or investment in any third party (other than
advances to employees and credit terms in the ordinary course of business).
3C. Distribution of Cash and Other Used Assets. Notwithstanding any other provision
to the contrary contained in this Article 3 or elsewhere in this Agreement, on and prior to
the Closing Date, Seller and its Affiliates shall be entitled to receive all cash and cash
equivalents and/or other Excluded Assets owned or held by or for the benefit of the Enterprise
Group prior to and as of the Closing. Buyer acknowledges that all such cash and cash equivalents
and/or other Excluded Assets are the exclusive property of Seller and its Affiliates and, to the
extent transferred at Closing, shall be delivered by Buyer to Seller after the Closing promptly,
but in any event within five (5) Business Days, following discovery of such cash or cash
equivalents or other Excluded Asset. In addition, to the extent any amount is paid to or received
by Buyer or any of their respective Subsidiaries in respect of such cash or cash equivalent or
other Excluded Asset, Buyer shall pay to Seller or its designee
the amount so received promptly, but in any event within five (5) Business Days, following
receipt of such amount.
3D. Cancellation of Inter-company Accounts and Services.
(i) Buyer acknowledges and agrees that, at or prior to the Closing, Seller and its
Affiliates shall cancel or forgive any note or other liability or obligation (including
intercompany debt) owing from Seller or any of its Affiliates to the Enterprise Group (other
than accounts receivable and accounts payable arising in the ordinary course of business and
other than as set forth in the Ancillary Agreements). Except as contemplated by this
Agreement and the Ancillary Agreements, from and after the Closing, all services (including
cash management and treasury, accounting, tax, insurance, human resources, environmental,
banking, legal, data network and other services) provided to the Enterprise Group by Seller
or any of its Affiliates, including any agreements or understandings (written or oral) with
respect thereto, will terminate without any further action or liability on the part of the
parties thereto and inter-company accounts from Seller or any of its Affiliates to the
Enterprise Group shall be terminated
-22-
without liability to Seller or such Affiliates. Without limiting the generality of the foregoing, as of the Closing Date, except as
contemplated by Section 3D(ii), the coverage under all insurance policies maintained
by Seller or any of its Affiliates related to the Enterprise Group shall continue in force
only for the benefit of Seller and its Affiliates and not for the benefit of Buyer or its
Affiliates. Buyer agrees to arrange for its own insurance policies with respect to the
Enterprise Group covering all periods and agrees, except as set forth in Section
3D(ii), not to seek, through any means, to benefit from any of the insurance policies
maintained by Seller or its Affiliates which may provide coverage for claims relating in any
way to the Enterprise Group prior to the Closing other than as set forth in Section
3D(ii). Furthermore, Buyer acknowledges and agrees that, effective as of the Closing,
the Transferred Employees will no longer have rights to credit cards or payment cards of
Seller or any of its Subsidiaries and Buyer shall reimburse Seller for any amounts that
Seller or any of its Subsidiaries is required to pay in respect of such credit cards or
payment cards in respect of post-Closing charges; provided that Seller agrees to use
commercially reasonable efforts to either transfer to Buyer, or otherwise cancel, such
credit cards or payment cards for such Transferred Employees as soon as practicable after
the Closing. Furthermore, and without limiting the generality of the provisions of this
Section 3D(i), (i) each party hereto or any of such party’s Affiliates shall be
permitted to remove any link on any website owned, maintained or controlled by it to any
internet website(s) owned, maintained or controlled by the other party or any of its
Affiliates without any further action or liability on the part of the removing party and
(ii) upon the request of a party hereto, the other party or any of its Affiliates shall
promptly remove or cause to be removed any link(s) to any internet web site(s) owned,
maintained or controlled by the requesting party on any internet website owned, maintained
or controlled by such other party or any of its Affiliates.
(ii) Buyer acknowledges that (a) all insurance policies of Seller or any of its
Affiliates are owned by Seller and its Affiliates, (b) such insurance policies will not be
sold, assigned or transferred to Buyer as part of the Closing and (c) except as
provided in this Section 3D(ii), the Enterprise Group will no longer be covered
under such insurance policies or any other insurance policies, plans, products or
arrangements of Seller or its Affiliates (collectively, the “Seller Insurance
Policies”) after the Closing. Notwithstanding the foregoing, after the Closing, Seller
shall cause all general liability and casualty loss claims against or relating to the
Enterprise Group for which insurance coverage is currently available under the Seller
Insurance Policies listed on Section 3D(ii) of the Seller Disclosure Letter (the
“Available Insurance Policies”) to continue to be covered under the Available
Insurance Policies to the extent such claims relate to events occurring prior to the Closing
(subject to deductibles, self-insured retentions and policy limits of such Available
Insurance Policies) (each such claim, a “Covered Claim”). After the Closing, Seller
shall, or shall cause its Affiliates to, permit Buyer to submit such Covered Claims for
processing in accordance with the Available Insurance Policies to the same extent as a
member of the Seller Group was entitled prior to the Closing. It is understood and agreed
that Buyer shall be responsible for satisfying any deductibles, self-insured retentions and
other retained amounts on insurance coverage with respect to such Covered Claims. Seller
shall have the right to assume and control the defense and monetary settlement of each
Covered Claim, unless otherwise agreed to in writing between Seller and Buyer. After the
Closing, neither Buyer nor Seller shall take any
-23-
action or omit to take any action that would exacerbate or worsen any such Covered Claim or would limit the ability of the other
party or its Affiliates to defend such Covered Claim.
3E. Exclusive Transaction. In consideration of the substantial expenditures of time,
effort and expense to be undertaken by Buyer in connection with its due diligence review and the
preparation and negotiation of this Agreement with Seller, Seller agrees that from the date of this
Agreement and until the earlier of the Closing Date and the date that this Agreement is terminated
in accordance with its terms, Seller shall, and shall cause the Equityholder Parties to, deal
exclusively with Buyer and its Affiliates regarding the purchase and sale of the Purchased Assets
and any other acquisition of the Enterprise Group (whether by way of merger, recapitalization,
purchase or issuance of capital stock, purchase of assets or otherwise) and, without the prior
written consent of Buyer, Seller will not, and will not permit the Equityholder Parties to, (i)
solicit, initiate discussions, continue discussions or engage in negotiations with any person
(whether such negotiations are initiated by Seller, any of the Equityholder Parties or otherwise),
other than Buyer and its Affiliates (or its designated affiliates or the Buyer Parties), relating
to the possible acquisition of the Enterprise Group or any material portion of the assets of the
Enterprise Group (however structured, an “Alternative Transaction”); (ii) provide
information or documentation (other than information or documentation that is disclosed with
Seller’s or its Affiliates’ securities laws filings) with respect to the Enterprise Group to any
Person, other than Buyer or a Person designated by Buyer, relating to an Alternative Transaction;
or (iii) enter into an agreement with any person, other than Buyer or a Person designated by Buyer,
providing for an Alternative Transaction. If Seller or any Equityholder Party receives any
inquiry, offer or proposal relating to any of the above, then Seller shall promptly notify Buyer of
the receipt thereof, but shall not be obligated to include information as to the proponent, content
or terms of such inquiry, offer or proposal.
3F. Assistance with Financing. From the date hereof until the earlier of the Closing
Date or termination of this Agreement pursuant to Article 6, subject to the limitations set
forth below, and unless otherwise agreed by Buyer, Seller will, and will cause its Subsidiaries to,
instruct its management to cooperate with Buyer as reasonably requested by Buyer in connection with
Buyer’s arrangement of the Debt Financing and/or any Alternative Financing to be consummated
contemporaneous with the Closing in respect of the transactions contemplated by this Agreement,
provided that, in each case, all out-of-pocket fees and expenses incurred by Seller or any
of its Affiliates in connection therewith shall be paid by Buyer. Such cooperation will include
making appropriate officers available for participation in meetings, due diligence sessions and
road shows, assistance in the preparation of offering memoranda, private placement memoranda,
prospectuses and similar documents, as may be reasonably requested by Buyer or any prospective
lender to Buyer; provided that, notwithstanding anything in this Agreement to the contrary,
neither Seller nor any of its Subsidiaries shall be required to deliver or cause the delivery of
any legal opinions or accountants’ cold comfort letters or reliance letters.
3G. GT Audit Report. Promptly after receipt thereof, Seller shall deliver to Buyer
the GT Audit Report. Seller shall deliver prompt written notice to Buyer if, prior to the Closing,
the Fairness Opinion is withdrawn or amended or modified in any material respect.
-24-
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF SELLER WITH RESPECT TO ENTERPRISE GROUP
As an inducement to Buyer to enter into this Agreement, each of Seller and each of the Seller
Subs hereby, jointly and severally, represents and warrants to Buyer, as of the date of this
Agreement and as of the Closing Date, that, except as disclosed in the Seller Disclosure Letter
(which disclosures, for the avoidance of doubt, are subject to Section 9H):
4A. Organization and Corporate Power. Each of Seller and each of the Seller Subs is a
corporation duly incorporated, validly existing and in good standing under the laws of the State of
Delaware and is qualified to do business as a foreign corporation and is in good standing in each
jurisdiction in which the failure to so qualify or be in good standing would result in a Enterprise
Xxxxx Xxxxxxxx Adverse Effect. Each of Seller and each of the Seller Subs has all requisite
corporate power and authority necessary to own and operate its properties and to carry on its
business as now conducted and to enter into this Agreement and the Ancillary Agreements to which it
is a party and consummate the transactions contemplated hereby and thereby.
4B. Subsidiaries. Each of the Seller Subs is a direct or indirect wholly-owned
subsidiary of Seller.
4C. Authorization; No Breach. Each of the Seller’s and each Seller Sub’s execution, delivery and performance of this
Agreement and each Ancillary Agreement to which it is a party has been duly authorized by such
Person and no other corporate proceeding on the part of Holdings, Seller or any of its Subsidiaries
is necessary to authorize this Agreement, any of the Ancillary Agreements or any of the
transactions contemplated hereby and thereby. This Agreement has been duly executed and delivered
by Seller and each of the Seller Subs, and constitutes a valid and binding obligation of each of
Seller and each Seller Sub, enforceable in accordance with its terms, except as limited by the
application of bankruptcy, moratorium and other laws affecting creditors’ rights generally and as
limited by the availability of specific performance and the application of equitable principles.
Each Ancillary Agreement to which Seller and/or any Seller Sub is a party, when executed and
delivered by Seller and/or any of the Seller Subs, shall have been duly executed and delivered by
Seller and/or any such Seller Sub, and shall constitute a valid and binding obligation of Seller
and/or any such Seller Sub, enforceable in accordance with its terms, except as limited by the
application of bankruptcy, moratorium and other laws affecting creditors’ rights generally and as
limited by the availability of specific performance and the application of equitable principles.
Other than the HSR Approval, if required, and the consents set forth on Section 4C of the
Seller Disclosure Letter, each of Seller’s and each Seller Sub’s execution, delivery and
performance of this Agreement and the Ancillary Agreements to which Seller is a party and the
consummation of the transactions contemplated hereby and thereby do not and will not (with or
without the giving of notice, the lapse of time or both) (i) result in any material breach of any
of the provisions of, (ii) constitute a material default under or give rights of acceleration
under, (iii) give any third party the right to terminate, (iv) result in the creation of any Lien
upon any of the shares of capital stock or any assets of Seller or any Seller Sub pursuant to the
terms of, (v) result in the right to redeem any shares of preferred stock or redeem or repurchase
any indebtedness or (vi) require any authorization, consent, approval, exemption or other action by
or notice to any Person under (a)
-25-
the provisions of the certificate of incorporation or bylaws of
Holdings, Seller or any Seller Sub, (b) any material contract to which Holdings, Seller or any
Seller Sub is party (including the Indentures, the Security Documents and all related agreements
(including any guarantees)), (c) any judgment, order or decree to which Holdings, Seller or any
Seller Sub is subject, or (d) any law, statute, rule or regulation, to which Holdings, Seller or
any Seller is subject, except as has been obtained or as contemplated in this Agreement. Seller
and Seller Subs are jointly and severally liable for obligations under the Indentures and no Seller
Sub has any material liability to any trade creditor that is not also a liability of Seller.
4D. Litigation Affecting Transaction. As of the date hereof, there are no material
action, suits, proceedings or orders pending or, to Seller’s knowledge, threatened against Seller
or any Seller Sub at law or in equity, or before or by any Governmental Entity which would
reasonably be expected to be impair the obligations of Seller or any Seller Sub under this
Agreement.
4E. Marketing. Seller retained Evercore Partners in December 2005 and since such time
has conducted two separate processes for the sale of the Enterprise Group and, in connection with
such sale processes, have contacted over 100 Persons (both strategic and financial) regarding
potential transactions involving the Enterprise Group and, after conducting such processes, the
Board of Directors of each of Seller and each Seller Sub, in the exercise of their business
judgment after consideration of factors it deemed relevant (including price and likelihood of
timely closing), determined it advisable for, and in the best interests of, Seller and
each Seller Sub to proceed with the transaction on the terms contemplated by this Agreement.
Seller has received an opinion of Evercore Partners, dated as of June 19, 2007, to the effect that
the consideration payable hereunder in respect of the Purchased Assets is fair, from a financial
point of view, to Seller (the “Fairness Opinion”). On or prior to the date hereof, Seller
has delivered to Buyer a true and correct copy of the Fairness Opinion.
4F. Financial Statements. Set forth on Section 4F of the Seller Disclosure
Letter are the following financial statements (collectively, the “Financial Statements”):
(i) the unaudited combined statement of net assets sold and combined statement of revenues and
expenses as of and for the fiscal years ended December 31, 2005 and December 31, 2006 for the
Enterprise Group; and (ii) the unaudited combined statement of net assets sold (the “Latest
Statement of Net Assets”) and unaudited combined statement of revenues and expenses (together
with the Latest Statement of Net Assets, the “Most Recent Financial Statements”) as of and
for the fiscal quarter ended March 31, 2007 (the “Most Recent Quarter End”) for the
Enterprise Group. Except (a) that the Most Recent Financial Statements are subject to normal
year-end adjustments and lack footnotes and other presentation items, and (b) as otherwise set
forth on Section 4F of the Seller Disclosure Letter, the Financial Statements (including
the notes thereto) have been prepared in accordance with GAAP and present fairly the net assets
sold as of such dates and the results of operations of the Enterprise Group as managed by Seller
for such periods.
4G. No Other GAAP Liabilities. The Enterprise Group does not have any liabilities of
a nature required to be reflected in a consolidated corporate balance sheet prepared in accordance
with GAAP (“Liabilities”), except (i) Liabilities that are accrued or reserved against in
the Financial Statements (or the notes thereto), (ii) Liabilities that were incurred in the
ordinary course of business since the Most Recent Quarter End, (iii) Liabilities otherwise
-26-
disclosed (or within any materiality threshold contained in any other representation) in this
Agreement or the Seller Disclosure Letter, (iv) Liabilities to be included in the computation of
Closing Net Working Capital, (v) Liabilities for which Seller and its Subsidiaries are responsible
in accordance with this Agreement and the other Ancillary Agreements, (vi) Liabilities in respect
of liabilities incurred pursuant to or governed by the Indentures and (vii) other Liabilities which
would not, individually or in the aggregate, result in an Enterprise Xxxxx Xxxxxxxx Adverse Effect.
4H. Absence of Certain Developments. Except as set forth in Section 4H of
the Seller Disclosure Letter or as otherwise contemplated by this Agreement, from the date of the
Latest Statement of Net Assets until the date of this Agreement, (i) the Enterprise Group has not
suffered an Enterprise Xxxxx Xxxxxxxx Adverse Effect, (ii) the Enterprise Group has not suffered
any material damage, destruction or other casualty or loss with respect to property that is part of
the Purchased Assets that is not covered by insurance and (iii) neither Seller nor any Subsidiary
has (with respect to the Enterprise Group) taken any action or omitted to take any action which, if
taken or omitted to be taken after the date of this Agreement but prior to the Closing Date, would
require the prior written consent of Buyer or otherwise constitute a breach of Section 3B
of this Agreement.
4I. Title to Properties.
(i) There is no Owned Real Property.
(ii) Section 4I(ii) of the Seller Disclosure Letter sets forth the address of
each parcel of Leased Real Property which is used in the operation of the Enterprise Group,
and a true and complete list of all Leases for each such parcel of Leased Real Property.
With respect to each Lease, (x) Seller or a Subsidiary thereof has a valid leasehold
interest, free and clear of any and all Liens (except for Permitted Encumbrances) and (y)
except as would not otherwise result in an Enterprise Xxxxx Xxxxxxxx Adverse Effect, such
Lease is legal, valid, binding, enforceable and in full force and effect. Neither Seller
nor any of its Subsidiaries has received notice of any material default under any of the
Leases which has not been cured or waived. Except as set forth on Section 4I(ii) of
the Seller Disclosure Letter, no event has occurred which would allow the other party
thereto to terminate or accelerate performance under or otherwise materially modify
(including upon the giving of notice or the passage of time) any of such Leases. No Person
has terminated, accelerated performance or modified any of such Leases.
(iii) Except (a) as set forth on Section 4I(iii) of the Seller Disclosure
Letter, (b) as set forth on the Latest Statement of Net Assets, (c) for assets sold in the
ordinary course of business since the date of the Latest Statement of Net Assets, and (d)
for Permitted Encumbrances, Seller or one of its Subsidiaries owns, and has good and
enforceable title to, free and clear of all Liens, or has a contract, license or lease to
use, all of the Purchased Assets and, at the Closing, assuming execution and delivery of the
Asset Conveyance Documents and the Liabilities Assumption Documents and assuming receipt of
all necessary consents therefor, Seller and Seller Subs shall validly transfer to Buyer,
good and enforceable title to, free and clear of all Liens, or a contract, license or lease
to use, all of the Purchased Assets.
-27-
4J. Tax Matters. Except as set forth on Section 4J of the Seller Disclosure
Letter:
(i) Seller and its Subsidiaries have with respect to the Enterprise Group, filed with
the appropriate Taxing authorities all Tax Returns required to be filed by them, and such
Tax Returns are accurate and complete in all material respects;
(ii) Seller and its Subsidiaries have with respect to the Enterprise Group, duly paid
in full any and all Taxes that are due and payable;
(iii) there are no liens for Taxes upon any property or asset of the Enterprise Group,
except for liens for Taxes not yet due;
(iv) there are not pending or, to Seller’s knowledge, threatened any Tax audits,
claims, actions, suits, proceedings or examinations of the Seller or any of its Subsidiaries
with respect to the Enterprise Group and no written notices of deficiency, proposed
deficiency or assessment from any Taxing authority with respect to Taxes of Seller or any of
its Subsidiaries (with respect to the Enterprise Group) have been received by Seller or any
of its Subsidiaries. All material deficiencies asserted or assessments made for Taxes due
by Seller or any of its Subsidiaries with respect to the Enterprise Group with respect to
any completed and settled examinations or any concluded litigation have been fully paid;
(v) there are no outstanding agreements extending or waiving the statutory period of
limitations applicable to any claim for, or the period for the collection or assessment or
reassessment of, Taxes due from Seller or any of its Subsidiaries with respect to the
Enterprise Group for any taxable period and no request for any such waiver or extension is
currently pending;
(vi) neither Seller nor any of its Subsidiaries is party to any agreement, contract,
arrangement or plan with Transferred Employees that has resulted or would be reasonably be
expected to result in the payment of any “excess parachute payment” within the meaning of
Code § 280G (or any corresponding provision of state, local or foreign Tax law) as a result
of the transactions contemplated by this Agreement;
(vii) Seller and its Subsidiaries, solely with respect to the Enterprise Group, have
withheld and paid all Taxes required to have been withheld and paid in connection with
amounts paid or owing to any employee, independent contractor, creditor, stockholder or
other third party;
(viii) no claim has ever been made by an authority in a jurisdiction where Seller and
its Subsidiaries, solely with respect to the Enterprise Group, do not file Tax Returns that
any of the Seller and its Subsidiaries may be subject to taxation by that jurisdiction; and
(ix) none of the Purchased Assets is an asset that is all of the following: (x) an
asset described in Section 197(d)(1)(A) or (B) of the Code, (y) an asset that existed prior
to 1994, and (z) an asset that was not acquired by Seller (or a Subsidiary of Seller) in a
taxable asset acquisition.
