<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) FEBRUARY 27, 2000
-------------------------------
GETTY IMAGES, INC.
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in charter)
DELAWARE 000-23747 98-0177556
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
701 N. 34TH STREET, SUITE 400 SEATTLE, WA 98103
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code 206-268-2000
-----------------------------
NOT APPLICABLE
- --------------------------------------------------------------------------------
(Former name or former address, if changed since last report.)
<PAGE> 2
ITEM 5. OTHER EVENTS.
On February 27, 2000, we signed a stock purchase agreement with United
Business Information B.V., Ludgate Holdings GmbH and United News & Media Plc to
purchase VCG Holdings LLC, Definitive Stock, Inc., Visual Communications Group
Holdings Limited and VCG Deutschland GmbH for an aggregate purchase price of
approximately $220 million. The stock purchase agreement for the pending
acquisition is attached as an exhibit to this current report on Form 8-K and
incorporated herein by reference.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Exhibits
4.1 Certificate of Designations of Series A Special Voting
Preferred Stock.
4.2 Certificate of Designations of Series B Special Voting
Preferred Stock.
10.1 Stock Purchase Agreement dated February 27, 2000 among
United Business Information B.V., Ludgate Holdings GmbH and
United News & Media Plc and Getty Images, Inc.
<PAGE> 3
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: March 2, 2000 Getty Images, Inc.
By: /s/ SUZANNE L. PAGE
--------------------------------
Suzanne L. Page
Vice President, General
Counsel and Assistant Secretary
<PAGE> 4
Index to Exhibits
Description Exhibit
----------- -------
Certificate of Designations of Series A
Special Voting Preferred Stock ...................................... 4.1
Certificate of Designations of Series B
Special Voting Preferred Stock ...................................... 4.2
Stock Purchase Agreement dated
February 27, 2000 among
United Business Information B.V.,
Ludgate Holdings GmbH and
United News & Media plc
and Getty Images, Inc. .............................................. 10.1
<PAGE> 1
GETTY IMAGES, INC.
CERTIFICATE OF DESIGNATIONS
SERIES A SPECIAL VOTING PREFERRED STOCK
GETTY IMAGES, INC. , a corporation organized and existing under the
General Corporation Law of the State of Delaware ("the Corporation"), does
hereby certify:
THAT, pursuant to authority conferred upon the Board of Directors by the
Amended and Restated Certificate of Incorporation of the Corporation and,
pursuant to the provisions of Section 151(g) of the General Corporation Law of
the State of Delaware, said Board of Directors, at a special meeting of the
Board of Directors held on August 3, 1999, adopted a resolution providing for
the issuance of a series of special voting preferred stock, which resolution is
set forth below:
RESOLVED that there is hereby created a series of one share of preferred
stock, $.01 par value per share, having the powers, preferences and relative
participating, optional or other special rights, and qualifications, limitations
or restrictions thereof, set forth below, in addition to those specified in this
Corporation's Amended and Restated Certificate of Incorporation (the following,
referred to hereinafter as "this resolution" or "this Certificate of
Designations," is to be filed as part of the Certificate Designations under
Section 151(g) of the General Corporation Law of the State of Delaware):
1. Designation. There shall be a series of Preferred Stock, the
designation of which shall be "Series A Special Voting Preferred
Stock" (hereinafter referred to as the "Series A Special Voting
Preferred Stock") and the number of authorized shares
constituting the Series A Special Voting Preferred Stock shall
be one.
2. Voting Rights. In respect of all matters concerning the voting
of shares, except as otherwise required by law, the Series A
Special Voting Preferred Stock shall vote together with the
Common Stock of the Corporation as a single class and such
voting rights shall be identical to those of the Common Stock in
all respects. The holder of
<PAGE> 2
record of the share of Series A Special Voting Preferred Stock
shall have a number of votes equal to the aggregate number of
shares of Common Stock of the Corporation issuable upon exchange
of the exchangeable non-voting shares ("Exchangeable Shares") of
EyeWire Partners, Inc. ("EyeWire") outstanding from time to time
on the record date for determining stockholders entitled to vote
and which are not owned by the Corporation, any of its
subsidiaries or any person (other than a natural person)
directly or indirectly controlled by or under common control of
the Corporation, in all matters submitted to a vote of the
stockholders of the Corporation. For the purposes hereof,
"control" (including the correlative meanings, the terms
"controlled by" and "under common control of") as applied to any
person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and
policies of that person through the ownership of voting
securities, by contract or otherwise.
3. Liquidation. In the event of any liquidation, dissolution or
winding up of the Corporation, the holder of the Series A
Special Voting Preferred Stock shall not be entitled to receive
any assets of the Corporation available for distribution to its
stockholders.
4. Dividends. The holder of the Series A Special Voting Preferred
Stock shall not be entitled to the payment of dividends, whether
payable in cash, property or in shares of capital stock.
5. Certain Contractual Rights. Pursuant to the terms of that
certain Combination Agreement, dated as of August 4, 1999, by
and among the Corporation, Getty Images NS, EyeWire and the
stockholders of EyeWire, one share of Series A Special Voting
Preferred Stock is being issued to the trustee (the "Trustee")
under the Voting and Exchange Trust Agreement, dated as of
August 4, 1999, by and among the Corporation, EyeWire, the
stockholders of EyeWire and the Trustee. Section 3.6 of such
Voting and Exchange Trust Agreement provides for notification to
the Trustee as holder of the Series A Special Voting Preferred
Stock of the total number of Exchangeable Shares outstanding
from time to time that are not owned by the Corporation, any of
its subsidiaries or any person directly or indirectly controlled
by or under common control of the Corporation. At such time as
the Series A Special Voting Preferred Stock has no votes
attached to it because there are no Exchangeable Shares
outstanding that are not owned by the Corporation, any of its
subsidiaries or any person directly or indirectly controlled by
or under common control of the Corporation, and there are no
shares of stock, debt, options or other agreements of EyeWire
that could give rise to the issuance of any Exchangeable Shares
to any person (other than the Corporation, any of its
subsidiaries or any person directly or indirectly controlled
by or
2
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under common control of the Corporation), the Series A Special
Voting Preferred Stock may be redeemed by resolution of the
Board of Directors for $1.00 per share.
IN WITNESS WHEREOF, GETTY IMAGES has caused this certificate to be
signed by Nick Evans-Lombe, its Senior Vice President and attested by
Suzanne L. Page, its General Counsel and Assistant Secretary this 3rd day of
August, 1999.
GETTY IMAGES
By: /s/ Nicholas Evans-Lombe
---------------------------------------
Name: Nicholas Evans-Lombe
Title: Senior Vice President, Strategy
and Corporate Development
ATTEST:
By: /s/ Suzanne L. Page
-----------------------------
Name: Suzanne L. Page
Title: General Counsel and
Assistant Secretary
<PAGE> 1
GETTY IMAGES, INC.
CERTIFICATE OF DESIGNATIONS
SERIES B SPECIAL VOTING PREFERRED STOCK
GETTY IMAGES, INC. , a corporation organized and existing under the
General Corporation Law of the State of Delaware, does hereby certify:
THAT, pursuant to authority conferred upon the Board of Directors by the
Amended and Restated Certificate of Incorporation of the Corporation and,
pursuant to the provisions of Section 151(g) of the General Corporation Law of
the State of Delaware, said Board of Directors, at a special meeting of the
Board of Directors held on August 3, 1999, adopted a resolution providing for
the issuance of a series of special voting preferred stock, which resolution is
set forth below:
RESOLVED that there is hereby created a series of one share of preferred
stock, $.01 par value per share, having the powers, preferences and relative
participating, optional or other special rights, and qualifications, limitations
or restrictions thereof, set forth below, in addition to those specified in this
Corporation's Amended and Restated Certificate of Incorporation (the following,
referred to hereinafter as "this resolution" or "this Certificate of
Designations," is to be filed as part of the Certificate Designations under
Section 151(g) of the General Corporation Law of the State of Delaware):
1. Designation. There shall be a series of Preferred Stock, the
designation of which shall be "Series B Special Voting Preferred
Stock" (hereinafter referred to as the "Series B Special Voting
Preferred Stock") and the number of authorized shares
constituting the Series B Special Voting Preferred Stock shall
be one.
2. Voting Rights. In respect of all matters concerning the voting
of shares, except as otherwise required by law, the Series B
Special Voting Preferred Stock shall vote together with the
Common Stock of the Corporation as a single class and such
voting rights shall be identical to those of the Common Stock in
all respects. The holder of
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record of the share of Series B Special Voting Preferred Stock
shall have a number of votes equal to the aggregate number of
shares of Common Stock of the Corporation issuable upon exchange
of the exchangeable non-voting shares ("Exchangeable Shares") of
Getty Images NS ("NSCO") outstanding from time to time on the
record date for determining stockholders entitled to vote and
which are not owned by the Corporation, any of its subsidiaries
or any person (other than a natural person) directly or
indirectly controlled by or under common control of the
Corporation, in all matters submitted to a vote of the
stockholders of the Corporation. For the purposes hereof,
"control" (including the correlative meanings, the terms
"controlled by" and "under common control of") as applied to any
person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and
policies of that person through the ownership of voting
securities, by contract or otherwise.
3. Liquidation. In the event of any liquidation, dissolution or
winding up of the Corporation, the holder of the Series B
Special Voting Preferred Stock shall not be entitled to receive
any assets of the Corporation available for distribution to its
stockholders.
4. Dividends. The holder of the Series B Special Voting Preferred
Stock shall not be entitled to the payment of dividends, whether
payable in cash, property or in shares of capital stock.
5. Certain Contractual Rights. Pursuant to the terms of that
certain Combination Agreement, dated as of August 4, 1999, by
and among the Corporation, NSCO, EyeWire Partners, Inc.