-28-
4K. Enterprise Xxxxx Xxxxxxxx Contracts. Section 4K of the Seller Disclosure
Letter sets forth a list as of the date of this Agreement of each of the following types of written
contracts to which Seller or any of its Subsidiaries is a party with respect to the Enterprise
Group:
(i) any employment agreement with any Transferred Employee that has future required
scheduled payments for salary and guaranteed bonus (absent a material breach thereof) in
excess of $100,000 per annum and is not terminable by it upon notice of sixty (60) days or
less for a cost of less than $100,000;
(ii) any employee collective bargaining agreement;
(iii) any agreement containing a covenant not to compete granted in favor of a third
party that impairs in any material respect the business of the Enterprise Group as currently
conducted;
(iv) any lease or similar agreement under which (a) Seller or one of its Subsidiaries
is, with respect to the Enterprise Group, lessee of, or holds or uses, any machinery,
equipment, vehicle or other tangible personal property owned by a third party or (b) Seller
or one of its Subsidiaries is, with respect to the Enterprise Group, a lessor or sublessor
of, or makes available for use by any third party, any tangible personal property owned or
leased by Seller or one of its Subsidiaries with respect to the Enterprise Group; in any
case which has future required scheduled payments (absent a material breach thereof) in
excess of $150,000 per annum and is not terminable by it upon notice of sixty (60) days or
less for a cost of less than $150,000;
(v) other than the Security Documents, any agreement or contract under which Seller or
any of its Subsidiaries has borrowed any money or issued any note, indenture or other
evidence of indebtedness or guaranteed indebtedness or liabilities of others that included
the placement of a Lien (other than Permitted Encumbrances) on the Purchased Assets;
(vi) any agreement relating to joint ventures or partnerships of Seller or any of its
Subsidiaries with respect to the Enterprise Group;
(vii) any agreement relating to any material acquisition or divestiture by the Seller
or any of its Subsidiaries with respect to the Enterprise Group;
(viii) any other agreement, contract, lease, license or instrument, in each case not
included in clauses (i) through (vii) above or set forth on any of the other sections of the
Seller Disclosure Letter, to which Seller or one of its Subsidiaries is, with respect to the
Enterprise Group, a party or by or to which any of their assets are bound or subject which
has future required scheduled payments (absent a material breach thereof) to or by Seller or
one of its Subsidiaries with respect to the Enterprise Group in excess of $175,000 per annum
and is not terminable by it upon notice of sixty (60) days or less for a cost of less than
$175,000 (other than Leases).
-29-
Seller has delivered to, or made available for inspection by, Buyer a copy of each contract, lease,
license, instrument or other agreement listed on Section 4K of the Seller Disclosure
Letter, together with all amendments and exhibits thereto (collectively, the “Enterprise Xxxxx
Xxxxxxxx Contracts”). Except as disclosed on Section 4K of the Seller Disclosure
Letter or the other sections of the Seller Disclosure Letter, Seller or its Subsidiaries have
performed all obligations required to be performed by them to date under the Enterprise Xxxxx
Xxxxxxxx Contracts and is not (with or without the lapse of time or the giving of notice, or both)
in breach or default thereunder, except for any failures to perform or any such breach or default
that would not, individually or in the aggregate, result in an Enterprise Xxxxx Xxxxxxxx Adverse
Effect. No party (other than Seller or any of its Subsidiaries) to any Enterprise Xxxxx Xxxxxxxx
Contract, or, if applicable, Seller or its Subsidiaries, is (with or without the lapse of time or
the giving of notice, or both) in breach or default thereunder, except for any such breach or
default that would not, individually or in the aggregate, result in an Enterprise Xxxxx Xxxxxxxx
Adverse Effect.
4L. Intellectual Property.
(i) All of the Enterprise Group Intellectual Property is listed on Section 4L
of the Seller Disclosure Letter. Except as set forth on Section 4L of the Seller
Disclosure Letter, Seller or one of its Subsidiaries owns and possesses good title to all
Enterprise Group Intellectual Property free and clear of all Liens (other than Permitted
Encumbrances)
(ii) Section 4L of the Seller Disclosure Letter also sets forth (a) each
material license agreement relating to the Enterprise Group Intellectual Property to a third
party, and (b) each third party license agreement of Intellectual Property Rights to Seller
or any of its Subsidiaries with respect to the Enterprise Group (other than Shared Contracts
not assigned to Buyer in connection with the transactions contemplated hereby), in each
case, the loss of which would result in an Enterprise Xxxxx Xxxxxxxx Adverse Effect;
provided that the foregoing shall not be deemed to require disclosure of any
agreement for which the license is not the primary purpose of such agreement. Seller has
delivered to, or made available for inspection by, Buyer a copy of each license listed on
Section 4L of the Seller Disclosure Letter (collectively, the “Enterprise Group
IP Licenses”). Except as disclosed on Section 4L of the Seller Disclosure
Letter or the other sections of the Seller Disclosure Letter, Seller and its Subsidiaries
have performed all obligations required to be performed by them to date under the Enterprise
Group IP Licenses and are not (with or without the lapse of time or the giving of notice, or
both) in breach or default thereunder, except for any failures to perform or any such breach
or default that would not, individually or in the aggregate, result in an Enterprise Xxxxx
Xxxxxxxx Adverse Effect.
(iii) No material claims are pending in writing or, to the knowledge of Seller,
threatened in writing against Seller or any of its Subsidiaries with respect to the
Enterprise Group as of the date of this Agreement with respect to the ownership, use or
validity of any Enterprise Group Intellectual Property. Except as set forth on Section
4L of the Seller Disclosure Letter, neither Seller nor any of its Subsidiaries have,
with respect to the Enterprise Group, (x) been sued or charged as a defendant in any claim,
suit, action, or proceeding which involves a claim of infringement of any Intellectual
Property Rights of any third party and which has not been finally terminated prior to the
-30-
date hereof, or (y) initiated or commenced any claim, suit, action, or proceeding
against a third party which involves a claim of infringement of any Enterprise Group
Intellectual Property and which has not been finally terminated prior to the date hereof.
(iv) Other than Enterprise Group Intellectual Property that Seller has allowed to lapse
prior to the date hereof because Seller’s management has determined that such Enterprise
Group Intellectual Property is not material to the operations of the Enterprise Group,
Seller has taken all steps reasonably necessary to maintain the validity of the Enterprise
Group Intellectual Property, including by paying necessary fees and making necessary filings
with the appropriate Governmental Entity.
(v) Except as set forth on Section 4L of the Seller Disclosure Letter, all of
the Licensed Marks have been registered with or are subject to pending registration with the
United States Patent and Trademark Office or other appropriate Governmental Entity, and such
registrations are in full force and effect as of the date hereof. To the knowledge of
Seller, the use of the Licensed Marks by Buyer or one of it Affiliates pursuant to the
License Agreement does not infringe upon any third party’s trademark rights, design rights,
copyrights or any other proprietary rights, whether in contract or at law. Neither Seller
nor any of its Subsidiaries has granted to any third party any right in the Licensed Marks
that would cause it to be in violation of the License Agreement.
4M. Litigation. Except as set forth on Section 4M of the Seller Disclosure
Letter, as of the date of this Agreement, there are no actions, suits, proceedings or orders
pending or, to Seller’s knowledge, threatened against Seller or any of its Subsidiaries relating to
the Enterprise Group (including the Purchased Assets), at law or in equity, before or by any
Governmental Entity.
4N. Brokerage. Except for fees and expenses payable to Evercore Partners, there are
no claims for brokerage commissions, finders fees, or similar compensation in connection with the
transactions contemplated by this Agreement and/or the Ancillary Agreements based on any
arrangement or agreement made by or on behalf of Seller or any of its Subsidiaries.
4O. Employee Benefit Plans.
(i) Section 4O(i) of the Seller Disclosure Letter lists each Employee Benefit
Plan. With respect to each Employee Benefit Plan identified on Section 4O(i) of the
Seller Disclosure Letter, Seller has provided or made available to Buyer a current, accurate
and complete copy (or, to the extent no such copy exists, an accurate description) thereof
(including, without limitation, all amendments thereto) and the most recent summary plan
description together with the summary or summaries of material modifications thereto, if
any.
(ii) Each Employee Benefit Plan has been maintained, funded and administered in
accordance with the terms of such Employee Benefit Plan and in compliance in form and in
operation in all material respects with the applicable requirements of ERISA and the Code.
-31-
(iii) Each Employee Benefit Plan that is intended to meet the requirements of a
“qualified plan” under Code § 401(a) has received a favorable determination letter
from the Internal Revenue Service and, to Seller’s knowledge, there is no reason why any
such determination letter should no longer be valid.
(iv) None of Seller, its Subsidiaries or any ERISA Affiliate has any liability under
Title IV of ERISA that will become a liability of Buyer as a result of the transactions
contemplated by this Agreement pursuant to Section 412 of the Code, Section 414 of the Code,
Section 4001 of ERISA or otherwise.
(v) Except (a) as required by applicable law, (b) for payments required to be made to
Transferred Employees in connection with such employee ceasing to participate in any
Employee Benefit Plans, (c) payments for which Seller and its Subsidiaries are solely
responsible or that are to be included in the computation of Transaction Bonus Amount or as
a liability in the computation of Estimated Closing Net Working Capital or (d) as otherwise
set forth on Section 4O(v) of the Seller Disclosure Letter, as a result of the
transaction contemplated by this Agreement (whether alone or in combination with any other
event), no Transferred Employee shall be entitled to receive any payment, increase, or
acceleration of any benefit, including any termination, severance, accrued vacation, sick
pay, disability or similar payments or deferred compensation payment under any arrangements
with Seller, its Affiliates or its Subsidiaries.
(vi) Section 4O(vi) of the Seller Disclosure Letter contains for each
Transferred Employee, such Transferred Employee’s name, date of hire, current position,
current rate of compensation, employment status (i.e., active, disabled, on leave and, if on
leave, the reason therefor) and whether full-time, part-time or temporary and total
compensation (separately identifying any bonus compensation) for the 2006 calendar year.
(vii) All of the obligations, payments and liabilities of the Seller and its Affiliates
pursuant to the retention bonus agreements with certain Transferred Employees listed on
Section 4O(vii) of the Seller Disclosure Letter (the “Retention Bonus
Amounts”) have been satisfied in full and there are no remaining obligations of the
Seller and its Affiliates, for payment or otherwise, pursuant to such agreements.
4P. Insurance. Section 4P of the Seller Disclosure Letter lists all insurance
policies maintained by Seller or any of its Subsidiaries as of the date hereof that provide
coverage, subject to applicable deductibles, self-insured retentions, coverage limits and
exclusions from coverage, with respect, in whole or in part, to the Enterprise Group for the policy
year that includes the date of this Agreement (the “Insurance Policies”). All such
Insurance Policies are in full force and effect in all material respects, and neither Seller nor
any of its Subsidiaries is in default in any material respect regarding its obligations under any
of such Insurance Policies. Neither Seller nor any of its Subsidiaries has received any written
notice (i) of the cancellation or nonrenewal of any Insurance Policy (other than notice of the
expiration of the policy year for such Insurance Policy in accordance with its terms), or (ii) that
any limits with respect to any Insurance Policy have been, or will be, reduced from the applicable
amount set forth on Section 4P of the Seller Disclosure Letter, excluding, for avoidance of
doubt, the
-32-
amount of any such reduction in accordance with the terms thereof resulting from the payment
of claims thereunder.
4Q. Sufficiency of Assets. Except for (i) assets and services listed on Section
4Q(i) of the Seller Disclosure Letter, and (ii) services and assets disposed of in the ordinary
course operation of the Enterprise Group since the date of the Latest Statement of Net Assets (and,
after the date of this Agreement, done in compliance with this Agreement), as of the Closing, the
Purchased Assets and the other assets, services, licenses and other rights being transferred to
Buyer at the Closing will consist of (x) all of the material assets used in the operation of the
Enterprise Group by Seller and its Subsidiaries as of the date of the Latest Statement of Net
Assets and acquired or received by Seller and its Subsidiaries with respect to the Enterprise Group
since the date of the Latest Statement of Net Assets and (y) all of the material assets required to
operate the business of the Enterprise Group as presently conducted by Seller. Section
4Q(ii) of the Seller Disclosure Letter sets forth (a) the revenue and EBITDA of the Enterprise
Group as a percentage of revenue and EBITDA of Holdings and its Subsidiaries (each as calculated
and reported in accordance with the SEC filings of Holdings) for the years ended December 31, 2002,
December 31, 2003, December 31, 2004, December 31, 2005 and December 31, 2006, and (b) the
percentage of net assets of Holdings and its Subsidiaries represented by the net assets of the
Enterprise Group at December 31, 2005 and December 31, 2006; provided that the
representation and warranty made in this sentence is made only for purposes of determining the
accuracy of Seller’s representations and warranties in Section 4C hereof.
4R. Compliance with Applicable Laws. Except as set forth on Section 4R of the
Seller Disclosure Letter, Seller and its Subsidiaries have with respect to the Enterprise Group,
since December 31, 2005, complied in all material respects with all applicable statutes, laws,
ordinances, rules, orders and regulations of any Governmental Entity applicable to the Enterprise
Group (including, to the extent applicable, the Foreign Corrupt Practices Act, 15 U.S.C. 78dd-1 et
seq.). Except as set forth on Section 4R of the Seller Disclosure Letter, since December
31, 2005, neither Seller nor any of its Subsidiaries, with respect to the Enterprise Group, has
received any communication from a Governmental Entity that alleges that any of them is not in
compliance with all federal, state, foreign or local laws, rules and regulations applicable to the
Enterprise Group that would reasonably be expected to result in a material liability to the
Enterprise Group. To Seller’s knowledge, no investigation or review by any Governmental Entity
with respect to the Enterprise Group is pending or threatened. No Governmental Entity has, since
December 31, 2004, provided notice to Seller or any of its Subsidiaries of its intention to conduct
an investigation or review with respect to the Enterprise Group.
4S. Environmental. Except as set forth on Section 4S of the Seller Disclosure
Letter, (i) since December 31, 2005, neither Seller nor any of its Subsidiaries, with respect to
the Enterprise Group, has received any written communication from a Governmental Entity that
alleges that Seller or any of its Subsidiaries is, with respect to the Enterprise Group, not in
compliance, in all material respects, with any Environmental Laws applicable to the Enterprise
Group, and (ii) Seller or one of its Subsidiaries holds, and are in compliance with, all Permits,
required to be obtained by Seller or its Subsidiaries under Environmental Laws applicable to the
Enterprise Group and, with respect to the Enterprise Group, Seller and its Subsidiaries are in
compliance with all Environmental Laws applicable to the Enterprise Group, except for failures
-33-
to have such permits, licenses or authorizations and instances of noncompliance which,
individually or in the aggregate, would not result in an Enterprise Xxxxx Xxxxxxxx Adverse Effect.
As used in this Agreement, the term “Environmental Laws” means the Comprehensive
Environmental Response, Compensation and Liability Act, as amended (“CERCLA”), the Resource
Conservation and Recovery Act, as amended (“RCRA”), the Clean Water Act, as amended, the
Toxic Substances Control Act, as amended, and any other state or local domestic laws, regulations
or ordinances imposing standards of conduct relating to the pollution or protection of the
environment. Notwithstanding anything to the contrary in this Agreement, the representations and
warranties set forth in this Section 4S are the sole and exclusive representations and
warranties of Seller with respect to environmental matters, including matters arising under or
relating to Environmental Laws.
4T. Employees. As of the date hereof, to the extent relating to employees of the
Enterprise Group, there are no labor strikes, labor organization drives or similar disputes
(including assertions of unfair labor practices) pending or, to Seller’s knowledge, threatened.
Neither Seller nor any of its Subsidiaries is a party to or otherwise bound by any collective
bargaining agreement or other contract with a labor union or labor organization to the extent
relating to the Enterprise Group.
4U. Affiliate Transactions. Except (i) for extensions of credit to directors,
officers and employees providing services for the Enterprise Group for travel, business or
relocation expenses in the ordinary course of business, (ii) for the Employee Benefit Plans, (iii)
for any employment agreement or arrangement with any employee providing services for the Enterprise
Group, (iv) for the agreements listed on Section 4K of the Seller Disclosure Letter, (v)
for the Ancillary Agreements, (vi) for Transaction Bonuses or (vii) as set forth in Section
4U of the Seller Disclosure Letter, there are no outstanding amounts in excess of $50,000
payable to or receivable from, and neither Seller nor any of its Subsidiaries is, with respect to
the Enterprise Group, otherwise a creditor to or debtor to with respect to amounts in excess of
$50,000, or a party to any binding contract, agreement, or understanding with, any director,
officer, Transferred Employee or Affiliate of the Enterprise Group, or any relative of any of the
foregoing.
4V. Permits. Except as set forth in Section 4V of the Seller Disclosure
Letter, the Purchased Assets includes all material Permits issued by a Governmental Entity that are
required for the conduct of the Enterprise Group business as presently conducted.
4W. Customers and Suppliers. Section 4W of the Seller Disclosure Letter sets
forth (i) the name of the top 15 customers of Seller and its Subsidiaries with respect to the
Enterprise Group, as measured by total revenue generated from each such customer from January 1,
2006 to December 31, 2006, (ii) the total revenue generated for each such customer during such
period and (iii) the name of the top 10 suppliers of Seller or any of its Subsidiaries with respect
to the Enterprise Group (as measured by amounts spent by Seller or any of its Subsidiaries with
respect to the Enterprise Group from January 1, 2006 to December 31, 2006).
4X. Software. Except as would not result in an Enterprise Xxxxx Xxxxxxxx Adverse
Effect, the computer software of Seller and its Subsidiaries with respect to the
-34-
Enterprise Group (collectively, the “Software”) performs substantially in the same
manner as it performed during the three-month period ended on the Most Recent Quarter End.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF BUYER
REPRESENTATIONS AND WARRANTIES OF BUYER
As an inducement to Seller to enter into this Agreement, Buyer hereby represents and warrants
as of the date of this Agreement and, if the Closing occurs, as of the Closing Date that:
5A. Organization and Corporate Power. Buyer is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of Delaware and is qualified to
do business as a foreign corporation and is in good standing in each jurisdiction in which the
failure to so qualify or be in good standing would result in a Buyer Material Adverse Effect.
Buyer and its Subsidiaries have all requisite corporate power and authority necessary to own and
operate their properties and to carry on their businesses as now conducted and to enter into this
Agreement and the Ancillary Agreements to which it is a party and consummate the transactions
contemplated hereby and thereby.
5B. Authorization; No Breach. Buyer’s execution, delivery and performance of this
Agreement and each Ancillary Agreement to which it is a party has been duly authorized by Buyer and
no other corporate proceeding on the part of Buyer is necessary to authorize this Agreement, any of
the Ancillary Agreements or any of the transactions contemplated hereby and thereby. This
Agreement has been duly executed and delivered by Buyer and constitutes the valid and binding
obligation of Buyer, enforceable in accordance with its terms, except as limited by the application
of bankruptcy, moratorium and other laws affecting creditors’ rights generally and as limited by
the availability of specific performance and the application of equitable principles. Each
Ancillary Agreement to which Buyer is a party, when executed and delivered by Buyer, shall have
been duly executed and delivered by Buyer, and shall constitute a valid and binding obligation of
Buyer, enforceable in accordance with its terms, except as limited by the application of
bankruptcy, moratorium and other laws affecting creditors’ rights generally and as limited by the
availability of specific performance and the application of equitable principles. Other than the
HSR Approval, if any, Buyer’s execution and delivery of this Agreement and the Ancillary Agreements
to which Buyer is a party do not and will not (with or without the giving of notice, the lapse of
time or both) (i) result in any material breach of any of the provisions of, (ii) constitute a
material default under, (iii) give any third party the right to terminate, (iv) result in the
creation of any lien, security interest, charge or encumbrance upon any of the shares of capital
stock or any assets of Buyer or its Subsidiaries pursuant to the terms of or (v) require any
authorization, consent, approval, exemption or other action by or notice to any Governmental Entity
or other Person, under (a) the provisions of the certificate of incorporation or bylaws of Buyer,
(b) any material contract to which Buyer or any of its Subsidiaries is party, (c) any judgment,
order or decree to which Buyer or any of its Subsidiaries is subject, or (d) any law, statute, rule
or regulation, to which Buyer or any of its Subsidiaries is subject.
-35-
5C. Litigation. There are no material actions, suits, proceedings or orders pending
or, to Buyer’s knowledge, threatened against Buyer at law or in equity, or before or by any
Governmental Entity.
5D. Brokerage. There are no claims for brokerage commissions, finders fees, expenses
or similar compensation in connection with the transactions contemplated by this Agreement based on
any arrangement or agreement made by or on behalf of Buyer or any of its Subsidiaries.
5E. Solvency. Immediately after giving effect to the transactions contemplated
hereby, Buyer and each of its Subsidiaries shall be Solvent.
5F. Financing. Buyer has received (i) an executed commitment letter, attached hereto
as Exhibit J-1, from the parties identified therein committing, subject to (and only to)
the terms and conditions expressly set forth therein, to provide not less than $109,000,000 of debt
financing (without regard to revolving loans) to Buyer (such commitment letter, the “Debt
Commitment Letter,” and the debt financing contemplated by the Debt Commitment Letter, the
“Debt Financing”) and (ii) an executed commitment letter, attached hereto as Exhibit
J-2, from the parties identified therein (the “Equity Sponsors”) committing, subject to
(and only to) the terms and conditions expressly set forth therein, to provide to Buyer the equity
financing contemplated therein (such commitment letter, the “Equity Commitment Letter,” and
together with the Debt Commitment Letter, the “Commitment Letters,” and the equity
financing contemplated by the Equity Commitment Letter, the “Equity Financing,” and
together with the Debt Financing, the “Financing”). A true, correct and complete copy of
the Debt Commitment Letter (including a true, correct and complete copy of the “market flex”
provisions to which the Debt Commitment Letter is subject) and a true, correct and complete copy of
the Equity Commitment Letter are attached hereto as Exhibit J-1 and Exhibit J-2,
respectively. Assuming the Financings contemplated by the Commitment Letters are consummated
substantially in accordance with their terms, Buyer will have sufficient funds to pay, when due
from Buyer in accordance with this Agreement, all obligations of the Buyer hereunder (including
fees and expenses). The obligations to fund the commitments under the Commitment Letters are not
subject to any condition, other than the conditions expressly set forth in the Commitment Letters.