("EyeWire") and the stockholders of EyeWire, one share of Series
B Special Voting Preferred Stock is being issued to the trustee
(the "Trustee") under the Voting and Exchange Trust Agreement,
dated as of August 4, 1999, by and among the Corporation, NSCO,
the stockholders of NSCO and the Trustee. Section 3.6 of such
Voting and Exchange Trust Agreement provides for notification to
the Trustee as holder of the Series B Special Voting Preferred
Stock of the total number of Exchangeable Shares outstanding
from time to time that are not owned by the Corporation, any of
its subsidiaries or any person directly or indirectly controlled
by or under common control of the Corporation. At such time as
the Series B Special Voting Preferred Stock has no votes
attached to it because there are no Exchangeable Shares
outstanding that are not owned by the Corporation, any of its
subsidiaries or any person directly or indirectly controlled by
or under common control of the Corporation, and there are no
shares of stock, debt, options or other agreements of EyeWire
that could give rise to the issuance of any Exchangeable Shares
to any person (other than the Corporation, any of its
subsidiaries or any person directly or indirectly
2
<PAGE> 3
controlled by or under common control of the Corporation), the
Series B Special Voting Preferred Stock may be redeemed by
resolution of the Board of Directors for $1.00 per share.
IN WITNESS WHEREOF, GETTY IMAGES has caused this certificate to be
signed by Nick Evans-Lombe, its Senior Vice President and attested by
Suzanne L. Page, its General Counsel and Assistant Secretary this 3rd day of
August, 1999.
GETTY IMAGES
By: /s/ Nicholas Evans-Lombe
---------------------------------------
Name: Nicholas Evans-Lombe
Title: Senior Vice President, Strategy
and Corporate Development
ATTEST:
By: /s/ Suzanne L. Page
-----------------------------
Name: Suzanne L. Page
Title: General Counsel and
Assistant Secretary
<PAGE> 1
- --------------------------------------------------------------------------------
STOCK PURCHASE AGREEMENT
AMONG
GETTY IMAGES INC.
UNITED BUSINESS INFORMATION B.V.
LUDGATE HOLDINGS GMBH
AND
UNITED NEWS & MEDIA PLC
-------------------------------------------
DATED AS OF FEBRUARY 27, 2000
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THIS AGREEMENT SHALL BE KEPT CONFIDENTIAL PURSUANT TO THE TERMS OF THE
CONFIDENTIALITY AGREEMENT BETWEEN
UNITED NEWS & MEDIA PLC AND GETTY IMAGES INC.
DATED DECEMBER 9, 1999.
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TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE I
CERTAIN DEFINITIONS AND TERMS.............................................................2
1.1 Specific Definitions....................................................2
1.2 Other Terms.............................................................7
1.3 Other Definitional Provisions...........................................7
ARTICLE II
PURCHASE AND SALE OF VERMONT SHARES AND BAVARIA SHARES....................................8
2.1 Basic Transaction.......................................................8
2.2 Purchase Price..........................................................8
2.3 Cash Adjustment.........................................................8
2.4 Closing; Deliveries; Payment............................................9
ARTICLE III
REPRESENTATIONS AND WARRANTIES CONCERNING THE TRANSACTION................................10
3.1 Representations and Warranties of Unicorn, Holdings and Seller.........10
3.2 Representations and Warranties of the Buyer............................12
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER AND HOLDINGS CONCERNING THE GROUP ENTITIES......13
ARTICLE V
PRE-CLOSING COVENANTS....................................................................14
5.1 General................................................................14
5.2 Press Releases and Public Announcements................................14
5.3 Disclosure.............................................................14
5.4 Operation of Business..................................................14
5.5 Notices; HSR...........................................................17
5.6 Assistance.............................................................18
5.7 Issuance of Securities.................................................18
5.8 Other Changes..........................................................18
5.9 Pensions...............................................................18
5.10 Bonuses................................................................18
ARTICLE VI
POST-CLOSING COVENANTS...................................................................19
6.1 Further Actions Regarding Transfer.....................................19
6.2 Confidentiality........................................................19
6.3 Covenants..............................................................19
6.4 Access to Information..................................................20
6.5 Removal of Trademarks, Etc.............................................21
6.6 Certain Taxes..........................................................21
6.7 Tax Returns; Utilization of Tax Losses.................................21
</TABLE>
i
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<TABLE>
<S> <C>
6.8 Leases.................................................................24
6.9 Indemnifying Party.....................................................24
6.10 Andrew Nugee...........................................................25
6.11 Bavaria and Vermont Agreements.........................................25
6.12 New York Lease.........................................................25
6.13 Share Options..........................................................25
ARTICLE VII
CONDITIONS TO OBLIGATION TO CLOSE........................................................27
7.1 Conditions to Obligation of Buyer......................................27
7.2 Conditions to Obligation of Unicorn, Holdings and Seller...............29
ARTICLE VIII
REMEDIES FOR BREACHES OF THIS AGREEMENT..................................................31
8.1 Survival of Representations and Warranties.............................31
8.2 Indemnification Provisions for Benefit of Buyer........................31
8.3 Indemnification Provisions for Benefit of Seller and Holdings..........33
8.4 Matters Involving Third Parties........................................33
8.5 Sole Remedy............................................................34
8.6 Unlimited Claims.......................................................35
8.7 Litigation Claim.......................................................35
ARTICLE IX
TERMINATION..............................................................................35
9.1 Termination of Agreement...............................................35
9.2 Effect of Termination..................................................36
9.3 Liquidated Damages.....................................................36
ARTICLE X
MISCELLANEOUS............................................................................36
10.1 Entire Agreement.......................................................36
10.2 No Third-Party Beneficiaries...........................................36
10.3 Succession and Assignment..............................................37
10.4 Counterparts...........................................................37
10.5 Headings...............................................................37
10.6 Notices................................................................37
10.7 Governing Law..........................................................38
10.8 Return of Information..................................................38
10.9 Amendments and Waivers.................................................38
10.10 Severability...........................................................38
10.11 Expenses...............................................................39
10.12 Construction...........................................................39
10.13 Incorporation of Exhibits, Annexes, and Schedules......................39
10.14 Specific Performance...................................................39
10.15 Submission to Jurisdiction.............................................39
10.16 Fulfillment of Obligations.............................................40
10.17 Schedules..............................................................40
</TABLE>
ii
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<TABLE>
<S> <C>
10.18 Definition of "ordinary course"........................................40
10.19 Attorney's Fees........................................................40
PENSION SCHEDULE.........................................................................66
</TABLE>
iii
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DISCLOSURE SCHEDULE
<TABLE>
<CAPTION>
Schedule Section Heading
- -------- ---------------
<S> <C>
I Intercompany Debt
S Subsidiaries
Section 2.3 Working Capital Statement Preparation Principles
Section 3.1 Representations and Warranties of Holdings and Seller
Section 3.2 Representations and Warranties of Buyer
Section 5.4(g) Operation of Business
Section 6.3 Covenant Not to Compete - Exceptions
Section 4.1 Interest in Related Entities
Section 4.3 Group Entities Capitalization
Section 4.4 Investments
Section 4.5 No Violations
Section 4.6 Title to Assets; Encumbrances
Section 4.7 Possession
Section 4.8 Personal Property
Section 4.10(a) Intellectual Property
Section 4.10(b) Infringement by Seller
Section 4.10(d) Validity
Section 4.10(e) Claims
Section 4.10(f) Infringement against Seller
Section 4.10(m) Registered Marks
Section 4.10(n) Owned Images
Section 4.10(q) Licensed Images
Section 4.10(s) Storage/Handling Contracts
Section 4.10(v) Photographer Contracts
Section 4.11 Environmental Protection
Section 4.13 Certain Changes and Events
Section 4.14 Absence of Changes
Section 4.15 Tax Matters
Section 4.16 Compliance with Laws
Section 4.17 Litigation regarding Vermont Entities
Section 4.18 Permits
Section 4.19 Employees; Labor Relations
Section 4.20(a) Employee Benefit Plans
Section 4.20(c) Qualification; Compliance
Section 4.22 Agreements
Section 4.23 Certain Matters Concerning Pix
Section 4.24 Insurance
</TABLE>
iv
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STOCK PURCHASE AGREEMENT
Agreement entered into as of February 27, 2000, by and among United
Business Information B.V., a corporation organized pursuant to the laws of The
Netherlands ("Seller"), Ludgate Holdings GmbH, a corporation organized under the
laws of Germany ("Holdings"), United News & Media plc, an English limited
company ("Unicorn"), and Getty Images Inc., a Delaware corporation ("Buyer").
Buyer, Seller, Holdings and Unicorn are referred to collectively herein as the
"Parties" and each individually as a "Party".
SUMMARY OF TRANSACTION
WHEREAS, Seller's wholly owned subsidiary, Visual Communications Group
(VCG) B.V., a corporation organised under the laws of The Netherlands ("VCG"),
is the legal and beneficial owner of all of the issued stock or share capital of
Visual Communications Group Holdings Ltd., a company incorporated in England and
Wales ("VCG Holdings"), Definitive Stock, Inc., a Delaware corporation
("Definitive Stock"), and VCG Holdings LLC ("VCGLLC") a Delaware limited
liability company.
WHEREAS, Holdings is the legal and beneficial owner of all of shares of
the common stock divided into one share (Geschaeftsanteil) having a par value of
DM250,000 (the "Bavaria Shares"), of VCG Deutschland GmbH, a corporation
organized under the laws of Germany ("Bavaria"), which comprise all of the
issued stock or share capital of Bavaria;
WHEREAS, Bavaria holds the aggregate nominal stated capital in the
amount of DM50,000 of Bavaria Bildagentur Verwaltungsgesellschaft mbH, a limited
liability company established and existing under the laws of Germany, registered
in the Commercial Register at the Lower Court of Munich under HRB 113725 and
having its registered office in Gauting, Germany (hereinafter "General
Partner"), and Bavaria also holds a limited partnership interest of DM100,000
being the sole Limited Partner in the limited partnership with the firm named
Bavaria Bildagentur GmbH & Co. KG, a limited partnership formed under the laws
of Germany, registered in the Commercial Register at the Lower Court of Munich
under HRA 71332 with registered offices in Gauting, Germany (hereinafter
"Bavaria KG"). The limited partnership interest which is identical in amount
with the liability capital ("Hafteinlage") is fully paid in. The General Partner
does not participate in the capital of Bavaria KG.
WHEREAS, the General Partner holds the aggregate nominal stated capital
in the amount of EURO 25,000 of its wholly-owned subsidiary iSwoop GmbH, a
limited liability company established and existing under the laws of Germany,
registered in the Commercial Register at the Lower Court of Munich under
HRB128120 and having its registered office in Gauting, Germany (hereinafter
"iSwoop GmbH").
WHEREAS, Buyer desires to purchase, and Seller desires to sell and cause
VCG to sell or cause to be sold all of the Vermont Shares, upon the terms and
subject to the satisfaction of the conditions set forth in this Agreement; and
<PAGE> 7
WHEREAS, Buyer desires to purchase, and Holdings desires to sell, all of
the Bavaria Shares, upon the terms and subject to the satisfaction of the
conditions set forth in this Agreement; and
NOW, THEREFORE, to effect such transactions and in consideration of the
mutual covenants, representations, warranties and agreements hereinafter set
forth and other good and valuable consideration, the receipt of which is hereby
acknowledged by each Party, and intending to be legally bound hereby, the
Parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS AND TERMS
1.1 SPECIFIC DEFINITIONS. As used in this Agreement, the following terms
shall have the meanings set forth or as referenced below:
"Adverse Consequences" shall mean actions, suits, proceedings, hearings,
investigations, charges, complaints, claims, demands, injunctions, judgments,
orders, decrees, rulings, damages, dues, penalties, fines, costs, amounts paid
in settlement, liabilities, obligations, taxes, liens, losses, expenses, and
fees, including court costs and reasonable attorneys' fees and expenses.
"Affiliate" shall mean with respect to any Person, any Person directly
or indirectly controlling, controlled by, or under common control with, such
other Person at the time at which the determination of affiliation is made. As
used in this definition, the term "control" (including, with correlative
meanings, the terms "controlled by" and "under common control with"), as applied
to any Person, means the possession, direct or indirect, of the power to direct
or cause the direction of the management and policies of such Person, whether
through the ownership of voting securities or other ownership interests, by
contract or otherwise. (When used in relation to the Buyer, the term "Affiliate"
shall include the Group Entities after the Closing and when used in relation to
a Group Entity the term "Affiliate" shall include the Buyer after the Closing.)
"Agreement" shall mean this Agreement, as the same may be amended or
supplemented from time to time in accordance with the terms hereof.
"Approved Images" shall have the meaning set forth in Section 4.10.
"Authorizations" shall have the meaning set forth in Section 4.18.
"Assets" means the assets of the Group Entities, including all real and
personal property owned or leased by the Group Entities.
"Bavaria" shall have the meaning set forth in the recitals.
"Bavaria Entities" shall mean Bavaria and each of its Subsidiaries.
2
<PAGE> 8
"Bavaria Shares" shall have the meaning set forth in the recitals.
"Benefit Plans" shall have the meaning set forth in Section 4.20.
"Books and Records" shall mean all books, ledgers, files, reports, plans
and operating records of, or maintained by or for, the Group Entities.
"Business" shall mean the business of the Vermont Entities and the
Bavaria Entities, taken together as a group, comprised of the licensing of still
photography images to persons in the advertising, design, publishing and
corporate markets.
"Business Day(s)" shall mean any day or days other than a Saturday, a
Sunday or a United States federal holiday or a state holiday in the State of New
York.
"Buyer" shall have the meaning set forth in the recitals.
"Cash Adjustment Amount" shall have the meaning set forth in Section
2.3.
"Cash Statement" shall have the meaning set forth in Section 2.3.
"Chosen Courts" shall have the meaning set forth in Section 10.15.
"Closing" shall mean the closing of the transactions contemplated by
this Agreement.
"Closing Date" shall have the meaning set forth in Section 2.4(a).
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Confidentiality Agreement" shall mean the Agreement dated December 9,
1999 between Seller and Buyer.
"Contracts" shall mean any agreements, contracts, leases, purchase
orders, arrangements, commitments and licenses, whether oral or written.
"Damages" shall mean any and all costs, damages, liabilities, fines,
fees, penalties, interest obligations, deficiencies, losses, Taxes and expenses
(including, without limitation, amounts paid in settlement, interest, court
costs, costs of investigation, reasonable fees and expenses of attorneys,
accountants, actuaries, and experts, and other reasonable expenses of litigation
or mediation of any claim, default, or assessment), and diminution in value,
including incidental and consequential damages, whether or not involving a third
party claim.
"Definitive Stock" shall have the meaning set forth in the recitals.
"Definitive Stock Shares" shall mean all of the issued stock and share
capital of Definitive Stock.
3
<PAGE> 9
"Disclosure Schedule" shall have the meaning set forth in Article IV.
"Dispute Accountants" shall have the meaning set forth in Section 2.3.
"Employees" shall mean all current and former employees of the Group
Entities.
"Encumbrances" shall mean any and all mortgages, pledges, assessments,
security interests, leases, subleases, liens, adverse claims, tribal claims,
levies, charges, options, warrants, assignments, rights to possession, rights of
others or restrictions (whether on voting, sale, transfer, disposition or
otherwise) or other encumbrances of any kind, whether imposed by agreement,
understanding, law or equity, or any conditional sale contract, title retention
contract, or other contract to give or refrain from giving any of the foregoing.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended.
"GAAP" shall have the meaning set forth in Section 2.3.
"Governmental Authority" shall mean any court (including a court of
equity), any federal, provincial, state, county, municipal or other government
or governmental department, ministry, commission, board, bureau, agency or
instrumentality, any securities commission, stock exchange or other regulatory
or self regulatory body, any arbitrator or arbitration tribunal and any other
tribunal, whether domestic or foreign.
"Governmental Authorizations" shall mean all licenses, permits,
certificates and other authorizations and approvals required (i) with respect to
Buyer, Seller, Holdings or a Group Entity to perform their respective
obligations hereunder and (ii) with respect to the Group Entities, to carry on
its business as currently conducted or presently proposed to be conducted under
applicable laws, ordinances or regulations of any Governmental Authority.
"Group Entities" shall mean the Vermont Entities together with the
Bavaria Entities, and each such entity shall be referred to individually as a
"Group Entity".
"Holdings" shall have the meaning set forth in the recitals.
"HSR Act" shall mean the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended.
"Image" shall have the meaning set forth in Section 4.10.
"Indemnified Parties" shall have the meaning set forth in Section
8.4(a).
"Indemnifying Party" shall have the meaning set forth in Section 8.4(a).
"Intellectual Property" shall have the meaning set forth in Section
4.10.
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"Intercompany Debt" shall mean that debt owing by any of the Group
Entities or any of the Bavaria Entities to Seller, Holdings or any of Seller's
Affiliates or Holdings' Affiliates (other than the Group Entities), as at the
Closing Date and to the extent set forth on a Schedule I, to be delivered by the
Seller to the Buyer not less than two (2) Business Days prior to the Closing
Date.
"Knowledge of the Seller" shall mean knowledge of at least one of the
directors and executive officers of Seller or at least one of the following
directors and executive officers of Vermont: Andrew Nugee, Michael Wolfson, Leo
Shapiro, Charles Gregson, Neil Mepham (with respect only to Section 4.15) and
David Moody and Rebecca Taylor (with respect only to Section 4.10) and Craig
Baxendale (with respect only to Section 4.10). "Knowledge of Seller" shall
include the knowledge that any of such persons would have had if he or she had
made due inquiry.
"Laws" shall mean any federal, state, foreign, or local law, statute,
ordinance, rule, regulation, order, judgment or decree.
"Leases" shall have the meaning set forth in Section 4.9.
"Licensed Images" shall have the meaning set forth in Section 4.10.
"Licensed Intellectual Property" shall have the meaning set forth in
Section 4.10.
"Listed Intellectual Property" shall have the meaning set forth in
Section 4.10.
"Material Adverse Effect" shall mean a material adverse effect on the
validity or enforceability of this Agreement, on the ability of a particular
Party to perform its obligations under this Agreement, or on the business,
operations, assets, liabilities, condition (financial or otherwise) or results
of operations of such Party.
"Material Agreement" shall have the meaning set forth in Section 4.22.
"Merger" shall have the meaning set forth in Section 4.23.
"Notarial Deed" shall have the meaning set forth in Section 2.4(b).
"Owned Images" shall have the meaning set forth in Section 4.10.
"Owned Intellectual Property" shall have the meaning set forth in
Section 4.10.
"Person" shall mean an individual, a corporation, a partnership, an
association, a limited liability company, a trust or other entity or
organization.
"Regulatory Law" means the Sherman Act, as amended, the Clayton Act, as
amended, the HSR Act, the Federal Trade Commission Act, as amended, and all
other federal, state and foreign, if any, statutes, rules, regulations, orders,
decrees, administrative and judicial doctrines and other
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laws that are designed or intended to prohibit, restrict or regulate (i)
mergers, acquisitions or other business combinations, (ii) foreign investment or
(iii) actions having the purpose or effect of monopolization or restraint of
trade or lessening competition.