The Debt Commitment Letter has been duly executed by Buyer and, to the knowledge of Buyer, each
other Person party thereto, and the Debt Commitment Letter is in full force and effect and
constitutes the valid and binding obligation of Buyer and, to the knowledge of Buyer, each other
Person party thereto. The Equity Commitment Letter has been duly executed by Buyer and each other
Person party thereto, and the Equity Commitment Letter is in full force and effect and constitutes
the valid and binding obligation of Buyer and each other Person party thereto. As of the date
hereof, no amendment or modification of any of the Commitment Letters is contemplated, and the
respective commitments contained in the Commitment Letters have not been withdrawn or rescinded in
any respect. There are no fees, expense reimbursement obligations or other amounts that are
required to be paid by Buyer prior to Closing under or in respect of the Commitment Letters except
for amounts required to be paid at Closing under the Fee Letter. As of the date hereof, Buyer has
no reason to believe that any of the conditions to the financings contemplated by the Commitment
Letters will not be satisfied on a timely basis or that the Financing contemplated by the
Commitment Letters will not be made available on a timely basis for the Closing.
-36-
5G. Investment. Buyer has been afforded full access to the books and records,
facilities and personnel of the Enterprise Group for purposes of conducting a due diligence
investigation and has conducted a full due diligence investigation of Seller and its Subsidiaries,
including with respect to the Enterprise Group. Nothing in this Section 5G shall prejudice
or limit in any manner Buyer’s ability to rely on Seller’s representations and warranties set forth
in this Agreement and the Ancillary Agreements.
ARTICLE 6
TERMINATION
TERMINATION
6A. Termination. Notwithstanding anything contained in this Agreement to the
contrary, this Agreement may be terminated and the transactions contemplated hereby abandoned at
any time prior to the Closing:
(i) by the written consent of each of Buyer and Seller;
(ii) by Buyer, if there has been a violation or breach by Seller of any covenant,
representation or warranty contained in this Agreement which has prevented the satisfaction
of any condition to the obligations of Buyer at the Closing and (a) such violation or breach
has not been waived by Buyer and (b) such violation or breach is not capable of being cured
or, if capable of being cured, shall not have been cured prior to the earlier of (I) thirty
(30) days after written notice of such violation or breach from Buyer to Seller, or (II) the
Termination Date;
(iii) by Seller, if there has been a violation or breach by Buyer of any covenant,
representation or warranty contained in this Agreement which has prevented the satisfaction
of any condition to the obligations of Seller at the Closing and (a) such violation or
breach has not been waived by Seller and (b) such violation or breach is not capable of
being cured or, if capable of being cured, shall not have been cured prior to the earlier of
(I) thirty (30) days after written notice of such violation or breach from Seller to Buyer,
or (II) the Termination Date; provided that the failure to deliver the Estimated
Closing Purchase Price, the Adjustment Escrow Amount, the Indemnity Escrow Amount and the
Transaction Bonus Amount as and when required hereunder shall not be subject to cure
hereunder unless otherwise agreed to in writing by Seller;
(iv) by Buyer, on the one hand, or Seller, on the other hand, if any Governmental
Entity shall institute any suit or action challenging the validity or legality, or seeking
to restrain the consummation of, the transactions contemplated by this Agreement;
(v) On or prior to the 14th calendar day after delivery of the GT Audit Report to
Buyer, by Buyer if the GT Audit Report, from the perspective of the Enterprise Group and
taking the financial statements included in the GT Audit Report as a whole, materially
adversely deviates from the Preliminary Audit Report (with the determination as to whether
to such GT Audit Report materially adversely deviates to be made subject to the further
proviso in Section 2B(xviii); or
-37-
(vi) by Buyer, on the one hand, or Seller, on the other hand, if the transactions
contemplated hereby have not been consummated on or prior to the Termination Date;
provided that (a) Buyer shall not be entitled to terminate this Agreement pursuant
to this Section 6A(vi) if Buyer’s material breach of this Agreement has prevented
the satisfaction of any condition to the obligations of Seller at the Closing and (b) Seller
shall not be entitled to terminate this Agreement pursuant to this Section 6A(vi) if
Seller’s material breach of this Agreement has prevented the satisfaction of any condition
to the obligations of Buyer at the Closing.
6B. Effect of Termination. In the event of any termination of this Agreement by Buyer
or Seller as provided above, this Agreement shall forthwith become void and of no further force or
effect (other than this Section 6B, Section 8C, Section 8N and Article
9, which shall survive the termination of this Agreement and shall be enforceable by the
parties hereto), and there shall be no liability or obligation on the part of Buyer or Seller to
any other party hereto, except as set forth in this Section 6B and except for willful
breaches of this Agreement prior to the time of such termination and, (i) in the case of Buyer, the
failure to deliver the Estimated Closing Purchase Price, the Adjustment Escrow Amount, the
Indemnity Escrow Amount and the Transaction Bonus Amount as and when required hereunder and (ii) in
the case of Seller, the failure by Seller and Seller Subs to deliver the Purchased Assets when
required hereunder. For the avoidance of doubt, the provisions of the Equity Commitment Letter
shall survive in accordance with their terms and shall be enforceable by the parties hereto in
accordance with their terms.
ARTICLE 7
INDEMNIFICATION
INDEMNIFICATION
7A. Claims against the Indemnity Escrow Funds. From and after the Closing (but
subject to the provisions of this Article 7), Seller and each Seller Sub (collectively, the
“Seller Parties”) shall, jointly and severally, indemnify Buyer, any current or former
Affiliate of Buyer and any of its or their respective officers, directors, employees, partners,
stockholders, members, agents, attorneys, representatives, successors or permitted assigns
(collectively, the “Buyer Parties”) in respect of any Losses suffered or incurred by the
Buyer Parties prior to the Limitation Date to the extent arising from (i) any breach of any
representation or warranty of Seller and/or the Seller Subs contained in this Agreement, (ii) any
breach of any covenant or agreement of Seller contained in this Agreement, (iii) the Outstanding
Bonus Amounts, (iv) any Bulk Sales Liability, or (v) any Retained Liability; provided that
(I) no Seller Party shall have any liability under this Article 7, and no claim by any
Buyer Party shall be so asserted, where the Loss relating to such claim is less than $25,000 (the
“Claims-Specific Threshold”), and no claims shall be aggregated for purposes of this clause
(I) and (II) Seller shall not have any liability under this Article 7, and no claims by any
Buyer Party shall be so asserted, unless and until the aggregate amount of all Losses indemnifiable
hereunder exceeds on a cumulative basis an amount equal to $2,250,000 (the “Basket”), and
then only to the extent the aggregate amount of Losses indemnifiable hereunder exceeds on a
cumulative basis an amount equal to $1,125,000 (the “Deductible”); provided
further that (a) the aggregate liability of the Seller Parties in respect of such breaches
shall in no event exceed $15,000,000 (the “Cap”), (b) all Losses that become due and
payable to the Buyer Parties in accordance with this Article 7 in respect of such breaches
shall, except as expressly contemplated by the following sentences of this Section 7A, be
-38-
asserted solely against the Indemnity Escrow Funds pursuant to the terms of this Agreement and
the Indemnity Escrow Agreement or set off against any Earnout Payments to be made pursuant to
Section 1E and any such payment out of the Indemnity Escrow Funds or set off against any
Earnout Payments to be made pursuant to Section 1E shall be the Buyer Parties’ sole and
exclusive source of recovery for such Losses, and (c) no claim in respect of such breaches by any
Buyer Party shall be asserted against the Adjustment Escrow Funds or against any of the
Equityholder Parties (other than the Seller Parties in accordance with this Article 7).
Notwithstanding the foregoing, (x) the Buyer Parties’ rights to seek indemnification in the case of
any Excluded Matter shall not be limited by the Claims-Specific Threshold, the Basket, the
Deductible, the Cap or recourse to the Indemnity Escrow Funds or set off against payment of the
Earnout Payments, (y) all Losses that become due and payable to the Buyer Parties in accordance
with this Agreement in respect of any Excluded Matter shall be first paid out of the Indemnity
Escrow Funds pursuant to the terms of this Agreement or set off against any Earnout Payments to be
made pursuant to Section 1E and (z) no claim by the Buyer Parties for any Excluded Matter
shall be asserted against the Adjustment Escrow Funds or against any of the Equityholder Parties
(other than the Seller Parties). In no event shall any Buyer Party have any right to set off
against the Earnout Payment except for Losses indemnifiable hereunder that have been suffered or
incurred prior to the date that the Earnout Amount is required to be paid pursuant to Section
1E and in no event shall the right of set-off against the Earnout Amount be deemed to increase
the Cap with respect to matters that are, in accordance with this Agreement, subject to the Cap.
7B. Indemnification by Buyer. From and after the Closing (but subject to the
provisions of this Article 7), Buyer shall indemnify Seller and the Equityholder Parties
against, and hold Seller and the Equityholder Parties harmless from, any Losses suffered or
incurred by Seller prior to the Limitation Date to the extent arising from (i) any breach of any
representation or warranty of Buyer contained in this Agreement, (ii) any breach of any covenant or
agreement of Buyer contained in this Agreement, or (iii) any Assumed Liabilities.
7C. Exclusive Remedy. If the Closing shall be consummated, each party (and Buyer,
on behalf of each Buyer Party, and Seller, on behalf of each Equityholder Party) acknowledges and
agrees that, except for (x) claims asserted pursuant to Section 1D and Section 1E
(which claims will be resolved pursuant to such Section 1D and Section 1E,
respectively), or (y) claims for equitable relief or actual fraud, from and after the Closing, its
sole and exclusive remedy with respect to any and all claims relating to the subject matter of this
Agreement and the Seller Disclosure Letter and transactions contemplated hereby and thereby shall
be pursuant to the indemnification provisions set forth in this Article 7 and, for the
avoidance of doubt, claims arising pursuant to Section 8E, Section 8I, Section
8T or Section 8W hereof shall be subject to this Article 7.
7D. Termination of Indemnification. The obligations to indemnify and hold harmless a
Person in respect of a breach of representation or warranty or covenant shall terminate when the
applicable representation or warranty or covenant terminates pursuant to Section 8A;
provided, however, that such obligations to indemnify and hold harmless shall not
terminate with respect to any item as to which the Person to be indemnified shall have, prior to
the termination of the applicable period set forth in Section 8A, previously made a claim
by delivering a written notice (stating in reasonable detail the nature of, and factual and legal
basis
-39-
for, any such claim for indemnification, and the provisions of this Agreement upon which such
claim for indemnification is made) to the Indemnifying Party in accordance with this Agreement.
7E. Procedures Relating to Indemnification.
(i) In order for a Person who has rights of any indemnification under this Agreement
(each, an “Indemnified Party”) to be entitled to any indemnification provided for
under this Agreement in respect of a claim or demand made by any Person against the
Indemnified Party (a “Third Party Claim”), such Indemnified Party must notify the
indemnifying party (the “Indemnifying Party”) in writing, and in reasonable detail,
of the Third Party Claim as promptly as reasonably possible after receipt by such
Indemnified Party of notice of the Third Party Claim; provided that failure to give
such notification on a timely basis shall not affect the indemnification provided hereunder
except to the extent the Indemnifying Party shall have been actually prejudiced as a result
of such failure. Thereafter, the Indemnified Party shall deliver to the Indemnifying Party,
within five (5) Business Days after the Indemnified Party’s receipt thereof, copies of all
notices and documents (including court papers) received by the Indemnified Party relating to
the Third Party Claim; provided that failure to deliver such notices and documents
shall not affect the indemnification provided hereunder except to the extent the
Indemnifying Party shall have been actually prejudiced as a result of such failure.
(ii) If a Third Party Claim is made against an Indemnified Party or in the case of any
Proceeding that is an Assumed Liability, the Indemnifying Party shall be entitled to
participate in the defense thereof and, if it notifies the Indemnified Party within thirty
(30) days following receipt of the notice of such claim or, in the case of a Proceeding that
is an Assumed Liability or claim that is a Retained Liability (including the Acxiom Claim),
at any time after the Closing Date, to assume the defense thereof with counsel selected by
the Indemnifying Party and reasonably satisfactory to the Indemnified Party;
provided that, the Indemnifying Party shall not have the right to assume (or
continue) such defense to the extent the claim of which the Indemnifying Party seeks to
assume (or continue) control (x) seeks non-monetary relief, or (y) involves criminal or
quasi-criminal allegations. Should an Indemnifying Party elect to assume the defense of a
Third Party Claim or a Proceeding that is an Assumed Liability or any Retained Liability,
the Indemnifying Party shall not be liable to the Indemnified Party for legal expenses
subsequently incurred by the Indemnified Party in connection with the defense thereof. If
the Indemnifying Party assumes such defense, the Indemnified Party shall have the right to
participate in the defense thereof and to employ counsel, at its own expense, separate from
the counsel employed by the Indemnifying Party, it being understood, however, that the
Indemnifying Party shall control such defense. The Indemnifying Party shall indemnify the
Indemnified Party, subject to the other provisions of this Article 7, for the legal
expenses of counsel engaged by the Indemnified Party for any period during which the
Indemnifying Party has not assumed the defense of a Third Party Claim, a Proceeding that is
an Assumed Liability or a claim that is a Retained Liability to the extent such legal
expenses constitute Losses. If the Indemnifying Party chooses to defend any Third Party
Claim, any Proceeding that is an Assumed Liability or claim that is a Retained Party, all
the parties hereto shall use commercially reasonable efforts to cooperate in the defense or
prosecution of such Third Party Claim or such Proceeding. Such cooperation shall
-40-
include the retention and (upon the Indemnifying Party’s request) the provision to the
Indemnifying Party of records and information which are reasonably relevant to such Third
Party Claim, such Proceeding or such claim, and making employees available on a mutually
convenient basis to provide additional information and explanation of any material provided
hereunder. Without limiting the generality of the foregoing, the Buyer Parties shall make
available employees of Buyer Parties to assist with matters related to the Acxiom Claim.
Whether or not the Indemnifying Party shall have assumed the defense of a Third Party Claim,
Proceeding that is an Assumed Liability or claim that is a Retained Liability, neither the
Indemnified Party nor any of its Affiliates shall admit any liability with respect to,
consent to the entry of any judgment, or settle, compromise or discharge, any Third Party
Claim, Proceeding that is an Assumed Liability or claim that is a Retained Liability without
the prior written consent of the Indemnifying Party.
7F. Certain Additional Matters.
(i) The amount of any and all Losses under this Article 7 shall be determined
net of any Indemnity Tax Benefit actually realized by the party making the claim and/or its
Affiliates; provided, however, Indemnity Tax Benefits shall only be taken
into account for purposes of this Section 7F(i) to the extent that (i) the
Indemnified Party is entitled to retain the Indemnity Tax Benefit under the terms of this
Agreement and (ii) such Indemnity Tax Benefits are actually realized by the Indemnified
Party in a Tax Return (including any estimated Tax Return) that relates to a Taxable period
that includes the earlier of (A) the date that the amounts in the Indemnity Escrow Account
are reduced to $0 or (B) the date that all amounts in the Indemnity Escrow Account are
released. An Indemnity Tax Benefit shall be deemed to be realized in respect of an
indemnity claim to the extent the Tax liability of the party (or, in the case of Federal
income Taxes, the affiliated group of which such party is a member, if any) making such
claim, determined without taking into account any loss, deduction, credit or other tax item
resulting from such claim (or any income, gain or other tax item resulting from the receipt
or accrual of any indemnity payment in respect of such claim), exceeds the Tax liability of
such party (or affiliated group, if any) taking into account such loss, deduction, credit or
other tax item (and any income, gain or other tax item resulting from the receipt of accrual
of any indemnity payment in respect of such claim). In the event the Indemnity Tax Benefit
giving rise to a reduction in an indemnity payment is subsequently disallowed by the
applicable Tax authority, then the Indemnifying Party shall pay to the Indemnified Party the
amount of the related reduction in the prior payment within 10 days of receipt of notice
from such party setting forth in reasonable detail the circumstances surrounding such
disallowance or loss and the amount of the payment required hereunder. The amount of the
payment made on account of the disallowance of the Indemnity Tax Benefit shall be treated as
a payment under this Article 7 for all purposes thereof. The Indemnified Party will
pay to the Indemnifying Party the amount of any Indemnity Tax Benefit realized by the
Indemnified Party after receiving any indemnification payment attributable to the Losses or
Taxes that was not taken into account in the calculation of Losses (but not in excess of the
indemnification payment received from the Indemnifying Party with respect to such Losses or
Taxes) promptly after such Indemnity Tax Benefits are realized.
-41-
(ii) The amount of any and all Losses under this Article 7 shall be determined
net of any amounts recovered by any Indemnified Party under or pursuant to any insurance
policy, title insurance policy, indemnity, reimbursement arrangement or contract with a
third party pursuant to which or under which such Indemnified Party or such Indemnified
Party’s Affiliate is a party or has rights (collectively, “Alternative
Arrangements”). If, after a claim by a Buyer Indemnified Party for indemnification is
paid hereunder, (x) a Buyer Indemnified Party recovers amounts under such Alternative
Arrangement with respect to the subject matter of such claim and (y) the amount so recovered
would have reduced the aggregate amount for which the Buyer Indemnified Parties would have
been indemnified hereunder had such recovery occurred before such claim for indemnification
was paid hereunder (after giving effect to the applicable provisions of Section 7A
regarding the application of the Basket and the Deductible), Buyer hereby agrees (on behalf
of such Buyer Indemnified Party) to promptly remit to the Escrow Agent, for deposit in the
Indemnity Escrow Account, an amount (the “Returnable Amount”) equal to the least of
(I) the amount of such reduction that would have occurred, (II) the amount of the proceeds
received for such claim under the Alternative Arrangement and (III) the amount for such
claim previously paid to the Buyer Indemnified Parties pursuant to Section 7A;
provided that, notwithstanding the foregoing, if (A) the Returnable Amount is
received by a Buyer Indemnified Party on or after the Limitation Date and the Indemnity
Escrow Agreement has not terminated, then (x) the portion of the Returnable Amount equal to
the additional amount (if any) that would have been distributed from the Indemnity Escrow
Account pursuant to the Indemnity Escrow Agreement had the entirety of the Returnable Amount
been deposited before the Limitation Date shall be paid directly to Seller and (y) the
remainder of the Returnable Amount shall be deposited in the Indemnity Escrow Account, and
(B) the Returnable Amount is received by a Buyer Indemnified Party on or after the date that
the Indemnity Escrow Agreement has terminated, then the Returnable Amount shall instead be
paid directly to Seller. Notwithstanding the foregoing, to the extent that any such Loss
indemnifiable hereunder served to reduce the Basket, and subsequent recovery is made under
an Alternative Arrangement, the portion of the Basket so reduced shall be automatically
deemed restored. Buyer shall use its commercially reasonable efforts to cooperate with
Seller in connection with pursuing recovery under Alternative Arrangements.
(iii) In no event shall any Indemnified Party be entitled to recover or make a claim
for any amounts in respect of, and in no event shall “Losses” for purposes of this
Article 7 be deemed to include, to the extent such Indemnified Party is Buyer, any
loss, liability, damage or expense to the extent included as a liability or expense on the
Financial Statements (including the footnotes thereto) or to the extent included in the
calculation of Closing Net Working Capital.
(iv) Any indemnity payment under this Agreement shall be treated as an adjustment to
the Closing Purchase Price for Tax purposes.
(v) Each Indemnified Party agrees that in the event of any breach giving rise to an
indemnification obligation under this Article 7, such Indemnified Party shall take
and shall cause its Affiliates to take, or cooperate with the Indemnifying Party if so
-42-
requested by the Indemnifying Party, in order to take, all commercially reasonable
measures to mitigate the consequences of the related breach (including taking steps to
prevent any contingent liability from becoming an actual liability); provided that
the Indemnifying Party shall not be required to take any action against a customer or
significant third-party relationship in furtherance of this clause (v) if such action would
reasonably be expected to be harmful to the relationship of such Indemnified Party with such
customer or third-party.
(vi) Each Indemnified Party hereby waives any subrogation rights that its insurer may
have with respect to any indemnifiable Losses. After any indemnification payment is made to
any Indemnified Party pursuant to this Article 7, the Indemnifying Party shall, to
the extent of such payment, be subrogated to all rights (if any) of the Indemnified Party
against any third party in connection with the Losses to which such payment relates;
provided that, in the case of Seller, if the Person against whom such subrogation
right would otherwise be asserted is a then-current customer of the Enterprise Group, Seller
shall pursue such subrogation rights only with the prior written consent of Buyer (not to be
unreasonably withheld, delayed or conditioned); provided further that, in the case
of Buyer, if the Person against whom such subrogation right would otherwise be asserted is a
then-current customer of Seller’s Other Businesses, Buyer shall pursue such subrogation
rights only with the prior written consent of Seller (not to be unreasonably withheld,
delayed or conditioned). Subject to the preceding sentence, any Indemnified Party receiving
an indemnification payment pursuant to the preceding sentence shall execute, upon the
written request of the Indemnifying Party, any instrument reasonably necessary to evidence
such subrogation rights.