"Returns" shall mean all information, notices, accounts, computations,
returns, declarations, reports, estimates, information returns and statements of
any nature regarding Taxes.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Seller" shall have the meaning set forth in the recitals.
"Software" shall have the meaning set forth in Section 4.10.
"Subsidiaries" shall mean any corporation, company, partnership or other
entity the majority of the voting equity or other ownership interests of which
is owned, directly or indirectly, by the entity in connection with which the
term is employed, and shall include, in the case of a partnership, any
partnership whose general partner is the entity in connection with which the
term is employed (when referring to VCG Holdings, Definitive Stock, VCGLLC or
Bavaria, "Subsidiaries" shall include without limitation each of the entities
set forth on Schedule S attached hereto).
"Taxes" shall mean all federal, state, local or foreign taxes, charges,
duties, fees, imposts, levies or other assessments, in all cases in the nature
of taxation, including, but not limited to income, gross receipts, windfall
profits, capital, net worth, profits, corporate value added, capital duty,
severance, real property, personal property, inheritance, gift, production,
sales, use, license, excise, franchise, employment, withholding, transfer, ad
valorem, inventory, capital stock, social security, national insurance, payroll,
unemployment, severance, stamp, occupation or similar taxes, customs duties,
fees, assessments and charges of any kind whatsoever, in each case: (i) whether
computed on a separate, consolidated, combined, unitary or any other basis
(including pursuant to a statutorily imposed transferee liability); and (ii)
together with any interest, additions or penalties with respect thereto and any
interest in respect of such additions or penalties.
"Taxing Authority" shall mean the Internal Revenue Service and any other
domestic or foreign governmental authority responsible for the administration of
any Taxes.
"UK Benefit Plans" shall mean (a) United Money Purchase Pension Scheme;
(b) Group Personal Pension Scheme for VCG employees; (c) United Magazines Final
Salary Pension Scheme; (d) the personal pension arrangement for Mr Angeloglou
with Scottish Widows; and (e) United Pension Plan.
"Unapproved Images" shall have the meaning set forth in Section 4.10.
"Unicorn" shall have the meaning set forth in the recitals.
"VCG" shall have the meaning set forth in the recitals.
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"VCG Holdings" shall have the meaning set forth in the recital.
"VCG Holdings Shares" shall mean all of the issued stock and share
capital of VCG Holdings.
"VCGLLC" shall have the meaning set forth in the recitals.
"VCGLLC Shares" shall mean all of the issued and outstanding equity or
other ownership interests in VCGLLC.
"Vermont Entities" shall mean VCG Holdings, Definitive Stock, VCGLLC and
each of their Subsidiaries.
"Vermont Shares" shall mean all of the VCG Holdings Shares, all of the
Definitive Stock Shares and all of the VCGLLC Shares.
1.2 OTHER TERMS. Other terms may be defined elsewhere in the text of
this Agreement and, unless otherwise indicated, shall have the meaning
specifically ascribed to such terms wherever such terms appear elsewhere in this
Agreement.
1.3 OTHER DEFINITIONAL PROVISIONS.
(a) References in this Agreement to "Sections," "Articles,"
"Exhibits," "Annexes" and "Schedules" are to sections, articles, exhibits,
annexes and schedules herein and hereto unless otherwise indicated. Unless
otherwise set forth herein, references in this Agreement to any document,
instrument or agreement (including, without limitation, this Agreement) (i)
shall include all exhibits, annexes, schedules and other attachments thereto,
(ii) shall include all documents, instruments or agreements issued or executed
in replacement thereof and (iii) shall mean such document, instrument or
agreement, or replacement or predecessor thereto, as amended, modified or
supplemented from time to time in accordance with its terms and in effect at any
given time.
(b) Wherever from the context it appears appropriate, each term
stated in either the singular or plural shall include the singular or plural.
(c) The words "hereof", "herein", and "hereunder" and words of
similar import, when used in this Agreement, shall refer to this Agreement as a
whole and not to any particular provision of this Agreement.
(d) References to any statute or statutory provision shall be
construed as a reference to such statute or statutory provision as in force at
the date of this Agreement and as respectively subsequently amended, re-enacted
or consolidated.
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ARTICLE II
PURCHASE AND SALE OF VERMONT SHARES AND BAVARIA SHARES
2.1 BASIC TRANSACTION. On the terms and subject to the conditions of
this Agreement, and in reliance upon the representations and warranties of the
Parties herein, at the Closing, Buyer agrees to purchase from Seller, VCG and
Holdings, and Seller and Holdings each agrees to sell, transfer and convey to
Buyer or cause the sale, transfer and conveyance to Buyer, all of the Vermont
Shares and Bavaria Shares for the consideration specified in Section 2.2 hereof.
2.2 PURCHASE PRICE. At the Closing, as the Purchase Price to be paid by
Buyer for the Vermont Shares and the Bavaria Shares, Buyer shall pay to Seller
and Holdings the aggregate sum of $220,000,000 less the amount of Intercompany
Debt, subject to post-Closing adjustment to increase or decrease the Purchase
Price by the Cash Adjustment Amount pursuant to Section 2.3.
2.3 CASH ADJUSTMENT. As soon as practicable, but in any event not later
than five (5) business days following the Closing Date, Buyer shall cause to be
delivered to Seller an unaudited statement of the cash, cash equivalents and
bank overdrafts of the Group Entities taken as a whole (the "Cash Statement"),
as of the close of business on the Closing Date, prepared in accordance with
United Kingdom generally accepted accounting standards applied on a basis
consistent with the prior practices of the Group Entities (hereinafter, "GAAP"),
provided, however, that cash, cash equivalents and bank overdrafts will be
determined for purposes of the Cash Statement through full application of the
procedures used in preparing the most recent balance sheet included within the
Audited Vermont Financial Statements and the Bavaria Financial Statements. For
the avoidance of doubt, in calculating the amount of cash, such amount shall be
reduced by the amount of any checks drawn prior to Closing which have not been
present prior to closing, and increased by the amount of any receipts paid-in
but not yet cleared as of the Closing.
Seller and its accountants Price WaterhouseCoopers LLC ("Seller's
Accountants"), shall have the right to review the Cash Statement, and in
connection with such review, Seller and Seller's Accountants shall have the
right to examine any books and records of the Group Entities reasonably
necessary to make a complete review of the Cash Statement, and Buyer shall make
available to Seller and Seller's Accountants their working papers related to the
preparation of the Cash Statement.
Within five (5) business days after Seller receives the Cash Statement,
Seller shall give written notice to Buyer of any objections Seller has with
respect to the Cash Statement, which notice shall specify the basis for such
objections in reasonable detail. If Seller does not notify Buyer of any
objections within such five business day period, then Seller shall be deemed to
have accepted the Cash Statement and the amounts reflected therein shall become
final and binding on the Parties for purposes of this Section 2.3.
If Seller objects to the Cash Statement as provided above, then the
parties shall negotiate in good faith to resolve such objections and arrive at
an agreed upon Cash Statement. Any objections of Seller which have not been
resolved by the parties within 10 business days after the delivery of
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Seller's objections to Buyer shall be presented for resolution to Arthur
Andersen LLP (the "Dispute Accountants"). The Dispute Accountants shall promptly
resolve the disputed items in accordance with the provisions of this Section 2.3
and the determinations of the Dispute Accountants in respect thereof shall be
final and binding upon the parties for purposes of this Section 2.3. Neither
party will disclose to the Dispute Accountants, nor will the Dispute Accountants
consider for any purpose, any settlement offer made by either party.
As used in this Agreement, the term "Cash Statement" shall mean such
statement in the form which becomes final and binding upon the Parties as
hereinabove provided.
After the Cash Statement is finalized, the Purchase Price shall be
adjusted upward or downward as follows: (A) if the net amount of cash, cash
equivalents and bank overdrafts reflected on the Cash Statement exceeds Pound
Sterling 450,000, then the Purchase Price shall be increased by the amount of
such excess (the "Cash Adjustment Amount") and Buyer shall pay the Cash
Adjustment Amount to Seller, or (B) if the net amount of cash, cash equivalents
and bank overdrafts reflected on the Cash Statement are less than Pound
Sterling 450,000, then the Purchase Price shall be decreased by the amount of
such deficiency (the "Cash Adjustment Amount") and Seller shall pay the Cash
Adjustment Amount to Buyer.
The appropriate party shall, within one (1) business day after the Cash
Statement becomes final and binding, pay to the other party the Cash Adjustment
Amount, together with interest thereon at a rate of LIBOR plus one percent (1%)
calculated from the Closing Date to the date on which the Cash Adjustment Amount
is received by the party that is entitled to payment thereof.
2.4 CLOSING; DELIVERIES; PAYMENT.
(a) The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Carter, Ledyard &
Milburn at Two Wall Street, New York, New York, commencing at 10:00 a.m. local
time on March 26, 2000, or at such other, or such additional, time and place as
the Parties hereto may mutually agree (the "Closing Date"). The Closing shall be
deemed to have occurred at 12:01 a.m. local time, on the Closing Date.