(vii) The amount of any Losses for which an Indemnified Party shall be entitled to
indemnification hereunder by reason of any breach or breaches of representations and
warranties shall be determined without regard to any materiality, Enterprise Xxxxx Xxxxxxxx
Adverse Effect or Buyer Material Adverse Effect or other similar qualification set forth
therein, but no such materiality, Enterprise Xxxxx Xxxxxxxx Adverse Effect or Buyer Material
Adverse Effect or other similar qualification set forth therein shall be disregarded for any
other purpose (including for purposes of determining whether there has been a breach or
breaches of any such representation or warranty).
ARTICLE 8
ADDITIONAL AGREEMENTS
ADDITIONAL AGREEMENTS
8A. Survival. Subject to Section 7D, the representations and warranties set
forth in this Agreement (other than the Fundamental Representations and the representations and
warranties of Buyer in Article 5) shall survive the Closing solely for purposes of
Article 7 and shall terminate on the close of business on the date that is the later of (x)
the twelve (12) month anniversary of the Closing and (y) the date that audited financial statements
for the Enterprise Group (or the Person, directly or indirectly, then owning the Enterprise Group)
at and for the period ended December 31, 2007 are received by Buyer (the “Limitation
Date”); provided that Buyer shall give Seller written notice promptly, but not later
than two Business Days, after receipt of the audit referred to in clause (y); provided
further that the “Limitation Date” as determined pursuant to clause (y) foregoing shall in no event
be later than September 30, 2008.
-43-
The covenants and agreements of any party set forth in this Agreement that require performance
by such party on or prior to the Closing shall survive the Closing solely for purposes of
Article 7 and shall terminate at the close of business on the Limitation Date.
Notwithstanding the foregoing, (a) the Excluded Matters (other than the Fundamental Representations
set forth in clause (b) below) and the Buyer Extended Matters shall survive the Closing
indefinitely, and (b) the Fundamental Representations specified in Section 4J and
Section 4O shall survive the Closing until the date that is 31 days after the applicable
statute of limitations has expired. Within five (5) Business Days after the Limitation Date, Buyer
and Seller shall cause the Escrow Agent (including by delivering joint written instructions to the
Escrow Agent) to release to Seller an amount equal to the excess of (i) all Indemnity Escrow Funds
minus (ii) the aggregate amount (the “Claim Amount”) for which valid claims for
indemnification were made against the Indemnity Escrow Amount prior to the Limitation Date and
which are not yet resolved. Furthermore, within five (5) Business Days after it is determined that
all or any portion of the Claim Amount is not owed to Buyer hereunder, Buyer and Seller shall cause
the Escrow Agent (including by delivering joint written instructions to the Escrow Agent) to
release to Seller such portion of the Claim Amount, together with any interest earned thereon.
8B. Press Release and Announcements. Seller and Buyer agree that, from the date
hereof through the Closing Date, no public release or announcement concerning the transactions
contemplated hereby shall be issued or made by or on behalf of any party without the prior consent
of the other parties, except that Seller and its Subsidiaries may make announcements from time to
time to their respective employees, customers, suppliers and other business relations and otherwise
as Seller may, after consultation with counsel, reasonably determine is necessary to comply with
applicable law or the requirements of any of the Indentures. Notwithstanding the foregoing, Buyer
and Seller shall cooperate to prepare a joint press release to be issued on the Closing Date.
Seller and Buyer agree to keep the terms of this Agreement and the Ancillary Agreements
confidential, except that (i) the parties may disclose such terms to the extent required by
applicable law (including to obtain the HSR Approval) or for financial reporting purposes, (ii) the
parties may disclose such terms to their respective accountants and other representatives as
necessary in connection with the ordinary conduct of their respective businesses, Buyer may
disclose such terms to affiliated investment funds or affiliated portfolio companies and Seller may
disclose such terms to Persons exploring a potential acquisition of (or financing related to) any
assets related to Seller’s Other Businesses, in each case, so long as such Persons to whom the
terms of this Agreement are disclosed agree to or are bound by contract to keep the terms of this
Agreement and the Ancillary Agreements confidential (to the extent this Agreement and/or any such
Ancillary Agreement is then confidential), and (iii) Seller and its Affiliates may disclose such
terms as required pursuant to the provisions of any agreement to which Seller or any of its
Affiliates is a party (including the Indentures).
8C. Confidentiality. Buyer acknowledges that all information provided to any of Buyer
and its Affiliates, financing sources, agents and representatives by Seller and its Affiliates,
agents and representatives is subject to the terms of a confidentiality agreement between or on
behalf of Seller and Buyer or one or more of their respective Affiliates or other beneficial owners
(the “Confidentiality Agreement”), which is attached to Section 8C of the Seller
Disclosure Letter and the terms of which are hereby incorporated herein by reference.
Notwithstanding anything to the contrary contained in the Confidentiality Agreement, the
obligations of Buyer and its Affiliates, financing sources, agents and representatives under the
Confidentiality
-44-
Agreement shall continue with respect to the information of Seller and its Affiliates with
respect to Seller’s Other Businesses.
8D. Notification. Prior to the Closing, each of Buyer and Seller shall promptly
notify the other parties hereto if such Person obtains knowledge that any of the representations
and warranties in this Agreement and the Seller Disclosure Letter are not true and correct in all
material respects, or if such Person obtains knowledge of any material errors in, or omissions
from, the Seller Disclosure Letter. Seller shall notify Buyer if, after the date of this Agreement
and prior to Closing, Seller and/or any of the Seller Subs incur any liabilities (other than
liabilities arising under the Medford Lease Termination Agreement) that would be required to be
reflected as long-term liabilities on a balance sheet of the Enterprise Group prepared in
accordance with GAAP as of the Closing Date.
8E. Consents. To the extent that any contract or permit is not by its terms
assignable or requires the consent of a third party or Governmental Entity in connection with the
transactions contemplated herein, the execution and delivery of this Agreement shall not constitute
a transfer, sale or assignment thereof, an attempted transfer, sale or assignment thereof, or an
agreement to effect such transfer, sale or assignment, if such transfer, sale or assignment,
attempted transfer, sale or assignment, or agreement would constitute a breach thereof. Buyer
acknowledges that, without hereby waiving the condition set forth in Section 2B(x) of this
Agreement, certain consents to the transfer, sale and assignment of certain Purchased Assets may
not be obtained by the parties prior to Closing and Seller and its Subsidiaries shall not be
obligated to transfer, sale or assignment (or cause to be transferred, sold or assigned) to Buyer
until such time as all consents of any Person or Governmental Authority necessary for the legal
transfer and/or assumption thereof are obtained or delivered. If the transfer, sale or assignment
of any Purchased Asset or any Assumed Liability intended to be transferred, sold or assigned
hereunder is not consummated at the Closing, then Seller and its Subsidiaries shall, unless
otherwise agreed in writing by Buyer, thereafter hold such Purchased Asset, Assumed Liability or
Other Used Asset for the use and benefit, insofar as commercially reasonably practicable and to the
extent it may lawfully do so, of Buyer (at Buyer’s expense). In addition, to the extent permitted
by law and to the extent otherwise permissible in light of the terms of such contract, agreement or
Permit, Seller and its Subsidiaries retaining such Purchased Assets and Assumed Liabilities shall
take such other actions in order to place Buyer, insofar as commercially reasonably practicable and
to the extent it may lawfully do so, in the same position as if such Purchased Asset, such Assumed
Liability or such Other Used Asset had been transferred, sold or assigned as contemplated hereby
and so that all the benefits and burdens relating to such Purchased Asset, such Assumed Liability
or such Other Used Asset, including possession, use, risk of loss, potential for gain, and
dominion, control and command over such asset, are to inure from and after the Closing Date to
Buyer. To the extent permitted by law and to the extent otherwise permissible in light of the
terms of such contract, agreement or Permit, Buyer shall be entitled to, and shall be responsible
for, the management and the benefits and burdens of any Purchased Asset, any Assumed Liability or
any Other Used Asset not yet transferred to or assumed by it as a result of a consent of another
Person or Governmental Authority having not yet been obtained. Each of the parties hereto agrees
that until an Assumed Liability is assumed by Buyer, Buyer shall indemnify and hold harmless Seller
and its Subsidiaries from such liabilities as though they were Assumed Liabilities. If any consent
necessary for the transfer, sale or assignment of a Purchased Asset, Assumed Liability or Other
-45-
Used Asset is obtained after the Closing, the transfer and assumption of the applicable
Purchased Asset, Assumed Liability and/or Other Used Asset shall be promptly effected in accordance
with the terms of this Agreement and/or the other applicable Ancillary Agreement, without the
payment of additional consideration. Nothing in this Section 8E shall require the transfer
to Buyer of any Other Used Asset to the extent such Other Used Asset was not required to be
transferred to Buyer pursuant to any other section of this Agreement and in no event shall Buyer
have any greater rights in respect of an Other Used Asset by application of this Section 8E
than the Enterprise Group had (relative to Seller’s Other Businesses) prior to Closing.
8F. Commercially Reasonable Efforts. Subject to the terms of this Agreement, each of
Buyer and Seller shall use its commercially reasonable efforts to cause the Closing to occur. The
“commercially reasonable efforts” of the parties shall not require any party to expend any material
amount of money to remedy any breach of any representation or warranty hereunder, to commence any
litigation or arbitration proceeding, to provide seller financing for the transactions contemplated
hereby or to expend any material amount of money obtain any consent or approval from a Governmental
Entity or other Person required for the transactions contemplated hereby; provided that
Buyer shall be required to pay amounts under the Fee Letter when required. The “commercially
reasonable efforts” shall include an obligation to consider in good faith any comments made by the
prime landlord to any of the properties subject to the Subleases and “Subleases” as used herein
shall be deemed amended to include any such comments that are mutually acceptable to Seller and
Buyer.
8G. Regulatory Act Compliance. If required, Buyer and Seller shall each file or cause
to be filed, promptly (but in any event on or prior to June 29, 2007) after the date of this
Agreement, any notifications or the like required to be filed under the HSR Act and other
anti-competition laws with respect to the transactions contemplated hereby. With respect to any
required filings under the HSR Act, each of Buyer and Seller shall seek early termination of the
waiting period under the HSR Act. Buyer and Seller shall use their respective commercially
reasonable efforts to respond to any requests for additional information made by any agencies and
to cause the waiting periods or other requirements under the HSR Act and all other applicable
anti-competition laws to terminate or expire at the earliest possible date and (subject to Seller’s
rights under Section 6A above) to resist in good faith, at each of their respective cost
and expense (including the institution or defense of legal proceedings), any assertion that the
transactions contemplated hereby constitute a violation of the antitrust laws, all to the end of
expediting consummation of the transactions contemplated hereby. Each of Buyer and Seller shall
consult with the other prior to any meetings, by telephone or in person, with the staff of the
Federal Trade Commission, the United States Department of Justice or any other regulatory agency,
and Buyer shall have the right to have a representative present at any such meeting. Buyer, on the
one hand, and Seller, on the other hand, shall bear the costs and expenses of their respective
filings; provided, however, that, upon the occurrence of the Closing, 50% of the aggregate
filing fees of such filings of Buyer and Seller shall be paid by Seller and the remaining 50% of
such filing fees shall be paid by Buyer.
8H. Financing Matters. Without limiting the generality of Buyer’s obligations under
Section 8F, Buyer shall use its commercially reasonable efforts to take, or cause to be
taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to
arrange the Financing on the terms and conditions described in the Commitment Letters,
-46-
including using commercially reasonable efforts to (i) maintain in effect the commitment for
the Financing set forth in the Commitment Letters, (ii) negotiate definitive agreements with
respect thereto on the terms and conditions contemplated by the Commitment Letters or, to the
extent the financing contemplated by the Commitment Letters is not available to Buyer, on other
terms not materially less favorable to Buyer and (iii) satisfy on a timely basis all conditions in
such Commitment Letters applicable to Buyer and its Affiliates that are within their control. In
the event that all conditions to the commitment of any counterparty to the Commitment Letters
providing such Financing (other than conditions relating to (a) the availability or funding of any
of the Equity Financing or the failure of any equity funding condition of similar effect in the
Debt Commitment Letter, (b) the failure to deliver documents by Buyer, any Equity Sponsor or any of
their respective Affiliates at the Closing, (c) the failure to pay costs, fees, expenses and other
compensation contemplated by the Commitment Letters or related letters (including the Fee Letter)
payable by Buyer (or other borrower thereunder), any Equity Sponsor or any of their respective
Affiliates to the lead arrangers, other lenders and administrative agents or any other Person, or
(d) a breach in any material respect by Buyer (or other borrower thereunder), any Equity Sponsor or
any of their Affiliates under the Commitment Letters or related letters) have been satisfied, Buyer
shall use its commercially reasonable efforts to cause the lenders and the other Persons providing
such Financing to fund when required hereunder the Financing required to consummate the
transactions contemplated hereby (including by taking enforcement action to cause such lenders and
the other Persons providing such Financing to fund such Financing). If any portion of the Debt
Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment
Letter for reasons other than (x) the occurrence of an Enterprise Xxxxx Xxxxxxxx Adverse Effect or
(y) the actual or reasonably anticipated failure of the conditions to the Closing set forth in
Section 2A to be satisfied or the actual or reasonably anticipated failure by Seller to
satisfy the conditions to Closing set forth in Section 2B, then Buyer shall use its
commercially reasonable efforts to arrange to obtain alternative financing in an amount at least
sufficient to consummate the transactions contemplated by this Agreement from alternative sources
on terms not materially less favorable to Buyer as promptly as practicable following the occurrence
of such event but no later than the Business Day immediately prior to the Termination Date (the
“Alternative Financing”). Buyer shall give Seller prompt notice of any material breach by
any party to the Commitment Letters of which Buyer becomes aware or any termination of the
commitments under the Commitment Letters. Buyer shall keep Seller informed on a reasonably current
basis of the status of its efforts to arrange the Financing.
8I. Tax Matters.
(i) Buyer and Seller shall cooperate fully, and shall cause their respective Affiliates
to cooperate fully, as and to the extent reasonably requested by any party, in connection
with the filing of Tax Returns and any audit, litigation or other proceeding (each a
“Tax Proceeding”) with respect to such Tax Returns. Such cooperation shall include
the retention and (upon a party’s request) the provision of records and information which
are reasonably relevant to any such Tax Proceeding and making employees available on a
mutually convenient basis to provide additional information and explanation of any material
provided hereunder.
-47-
(ii) Buyer shall file all Tax Returns required to be filed to report Transfer Taxes
imposed only on or with respect to the transactions contemplated by this Agreement, shall be
solely liable for and shall pay all such Transfer Taxes, and shall indemnify, defend and
hold harmless Seller and the other Equityholder Parties from and against any and all
liability for the payment of such Transfer Taxes and the filing of such Tax Returns.
(iii) The parties hereto agree that the Closing Purchase Price and the Assumed
Liabilities will be allocated to the Purchased Assets for all purposes (including Tax and
financial accounting purposes) in a manner consistent with the provisions of Section 1060 of
the Code and the regulations thereunder and the fair market values as reasonably determined
by Buyer 30 days prior to the Closing, and agreed to by Seller within 10 days after such
determination by Buyer, which agreement shall not be unreasonably withheld or delayed) and
shall thereafter be appropriately adjusted by agreement of the parties for any adjustments
to the Closing Purchase Price in accordance with this Agreement. In the event that the
Seller and Buyer cannot agree on an allocation within 15 days of Buyer providing such
allocation to Seller, the Seller and Buyer shall use the dispute resolution mechanism set
forth in Section 1D; provided, however, that the Accounting Firm
shall make its determination with respect to such dispute within 10 days, and in no event
more than 2 days, prior to the Closing. Seller and Buyer will file all Tax Returns
(including amended returns and claims for refund) and information reports in a manner
consistent with such values and allocation. The allocation referred to in this Section
8I(iii) is referred to herein as the “Allocation.”
8J. Employee Benefits Matters.
(i) Effective as of immediately prior to the Closing, Seller shall terminate the
employment of the employees listed on Section 8J of the Seller Disclosure Letter
(the “Transferred Employees”) and, at such time, Buyer or one or more of its
Affiliates shall offer employment to each such Transferred Employee on terms and conditions
substantially comparable in the aggregate to those existing at Seller and its Subsidiaries
as of immediately prior to the Closing.
(ii) Buyer hereby agrees that, for at least one (1) year following the Closing Date,
Buyer will provide (or cause to be provided) to the Transferred Employees compensation
(excluding any equity-based compensation) and employee benefits that are in the aggregate
substantially comparable to the compensation and employee benefits provided to the
Transferred Employees immediately prior to the Closing Date.
(iii) As soon as reasonably practicable following the Closing Date, Buyer shall
establish (or cause to be established by one of its Affiliates) a defined contribution plan
for the benefit of Transferred Employees who, as of the Closing Date, are participants (the
“Savings Plan Employees”) in Seller’s 401(k) plan (the “Savings Plan”).
Seller shall fully vest all Savings Plan Employees in their account balances under the
Savings Plan as of the Closing Date. If elected by Savings Plan Employees, Seller shall
cause to be paid from the Savings Plan the vested account balances of such Savings Plan
Employees in the form of cash, cash equivalents or other property mutually acceptable to
Seller and Buyer
-48-
(subject to, and as permitted by. the terms of the Savings Plan) and
Buyer’s 401(k) plan shall accept such distributions as rollover distributions subject to the
terms of Buyer’s 401(k) plan and the rules and regulations under Section 402(c) of the Code.
In no event shall such transfer take place until the furnishing by Seller to Buyer, and
Buyer to Seller, of a favorable determination letter from the Internal Revenue Service with
respect to the qualification of the Savings Plan and Buyer’s 401(k) plan, as applicable.
Seller and Buyer shall use commercially reasonable efforts to effect such transfer of
account balances in a timely manner.
(iv) This Section 8J shall be binding upon and inure solely to the benefit of
each of the parties to this Agreement, and nothing in this Section 8J, expressed or
implied, is intended to confer upon any other Person any rights or remedies of any nature
whatsoever under or by reason of this Section 8J.
8K. Facility Closings; Employee Layoffs. Buyer shall, and shall cause its Affiliates to,
comply with any and all applicable notice or filing requirements under the Worker Adjustment and
Retraining Notification Act of 1988, 29 U.S.C. § 2101, et seq., as amended, or any similar foreign,
state or local law, regulation or ordinance.
8L. Provision Respecting Representation of Seller. Each of the parties to this
Agreement hereby agrees, on its own behalf and on behalf of its directors, members, partners,
stockholders, officers, employees and Affiliates, that Seller’s in-house legal counsel and Xxxxxxxx
& Xxxxx LLP may serve as counsel to each and any of Seller and the Equityholder Parties
(individually and collectively, “Seller Group”), on the one hand, and the Enterprise Group,
on the other hand, in connection with the negotiation, preparation, execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby, and that, following
consummation of the transactions contemplated hereby, each of Seller’s in-house legal counsel and
Xxxxxxxx & Xxxxx LLP (or any successor) may serve as counsel to the Seller Group or any director,
member, partner, stockholder, officer, employee or Affiliate of Seller Group, in connection with
any litigation, claim or obligation arising out of or relating to this Agreement or the
transactions contemplated by this Agreement notwithstanding such representation or any continued
representation of the Enterprise Group, and each of the parties hereto hereby consents thereto and
waives any conflict of interest arising therefrom, and each of such parties shall cause any
Affiliate thereof to consent to waive any conflict of interest arising from such representation.
8M.
Post-Closing Access. For a period of two (2) years following the Closing, Seller shall grant or cause to be granted
to Buyer and its authorized representatives (including accountants, consultants and attorneys)
reasonable access, during normal business hours and upon reasonable notice, to the personnel,
properties, books and records (including, subject to execution and delivery of a customary hold
harmless letter in favor of such accountants, the records of independent certified public
accountants) of Seller and its Subsidiaries solely to the extent related to the operations of the
Enterprise Group at and prior to Closing; provided that (i) such access does not
unreasonably interfere with the normal operations of Seller or any of its Affiliates, (ii) such
access shall occur in such a manner as Seller reasonably determines to be appropriate to protect
the confidentiality of the information sought and compliance with applicable securities laws, and
(iii) nothing herein shall require Seller or any of its Subsidiaries to provide access to, or to
disclose any information to, Buyer if such access or disclosure would be
-49-
in violation of applicable
laws or regulations of any Governmental Entity or, during the period of any dispute between the
parties with respect to this Agreement or any of the Ancillary Agreements, the disclosure of any
information that should in the course of such dispute be subject to the discovery process.
8N. Expenses. Each of Buyer and Seller shall be solely responsible for payment of any
fees and expenses incurred by it or its Affiliates in connection with the transactions contemplated
hereby or otherwise required by applicable law.
8O. Further Assurances. At any time after the Closing Date, Buyer, Seller and Seller
Subs shall promptly execute, acknowledge, and deliver any other assurances or documents reasonably
requested by Buyer or Seller, as the case may be, and necessary for them or it to satisfy their or
its respective obligations hereunder or obtain the benefits contemplated hereby and to confirm to
third parties the transfer of the Purchased Assets and the Assumed Liabilities provided for herein.
8P. Use of Certain Names.
(i) Within sixty (60) days following the Closing (in the case of all Seller Marks not
licensed pursuant to the License Agreement) or following the expiration of license (in the
case of Seller Marks licensed pursuant to the License Agreement) to use such xxxx, name or
similar Intellectual Property Right pursuant to the License Agreement, except (in the case
of “Ziff Xxxxx Enterprise”) to the extent specifically permitted to be used pursuant to the
License Agreement, Buyer shall not, and shall cause its Subsidiaries not to, use any
trademark, trade name, company name, service xxxx or similar Intellectual Property Rights,
including the names “Ziff Xxxxx”, “Ziff Xxxxx Media”, “Ziff Xxxxx Enterprise”, “Ziff Xxxxx
Publishing” or any other variation of or derivation of “Ziff Xxxxx” (collectively, the
“Seller Marks”), including eliminating the Seller Marks from the Purchased Assets
and disposing of any unused stationery, business cards, literature and all other goods and
material of whatever kind of the Enterprise Group bearing the Seller Marks; and thereafter,
Buyer shall not, and shall cause its Affiliates not to, use the Seller Marks or any logos,
trademarks, trade names, company names, service marks or other Intellectual Property Rights belonging to Seller or any
of its Affiliates and Buyer acknowledges that it and its Affiliates have no rights
whatsoever to use the Seller Marks or such Intellectual Property Rights, except as expressly
permitted pursuant to the License Agreement. From and after the Closing Date, Seller shall
not take any action or fail to take any action which would violate the License Agreement or
cause any of the Licensed Marks to become subject to any Lien or claim by a third party
(other than Permitted Encumbrances and Liens to secure indebtedness for borrowed money).
Neither Seller nor any of the Seller Subs shall grant any license or similar rights to any
third party with respect to any Licensed Marks that causes, or would reasonably be expected
to cause, Seller or any Seller Sub to breach the license granted to Buyer for the Licensed
Marks in the License Agreement.
(ii) Buyer acknowledges and agrees that certain Seller Marks, other Intellectual
Property Rights of Seller and its Subsidiaries and certain Enterprise Group Intellectual
Property (or derivations thereof) may be subject to the terms the ZD License
-50-
Agreements. Buyer agrees that, to the extent relevant, it shall, and shall cause its Affiliates to,
comply with the terms of the ZD License Agreements.
8Q. Litigation Support. In the event and for so long as any party or any
of its Affiliates actively is contesting or defending against any action, suit, audit,
proceeding, hearing, investigation, charge, complaint, claim, or demand brought by an
outside third party in connection with (a) any transaction contemplated by this Agreement or
(b) any fact, situation, circumstance, status, condition, activity, practice, plan,
occurrence, event, incident, action, failure to act, or transaction on or prior to the
Closing Date involving Seller, any of its Subsidiaries or the Enterprise Group, the other
party will use commercially reasonable efforts to cooperate with the contesting or defending
party or such Affiliate and its counsel in the contest or defense, make available its
personnel, and provide such testimony and access to its books and records as shall be
necessary in connection with the contest or defense, all at the sole cost and expense of the
contesting or defending party or such Affiliate (unless the contesting or defending party or
such Affiliate is entitled to indemnification therefor pursuant to this Agreement).
8R. Mutual Non-Solicitation Period.
(i) During the two (2) -year period beginning on the Closing Date, Seller agrees that
it will not (and will cause its Subsidiaries not to), directly or indirectly, (a) induce or
attempt to induce any Transferred Employee to leave the employ of Buyer or its Affiliates,
(b) in any way interfere with the relationship between Buyer and its Affiliates and any
Transferred Employee, or (c) employ, or otherwise engage as an independent contractor, any
executive employee of Buyer or its Affiliates; provided that Seller and its
Subsidiaries shall not be restricted (x) in any general solicitation for employees
(including through the use of employment agencies) not specifically directed at the
Transferred Employees or having discussions with any Transferred Employees who contact
Seller or any of its Subsidiaries to initiate employment discussions, (y) in hiring any
person who responds to any such general solicitation or any person who contacts
Seller or any of its Subsidiaries to initiate employment discussions, or (z) from
inducing or hiring any person that terminated his or her employment with Buyer or its
Affiliates at least six (6) months prior to the date of such solicitation or hiring.
(ii) During the two (2) -year period beginning on the Closing Date, Buyer agrees that
it will not (and will cause its Subsidiaries not to), directly or indirectly, (a) induce or
attempt to induce any employee of Seller or any of its Affiliates (other than Transferred
Employees and other than employees set forth on Section 8R(ii) of the Seller
Disclosure Letter (but with respect to each employee set forth on Section 8R(ii) of
the Seller Disclosure Letter not before expiration of the period after Closing set forth
opposite such employee’s name on Section 8R(ii) of the Seller Disclosure Letter) to
leave the employ of Seller or its Affiliates, (b) in any way interfere with the relationship
between Seller and its Affiliates and any such employee, or (c) employ, or otherwise engage
as an independent contractor, any executive employee of Seller or its Affiliates;
provided that Buyer and its Subsidiaries shall not be restricted (x) in any general
solicitation for employees (including through the use of employment agencies) not
specifically directed at employees of Seller or its Affiliates or having discussions with
-51-
any employees of Seller or its Affiliates who contact Seller or any of its Subsidiaries to
initiate discussions, (y) in hiring any person who responds to any such general solicitation
or any person who contacts Buyer or any of its Subsidiaries to initiate employment
discussions, or (z) from inducing or hiring any person that terminated his or her employment
with Seller or its Affiliates at least six (6) months prior to the date of such solicitation
or hiring; provided further that, Seller may, with the written consent of its Chief
Executive Officer, General Counsel or Chief Financial Officer, exclude any employee of
Seller or any of the Seller Subs, on a case-by-case basis, from the restrictions set forth
in this Section 8R(ii).
8S. Post-Closing Record Retention and Access. Buyer acknowledges that certain books
and records and other materials (including Tax and financial data) that relate to the Enterprise
Group or constitute Purchased Assets may contain information relating to, or which may be
applicable to or used in connection with, Seller’s Other Businesses, and that Seller may retain
copies and shall have the right to access, any such books and records and other materials to the
extent relating to, or which may be applicable to or used in connection with, Seller’s Other
Businesses and for such other matters as are contemplated by this Agreement. Without limiting the
generality of the foregoing, from and after the Closing, Buyer shall provide Seller and its
Affiliates and their authorized representatives with reasonable access (for the purpose of
examining and copying), during normal business hours, to such books and records and other materials
included in the Purchased Assets relating to periods prior to the Closing Date in connection with
general business purposes, whether or not relating to or arising out of this Agreement or the
transactions contemplated hereby (including the preparation of Tax Returns, amended Tax Returns or
claim for refund (and any materials necessary for the preparation of any of the foregoing), and
financial statements for periods ending on or prior to the Closing Date, the management and
handling of any audit, investigation, litigation or other proceeding, whether such audit,
investigation, litigation or other proceeding is a matter with respect to which indemnification may
be sought hereunder), to comply with the rules and regulations of the Internal Revenue Service, the
SEC or any other
Governmental Entity or otherwise relating to Seller’s Other Businesses. Buyer’s obligations
with respect to such books and records shall include maintaining, for at least the retention period
specified in this Section 8S, computer systems permitting access to any such books and
records which are stored in electronic form in a fashion which is not less efficient than current
access methods. Unless otherwise consented to in writing by Seller, Buyer shall not, for a period
of seven (7) years following the Closing Date, destroy, alter or otherwise dispose of any books and
records and other materials relating to the Enterprise Group, or any portions thereof, relating to
periods prior to the Closing Date without first offering to surrender to Seller such books and
records and materials or such portions thereof.
8T. Shared Contracts; Reinvestment Credits; Seller Benefits.
(i) Buyer acknowledges that certain contracts, understandings or agreements to which
Seller or one or more of its Subsidiaries is party contain terms that are relevant to, are
for the benefit of and/or impose obligations on Seller and its Subsidiaries with respect to
both the Enterprise Group and one or more of Seller’s Other Businesses (such contracts,
understandings and arrangements being collectively referred to herein as “Shared
Contracts”). Buyer acknowledges and agrees that such Shared Contracts shall be
addressed by the parties as set forth in this Section 8T.
-52-
(ii) Section 8T(ii) of the Seller Disclosure Letter sets forth certain Shared
Contracts that are being assigned to Buyer as part of the Purchased Assets. From and after
the Closing, Buyer shall at all times to perform the obligations of Seller and its
Subsidiaries under such Shared Contracts. Other than as set forth in Section
7F(ii), from and after the Closing, Seller and its Subsidiaries shall cease to have any
rights or obligations under the Shared Contracts set forth on Section 8T(ii) of the
Seller Disclosure Letter, and Seller hereby acknowledges and agrees (on its behalf and
behalf of its Subsidiaries) that neither it nor any of its Subsidiaries or its or their
respective Affiliates shall have any rights or obligations under any such Shared Contracts.
(iii) Section 8T(iii) of the Seller Disclosure Letter sets forth certain Shared
Contracts under which, except as set forth in the Ancillary Agreements, Buyer and the
Enterprise Group shall cease to have any rights or obligations from and after the Closing.
Seller acknowledges and agrees that, from and after the Closing, it and its Subsidiaries
shall be solely responsible for performance of the Shared Contracts set forth on Section
8T(iii) of the Seller Disclosure Letter and Buyer acknowledges and agrees that neither
it nor any of its Affiliates shall have any rights or obligations under any of such Shared
Contracts.
(iv) Section 8T(iv) of the Seller Disclosure Letter sets forth certain Shared
Contracts under which both the Enterprise Group and Seller’s Other Businesses perform
obligations, have liabilities and/or receive benefits (the “Ongoing Shared
Contracts”). With respect to each Ongoing Shared Contract, from and after the date
hereof until expiration or termination of such Ongoing Shared Contract, each of Seller and
Buyer shall, at the request of the other, cooperate with each other to schedule discussions
and participate in negotiations with the counterparty to, or obligor or obligee under, each
such Ongoing Shared Contract regarding a split of such Ongoing Shared Contract that, as
nearly as practicable, approximates the rights and obligations of the Enterprise Group
and Seller’s Other Businesses with respect to such Ongoing Shared Contract during the term
of the Ongoing Shared Contract prior to such split; provided that in no event shall
either Seller or Buyer be obligated to execute, deliver or (except to the extent executed
and delivered by such Person) perform under, or be obligated to cause another Person to
execute, deliver or (except to the extent executed and delivered by such Person) perform
under, such split contract without such party’s prior written consent. For the avoidance of
doubt, in no event shall the split of, or any similar action with respect to, any Ongoing
Shared Contract be a condition to the obligations of any party to this Agreement.
(v) To the extent that a split contract with respect to such Ongoing Shared Contract is
not obtained prior to Closing, then from and after the Closing until such Ongoing Shared
Contract expires or is terminated, to the extent permitted by law and, unless waived by
Seller, to the extent otherwise permissible in light of the terms of such Ongoing Shared
Contract, then Seller shall cause Seller’s Other Businesses and Buyer shall perform
obligations under each such Ongoing Shared Contract and Seller and Buyer shall cooperate
with each other and use commercially reasonable efforts such that Buyer shall perform the
obligations under, and receive the benefits of, such Ongoing Shared Contracts, in each case
in the manner set forth on Section 8T(v) of the Seller Disclosure Letter or
otherwise in a manner that as nearly as practicable approximates the obligations
-53-
and benefits of the Enterprise Group and Seller’s Other Businesses with respect to such Ongoing
Shared Contract during the term of the Ongoing Shared Contract prior to Closing. In the
event that, after the Closing, Buyer performs its obligations under an Ongoing Shared
Contract that has not been split and Seller or one of its Subsidiaries receives benefits
under such Ongoing Shared Contract that are attributable to the operations of the Enterprise
Group after the Closing, Seller shall pay over such benefits to Buyer. In the event that,
after the Closing, Seller performs its obligations under an Ongoing Shared Contract that has
not been split and Buyer or one of its Subsidiaries receives benefits that are attributable
to the operation of one of Seller’s Other Businesses after the Closing, Buyer shall pay over
such benefits to Seller. Each of Buyer and Seller shall indemnify the other party (and the
Buyer Parties and Equityholder Parties, as applicable) for Losses such party (or the Buyer
Parties or Equityholder Parties, as applicable) suffer as a result of any breach of any
Ongoing Shared Contract by such party.
(vi) Without limiting the generality of Section 8T(v), Buyer and Seller
acknowledge that under the Ongoing Shared Contracts listed on Section 8T(vi) of the
Seller Disclosure Letter, counterparties or beneficiaries to such Ongoing Shared Contracts
have the right to apply certain credits (“Reinvestment Credits”) obtained pursuant
to the terms of such Ongoing Shared Contracts against assets of Seller and such Reinvestment
Credits may be applied against assets of any division of Seller regardless of how such
Reinvestment Credit is generated. Until expiration or termination of such Ongoing Shared
Contracts, each of Buyer (with respect to the Enterprise Group) and Seller (with respect to
the Seller’s Other Businesses) shall honor any Reinvestment Credit that the counterparty or
beneficiary to such Ongoing Shared Contract seeks to apply against assets of the Enterprise
Group or the Seller’s Other Businesses; provided that, prior to applying any
Reinvestment Credits, Seller and Buyer shall consult with each other to confirm the remaining balance of Reinvestment Credits to ensure that such
customer is not applying more Reinvestment Credits than to which such customer is entitled.
Within 30 days after the conclusion of each calendar year until all such Ongoing Shared
Contracts have been terminated or expired, the parties shall meet and cooperate in good
faith to determine the amount of Reinvestment Credits that have been generated pursuant to
the Ongoing Shared Contracts during such calendar year and that have been applied against
assets of Seller and Buyer, respectively, during such calendar year. To the extent that for
such calendar year being reviewed, the amount of Reinvestment Credits applied against assets
of Seller’s Other Businesses (whether or nor owned by Seller) exceeds Seller’s Customer
Allocable Portion of such Reinvestment Credits, Buyer shall pay to Seller an amount equal to
such excess, together with interest at the Applicable Rate from the last day of the calendar
year being reviewed. To the extent that for such calendar year being reviewed, the amount
of Reinvestment Credits applied against assets of the Enterprise Group exceeds Buyer’s
Customer Allocable Portion of such Reinvestment Credits, Seller shall pay to Buyer an amount
equal to such excess, together with interest at the Applicable Rate from the last day of the
calendar year being reviewed.
(vii) Buyer and Seller agree that, from and after the Closing, such party shall not,
and shall cause its Affiliates not to, amend, waive, settle or compromise any material
-54-
matter or claim related to any Ongoing Shared Contract (including with respect to
Reinvestment Credits) without the prior written consent of the other. For all purposes of
this Section 8T, upon an effective split of an Ongoing Shared Contract that each of
Buyer and Seller has agreed to, such Ongoing Shared Contract shall be deemed terminated for
purposes of this Xxxxxxx 0X.
0X. Use of Proceeds. Seller covenants and agrees with Buyer that it and its
Subsidiaries shall not violate the Indentures or any other agreement to which any of them is party
with respect to their use of amounts received under this Agreement.
8V. ZIPS License. Seller hereby grants to Buyer a perpetual, non-exclusive license to
(i) use and reproduce, solely for Buyer’s internal business use, a copy of the software, including
the source code thereto, of Seller and its Subsidiaries known as “Ziff Xxxxx Internet Publishing
System” as such software exists as of the Closing Date and as delivered to Buyer and (ii) create
derivatives of such software solely for Buyer’s internal business use. Buyer acknowledges and
agrees that (a) except for such license, Buyer shall have no right, title or interest to the “Ziff
Xxxxx Internet Publishing System” software and (b) in no event shall Seller or any of its
Subsidiaries have any obligation to provide any update to such source code or such software or to
provide any support for, repair of, or maintenance of such software or source code. The parties
hereto hereby acknowledge and agree that the license granted hereunder is a license for
intellectual property under Section 365(n) of the United States Bankruptcy Code (11 U.S.C. §
365(n)).
8W. Rights Under Certain Agreements. Notwithstanding the assignment, transfer and
conveyance as part of the Purchased Assets of any contract, agreement or arrangement containing
non-competition, non-solicitation, confidentiality and/or work product assignment provisions or
similar provisions applicable to a third party (the “Protective
Provisions”) for the benefit of Seller and/or its Subsidiaries, Seller hereby retains
the right to enforce each and every Protective Provision of each such contract, agreement or
arrangement against such third party, except to the extent such Protective Provision relates to the
Enterprise Group. In furtherance of the foregoing, Buyer shall, at the written request of Seller
and at Seller’s cost and expense, use its commercially reasonable efforts to (a) cooperate with
Seller in its pursuit and prosecution of any claim to enforce any such Protective Provision or any
other rights or remedies available under such contract, agreement or arrangement against such third
party (including specific performance and/or immediate injunctive or other equitable relief), (b)
act in the role of Seller’s agent with respect to any claim under such contract, agreement or
arrangement to enforce any such Protective Provision or any other rights or remedies available
under such contract, agreement or arrangement (including specific performance and/or immediate
injunctive or other equitable relief) and pursue and prosecute any claim to enforce any such
Protective Provision or any other rights or remedies available under such contract, agreement or
arrangement against such third party (including specific performance and/or immediate injunctive or
other equitable relief), and (c) take such other commercially reasonable actions as are requested
by Seller in connection therewith to pursue and prosecute any claim to enforce any such Protective
Provision or any other rights or remedies available under such contract, agreement or arrangement
against such third party on behalf of Seller (including specific performance and/or immediate
injunctive or other equitable relief); provided that (i) Seller shall indemnify and hold
harmless Buyer from any Losses to the extent arising in
-55-
connection from any third-party claim arising from actions requested by Seller and taken by Buyer pursuant thereto in compliance with
subsections (a), (b) or (c) of this Section 8W, (ii) Buyer shall not be required to comply
with subsections (a), (b) or (c) of this Section 8W (x) in claims against third parties
that are customers of Buyer or any of its Affiliates or (y) to the extent that such Protective
Provision relates to the Enterprise Group.
8X. License to Seller of Certain Software. Buyer hereby grants to Seller a perpetual,
irrevocable, non-exclusive, royalty-free, transferable license, with the right to sublicense, to
(i) use and reproduce, solely for use in connection with the internal business operations of Seller
and its Subsidiaries, a copy of the software, including the source code thereto, data, database and
documentation thereof, of Buyer and its Subsidiaries known as the “Marketing Database” as such
Marketing Database exists as of the Closing Date and upon expiration or termination of the TSA, and
(ii) create derivatives of, perform and otherwise use such Marketing Database solely for use in
connection with the internal business operations of Seller and its Subsidiaries; provided
that the license granted hereunder shall be transferable only in connection with a assignment of
rights hereunder by Seller that is permitted in accordance with Section 9C. Without
limiting the right of transfer of the license permitted hereunder, in no event shall Seller and its
Subsidiaries sell the software licensed hereunder to a third party. The parties hereto hereby
acknowledge and agree that the license granted hereunder is a license for intellectual property
under Section 365(n) of the United States Bankruptcy Code (11 U.S.C. § 365(n)). From and after the
Closing Date, Buyer hereby grants to Seller the right from time to time until termination of the
TSA to make a copy from Buyer, and upon expiration of the TSA Buyer shall deliver to Seller a copy,
of the “Marketing Database” software (as such software exists on the date of copying or the date of
delivery, as applicable), including the source code thereto, data, database and documentation
therefor (including the right to copy all records related to Seller’s Other Businesses)) and,
subject to its right to transfer the license in accordance with
this Section 8X, Seller hereby covenants and agrees to use such copy solely for the
internal business use of Seller and its Subsidiaries.
ARTICLE 9
MISCELLANEOUS
MISCELLANEOUS
9A. Amendment and Waiver. This Agreement may be amended or in whole or in part only
by a duly authorized agreement executed by the parties hereto which makes reference to this
Agreement. Any party may waive any rights under this Agreement, but only in a written instrument
executed by such party. No course of dealing between or among any Persons having any interest in
this Agreement shall be deemed effective to modify, amend or discharge any part of this Agreement
or any rights or obligations of any person under or by reason of this Agreement.
9B. Notices. All notices, demands and other communications to be given or delivered
under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to
have been given (i) if personally delivered, on the date of delivery, (ii) if delivered by express
courier service of national standing (with charges prepaid), on the Business Day following the date
of delivery to such courier service, (iii) if deposited in the United States mail, first-class
postage prepaid, on the fifth Business Day following the date of such deposit, or (iv) if delivered
by telecopy or e-mail, upon confirmation of successful transmission, (x) on the date of
-56-
such transmission, if such transmission is completed at or prior to 5:00 p.m., local time of the
recipient party, on the date of such transmission, and (y) on the next day following the date of
transmission, if such transmission is completed after 5:00 p.m., local time of the recipient party,
on the date of such transmission. All notices, demands and other communications hereunder shall be
delivered as set forth below, or pursuant to such other instructions as may be designated in
writing by the party to receive such notice:
Notices to Seller:
Ziff Xxxxx Media Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
Telephone: 000-000-0000
Telecopy: 000-000-0000
e-mail: xxxxxxx_xxxxxx@xxxxxxxxx.xxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
Telephone: 000-000-0000
Telecopy: 000-000-0000
e-mail: xxxxxxx_xxxxxx@xxxxxxxxx.xxx
with a copy to:
Xxxxxxxx & Xxxxx LLP
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, P.C.