(b) At Closing, Holdings and Buyer shall cause a notary capable
and authorised to execute a notarial deed of transfer of the Bavaria Shares (the
"Notarial Deed") between Holdings and Buyer, whereas Holdings will in such deed,
as sole shareholder of Bavaria grant its approval to the share transfer to Buyer
or Buyer's permitted assignee. Furthermore, the parties will request the notary
to inform the management of Bavaria about the share transfer. Simultaneously to
the signing of this Agreement Seller and Holdings will sign powers of attorney
in the required legal form to enable Buyer or its designated nominee to acquire
the Bavaria Shares on the basis of the notarial transfer deed in the agreed
form. The Vermont Shares and the Bavaria Shares shall be delivered to Buyer free
and clear of all liens, pledges, encumbrances, claims, security interests,
charges, voting trusts, voting agreements, other agreements, rights, options,
warrants or restrictions or claims of any kind, nature or description, other
than pursuant to this Agreement. At the Closing, Seller and Holdings shall also
deliver such certificates, instruments, and documents as are required of Seller
under the terms and provisions of this Agreement, all of which shall be in form
and substance
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reasonably satisfactory to Buyer. At the Closing, Seller shall cause to be
delivered to Buyer a duly executed stock transfer form in relation to the entire
issued share capital of VCG Holdings, together with a share certificate in
respect of the number of shares constituted in that stock transfer form in
favour of Buyer (on its permitted assignee) and shall cause the name of the
Buyer (as its permitted assignee) to be entered into the register of members of
VCG Holdings as the registered holder of such shares subject to the stock
transfer form being duly stamped. At the Closing, Seller shall cause to be
delivered to Buyer (on its permitted assignee) stock powers duly endorsed in
blank in respect of the Definitive Stock Shares.
(c) At the Closing, Buyer shall pay $17,000,000 of the Purchase
Price to Holdings for the Bavaria Shares and the remainder of the Purchase Price
to Seller for the Vermont Shares, in each case in immediately available funds by
wire transfer to such account(s) as shall be designated by Seller and Holdings
jointly in writing at least two (2) full Business Days prior to the Closing.
Buyer and Seller shall agree prior to the Closing on the allocation of the
remaining Purchase Price among the Vermont Entities. Buyer shall deliver such
certificates, instruments and documents as are required of Buyer under the terms
and provisions of this Agreement, all of which shall be in form and substance
reasonably satisfactory to Seller and Holdings.
(d) On the Closing Date, Buyer will cause the Group Entities to
settle all Intercompany Debt and shall put them in funds to do so in an amount
equal to the Intercompany Debt. If and to the extent that following payment of
all Intercompany Debt any amount is or may become payable by any of the Group
Entities to Seller or Holdings or any Affiliate of Seller or Holdings (other
than a Group Entity), the occurrence of Closing shall take effect as a waiver by
Seller and Holdings, each for itself and on behalf of each of their Affiliates,
of any amount so payable, except with respect to normal trading balances payable
to OiT and Express Newspapers Limited and receivable by FPG International,
L.L.C. in respect to web hosting, image purchasing and rent respectively, which
shall survive and continue on normal terms or as otherwise provided herein.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
CONCERNING THE TRANSACTION
3.1 REPRESENTATIONS AND WARRANTIES OF UNICORN, HOLDINGS AND SELLER.
Unicorn, Holdings and Seller jointly and severally represent and warrant to
Buyer that the statements contained in this Section 3.1 are correct and complete
with respect to itself (and, in the case of Seller, with respect to VCG) as of
the date of this Agreement and will be correct and complete with respect to
itself as of the Closing Date (as though made then and as though the Closing
Date were substituted for the date of this Agreement throughout this Section
3.1), except as set forth in Section 3.1 of the Disclosure Schedule attached
hereto.
(a) Organization of Holdings and Seller. Each of Unicorn,
Holdings, Seller and VCG is a company duly organized and validly existing under
the laws of its jurisdiction of
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organization and has all requisite corporate power and authority to own, lease
and operate its properties and to carry on its business as now being conducted.
(b) Execution; Authorization of Transaction. Each of Holdings,
Seller and Unicorn has all requisite corporate power and authority to enter into
this Agreement and to perform its obligations hereunder, subject to the receipt
of the approvals, consents and authorizations contemplated hereby. This
Agreement has been duly and validly authorized, executed and delivered by each
of Holdings, Seller and Unicorn and constitutes a legal, valid and binding
obligation of Holdings, Seller and Unicorn, enforceable against each of them in
accordance with its terms and conditions, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles. Except for filings, permits, authorizations, consents and approvals
as may be required under, and other applicable requirements of, the HSR Act and
as otherwise set forth in Section 3.1 to the Disclosure Schedule, no filing with
or notice to, and no permit, authorization, consent or approval of, any
Governmental Authority is necessary for the execution and delivery by each of
Holdings, Seller and Unicorn of this Agreement or the consummation by each of
them (including VCG) of the transactions contemplated hereby, except where the
failure to obtain such permits, authorizations, consents or approvals or to make
such filings or give such notice do not or would not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect. Neither the
execution, delivery and performance of this Agreement by each of Holdings,
Seller and Unicorn nor the consummation by them of the transactions contemplated
hereby will (i) conflict with or result in any breach of any provision of the
respective articles of association or bylaws (or similar governing documents) of
Holdings, Seller, Unicorn or any of the Group Entities, or (ii) result in a
violation or breach of, or constitute (with or without due notice or lapse of
time or both) a default (or give rise to any right of termination, amendment,
cancellation or acceleration or lien) under, any of the terms, conditions or
provisions of any Law applicable to Holdings, Seller, Unicorn or any of the
Group Entities or any note, bond, mortgage, indenture, lease, license, contract,
agreement or other instrument or obligation to which Holdings, Seller, Unicorn
or any of the Group Entities is a party or by which any of them or any of their
respective properties or assets may be bound, except in the case of violations,
breaches or defaults which do not or would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
(c) Brokers' Fees. None of Holdings, Seller, VCG or Unicorn has
any liability or obligation to pay any fees or commissions to any broker,
finder, or agent with respect to the transactions contemplated by this Agreement
for which the Group Entities or Buyer could become liable or obligated.
(d) Vermont Shares; Bavaria Shares. Seller is the legal and
beneficial owner of all of the VCG Shares, and VCG is the legal and beneficial
owner of all of the Vermont Shares, in each case free and clear of any
restrictions on transfer (other than any restrictions under the Securities Act,
state securities laws and restrictions on transfer set forth in the Articles of
Association of Vermont), Taxes, Encumbrances, options, warrants, purchase
rights, contracts, commitments, equities, claims, and demands. Neither Seller
nor VCG is a party to any option, warrant, purchase right, or other contract or
commitment that could require Seller or VCG to sell, transfer, or otherwise
dispose of any capital stock of the Vermont Entities (other than this
Agreement). Neither Seller nor
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VCG is a party to any trust, proxy, or other agreement or understanding with
respect to the voting of any shares or capital stock of VCG Holdings, Definitive
Stock or VCGLLC. The Vermont Shares owned directly or indirectly by Seller
constitute 100% of the outstanding voting capital of VCG Holdings, Definitive
Stock and VCGLLC. No dividends or other distributions of cash or property have
been declared on the Vermont Shares to any person which are due and/or have
remained unpaid.
Holdings is the legal and beneficial owner of all of the Bavaria Shares,
free and clear of any restrictions on transfer (other than any restrictions
under the Securities Act, state securities laws and restrictions on transfer set
forth in the Articles of Association of Bavaria), Taxes, Encumbrances, options,
warrants, purchase rights, contracts, commitments, equities, claims, and
demands. Holdings is not a party to any option, warrant, purchase right, or
other contract or commitment that could require Holdings to sell, transfer, or
otherwise dispose of any capital stock of Bavaria (other than this Agreement).
Holdings is not a party to any trust, proxy, or other agreement or understanding
with respect to the voting of any capital stock of Bavaria. The Bavaria Shares
owned by Holdings constitute 100% of the outstanding voting capital of Bavaria.
No dividends or other distributions of cash or property have been declared on
the Bavaria Shares to any person which are due and/or have remained unpaid.
(e) Litigation Regarding Vermont Shares and Bavaria Shares. There
are no actions, suits, claims, investigations or legal or administrative or
arbitration (or other binding alternative dispute resolution) proceedings
pending or, to the Knowledge of Seller, threatened by or against: (I) Seller or
VCG relating to the Vermont Shares owned directly or indirectly by Seller (II)
Holdings, relating to the Bavaria Shares owned by Holdings, or (III) Seller, VCG
or Holdings relating to this Agreement and/or the transactions contemplated
hereby, before any court, governmental agency or other body, and no judgment,
order, writ, injunction, decree or other similar command of any court or
governmental agency or other body has been entered against or served upon: (I)
Seller or VCG relating to the Vermont Shares owned directly or indirectly by
Seller, (II) Holdings, relating to the Bavaria Shares owned by Holdings, or
(III) Seller, VCG or Holdings relating to this Agreement and/or the transactions
contemplated hereby.
3.2 REPRESENTATIONS AND WARRANTIES OF THE BUYER. Buyer represents and
warrants to Holdings and Seller that the statements contained in this Section
3.2 are correct and complete as of the date of this Agreement and will be
correct and complete as of the Closing Date (as though made then and as though
the Closing Date were substituted for the date of this Agreement throughout this
Section 3.2), except as set forth in Section 3.2 of the Disclosure Schedule
attached hereto.
(a) Organization of the Buyer. Buyer is a corporation duly
organized and validly existing under the laws of the jurisdiction of its
incorporation and has all requisite corporate power and authority to own, lease
and operate its properties and to carry on its business as now being conducted.