Xxxxxxx X. Xxxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
e-mail: xxxxxxxxx@xxxxxxxx.xxx
xxxxxxxxx@xxxxxxxx.xxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, P.C.
Xxxxxxx X. Xxxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
e-mail: xxxxxxxxx@xxxxxxxx.xxx
xxxxxxxxx@xxxxxxxx.xxx
Notices to Buyer:
Enterprise Media Group, Inc.
c/o Insight Venture Management, L.L.C.
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx Xxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
e-mail: xxxxxx@xxxxxxxxxxxxxxx.xxx
c/o Insight Venture Management, L.L.C.
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx Xxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
e-mail: xxxxxx@xxxxxxxxxxxxxxx.xxx
with a copy to:
O’Melveny & Xxxxx LLP
Times Square Tower
0 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Nissan, Esq.
Times Square Tower
0 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Nissan, Esq.
Telephone: 000-000-0000
Telecopy: 000-000-0000
e-mail: xxxxxxx@xxx.xxx
Telecopy: 000-000-0000
e-mail: xxxxxxx@xxx.xxx
-57-
9C. Assignment. This Agreement and all of the provisions hereof shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs, successors and permitted
assigns; provided that neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned (including by operation of law) by Buyer without the prior
written consent of Seller, except that (i) at or after the Closing, Buyer may assign its rights and
interests under this Agreement as a security for any obligations arising in connection with the
Debt Financing contemplated by this Agreement, (ii) Buyer may assign its rights and interests under
this Agreement to an Affiliate and (iii) after the Closing, Buyer may assign to a purchaser of all
or substantially all of the assets of Buyer (however structured, including through the direct or
indirect sale of equity securities or assets of Buyer), in each case without the prior written
consent of the other parties (provided that (x) Buyer shall provide written notice thereof to the
other parties, (y) in the case of an assignment pursuant to clause (ii), Buyer shall remain liable
for the obligations of the assignee so assigned and (z) in the case of an assignment pursuant to
clause (iii), (1) the purchaser assumes all of the obligations of Buyer under this Agreement, (2)
the agreement by which any obligations of Buyer hereunder are assumed are by such purchaser in a
written instrument that includes Seller as a third-party beneficiary thereof with respect to the
obligations under this Agreement and (3) such assignment shall not relieve Buyer of any of its
duties or obligations hereunder). Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned (including by operation of law) by Seller without the prior
written consent of Buyer; provided that, notwithstanding anything herein to the contrary,
Buyer acknowledges and agrees that Seller is contemplating the sale of additional assets of Seller
and its Subsidiaries (however structured, including through the direct or indirect sale of equity
securities or assets of Seller or one or more Subsidiaries) and, in connection therewith, may from
time to time assign, without the consent of any other party hereto, all or any portion of its
rights, interests and/or obligations under this Agreement to a purchaser of such assets (however
structured, including through the direct or indirect sale of equity securities or assets of Seller
or one or more Subsidiaries); provided that (a) not more than three purchasers assume all
of the obligations of Seller and the Seller Subs under this Agreement, (b) the agreement(s) by
which any obligations of Seller and the Seller Subs hereunder are assumed are by such purchaser in
a written instrument that includes Buyer as a third-party beneficiary thereof with respect to the
obligations under this Agreement and (c) any such assignment shall not relieve Seller or the Seller
Subs of any of their duties or obligations hereunder. Furthermore, it is also acknowledged and
agreed that, without the prior written consent of any party hereto, (A) Seller and the Seller Subs
may assign their rights under this Agreement as collateral security to secure debt for borrowed
money to any Person and (B) as long as Seller and the Seller Subs remain liable for the obligations
so assigned, Seller and the Seller Subs may assign all or any portion of their rights or
obligations under this Agreement to an Affiliate.
9D. Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be prohibited by or invalid under applicable law, such provision
-58-
shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the
remainder of such provisions or the remaining provisions of this Agreement.
9E. No Strict Construction. Notwithstanding the fact that this Agreement has been
drafted or prepared by one of the parties, each of Buyer and Seller confirm that they and their
respective counsel have reviewed, negotiated and adopted this Agreement as the joint agreement and
understanding of the parties hereto and the language used in this Agreement shall be deemed to be
the language chosen by the parties hereto to express their mutual intent, and no rule of strict
construction shall be applied against any Person.
9F. Captions. The captions used in this Agreement and descriptions of the Seller
Disclosure Letter are for convenience of reference only and do not constitute a part of this
Agreement and shall not be deemed to limit, characterize or in any way affect any provision of this
Agreement, and all provisions of this Agreement shall be enforced and construed as if no caption or
description of the Seller Disclosure Letter had been used in this Agreement.
9G. Complete Agreement. Except for the Confidentiality Agreement, this Agreement and
the Ancillary Agreements contain the complete agreement between the parties and supersede any prior
understandings, agreements or representations by or among the parties, written or oral, which may
have related to the subject matter hereof in any way; provided that in the event there is
any conflict between the terms of the Confidentiality Agreement and the terms of this Agreement,
the terms of this Agreement shall govern and control.
9H. Seller Disclosure Letter. The disclosures in each section of the Seller
Disclosure Letter are to be taken as relating to the representations and warranties of Seller set
forth in the corresponding section of this Agreement and, solely to the extent that it is readily
apparent on the face of the disclosure that such item would relate to the representations and
warranties in question and the matters covered thereby, in each other section of this Agreement.
The inclusion of information in the Seller Disclosure Letter shall not be construed as or
constitute an admission or agreement that such information is material to any of Seller or its
Subsidiaries. In addition, matters reflected in the Seller Disclosure Letter are not necessarily
limited to matters required by this Agreement to be reflected in the Seller Disclosure Letter.
Such additional matters are set forth for informational purposes only and do not necessarily
include other matters of a similar nature. Neither the specifications of any dollar amount in any
representation, warranty or covenant contained in this Agreement nor the inclusion of any specific
item in the Seller Disclosure Letter is intended to imply that such amount, or higher or lower
amounts, or the item so included or other items, are or are not material, and no party shall use
the fact of the setting forth of any such amount or the inclusion of any such item in any dispute
or controversy between the parties as to whether any obligation, item or matter not described
herein or included in the Seller Disclosure Letter is or is not material for purposes of this
Agreement. Further, neither the specification of any item or matter in any representation,
warranty or covenant contained in this Agreement nor the inclusion of any specific item in the
Seller Disclosure Letter is intended to imply that such item or matter, or other items or matters,
are or are not in the ordinary course of business, and no party shall use the fact of setting forth
or the inclusion of any such items or matter in any dispute or controversy between the parties as
to whether any obligation, item or matter not described herein or included in the Seller Disclosure
Letter is or is not in the ordinary course of business for purposes of this Agreement. Prior to
-59-
the Closing, Seller shall have the right from time to time to supplement, modify or update the
Seller Disclosure Letter with respect to representations and warranties of Seller made herein to
reflect events occurring following the date of this Agreement and prior to the date of such written
notice. Any such supplements, modifications and updates shall not be taken into account in
determining whether the condition set forth in Section 2B(i) is satisfied, but Seller shall
not be deemed to be in breach of any representation or warranty hereunder with respect to the
information disclosed in accordance with the immediately foregoing sentence in any such supplement,
modification or update. From and after the Closing, references to the Seller Disclosure Letter
shall be references to the Seller Disclosure Letter as so supplemented, modified and/or updated in
accordance with this Section 9H.
9I.
No Additional Representations; Disclaimer.
(i) Buyer acknowledges and agrees that neither Seller nor any of its Affiliates or
representatives, nor any other Person acting on behalf of Seller or any of its Affiliates or
representatives has made any representation or warranty, express or implied, as to the
accuracy or completeness of any information regarding Seller or any of its Subsidiaries or
their respective businesses or assets (including the Enterprise Group), except as expressly
set forth in this Agreement or the Ancillary Agreement or as and to the extent required by
this Agreement to be set forth in the Seller Disclosure Letter. Buyer further agrees that,
except for a claim for fraud, none of Seller nor any of its Affiliates or representatives
will have or be subject to any liability to Buyer or any other Person resulting from the
distribution to Buyer, or Buyer’s use of, any such information, including any Confidential
Information Memorandum distributed by Evercore Partners relating to the Enterprise Group (an
“Information Memorandum”) and any information, document or material made available
to Buyer or its Affiliates or representatives in certain “data rooms” and online “data
sites,” management presentations or any other form in expectation of the transactions
contemplated by this Agreement.
(ii) Except for the representations and warranties of Seller expressly set forth in
this Agreement and the Ancillary Agreements, the Purchased Assets are being acquired by
Buyer, AS IS WITHOUT ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR INTENDED USE OR
OTHER EXPRESSED OR IMPLIED WARRANTY. Buyer acknowledges and agrees that it is consummating
the transactions contemplated by this Agreement without any representation or warranty,
express or implied, by Seller or any of its Affiliates or representatives except for the
representations and warranties of Seller expressly set forth in this Agreement and the
Ancillary Agreements.
(iii) In connection with Buyer’s investigation of the Enterprise Group, Buyer has
received from or on behalf of Seller and the Equityholder Parties certain projections,
including projected statements of operating revenues and income from operations of the
Enterprise Group and for subsequent fiscal years and certain business plan information of
the Enterprise Group. Buyer acknowledges that there are uncertainties inherent in
attempting to make such estimates, projections and other forecasts, that Buyer is familiar
with such uncertainties, that Buyer is taking full responsibility for making its own
evaluation of the adequacy and accuracy of all estimates, projections and other forecasts
-60-
so furnished to it (including the reasonableness of the assumptions underlying such estimates,
projections and forecasts), and that Buyer shall have no claim against Seller or any other
Person with respect thereto. Accordingly, Seller makes no representations or warranties
whatsoever with respect to such estimates, projections and other forecasts and plans
(including the reasonableness of the assumptions underlying such estimates, projections and
forecasts).
9J.
Counterparts.
This Agreement may be executed in multiple counterparts (including by means of telecopied
or electronically transmitted signature pages), all of which taken together shall constitute one
and the same Agreement.
9K. Governing Law. The internal law (and not the law of conflicts) of the State of
New York shall govern all questions concerning the construction, validity and interpretation of
this Agreement and the performance of the obligations imposed by this Agreement.
9L. Payments under Agreement. Each party agrees that all amounts required to be paid
hereunder shall be paid in United States currency and, except as otherwise expressly set forth in
this Agreement, without discount, rebate or reduction and subject to no counterclaim or offset
(other than withholding tax obligations required to be withheld by law), on the dates specified
herein (with time being of the essence). Notwithstanding anything herein to the contrary, each
party shall be entitled to reduce any payment required to be made to the other for any Tax
withholding required by law and any amount so withheld shall be deemed paid to the intended
recipient and the withholding amount then remitted by such intended recipient and delivered to the
applicable Tax authorities; provided that the party so withholding shall be liable to the
intended recipient for any amounts wrongly withheld.
9M. Third-Party Beneficiaries and Obligations. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective successors and assigns.
Nothing in this Agreement, express or implied, is intended to or shall confer upon any Person other
than the parties hereto or their respective successors and permitted assigns, any rights, remedies
or liabilities under or by reason of this Agreement, other than Article 7 and this
Section 9M (each of which is intended to be for the benefit of the Persons covered thereby
and may be enforced by such Persons).
9N. Waiver of Bulk Sales Laws. Each of the parties acknowledges and agrees that
neither Seller nor any of its Subsidiaries will comply with, and hereby waives compliance by Seller
and its Subsidiaries with, any “bulk sales”, “bulk transfer” or similar law relating to the
transactions contemplated hereby.
9O. CONSENT TO JURISDICTION. SUBJECT TO THE PROVISIONS OF SECTION 1D (WHICH
SHALL GOVERN ANY DISPUTE ARISING THEREUNDER), SECTION 1E (WHICH SHALL GOVERN ANY DISPUTE
ARISING THEREUNDER) AND SECTION 9Q (WHICH SHALL GOVERN ANY DISPUTE NOT SEEKING INJUNCTIVE
RELIEF), THE PARTIES AGREE THAT JURISDICTION AND VENUE IN ANY SUIT, ACTION OR PROCEEDING BROUGHT BY
ANY PARTY PURSUANT TO THIS AGREEMENT SHALL PROPERLY AND EXCLUSIVELY LIE IN ANY FEDERAL OR STATE
COURT LOCATED IN NEW YORK, NEW YORK. EACH PARTY ALSO AGREES
-61-
NOT TO BRING ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT IN ANY OTHER COURT. BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY IRREVOCABLY SUBMITS TO THE JURISDICTION OF
SUCH COURTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY WITH RESPECT TO SUCH SUIT, ACTION OR
PROCEEDING. THE PARTIES IRREVOCABLY AGREE THAT VENUE WOULD BE PROPER IN SUCH COURT, AND HEREBY
WAIVE ANY OBJECTION THAT ANY SUCH COURT IS AN IMPROPER OR INCONVENIENT FORUM FOR THE RESOLUTION OF
SUCH SUIT, ACTION OR PROCEEDING. THE PARTIES FURTHER AGREE THAT THE MAILING BY CERTIFIED OR
REGISTERED MAIL, RETURN RECEIPT REQUESTED, OF ANY PROCESS REQUIRED BY ANY SUCH COURT SHALL
CONSTITUTE VALID AND LAWFUL SERVICE OF PROCESS AGAINST THEM, WITHOUT NECESSITY FOR SERVICE BY ANY
OTHER MEANS PROVIDED BY STATUTE OR RULE OF COURT.
9P. WAIVER OF JURY TRIAL. THE PARTIES TO THIS AGREEMENT EACH HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL OF ANY CLAIM, DEMAND, ACTION, OR CAUSE OF
ACTION (I) ARISING UNDER THIS AGREEMENT OR (II) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL
TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS
RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT,
TORT, EQUITY, OR OTHERWISE. THE PARTIES TO THIS AGREEMENT EACH HEREBY AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND
THAT THE PARTIES TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT
WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR
RIGHT TO TRIAL BY JURY.
9Q. Arbitration. Except for disputes, controversies, or claims arising under
Section 1D and Section 1E (in each case, which shall be resolved in accordance with
the dispute resolution provisions set forth therein) and for other claims seeking injunctive relief
(for which the provisions of Section 9O and Section 9P should be applicable), any
dispute, controversy, or claim arising under or relating to this Agreement or the Ancillary
Agreements or any breach or alleged breach thereof (“Arbitrable Dispute”) shall be resolved
by final and binding arbitration administered by the American Arbitration Association
(“AAA”) under its Commercial Arbitration Rules, subject to (and as modified by) the
following:
(i) Any Indemnified Party may demand that any Arbitrable Dispute be submitted to
binding arbitration. The demand for arbitration shall be in writing, shall be served on the
Indemnifying Party (or, in the case that Buyer is the Indemnified Party, on Seller) in the
manner prescribed herein for the giving of notices, and shall set forth a short statement of
the factual basis for the claim, specifying the matter or matters to be arbitrated.
(ii) The arbitration shall be conducted by a panel of three arbitrators, one selected
by Buyer, one selected by Seller and the third to be selected jointly by the
-62-
arbitrators selected by Buyer and Seller (collectively, the “Arbitrators”). All such
arbitration proceedings shall take place in New York, New York.
(iii) Except as provided herein (including pursuant to Article 8 to the extent
such items constitute Losses): (a) each of the Indemnified Party and the Indemnifying Party
shall bear its own Costs and Fees, (b) the fees and expenses of the Arbitrators and all
other costs and expenses incurred in connection with the arbitration (“Arbitration
Expenses”) shall be borne by the non-prevailing party in the arbitration, as determined
by the Arbitrators, and (c) notwithstanding the foregoing, the Arbitrators shall be
empowered to require any one or more of the parties to the arbitration to bear all or any
portion of such Costs and Fees and/or the fees and expenses of the Arbitrators in the event
that the Arbitrators determine such party has acted unreasonably or in bad faith.
(iv) All facts and circumstances relating to such arbitration, including the existence
of the dispute and the ultimate resolution, shall be kept confidential except that (a) the
parties may disclose such terms to the extent required by applicable law, contract
(including, in the case of Seller, the Indentures) or for financial reporting or insurance
purposes, and (b) the parties may disclose such terms to their respective accountants,
insurers, agents and other representatives as necessary in connection with the ordinary
conduct of their respective businesses, Buyer may disclose such terms to affiliated
investment funds or affiliated portfolio companies, and Seller may disclose such terms to
Persons exploring a potential acquisition of (or financing related to) any assets related to
Seller’s Other Businesses, in each case, so long as such Persons to whom the terms of this
Agreement are disclosed agree to or are bound by contract to keep the terms of this
Agreement confidential.
(v) The Arbitrators shall have the authority to award any remedy or relief that a Court
of the State of New York could order or grant, including specific performance of any
obligation created under this Agreement or the Ancillary Agreements, the awarding of Losses,
the issuance of an injunction, or the imposition of sanctions for abuse or frustration of
the arbitration process. The Arbitrators shall render their decision and award upon the
concurrence of at least two (2) of their number. The Arbitrators shall affirm their
decision and award pursuant to Section 7502 and Section 7505 of Article 75 of the New York
Civil Practice Law and Rules. Such decision and award shall be in writing and counterpart
copies thereof shall be delivered to each of the Indemnified Party and the Indemnifying
Party. The decision and award of the Arbitrators shall be final and binding. In rendering
such decision and award, the Arbitrators shall not add to, subtract from or otherwise modify
the provisions of this Agreement or the Ancillary Agreements and shall make its
determinations in accordance therewith and shall in no event award Losses in excess of any
applicable limit on indemnification set forth in this Agreement or against any Person in
contravention of the provisions of this Agreement. Any party to the arbitration may seek to
have judgment upon the award rendered by the Arbitrators entered in any court having
jurisdiction thereof.
(vi) No Indemnified Party shall file any suit, motion, petition or otherwise commence
any legal action or proceeding for any matter which is required to be submitted to
arbitration as contemplated herein except in connection with the
-63-
enforcement of an award rendered by the Arbitrators. Upon the entry of an order dismissing or staying any action or
proceeding filed contrary to the preceding sentence, the Person which filed such action or
proceeding shall promptly pay to the other Person the reasonable attorney’s fees, costs and
expenses incurred by such other Person prior to the entry of such order.
(vii) The parties agree that it is their intention that all Arbitrable Disputes be
governed by this Section 9Q and agree to cause any of their Affiliates whom they
control to observe the provisions of this Section 9Q with respect to the
transactions contemplated by this Agreement and the Ancillary Agreements.
9R. Relationship of Parties. Except as specifically provided herein, none of the
parties will act or represent or hold itself out as having authority to act as an agent or partner
of the other parties or in any way bind or commit the other parties to any obligations or
agreement. Nothing contained in this Agreement will be construed as creating a partnership, joint
venture, agency, trust, fiduciary relationship or other association of any kind, each party being
individually responsible only for its obligations as set forth in this Agreement. The parties’
respective rights and obligations hereunder are limited to the contractual rights and obligations
expressly set forth herein on the terms and conditions set forth herein.
9S. Usage.
(i) Whenever the words “include,” “includes” or “including” are used in this Agreement,
they shall be deemed to be followed by the words “without limitation.”
(ii) Words denoting any gender shall include all genders. Where a word is defined
herein, references to the singular shall include references to the plural and vice versa.
(iii) A reference to any party to this Agreement or any other agreement or document
shall include such party’s successors and permitted assigns.
(iv) All references to “$” and dollars shall be deemed to refer to United States
currency unless otherwise specifically provided.
(v) All references to a day or days shall be deemed to refer to a calendar day or
calendar days, as applicable, unless otherwise specifically provided.
(vi) Any reference to any agreement or contract referenced herein or in the Seller
Disclosure Letter shall be a reference to such agreement or contract, as amended, restated,
modified, waived or supplemented from time to time.
(vii) The definitions on Annex I are incorporated into this Agreement as if
fully set forth at length herein and all references to a “Section” in such Annex I
are references to such Section of this Agreement.
* * * *
-64-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.
ZIFF XXXXX MEDIA INC. | ||
By: | ||
Its: | ||
ZIFF XXXXX DEVELOPMENT INC. | ||
By: | ||
Its: | ||
ZIFF XXXXX INTERNET INC. | ||
By: | ||
Its: | ||
ZIFF XXXXX PUBLISHING INC. | ||
By: | ||
Its: | ||
ZIFF XXXXX PUBLISHING HOLDINGS INC. | ||
By: | ||
Its: | ||
ENTERPRISE MEDIA GROUP INC. | ||
By: | ||
Its: |
-65-
ANNEX 1
DEFINITIONS
DEFINITIONS
For purposes of this Agreement, the following terms shall have the following meanings:
“2006
Statement of Net Assets” means the Statement of Net Assets
Sold at December 31, 2006 attached to Section 4F of the Seller Disclosure Letter.
“2006
Statement of Revenues and Expenses” means the Statement of
Revenues and Expenses for the twelve-month period ended
December 31, 2006 attached to Section 4F of the Seller Disclosure Letter.
“AAA” shall have the meaning set forth in Section 9Q.
“Accounting Firm” shall have the meaning set forth in Section 1D(i).
“Acxiom Claim” means the claim by Acxiom Corporation and Acxiom Direct LLC for breach by Seller of that certain Statement of Work #2006-001 between Acxiom Direct LLC and Seller to that certain Services and Data Use Agreement, between Acxiom Corporation and Seller, dated as of July 16, 2004, as set forth in that certain letter, dated June 11, 2007,
from Acxiom Corporation and Acxiom Direct LLC to Seller.
“Add-Back Expense Amount” means, for the particular portion of the Earnout Period in question, the sum of (without duplication) (i) consolidated interest expense of, or charged to, the Enterprise Group or Buyer and its Subsidiaries, as applicable (including interest expense of, or charged to the Enterprise Group or Buyer and its Subsidiaries, as applicable,
related to the Debt Financing), (ii) consolidated income tax expense of, or charged to, the Enterprise Group or Buyer and its
Subsidiaries, as applicable, (iii) consolidated depreciation expense of, or charged to, the Enterprise Group or Buyer and its
Subsidiaries, as applicable, (iv) consolidated amortization expense of, or charged to, the Enterprise Group or Buyer and its
Subsidiaries, as applicable, (v) any extraordinary or non-recurring expenses or losses of, or charged to, the Enterprise Group
or Buyer and its Subsidiaries, as applicable (vi) any non-cash net compensation expense recognized for share-based payments of, or
charged to, the Enterprise Group or Buyer and its Subsidiaries, as applicable, (vii) all management fees, transaction fees, services
fees and similar fees to Insight Venture Management LLC, any direct or indirect shareholder
of Buyer or any Affiliate of the foregoing paid, incurred or payable by, or charged to, the Enterprise Group or Buyer and its Subsidiaries,
as applicable, (viii) fees and expenses paid, incurred or payable by, or charged to, the Enterprise Group or Buyer and its Subsidiaries, as applicable, in connection with the transactions contemplated hereby (including the Transaction Bonus Amount and any other transaction fees or bonuses), (ix) any severance expense for Transferred Employees or other employees paid, incurred or payable by, or charged to, the Enterprise Group or Buyer and its Subsidiaries, as applicable, (x) any expense paid, incurred
or payable by, or charged to, the Enterprise Group or Buyer and its Subsidiaries,
-66-
as applicable, that are subsequently reimbursed to the Enterprise Group or Buyer and its
Subsidiaries, as applicable, (xii) non-cash revenue reductions or non-cash expenses of the
Enterprise Group or Buyer and its Subsidiaries, as applicable, resulting from the application to
this transaction of Accounting Principles Board Opinion # 16 or other applicable purchase
accounting-related accounting regulations, (xiv) the amount of any restructuring expenses
(including impairment charges to tangible and intangible assets) that are paid, incurred or payable
by, or charged to, the Enterprise Group or Buyer and its Subsidiaries, as applicable, and (xv)
losses of the Enterprise Group or Buyer and its Subsidiaries, as applicable, from the sale of
capital assets.
“Adjustment Amount” shall have the meaning set forth in Section 1D(ii).
“Adjustment Escrow Account” means the account established to hold the Adjustment
Escrow Amount pursuant to the terms of the Adjustment Escrow Agreement.
“Adjustment Escrow Agreement” shall have the meaning set forth in Section
2B(v).
“Adjustment Escrow Amount” means $2,000,000.
“Adjustment Escrow Funds” means, at the time of determination, the aggregate amount of
cash in the Adjustment Escrow Account.
“Affiliate” means any Person that directly, or indirectly through one or more
intermediaries, controls or is controlled by or is under common control with the Person specified.
“Affiliated Group” means any affiliated group within the meaning of Code § 1504(a) or
any similar group defined under a similar provision of state, local, or foreign law.
“Agreement” shall have the meaning set forth in the preamble.
“Allocation” shall have the meaning set forth in Section 8I(iii).
“Alternative Arrangements” shall have the meaning set forth in Section 7F(ii).
“Alternative Financing” shall have the meaning set forth in Section 8H.
“Alternative Transaction” shall have the meaning set forth in Section 3E.
“Ancillary Agreements” means the Adjustment Escrow Agreement, the Indemnity Escrow
Agreement, the Subleases, the TSA, the License Agreement, and any other agreement, document or
instrument contemplated hereby to be executed and/or delivered by or on behalf of a party hereto or
one of its Affiliates at or in connection with the Closing (including the Asset Conveyance
Documents and the Liabilities Assumption Documents).
“Applicable Rate” shall have the meaning set forth in Section 1D(ii).
“Arbitrable Dispute” shall have the meaning set forth in Section 9Q.
67
“Arbitration Expenses” shall have the meaning set forth in Section 9Q(iii).
“Arbitrators” shall have the meaning set forth in Section 9Q(ii).
“Asset Conveyance Documents” shall have the meaning set forth in Section 1C.
“Assumed Liabilities” shall have the meaning set forth in Section 1F(iii)
“Available Insurance Policies” shall have the meaning set forth in Section
3D(ii).
“Base Purchase Price” means $150,000,000.
“Basket” shall have the meaning set forth in Section 7A.
“Below-the-Line Expense Amount” means, for any portion of the Earnout Period, the
aggregate amount of expenses related to or arising from the Below-the-Line Expenses.
“Below-the-Line Expenses” means expenses (including, in the case of services, whether
incurred internally, to a third party, or otherwise) relating to the following functions:
accounting, finance, information technology (other than information technology of the type charged
to cost of production in the 2006 Statement of Revenues and Expenses), research, legal, human
resources, facilities management, insurance, corporate sales, property tax, franchise tax, sales
tax, rights and permissions and licensing.
“Bulk Sales Liability” means any Losses arising from Seller’s non-compliance with any
“bulk sales”, “bulk transfer” or similar law requiring performance by Seller relating to the
transactions contemplated hereby or by any of the Ancillary Agreements; provided that in no
event shall Bulk Sales Liability be deemed to include Transfer Taxes.
“Business Day” means any day, other than a Saturday, Sunday, or any other date in
which banks located in New York, New York are closed for business as a result of federal, state or
local holiday.
“Buyer” shall have the meaning set forth in the preamble.
“Buyer’s Customer Allocable Portion” means, with respect to each customer entitled to
Reinvestment Credits derived from a particular contract (whether the term of such contract has
expired or is current), which Reinvestment Credits are eligible to be applied under such customer’s
Ongoing Shared Contract, the percentage determined by dividing the total revenues recorded by the
Enterprise Group from such customer derived from such particular contract divided by the aggregate
total revenues recorded by the Enterprise Group and Seller’s Other Businesses from such customer
derived from such particular contract.”
“Buyer Extended Matters” means (i) the representations and warranties of Buyer set
forth in this Agreement, (ii) the covenants and agreements of Buyer requiring performance after the
Closing, and (iii) the Assumed Liabilities.
68
“Buyer Material Adverse Effect” means a material adverse effect upon the financial
condition or operating results of Buyer and its Subsidiaries taken as a whole or on the ability of
Buyer and its Subsidiaries to consummate the transactions contemplated hereby.
“Buyer Parties” shall have the meaning set forth in Section 7A.
“Cap” shall have meaning the set forth in Section 7A.
“CERCLA” shall have the meaning set forth in Section 4S.
“Claim Amount” shall have the meaning set forth in Section 8A.
“Claims-Specific Threshold” shall have the meaning set forth in Section 7A.
“Closing” shall have the meaning set forth in Section 1C.
“Closing Balance Sheet” shall have the meaning set forth in Section 1D(i).
“Closing Date” shall have the meaning set forth in Section 1C.
“Closing Net Working Capital” means Net Working Capital as calculated from the Closing
Balance Sheet.
“Closing Purchase Price” means the result equal to (i) the Base Purchase Price, plus
(ii) the amount (if any) by which Closing Net Working Capital exceeds the Target Net Working
Capital, minus (iii) the amount (if any) by which the Target Net Working Capital exceeds Closing
Net Working Capital, minus (iv) the Adjustment Escrow Amount, minus (v) the Indemnity Escrow
Amount, minus (vi) the Transaction Bonuses Amount, minus (vii) the Medford Lease Amount.
“Closing Statement” shall have the meaning set forth in Section 1D(i).
“COBRA” means Part 6 of Subtitle B of Title I of ERISA, Code § 4980B, and any similar
state law.
“Code” means the Internal Revenue Code of 1986, as amended.
“Commitment Letters” shall have the meaning set forth in Section 5F.
“Computer Hardware” means any computer hardware, equipment and peripherals of any kind
and of any platform, including desktop and laptop personal computers, handheld computerized
devices, servers, mid-range and mainframe computers, process control and distributed control
systems, but specifically excluding any Computer Software that may be located on such Computer
Hardware.
“Computer Software” means any and all computer programs, including operating system
and applications software, implementations of algorithms, and program interfaces, whether in source
code or object code form, and all documentation, including user manuals relating to the foregoing.
69
“Confidentiality Agreement” shall have the meaning set forth in Section 8C.
“Costs and Fees” means all reasonable pre-award expenses of the arbitration, including
travel expenses, out-of-pocket expenses (including, but not limited to, copying and telephone),
witness fees, and reasonable attorney’s fees and expenses.
“Covered Claim” shall have the meaning set forth in Section 3F(ii).
“Debt Commitment Letter” shall have the meaning set forth in Section 5F.
“Debt Financing” shall have the meaning set forth in Section 5F.
“Deducted Revenue Amount” means, for the particular portion of the Earnout Period in
question, the sum of (without duplication) (i) consolidated interest income of the Enterprise Group
or Buyer and its Subsidiaries, as applicable, plus (ii) any extraordinary or non-recurring
gains or items of revenue for the Enterprise Group or Buyer and its Subsidiaries, as applicable,
plus (iii) non-cash expense reductions or non-cash revenue of the Enterprise Group or Buyer
and its Subsidiaries, as applicable, resulting from Accounting Principles Board Opinion #16 or
other applicable purchase accounting-related accounting regulations, plus (iv) any gains of
the Enterprise Group or Buyer and its Subsidiaries, as applicable, from sales of capital assets.
“Deductible” shall have the meaning set forth in Section 7A.
“DevShed” means Developer Shed, LLC, a Delaware limited liability company.
“Devco” shall have the meaning set in the preamble.
“Earnout Amount” means the product (rounded to the nearest whole dollar) of (i) $4.627
multiplied by (ii) the excess (if any) of (a) EBITDA for the Earnout Period over (b) the EBITDA
Target; provided that in no event shall the Earnout Amount exceed $10,000,000.
“Earnout Firm” shall have the meaning set forth in Section 1E.
“Earnout Period” means the 12 month period ended December 31, 2007.
“EBITDA” means the sum of (i) Period One EBITDA, plus (ii) Period Two EBITDA,
plus (iii) Period Three EBITDA.
“EBITDA Determination Date” shall have the meaning set forth in Section
1E(ii).
“EBITDA Target” means $19,452,000.
“Eligible Earnout Firm” shall have the meaning set forth in Section 1E(ii).
“Eligible Firm” shall have the meaning set forth in Section 1D(iv).
“Employee Benefit Plan” means (i) each “employee benefit plan” within the meaning of
Section 3(3) of ERISA), and (ii) any other material plan, contract, agreement, policy or other
arrangement providing for severance, termination pay, deferred compensation, bonus,
70
performance awards, stock or stock-related awards, fringe benefits, disability benefits,
supplemental employment benefits, vacation benefits, retirement benefits, profit-sharing,
post-retirement benefits, or other employee benefits, in each case entered into, maintained or
contributed to by Seller or an ERISA Affiliate on behalf of employees of the Enterprise Group.
“Enterprise Group” means the Enterprise Group (as such is described in the Form 10-K
of Holdings for the annual period ending December 31, 2006 filed under the Securities Exchange Act
on April 2, 2007 (the “10-K”)), but shall in no event be interpreted to include any
business, assets or activity to the extent related to the Consumer Small Business Group of Seller
and its Subsidiaries (as such is described in the 10-K), the Game Group of Seller and its
Subsidiaries (as such is described in the 10-K) or other business of Seller or any of its
Subsidiaries.
“Enterprise Group Intellectual Property” means each of the Intellectual Property
Rights that are registered or the subject of a pending application for registration that are
primarily used in the operation of the Enterprise Group and owned by Seller or one of its
Subsidiaries, including the Licensed Marks; provided that in “Enterprise Group Intellectual
Property” shall not included the Inactive Titles.
“Enterprise Group IP Licenses” shall have the meaning set forth in Section
4L(ii).
“Enterprise Xxxxx Xxxxxxxx Adverse Effect” means an event, change, condition or
occurrence which, individually or together with any other event, change, condition or occurrence,
has a material adverse effect upon the financial condition, business assets, properties,
liabilities or operating results of the Enterprise Group taken as a whole, except any adverse
effect related to or resulting from (i) general business or economic conditions affecting the
industry in which Enterprise Group operates, (ii) national or international political or social
conditions, including the engagement by the United States in hostilities or the escalation thereof,
whether or not pursuant to the declaration of a national emergency or war, or the occurrence or the
escalation of any military or terrorist attack upon the United States, or any of its territories,
possessions, or diplomatic or consular offices or upon any military installation, equipment or
personnel of the United States, (iii) financial, banking, or securities markets (including any
disruption thereof and any decline in the price of any security or any market index), except to the
extent such event, change, condition or occurrence has a materially disproportionate adverse effect
on the Enterprise Group, taken as a whole, as compared to other affected Persons in the industry in
which the Enterprise Group operates, taken as a whole, (iv) changes in GAAP, except to the extent
such event, change, condition or occurrence has a materially disproportionate adverse effect on the
Enterprise Group, taken as a whole, as compared to other affected Persons in the industry in which
the Enterprise Group operates, taken as a whole, (v) changes in laws, rules, regulations, orders,
or other binding directives issued by any Governmental Entity, except to the extent such event,
change, condition or occurrence has a materially disproportionate adverse effect on the Enterprise
Group, taken as a whole, as compared to other affected Persons in the industry in which the
Enterprise Group operates, taken as a whole, (vi) the taking of any action contemplated by this
Agreement or the announcement of this Agreement or the transactions contemplated hereby, or (vii)
any adverse change in or effect on the business of the Enterprise Group that is caused by any delay
in consummating the Closing as a result of any
71
violation or breach by Buyer of any covenant, representation or warranty contained in this
Agreement.
“Enterprise Xxxxx Xxxxxxxx Contracts” shall have the meaning set forth in Section
4K.
“Environmental Laws” shall have the meaning set forth in Section 4S.
“Equity Commitment Letter” shall have the meaning set forth in Section 5F.
“Equity Financing” shall have the meaning set forth in Section 5F.
“Equity Sponsors” shall have the meaning set forth in Section 5F.
“Equityholder Parties” shall have the meaning set forth in Section 1D(ii).
“ERISA” means the United States Employee Retirement Income Security Act of 1974, as
amended.
“ERISA Affiliate” means each entity that is treated as a single employer with Seller
for purposes of Code § 414.
“Escrow Agent” shall have the meaning set forth in the Adjustment Escrow Agreement or
the Indemnity Escrow Agreement, as applicable.
“Estimated Closing Net Working Capital” means Closing Net Working Capital, as
reasonably estimated by Seller in good faith and delivered to Buyer at least one (1) Business Day
prior to Closing.
“Estimated Closing Purchase Price” means the result equal to (i) the Base Purchase
Price, plus (ii) the amount (if any) by which Estimated Closing Net Working Capital exceeds the
Target Net Working Capital, minus (iii) the amount (if any) by which the Target Net Working Capital
exceeds Estimated Closing Net Working Capital, minus (iv) the Adjustment Escrow Amount, minus (v)
the Indemnity Escrow Amount, minus (vi) the Transaction Bonuses Amount, minus (vii) the Medford
Lease Amount.
“Excess Amount” shall have the meaning set forth in Section 1D(ii).
“Excluded Assets” shall have the meaning set forth in Section 1F(ii).
“Excluded Matters” means (i) breaches of Fundamental Representations, (ii) breaches of
covenants or agreements of Seller contained in this Agreement requiring performance after the
Closing, (iii) any Outstanding Bonus Amount, (iv) any Bulk Sales Liability or (v) any Retained
Liability.
“Fairness Opinion” shall have the meaning set forth in Section 4E.
“Fee Letter” shall have the meaning set forth in Section 2B(xii).
72
“Financial Statements” shall have the meaning set forth in Section 4F.
“Financing” shall have the meaning set forth in Section 5F.
“Forecast” means the quarterly forecast (as adjusted for partial quarters beginning
after the Closing Date) attached as Schedule A to Annex I the Seller Disclosure Letter.
“Fundamental Representations” means the representations and warranties of Seller made
in Section 4A, Section 4B, Section 4C, Section 4D, Section
4E, Section 4I(iii), Xxxxxxx 0X, Xxxxxxx 0X, Xxxxxxx 0X and the
last sentence of Section 4Q.
“GAAP” means United States generally accepted accounting principles.
“Governmental Entity” means any government, governmental agency, department, bureau,
office, commission, authority or instrumentality, or court of competent jurisdiction, whether
foreign, federal, state or local.
“GT Audit Report” shall have the meaning set forth in Section 2B(xviii).
“Holdings” means Ziff Xxxxx Holdings Inc., a Delaware corporation.
“HSR Act” means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended.
“HSR Approval” shall have the meaning set forth in Section 2A(ii).
“Inactive Titles” means (i) the Transferred Inactive Titles and (ii) other trademarks
not actively used in the operation of the Enterprise Group as of the Closing Date (and
corresponding assets therefor, including domain names and goodwill corresponding thereto) that are
not included in the Transferred Intellectual Property.
“Income Taxes” means all federal, state, local, and foreign income Taxes or other
Taxes based on or measured by income, net worth or receipts including, without limitation, any
franchise Taxes measured by or based upon income or receipts.
“Inconsistent Expenses” means, with respect to any calendar month during Period Three,
the excess of (i) the aggregate expenses paid by, incurred by or payable by, or charged to, Buyer
and its Subsidiaries during such calendar month that are (x) not included in the underlying data
that gave rise to the financial results summarized in the Forecast and (y) not consistent with
levels or types of expenses paid by, incurred by or payable by, or charged to, the past practices
of the Enterprise Group prior to the Closing, minus (ii) $50,000; provided that,
for the calendar month that begins with the day after the Closing Date (unless the first calendar
day of a month), the amount determined pursuant to clause (ii) of this definition shall be equal to
$50,000 multiplied by a fraction, the numerator of which is the number of days between the day
after the Closing Date and the last calendar day of the month that includes the Closing Date and
the denominator of which is 31.
73
“Inconsistent Revenues” means, with respect to Period Three, any revenues earned by
Buyer and its Subsidiaries to the extent primarily attributable to Inconsistent Expenses paid,
incurred or payable by, or charged to, Buyer and its Subsidiaries and that are included in the
calculation of consolidated net income of Buyer and its Subsidiaries for purposes of calculating
Period Three EBITDA.
“Indemnified Party” shall have the meaning set forth in Section 7E(i) hereof.
“Indemnifying Party” shall have the meaning set forth in Section 7E(i) hereof.
“Indemnity Escrow Account” means the account established to hold the Indemnity Escrow
Amount pursuant to the terms of the Indemnity Escrow Agreement.
“Indemnity Escrow Agreement” shall have the meaning set forth in Section
2B(vi).
“Indemnity Escrow Amount” means $15,000,000.
“Indemnity Escrow Funds” means, at the time of determination, the aggregate amount of
cash in the Indemnity Escrow Account (including dividends and interest, but excluding any fees and
expenses related thereto).
“Indemnity Tax Benefit” means, with respect to any Loss for which indemnity is paid
under Article 8, all items of deduction, loss or credit arising out of any such Loss.
“Indentures” means, collectively, (i) that certain Indenture, dated as of August 12,
2002, by and among Seller, the guarantors named therein and Deutsche Bank Trust Company Americas,
as trustee, as amended, restated, modified, waived or supplemented from time to time, (ii) that
certain Indenture, dated as of July 21, 2000, by and among Seller, the guarantors named therein and
Deutsche Bank Trust Company Americas, as trustee, as amended, restated, modified, waived or
supplemented from time to time, (iii) that certain Indenture, dated as of April 22, 2005, by and
among Seller, the guarantors named therein and US Bank National Association, as trustee, as
amended, restated, modified, waived or supplemented from time to time, and (iv) that certain Note
Purchase Agreement, dated as of February 15, 2007, by and among Seller, the guarantors named
therein and the purchasers party thereto, as amended, restated, modified, waived or supplemented
from time to time.
“Information Memorandum” shall have the meaning set forth in Section 9I(i).
“Insurance Policies” shall have the meaning set forth in Section 4P.
“Intellectual Property Rights” means all rights in and to the following: (i) patents
and patent applications; (ii) trademarks, service marks, trade dress, trade names, logos and
corporate names and registrations and applications for registration thereof together with all of
the goodwill associated therewith; (iii) copyrightable works, copyrights and registrations and
applications for registration thereof, works of authorship and moral rights; (iv) internet domain
names; (vi) trade secrets and confidential and proprietary business information such as mailing
74
lists or databases; and (vii) any documentation, manuals and/or media constituting, describing
or relating to any of the foregoing.