(b) Execution; Authorization of Transaction. Buyer has all
requisite corporate power and authority to enter into this Agreement and to
perform its obligations hereunder, subject to the receipt of the approvals,
consents and authorizations contemplated hereby. This Agreement
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has been duly and validly authorized, executed and delivered by Buyer and
constitutes a legal, valid and binding obligation of Buyer, enforceable in
accordance with its terms and conditions, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles. Except for filings, permits, authorizations, consents and approvals
as may be required under, and other applicable requirements of, the HSR Act and
as otherwise set forth in Section 3.2 to the Disclosure Schedule, no filing with
or notice to, and no permit, authorization, consent or approval of, any
Governmental Authority is necessary for the execution and delivery by Buyer of
this Agreement or the consummation by Buyer of the transactions contemplated
hereby, except where the failure to obtain such permits, authorizations,
consents or approvals or to make such filings or give such notice do not or
would not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect. Neither the execution, delivery and performance of this
Agreement by Buyer nor the consummation by Buyer of the transactions
contemplated hereby will (i) conflict with or result in any breach of any
provision of the articles of incorporation or bylaws (or similar governing
documents) of Buyer, (ii) result in a violation or breach of, or constitute
(with or without due notice or lapse of time or both) a default (or give rise to
any right of termination, amendment, cancellation or acceleration or lien)
under, any of the terms, conditions or provisions of any Law applicable to Buyer
(or its permitted assignee) or any note, bond, mortgage, indenture, lease,
license, contract, agreement or other instrument or obligation to which Buyer is
a party or by which Buyer or any of its properties or assets may be bound,
except in the case of violations, breaches or defaults which do not or would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
(c) Brokers' Fees. Buyer has no liability or obligation to pay
any fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement for which Holdings, Seller, VCG or
Bavaria could become liable or obligated.
(d) Investment. Buyer is acquiring the Vermont Shares and the
Bavaria Shares solely for the purpose of investment and not with a view to, or
for sale in connection with, any distribution thereof in violation of the
Securities Act. Buyer acknowledges that neither the Vermont Shares nor the
Bavaria Shares are registered under the Securities Act or any applicable state
securities law, and that such Vermont Shares and Bavaria Shares may not be
transferred or sold except pursuant to the registration provisions of the
Securities Act or pursuant to an applicable exemption therefrom and pursuant to
state securities laws and regulation as applicable.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF SELLER AND HOLDINGS CONCERNING THE GROUP ENTITIES
Seller (as to the Vermont Entities) and Holdings (as to the Bavaria
Entities) represent and warrant to Buyer, as of the date hereof and as of the
Closing Date (except that representations and warranties that are made as of a
specific date need to be true only as of such date), as provided in Annex A
hereto, subject to and except as disclosed in the Disclosure Schedule delivered
by Seller and Holdings to Buyer and initialed by the Parties on today's date
(the "Disclosure Schedule"). For
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purposes of this Agreement the disclosure of any matter in any Section of the
Disclosure Schedule shall serve as sufficient disclosure for purposes of all of
the representations and warranties contained in Annex A hereto as to which the
descriptive nature of the disclosure provides sufficient notice of the
materials, facts or items described therein to indicate such disclosure's
relevancy to other representations and warranties.
ARTICLE V
PRE-CLOSING COVENANTS
The Parties agree as follows with respect to the period between the
execution of this Agreement and the Closing.
5.1 GENERAL. Each of the Parties will use its commercially reasonable
efforts to take all action and to do all things necessary, proper, or advisable
in order to consummate and make effective the transactions contemplated by this
Agreement (including satisfaction, but not waiver, of the closing conditions set
forth in Article VII below).
5.2 PRESS RELEASES AND PUBLIC ANNOUNCEMENTS. No Party shall issue or
cause to be issued any press release or make or cause to be made any public
announcement relating to the subject matter of this Agreement prior to the
Closing (except for the joint press release to be made on or about the date
hereof in the form attached hereto as Exhibit A), without the prior written
approval of the other Parties; provided, however, that any Party may make any
public disclosure it believes in good faith is required by applicable law, as a
result of being listed on an exchange or any listing or trading agreement
concerning its publicly-traded securities (in which case the disclosing Party
will use its best efforts to advise the other Parties prior to making the
disclosure). The provisions of this Section 5.2 shall supersede any conflicting
provision contained in the Confidentiality Agreement.
5.3 DISCLOSURE. All information delivered to Buyer by Seller, Holdings,
the Vermont Entities or the Bavaria Entities, or to which Buyer has been
provided access by Seller, Holdings, the Vermont Entities or the Bavaria
Entities or in connection with this Agreement and the transactions contemplated
hereby shall be subject to the terms of the Confidentiality Agreement, which
Confidentiality Agreement shall survive the Closing or any termination of this
Agreement.
5.4 OPERATION OF BUSINESS. Except as contemplated by this Agreement,
Seller shall procure that each of the Vermont Entities, and Holdings shall
procure that each of the Bavaria Entities, shall conduct its operations in the
ordinary and usual course of business consistent with past practice and, to the
extent consistent therewith, with no less diligence and effort than would be
applied in the absence of this Agreement, use their commercially reasonable
efforts: (i) to preserve intact its current business organizations, and (ii) to
keep available the service of its current officers and employees and to preserve
its relationships with customers, suppliers and others having business dealings
with it to the end that goodwill and ongoing businesses shall be unimpaired at
the Closing Date. Without limiting the generality of the foregoing, and except
as otherwise expressly provided
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in this Agreement or in the Disclosure Schedule, prior to the Closing Date no
Group Entity will, without the prior written consent of Buyer:
(a) amend its certificate of incorporation or bylaws (or other
similar governing instrument);
(b) authorize for issuance, issue, sell, deliver or agree or
commit to issue, sell or deliver (whether through the issuance or granting of
options, warrants, commitments, subscriptions, rights to purchase or otherwise)
any stock of any class or any other securities convertible into or exchangeable
for any stock or any equity equivalents (including, without limitation, any
stock options or stock appreciation rights);
(c) (i) split, combine or reclassify any shares of its capital
stock; (ii) declare, set aside or pay any dividend or other distribution
(whether in cash, stock or property or any combination thereof) in respect of
its capital stock; (iii) make any other actual, constructive or deemed
distribution in respect of any shares of its capital stock or otherwise make any
payments to stockholders in their capacity as such; or (iv) redeem, repurchase
or otherwise acquire any of its securities or any securities of any of its
subsidiaries;
(d) adopt a plan of complete or partial liquidation, dissolution,
merger, consolidation, restructuring, recapitalization or other reorganization
of itself or any of its subsidiaries;
(e) alter through merger, liquidation, reorganization,
restructuring or in any other fashion the corporate structure or ownership of
any subsidiary;
(f) (i) incur or assume any long-term or short-term debt or issue
any debt securities, except for borrowings under existing lines of credit in the
ordinary and usual course of business consistent with past practice and in
amounts not material to the Group Entities taken as a whole; (ii) assume,
guarantee, endorse or otherwise become liable or responsible (whether directly,
contingently or otherwise) for the obligations of any other person, except in
the ordinary and usual course of business consistent with past practice and in
amounts not material to the Group Entities, taken as a whole, and except for
obligations of the wholly-owned Subsidiaries of VCG Holdings, Definitive Stock,
VCGLLC and Bavaria; (iii) make any loans, advances or capital contributions to,
or investments in, any other person (other than to the wholly-owned Subsidiaries
of VCG Holdings, Definitive Stock, VCGLLC or Bavaria or customary loans or
advances to employees in the ordinary and usual course of business consistent
with past practice and in amounts not material to the maker of such loan or
advance); (iv) pledge or otherwise encumber shares of capital stock of any of
the Group Entities; or (v) mortgage or pledge any of its material assets,
tangible or intangible, or create or suffer to exist any material Lien
thereupon;
(g) except as may be required by Law or as contemplated by this
Agreement, enter into, adopt or amend or terminate any bonus, profit sharing,
compensation, severance, termination, stock option, stock appreciation right,
restricted stock, performance unit, stock equivalent, stock purchase agreement,
pension, retirement, deferred compensation, employment,
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severance or other employee benefit agreement, trust, plan, fund, award or other
arrangement for the benefit or welfare of any director, officer or employee in
any manner, or (except as set forth in Section 5.1(g) of the Disclosure
Schedule, as required under existing agreements, and hiring and compensation
adjustments occurring in the ordinary course of business consistent with past
practices) increase in any manner the compensation or fringe benefits of any
director, officer or employee or pay any benefit not required by any plan and
arrangement as in effect as of the date hereof (including, without limitation,
the granting of stock appreciation rights or performance units);
(h) acquire, sell, lease or dispose of any assets outside the
ordinary and usual course of business consistent with past practice or any
assets which in the aggregate are material to the Group Entities taken as a
whole, enter into any commitment or transaction outside the ordinary and usual
course of business consistent with past practice or grant any exclusive
distribution rights;
(i) except as may be required as a result of a change in Law or
in GAAP, change any of the accounting principles or practices used by it;
(j) revalue in any material respect any of its assets, including,
without limitation, writing down the value of inventory or writing-off notes or
accounts receivable other than in the ordinary and usual course of business
consistent with past practice or as required by GAAP;
(k) acquire (by merger, consolidation, or acquisition of stock or
assets) any corporation, partnership or other business organization or division
thereof or any equity interest therein; (ii) enter into any contract or
agreement, other than in the ordinary and usual course of business consistent
with past practice, or amend in any material respect any of the Material
Agreements (iii) authorize any new capital expenditure or expenditures which,
individually, are in excess of $60,000 or, in the aggregate, are in excess of
$250,000 or (iv) enter into or amend any contract, agreement, commitment or
arrangement providing for the taking of any action that would be prohibited
hereunder; provided that notwithstanding the foregoing each Group Entity shall
continue to make any capital expenditure in accordance with any capital
expenditure plan in existence at the date hereof;
(l) make or revoke any Tax election, or settle or compromise any
Tax liability or change (or make a request to any taxing authority to change)
any aspect of its method of accounting for Tax purposes;
(m) pay, discharge or satisfy any material claims, liabilities or
obligations (absolute, accrued, asserted or unasserted, contingent or
otherwise), other than the payment, discharge or satisfaction contemplated by
this agreement or in the ordinary and usual course of business consistent with
past practice of liabilities reflected or reserved against in, (I) the
consolidated financial statements of the Vermont Entities, or (II) the
consolidated financial statements of Bavaria and its Subsidiaries, or otherwise
incurred in the ordinary and usual course of business consistent with past
practice, or waive the benefits of, or agree to modify in any manner, any
confidentiality, standstill or similar agreement to which Vermont, Bavaria or
any of their Subsidiaries is a party; provided that each Group Entity shall
continue to pay its creditors as they fall due in the period up to the Closing
Date consistent with past practices;
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(n) settle or compromise any pending or threatened suit, action
or claim relating to the transactions contemplated hereby;
(o) enter into any agreement or arrangement that limits or
otherwise restricts the Group Entities or any successor thereto or that could,
after the Closing Date, limit or restrict the Group Entities or any successor
thereto, from engaging or competing in any line of business or in any geographic
area;
(p) commit to any new expenditure in respect to iSwoop; or
(q) take, propose to take, or agree in writing or otherwise to
take, any of the actions described in Sections 5.4(a) through 5.4(p) or any
action which would make any of the representations or warranties of Vermont
contained in this Agreement (i) which are qualified as to materiality untrue or
incorrect or (ii) which are not so qualified untrue or incorrect in any material
respect.
5.5 NOTICES; HSR. (a) Each of the Parties will give any notices to, make
any filings with, and use its reasonable commercial efforts (in the case of
Buyer, subject to the provisions of Section 5.5(c) below) to obtain any
authorizations, consents, and approvals of governments and governmental agencies
in connection with the matters referred to in Section 3.1(b) and Section 3.2(b)
above. Without limiting the generality of the foregoing, each of the Parties (or
appropriate Affiliates) have filed the Notification and Report Forms and related
material were required to be filed with the Federal Trade Commission (the "FTC")
and the Antitrust Division of the United States Department of Justice (the
"DOJ") under the HSR Act, and each of the Parties will make (and Seller will
cause its appropriate Affiliate to make) any further filings pursuant thereto
that may be necessary, proper, or advisable in connection therewith. Any filing
fees required in connection with filings under the HSR Act shall be borne by
Buyer.
(b) Each of Seller, VCG Holdings, Definitive Stock, FPG, Bavaria
and Buyer shall use its reasonable efforts to (i) cooperate in all respects with
each other in connection with any filing or submission and in connection with
any investigation or other inquiry, including any proceeding initiated by a
private party, (ii) promptly inform the other party of any communication
received by such party from, or given by such party to the DOJ, the FTC or any
other Governmental Authority and of any material communication received or given
in connection with any proceeding by a private party, in each case regarding any
of the transactions contemplated hereby, and (iii) consult with each other in
advance to the extent practicable of any meeting or conference with the DOJ, the
FTC or any such other Governmental Authority or, in connection with any
proceeding by a private party, with any other Person, and to the extent
permitted by the DOJ, the FTC or such other applicable Governmental Authority or
other Person, give the other party the opportunity to attend and participate in
such meetings and conferences.
(c) In furtherance and not in limitation of the covenant of Buyer
set forth in Sections 5.5(a) and (b) above, if any administrative or judicial
action or proceeding, including any proceeding by a private party, is instituted
(or threatened to be instituted) challenging any transaction
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contemplated by this Agreement as violative of any Regulatory Law, or if any
statute, rule, regulation, executive order, decree, injunction or administrative
order is enacted, entered, promulgated or enforced by a Governmental Authority
which would make this Agreement or the other transactions contemplated hereby
illegal or would otherwise prohibit or materially impair or delay the
consummation of this Agreement or the other transactions contemplated hereby,
Buyer shall use its best efforts, including without limitation, selling, holding
separate or otherwise disposing of or conducting its business in a specified
manner, or agreeing to sell, hold separate or otherwise dispose of or conduct
its business in a specified manner or permitting the sale, holding separate or
other disposition of, any assets of Buyer or its Subsidiaries or Affiliates or
the conducting of their business in a specified manner, to vigorously contest
and resist any such action or proceeding and to have vacated, lifted, reversed
or overturned any decree, judgment, injunction or other order, whether
temporary, preliminary or permanent, that is in effect and that prohibits,
prevents or restricts the consummation of this Agreement or the other
transactions contemplated hereby and to have such statute, rule, regulation,
executive order, decree, injunction or administrative order repealed, rescinded
or made inapplicable so as to permit the consummation of the transactions
contemplated by this Agreement.
5.6 ASSISTANCE. Subject to Section 5.3 hereof, Seller and Holdings shall
provide Buyer with such assistance as it may reasonably request and shall
generally assist Buyer with respect to the introduction of Buyer, and its
representatives and agents, to appropriate governmental agencies or officials
having regulatory jurisdiction over the Business and shall cooperate generally
with Buyer in all reasonable respects, including, with limitation,
communications with employees, customers and suppliers.
5.7 ISSUANCE OF SECURITIES. Except as otherwise contemplated hereby
neither Seller nor Holdings shall permit any of the Group Entities to (i) issue
any debt or equity security or any options or warrants, (ii) enter into any
subscriptions, agreements, plans or other commitments pursuant to which any of
the Group Entities is or may become obligated to issue any shares of its capital
stock or any securities convertible into shares of its capital stock, (iii)
otherwise change or modify its capital structure, (iv) make interim
distributions, (v) engage in any reorganization or similar transaction, or (vi)
agree to take any of the foregoing actions.
5.8 OTHER CHANGES. Seller, Holdings and/or the Group Entities may (i)
make capital expenditures of an emergency nature required to avoid imminent
material damage to or shutdown of the Business, or reasonably necessary for
safety reasons, (ii) take such actions as may be required by law, (iii) change,
for any Employee who is not exempt from the overtime provisions of the Fair
Labor Standards Act, the method of calculating the regular rate of pay for
overtime pay calculation purposes to using a weighted average of the different
rates earned by the Employee during the workweek.
5.9 PENSIONS The provisions of the Pension Schedule shall have effect in
respect of the UK Benefit Plans.
5.10 BONUSES At the Closing Date, the Seller shall procure that no
amounts in the nature of bonus payments will remain payable by any Group Entity
to any of its employees or former
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employees (i) for the calendar year ended December 31, 1999, or (ii) in the
nature of "stay or loyalty bonuses" payable to any employee of a Group Entity in
connection with the transactions contemplated by this Agreement.
ARTICLE VI
POST-CLOSING COVENANTS
The Parties agree as follows with respect to the period following the
Closing:
6.1 FURTHER ACTIONS REGARDING TRANSFER. From and after the Closing, each
Party hereto shall, if reasonably requested by any other Party, execute and
deliver such further instruments of conveyance and transfer and take such other
reasonable action as may be necessary or desirable to provide more effectively
the sale and transfer of the Vermont Shares and the Bavaria Shares to Buyer.
6.2 CONFIDENTIALITY. For a period of three years after the Closing,
Seller, Holdings, Unicorn and their Affiliates shall not divulge, furnish or
make available, to anyone (other than Buyer, Seller, Holdings, Unicorn and their
respective Affiliates) any knowledge or information with respect to any
proprietary information of the Group Entities. This Section 6.2 shall not apply
to any such proprietary information which (i) shall have entered the public
domain or become available to the public through no act or omission of Seller,
Holdings, Unicorn or any Affiliate of the foregoing, (ii) shall have become
available to Seller, Holdings, Unicorn or any Affiliate of the foregoing from a
third party whom Seller, Holdings, Unicorn or such Affiliate of the foregoing
reasonably believes is not obligated to the Group Entities or Buyer to keep such
proprietary information confidential, or (iii) shall be required by law to be
disclosed.
6.3 COVENANTS. Each of Seller, Holdings, Unicorn and their Affiliates
undertakes with the Buyer that, without the prior written consent of Buyer it
will not and it will procure that none of their respective Affiliates will:
(a) for the period of 3 years after the date of this Agreement,
either on its own account or in conjunction with or on behalf of any person
carry on or be engaged, concerned or interested (directly or indirectly and
whether as principal, shareholder, agent, consultant, partner or otherwise) in
carrying on the Business, provided, however, that the provisions of this Section
6.3(a) shall in no way be construed to restrict Seller, Holdings, Unicorn and
their Affiliates that are currently engaged in an activity that competes with
the Business from continuing to engage in such activity at levels which are not
materially greater than the levels at which such activity is currently
conducted; or
(b) for the period of 3 years after the date of this Agreement,
either on its own account or in conjunction with or on behalf of any other
person, solicit or endeavour to entice away from any Group Entity, with a view
to obtaining its business in relation to the business, any person who is (and
was at the Closing Date) a customer of a Group Entity; or
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(c) for the period of 3 years after the date of this Agreement,
either on its own account or in conjunction with or on behalf of any person,
employ, solicit or endeavour to entice away from any Group Entity any person
employed or engaged by any Group Entity in an executive or managerial capacity,
whether or not such person would commit a breach of contract by reason of
leaving service or office, except for Leo Shapiro and Andrew Nugee For purposes
of this section 6.3(c), bona fide public advertisements shall not be deemed to
constitute "solicitation" or "enticement" in violation of the provisions hereof;
or
(d) Notwithstanding the foregoing, none of Seller, Holdings,
Unicorn and their Affiliates shall, either on its own account or in conjunction
with or on behalf of any person, employ solicit or endeavour to entice Michael
Wolfson away from Buyer or Buyer's Affiliates for so long as Mr Wolfson is
employed by Buyer or one of Buyer's Affiliates, provided, however, that the
foregoing restriction shall not apply in the event that, by the Closing Date, Mr
Wolfson has not agreed to become an employee of Buyer or one of Buyer's
Affiliates following the Closing Date.