“Inventory” shall have the meaning set forth in Section 1F(i).
“IPO” shall have the meaning set forth in Section 1E(iv).
“knowledge,” when used in the phrase “to the knowledge of Seller” or similar phrases
means, and shall be limited to, the actual knowledge of Xxxxxx Xxxxxxxx, Xxxx Xxxxx, Xxxxxxx
Xxxxxx, Xxxxx Xxxxxxx, Xxxxxxx Xxxxxx and/or Xxxx Xxxx.
“Latest Statement of Net Assets” shall have the meaning set forth in Section
4F.
“Leased Real Property” means all leasehold or subleasehold estates and other rights to
use or occupy any land, buildings, structures, improvements, fixtures, or other interest in real
property that is used in the operation of the Enterprise Group.
“Leases” means all leases, subleases, licenses, concessions and other agreements,
including all amendments, extensions, renewals, guaranties and other agreements with respect
thereto, pursuant to which Seller or any of its Subsidiaries, with respect to the Enterprise Group,
holds any Leased Real Property.
“Liabilities” shall have the meaning set forth in Section 4G.
“Liabilities Assumption Documents” shall have the meaning set forth in Section
1C.
“License Agreement” shall have the meaning set forth in Section 2B(ix).
“Licensed Marks” shall have the meaning set forth in the License Agreement.
“Lien” means any mortgage, pledge, lien, encumbrance, charge or other security
interest.
“Limitation Date” shall have the meaning set forth in Section 8A.
“Losses” means losses, liabilities, obligations, damages, Taxes, costs or expenses,
including reasonable attorneys’ fees and disbursements (whether arising as a result of a claim from
or by a third party or a claim or other dispute between Buyer and Seller).
“Medford Lease Amount” means the aggregate termination payments required to be made by
Seller or any of the Seller Subs on or prior to December 31, 2007 pursuant to, and as determined in
accordance with, the Medford Lease Termination Agreement (including payments that come due as
result of the Closing pursuant to, and as determined in accordance with) the Medford Lease
Forbearance Agreement, in each case calculated as of the Closing Date.
75
“Medford Lease Forbearance Agreement” means that certain Forbearance and Amendment
Agreement, dated as of February 15, 2007, by and between Seller and ZD Mystic Center Office, LLC.
“Medford Lease Termination Agreement” means that certain Lease Termination and
Termination Payment Agreement, dated as of October 27, 2006, by and between Seller and ZD Mystic
Center Office, LLC, as amended by the Medford Lease Forbearance Agreement.
“Most Recent Financial Statements” shall have the meaning set forth in Section
4F.
“Most Recent Quarter End” shall have the meaning set forth in Section 4F.
“Net Working Capital” means the excess of (i) the sum of the current assets of the
Enterprise Group (other than Excluded Assets) over (ii) the sum of the current liabilities of the
Enterprise Group (excluding (s) indebtedness (including fees and expenses incurred in connection
therewith) incurred by Buyer to finance the transactions contemplated hereby, (t) liabilities for
severance to Transferred Employees, (u) Transfer Taxes, (v) any liabilities related to guarantees
being released in connection with the transactions contemplated hereby, (w) the Transaction Bonus
Amount, (x) all Retained Liabilities, (y) liabilities related to the Medford, Massachusetts lease,
and (z) all other liabilities for which Seller has agreed to be responsible pursuant to this
Agreement or any Ancillary Agreement), in each case determined in accordance with GAAP applied on a
basis consistent with the methodologies, practices, estimation techniques, assumptions and
principles used in the preparation of the 2006 Statement of Net Assets; provided that,
notwithstanding clause (ii) foregoing, the current liabilities of the Enterprise Group shall not
include (a) any obligations for the payment of deferred purchase price, “earn-outs” or similar
consideration, or (b) any fees or expenses to the extent incurred by or at the direction of Buyer
or otherwise relating to Buyer’s or its Affiliates’ financing (if any) (including obtaining any
consent, agreement or waiver relating thereto) for the transactions contemplated hereby or any
other liabilities or obligations incurred or arranged by or on behalf of Buyer or its Affiliates in
connection with the transactions contemplated hereby or otherwise). Where amounts are to be
excluded as current assets for purposes of this definition, such amounts shall also be excluded to
the extent recorded as contra-liabilities for purposes of this definition and where amounts are to
be excluded as current liabilities for purposes of this definition, such amounts shall also be
excluded to the extent recorded as contra-assets for purposes of this definition. For the
avoidance of doubt, incurred but not reported (“IBNR”) obligations were allocated to the
Enterprise Group in the 2006 Statement of Net Assets and any calculation Net Working Capital shall
include a liability for IBNR with respect to the Transferred Employees, calculated in accordance
with GAAP applied on a basis consistent with the methodologies, practices, estimation techniques,
assumptions and principles used in the preparation of the 2006 Statement of Net Assets.
“Netco” shall have the meaning set forth in the preamble.
“Notice of Disagreement” shall have the meaning set forth in Section 1D(i).
“Ongoing Shared Contracts” shall have the meaning set forth in Section 8T(iv).
76
“Other Used Asset” means an asset of Seller and/or any of the Seller Subs utilized in
the operation of the Enterprise Group that is not transferred to Buyer as a Purchased Asset because
it is not primarily used in the operation of the Enterprise Group and it is reasonably necessary
for the operation of the Enterprise Group by Buyer after the Closing; provided that in no
event shall an “Other Used Asset” include (i) any Excluded Asset, (ii) any service that is the
subject of the TSA, or (iii) any asset or service for which there is specific treatment in this
Agreement or the Ancillary Agreements as to how such asset or service is to be treated (e.g.,
insurance and Shared Contracts).
“Outstanding Bonus Amount” means any Transaction Bonus Amount, any Retention Bonus
Amount or any portion thereof, in either case, that has not been included in the calculation of
Estimated Closing Purchase Price pursuant to the terms and conditions of this Agreement or
otherwise and for which Buyer is liable.
“Xxxxxxxxx Expense Liabilities” means, from and after any termination of a Prime Lease
(as defined in each Sublease), the amount by which (i) the aggregate liabilities of Buyer and its
Subsidiaries to a Prime Landlord (as defined in each Sublease) as a result of Buyer and its
Subsidiaries being obligated to pay rent to the Prime Landlord during the remaining original term
of the Sublease as a result of termination of the underlying Prime Lease (in each case to the
extent arising under a Consent to Sublease (with respect to the Sublease for San Francisco) that is
substantially in the form attached to the Sublease for San Francisco or a Non-Disturbance and
Attornment Agreement (with respect to the Sublease for New York City) that is substantially in the
form attached to the Sublease for New York (or, in each case, is thereafter amended with the
consent of Seller)) exceeds (ii) the aggregate liabilities of Buyer and its Subsidiaries to pay
rent under the applicable Sublease during the remaining original term of such Sublease.
“Owned Real Property” means all land, together with all buildings, structures,
improvements, and fixtures located thereon, and all easements and other interests and rights
appurtenant thereto, owned by Seller or any of its Subsidiaries for use in the operation of the
Enterprise Group.
“Period One” means the portion of the Earnout Period beginning January 1, 2007 and
ending May 31, 2007.
“Period One Below-the-Line Expense Amount” means $1,778,904 (which the parties
acknowledge and agree was calculated as $4,300,000 multiplied by fraction, the numerator of which
is 151 and the denominator of which is 365).
“Period One EBITDA” means, for Period One, the excess of revenues of the Enterprise
Group for Period One over expenses of the Enterprise Group for Period One, calculated in accordance
with GAAP using the same methodologies, practices, estimation techniques, assumptions and
principles used in the parties’ preliminary calculation, based on financial information to date, of
Period One EBITDA as set forth in Schedule B to Annex I to the Seller Disclosure Letter,
plus (a) to the extent included as expenses in the calculation the excess of revenues over
expenses, the Add-Back Expense Amount for Period One, minus (b) to the extent included as
revenues in the calculation the excess of revenues over expenses, the Deducted Revenue Amount for
Period One; provided that the Below-the-Line Expense Amount
77
used in the calculation of Period One EBITDA equals the Period One Below-the-Line Expense
Amount.
“Period Three” means the portion of the Earnout Period beginning on the day after the
Closing Date and ending on December 31, 2007.
“Period Three Below-the-Line Maximum Amount” means the result equal to $4,300,000,
minus the Period One Below-the-Line Expense Amount, minus the Period Two
Below-the-Line Expense Amount.
“Period Three EBITDA” means, for Period Three, consolidated net income of Buyer and
its Subsidiaries with respect to the Enterprise Group (as determined in accordance with GAAP
applied on a basis consistent with the methodologies, practices, estimation techniques, assumptions
and principles used in the preparation of the 2006 Statement of Revenues and Expenses),
plus (a) to the extent deducted in the calculation of such net income, the Add-Back Expense
Amount for Period Three minus (b) to the extent added in the calculation of such net
income, the Deducted Revenue Amount for Period Three. Notwithstanding anything herein to the
contrary (including that consolidated net income is to be calculated in accordance with GAAP), for
purposes of calculating Period Three EBITDA (A) lease and facilities expenses for 00 X. 00xx
Xxxxxx, Xxx Xxxx, XX for Period Three paid, incurred or payable by, or charged to, Buyer and its
Subsidiaries shall be actual out-of-pocket lease and facilities expenses paid, incurred or payable
by, or charged to, Buyer and its Subsidiaries with respect to the Enterprise Group during Period
Three, (B) for each calendar month during Period Three that Buyer and/or any of its Subsidiaries is
receiving transition services pursuant to the TSA, Period Three EBITDA shall be increased by
$50,000 or such lesser amount as Buyer is paying under the TSA for such calendar month (prorated
for any partial month), (C) to the extent that, during any calendar month during Period Three with
respect to the Enterprise Group, any Inconsistent Expenses are paid, incurred or payable by, or
charged to, Buyer and its Subsidiaries, Period Three EBITDA shall be increased by the aggregate
amount of all Inconsistent Expenses, and (D) in no event shall the Below-the-Line Expense Amount
for Period Three exceed the Period Three Below-the-Line Maximum Amount.
“Period Two” means the portion of the Earnout Period beginning June 1, 2007 and ending
on the Closing Date.
“Period Two Below-the-Line Expense Amount” means the product equal to $4,300,000
multiplied by a fraction, the numerator of which is the number of calendar days in Period Two and
the denominator of which is 365.
“Period Two EBITDA” means, for Period Two, the excess of revenues of the Enterprise
Group for Period Two over expenses of the Enterprise Group for Period Two, calculated using the
same methodologies, practices, estimation techniques, assumptions and principles that were used in
the calculation of Period One EBITDA, plus (a) to the extent included as expenses in such
calculation, the Add-Back Expense Amount for Period Two, minus (b) to the extent included
as revenues in such calculation, the Deducted Revenue Amount for Period Two; provided that
the Below-the-Line Expense Amount for purposes of calculating Period Two EBITDA shall equal the
Period Two Below-the-Line Expense Amount.
78
“Permits” shall have the meaning set forth in Section 1F(i)(i).
“Permitted Encumbrances” means (i) any restriction on transfer arising under
applicable securities law, (ii) Liens for Taxes not yet delinquent or for Taxes that the taxpayer
is contesting in good faith through appropriate proceedings, (iii) purchase money Liens, (iv) Liens
of a lessor, sublessor, licensor, sublicensor, lessee, sublessee, licensee or sublicensee arising
under lease arrangements or license arrangements, (v) prior to the Closing, Liens under the
Security Documents or any Indenture, (vi) Liens arising in the ordinary course of business and not
incurred in connection with the borrowing of money, (vii) mechanics Liens and similar Liens for
labor, materials, or supplies, (viii) zoning, building codes, and other land use laws regulating
the use or occupancy of the Leased Real Property or the activities conducted thereon that are
imposed by any Governmental Entity having jurisdiction over such Leased Real Property; (ix)
rebates, refunds and other discounts to customers, (x) Liens set forth on Annex 1A of the
Seller Disclosure Letter, and (xi) other Liens that do not materially impair the use or operation
of the asset in question.
“Person” means an individual, a partnership, a corporation, a limited liability
company, an association, a joint stock company, a trust, a joint venture, an unincorporated
organization and a Governmental Entity.
“Preliminary Audit Report” means, with respect to the Enterprise Group, the draft
Statement of Net Assets Sold at each of, and Statement of Revenues and Expenses for the 12 month
periods ended as of, each of December 31, 2006 and December 31, 2005 prepared by management of
Seller for review by Xxxxx Xxxxxxxx LLP and attached as Schedule C to Annex I to the Seller
Disclosure Letter.
“Proceeding” shall have the meaning set forth in Section 1F(iii)(e).
“Protective Provisions” shall have the meaning set forth in Section 8W.
“Pubco” shall have the meaning set forth in the preamble.
“Pubco Holdings” shall have the meaning set forth in the preamble.
“Purchased Assets” shall have the meaning set forth in Section 1F(i).
“RCRA” shall have the meaning set forth in Section 4S.
“Reinvestment Credits” shall have the meaning set forth in Section 8T(vi).
“Remaining Excess Amount” shall have the meaning set forth in Section 1D(ii).
“Retained Liabilities” shall have the meaning set forth in Section 1F(iv).
“Retention Bonus Amounts” shall have the meaning set forth in Section 4O(vii).
“Returnable Amount” shall have the meaning set forth in Section 7F(ii).
79
“Sale Event” shall have the meaning set forth in Section 1E(iv).
“Savings Plan” shall have the meaning set forth in Section 8J(iii).
“Savings Plan Employees” shall have the meaning set forth in Section 8J(iii).
“SEC” means the Securities and Exchange Commission or any other Governmental Entity at
the time then administering the Securities Act.
“Securities Act” means the Securities Act of 1933, as amended.
“Securities Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Security Documents” means the agreements, documents and filings pursuant to which
Seller and its Subsidiaries granted Liens or otherwise granted a security interest in assets of
Seller and its Subsidiaries to support obligations incurred pursuant to or governed by the
Indentures.
“Seller” shall have the meaning set forth in the preamble.
“Seller Disclosure Letter” means the Seller Disclosure Letter delivered by Seller to
Buyer on the date hereof, as amended, restated, modified, waived or supplemented in accordance with
Section 9H.
“Seller Group” shall have the meaning set forth in Section 8L.
“Seller Insurance Policies” shall have the meaning set forth in Section
3D(ii).
“Seller Marks” shall have the meaning set forth in Section 8P.
“Seller Parties” shall have the meaning set forth in Section 7A.
“Seller Subs” means collectively, Devco, Netco, Pubco, Pubco Holdings and any other
Subsidiary of Seller that owns assets of the Enterprise Group that are to become Purchased Assets
at Closing.
“Seller’s Customer Allocable Portion” means, with respect to any particular customer
entitled to Reinvestment Credits for any particular year, 100% minus Buyer’s Customer Allocable
Portion with respect to such customer.
“Seller’s Other Businesses” means all businesses of Seller and its Subsidiaries, other
than the Enterprise Group.
“Shared Contracts” shall have the meaning set forth in Section 8T(i).
“Solvent” means, with regard to any Person, that: (i) the fair saleable value of the
property of such Person is, on the date of determination, greater than the total amount of
liabilities (including contingent and unliquidated liabilities) of such Person as of such date,
(ii)
80
on the date of determination, such Person is able to pay all of its liabilities and debts
(including contingent and unliquidated liabilities) as such liabilities and debts mature or become
due in the usual course of business, (iii) such Person does not have unreasonably small capital for
conducting its business as presently conducted or as proposed or intended to be conducted by such
Person, and (iv) such Person does not intend to, nor does it reasonably believe it will, incur
debts beyond its ability to pay such debts as they mature. In determining the amount of contingent
and unliquidated liabilities at any time, such liabilities will be computed as the amount which, in
light of all of the facts and circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
“Standard & Poor’s” means Standard & Poor’s Ratings Group (a division of McGraw Hill,
Inc.), and its successors.
“Subleases” shall have the meaning set forth in Section 2B(vii).
“Subsidiary” means, with respect to any Person, any corporation, partnership,
association or other business entity of which (i) if a corporation, a majority of the total voting
power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in
the election of directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a
combination thereof, or (ii) if a partnership, association or other business entity, a majority of
the partnership or other similar ownership interest thereof is at the time owned or controlled,
directly or indirectly, by that Person or one or more Subsidiaries of that Person or a combination
thereof. For purposes hereof, a Person or Persons shall be deemed to have a majority ownership
interest in a partnership, association or other business entity if such Person or Persons shall be
allocated a majority of partnership, association or other business entity gains or losses or shall
be or control the managing director or general partner of such partnership, association or other
business entity.
“Target Net Working Capital” means $5,000,000.
“Tax” or “Taxes” means (A) any federal, state, local or foreign income, gross
receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, property or
windfall profits taxes, environmental taxes, customs duties, franchise, employees’ income
withholding, foreign or domestic withholding, social security, unemployment, disability, real
property, personal property, sales, use, transfer, value added, alternative or add on minimum or
other tax, fee, assessment or charge of any kind whatsoever including any interest, penalties or
additions to Tax or additional amounts in respect of the foregoing, (B) any liability for the
payment of any amounts of the type described in (A) as a result of being a member of an affiliated,
consolidated, combined or unitary group for any taxable period or as the result of being a
transferee or successor thereof and (C) any liability for the payment of any amounts of the type
described in (A) or (B) as a result of any express or implied obligation to indemnify any other
Person.
“Tax Proceeding” shall have the meaning set forth in Section 8I(i).
“Tax Return” means any Tax return, declaration, report, claim for refund, or
information return or statement filed or required to be filed with respect to the Enterprise Group.
81
“Technology” shall have the meaning set forth in Section 1F(i)(h).
“Termination Date” means August 1, 2007; provided that, in the event that the
GT Audit Report is delivered to Buyer after the 20th day after the date hereof, the
“Termination Date” shall be the date after August 1, 2007 (but not later than August 11,
2007) that is the number of days after the 20th day after the date hereof that the GT Audit Report
was delivered.
“Third Party Claim” shall have the meaning set forth in Section 7E(i).
“Transaction Bonuses” means the transaction bonuses, change of control payments,
employee retention payments, and stay bonuses that are payable to Transferred Employees that are
triggered by the consummation of the transactions contemplated to be consummated at the Closing and
identified in writing by Seller to Buyer prior to Closing; provided that in no event shall
“Transaction Bonuses” include any such payment or obligation that is incurred or entered into by,
or at the direction or request of, Buyer or any of its Subsidiaries.
“Transaction Bonuses Amount” means the amount for the Transaction Bonuses determined
by Seller (which determination shall be delivered to Buyer not less than two (2) Business Days
prior to Closing).
“Transfer Taxes” means all transfer, real property transfer, sales (including bulk
sales (if any)), use, goods and services, value added, recordation, documentary, stamp duty,
excise, and conveyance Taxes and other similar Taxes, duties, fees or charges, as levied by any
Taxing authority in connection with the transactions contemplated by this Agreement, including any
real property transfer Taxes imposed by the City of New York or by the State of New York, including
all treble damages, penalties, interest, costs and fees (including attorney’s fees);
provided, however, that for the avoidance of doubt, the term Transfer Taxes shall not
include any Income Taxes.
“Transferred Accounts Payable” shall have the meaning set forth in Section
1F(iii)(b).
“Transferred Computer Hardware” shall have the meaning set forth in Section
1F(i)(c).
“Transferred Computer Software” shall have the meaning set forth in Section
1F(i)(d).
“Transferred Contracts” shall have the meaning set forth in Section 1F(i)(j).
“Transferred Employees” shall have the meaning set forth in Section 8J(i).
“Transferred Equipment” shall have the meaning set forth in Section 1F(i)(e).
“Transferred Inactive Titles” means, collectively, the trademarks and domain names
listed on Section 1F(i)(g) of the Seller Disclosure Letter as “Inactive Titles.”.
82
“Transferred Intellectual Property” shall have the meaning set forth in Section
1F(i)(g).
“Transferred Inventory” shall have the meaning set forth in Section 1F(i)(b).
“Transferred Permits” shall have the meaning set forth in Section 1F(i)(i).
“Transferred Real Property” shall have the meaning set forth in Section
1F(i)(a).
“Transferred Receivables” shall have the meaning set forth in Section
1F(i)(f).
“Transferred Technology” shall have the meaning set forth in Section 1F(i)(h).
“TSA” shall have the meaning set forth in Section 2B(viii).
“ZD License Agreements” means, collectively, (i) that certain License Agreement, dated
as of April 5, 2000, by and between ZD Inc. and Seller, as amended by that certain Amendment to
License Agreement, dated as of January 19, 2001, that certain Settlement Agreement and Amendment 2
to License Agreement, dated as of October 9, 2001, and that certain Amendment #3 to License
Agreement, dated as of February 26, 2002, (ii) that certain License Agreement, dated as of April 5,
2000, by and between ZD Inc. and Ziff Xxxxx Publishing Holdings Inc., and (iii) that certain
License Agreement, dated as of April 5, 2000, by and between ZD Inc. and Ziff Xxxxx Publishing
Holdings Inc.
83