6.4 ACCESS TO INFORMATION.
(a) In order to facilitate the resolution of any third-party
claims made by or against or incurred by or indemnified by Seller prior to or
after the Closing, upon reasonable notice, Buyer shall, after the Closing: (i)
afford the officers, employees and authorized agents and representatives of
Seller reasonable access, during normal business hours, to the offices,
properties, books and records of Buyer and the Group Entities with respect to
the Business for the period prior to the Closing; (ii) furnish to the officers,
employees and authorized agents and representatives of Seller such additional
financial and other information regarding the Business for the period prior to
the Closing as Buyer or any Group Entity has in its possession and Seller may
from time to time reasonably request; and (iii) make available to Seller, the
employees of Buyer and the Group Entities whose assistance, testimony or
presence is necessary to assist Seller in evaluating any such claims and in
defending such claims, including the presence of such persons as witnesses in
hearings on trials for such purposes; provided, however, that such investigation
shall not unreasonably interfere with the businesses or operations of Buyer or
any of its Affiliates; and provided, however, that Buyer shall not be obligated
to disclose any information which it or any of its Affiliates holds under a
legally binding obligation of confidentiality or which is protected by any
privilege.
(b) In order to facilitate the resolution of any third-party
claims made by or against or incurred by Buyer after the Closing, upon
reasonable notice, Seller and Holdings and, with respect to Taxes, Unicorn
shall, after the Closing: (i) afford the officers, employees and authorized
agents and representatives of Buyer reasonable access, during normal business
hours, to the offices, properties, books and records of Seller and Holdings
(and, as regards Taxes, of Unicorn) with respect to the Business and the Assets
for the period prior to the Closing; (ii) furnish to the officers, employees and
authorized agents and representatives of Buyer such additional financial and
other information regarding the Business and the Assets for the period prior to
the Closing as Buyer may from time to time reasonably request; and (iii) make
available to Buyer, the employees of Seller and Holdings (and, as regards Taxes
of any Group Entity, of Unicorn) whose assistance, testimony or presence is
necessary to assist Buyer in evaluating any such claims and in defending such
claims,
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including the presence of such persons as witnesses in hearings or trials for
such purposes; provided, however, that such investigation shall not unreasonably
interfere with the businesses or operations of Seller, Holdings, Unicorn or any
of their Affiliates; and provided, however, that neither Seller nor Holdings nor
Unicorn shall be obligated to disclose any information which it or any of its
Affiliates holds under a legally binding obligation of confidentiality or which
is protected by any privilege.
6.5 REMOVAL OF TRADEMARKS, ETC. As promptly as practicable after the
Closing, and in no event later than ninety (90) days after the Closing Date,
Buyer agrees to (and will cause the Group Entities to) cease use of and to
delete, remove or otherwise obliterate from the Assets, and from all packaging,
advertisements, marketing and promotional materials and other materials used by
the Group Entities, all trade names and trademarks of Seller, Holdings and their
Affiliates, including, but not limited to, references to "United News & Media"
"UNM" and derivatives thereof, and logos associated therewith, provided,
however, that for a period of six months following the Closing Date, Buyer and
its Affiliates shall be permitted to dispose of inventory included in the Assets
on the Closing Date which bears the trade names or trade-marks of Seller,
Holdings and their Affiliates, and provided further that Buyer and its
Affiliates may, following the Closing Date, ship, deliver and display catalogs
bearing such trade names or trademarks which have been produced prior to the
Closing Date.
6.6 CERTAIN TAXES. All transfer, documentary, sales, use, stamp,
registration and other similar taxes and fees (including any penalties and
interest, but excluding taxes imposed on income) incurred in connection with
this Agreement, shall, whether imposed upon Seller, VCG, Holdings, Buyer or any
Group Entity, be borne by Buyer. Seller and Holdings will file all necessary
Returns and other documentation with respect to all such taxes, and, if required
by applicable law, Buyer will, and will cause VCG and the Group Entities to,
join in the execution of any such Returns and other documentation. All costs and
expenses incurred in connection with Seller's and Holdings' filing of Returns
hereunder shall be borne by Buyer. Buyer and each of Seller and Holdings further
agree (and each shall cause the Group Entities to), upon request, to use their
best efforts to obtain any certificate or other document from any governmental
authority or any other Person as may be necessary to mitigate, reduce or
eliminate any such tax that could be imposed (including, but not limited to,
with respect to the transactions contemplated hereby).
6.7 TAX RETURNS; UTILIZATION OF TAX LOSSES.
(a) In respect of any Tax accounting period of any Group Entity
ending on or before the Closing Date, Seller and such of Seller's Affiliates as
are legally competent to do so, and Holdings and such of Holdings' Affiliates as
are legally competent to do so ("the Surrendering Companies") shall be entitled
(but not required) to surrender and Buyer shall procure that the relevant Group
Entity shall cooperate with the Surrendering Companies to accept, receive or
utilize some or all Tax losses of the relevant Surrendering Company so as to
reduce or extinguish any pre-Closing Tax liability of the Group Entity.
(b) To the extent that a Tax loss surrendered in accordance with
paragraph (a) above reduces or eliminates a Tax liability for any 1999 Tax
accounting period that was provided for in the Audited Vermont Financial
Statements or the Bavaria Financial Statements, as applicable,
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the Buyer shall cause the relevant Group Entity to pay as consideration to the
relevant Surrendering Company an amount certified by Vermont's or Bavaria's
auditors, as the case may be, to be equal to the difference between (i) the Tax
otherwise due and payable absent such surrender and (ii) the Tax due and payable
taking into account such surrender. Any payments that are due to be made by the
relevant Group Entity hereunder shall be made on the date on which the Tax that
is saved by virtue of such surrender would otherwise first have been due and
payable.
(c) To the extent that a Tax loss surrendered in accordance with
Section 6.7(a) reduces or eliminates a Tax liability that was not provided for
in the Audited Vermont Financial Statements or the Bavaria Financial Statements,
as applicable, in respect of a 1999 Tax accounting period, no payment shall be
made therefor by the relevant Group Entity but the full value or benefit of such
surrender to the relevant Group Entity shall be taken into account when
computing the amount of any Adverse Consequences suffered by any relevant Group
Entity.
(d) (i)Except as provided in Section 6.7(d)(iii), Seller and
Holdings, or their duly authorized agents, shall be responsible for and have the
conduct of preparing, submitting and agreeing all Returns of the Vermont
Entities and all Returns of all Bavaria Entities (and correspondence and other
documentation relating thereto) with respect to Tax accounting periods ending on
or before the December 31, 1999, subject to all such Returns being submitted in
draft form to Buyer or to Buyer's duly authorized agent for comment at least 42
days before the same are due to be submitted to the relevant Taxing Authority.
Buyer or Buyer's agents shall within 21 days of such submission provide written
comments thereon to Seller and if Seller shall not have received comments within
that period, Buyer shall be deemed to have approved such draft Returns. Such
deemed approval shall not by itself constitute a waiver of Buyer's other rights,
if any, under this Agreement. If Buyer or Buyer's agents shall have made any
written comments in accordance with the provisions of this Section, Seller and
Holdings shall not unreasonably refuse to adopt such comments provided that
Seller and Seller's agents, and Holdings and Holdings' agents, shall not be
obliged to submit any Return to any relevant Taxing Authority unless reasonably
satisfied that it is accurate and complete in all material respects. Seller and
Holdings, on the one hand, and Buyer, on the other hand, shall respectively
afford (or procure to be afforded) to the other or to the other's agents such
information and assistance as may reasonably be required to prepare, submit and
agree all relevant Returns.
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(ii) For Vermont and Bavaria entities which are tax resident in
the Netherlands and Germany, Seller and Holdings, or their duly authorized
agents, shall be responsible for and have the conduct of preparing, submitting
and agreeing to the relevant fiscal unity Returns (and correspondence and other
documentation relating thereto) subject to all such returns being submitted in
draft form to Buyer or to Buyer's duly authorized agent for comment at least 42
days before the same are due to be submitted to the relevant Taxing Authority.
Buyer or Buyer's agents shall within 21 days of such submission provide written
comments thereon to Seller and if Seller shall not have received comments within
that period, Buyer shall be deemed to have approved such draft Returns. Such
deemed approval shall not by itself constitute a waiver of Buyer's other rights,
if any, under this Agreement. If Buyer or Buyer's agents shall have made any
written comments in accordance with the provisions of this Section, Seller and
Holdings shall not unreasonably refuse to adopt such comments provided that
Seller and Seller's agents, and Holdings and Holdings' agents, shall not be
obliged to submit any Return to any relevant Taxing Authority unless reasonably
satisfied that it is accurate and complete in all material respects. Seller and
Holdings, on the one hand, and Buyer, on the other hand, shall respectively
afford (or procure to be afforded) to the other or to the other's agents such
information and assistance as may reasonably be required to prepare, submit and
agree all relevant Returns.
(iii) Buyer, or its duly authorized agents, shall be responsible
for and have the conduct of preparing, submitting and agreeing (x) all 1999
United States Federal, state and local income tax returns (and correspondence
and other documentation relating thereto) of Group Entities which are organized
in the United States and (y) 1999 Irish income tax returns of iSwoop Limited and
iSwoop International Limited, subject to all such Returns being submitted in
draft form to Seller or to Seller's duly authorized agent for comment at least
42 days before the same are due to be submitted to the relevant Taxing
Authority. Seller or Seller's agents shall within 21 days of such submission
provide written comments thereon to Buyer and if Buyer shall not have received
comments within that period, Seller shall be deemed to have approved such draft
Returns. Such deemed approval shall not by itself constitute a waiver of
Seller's other rights, if any, under this Agreement. If Seller or Seller's
agents shall have made any written comments in accordance with the provisions of
this Section, Buyer shall not unreasonably refuse to adopt such comments
provided that Buyer and Buyer's agents shall not be obliged to submit any Return
to any relevant Taxing Authority unless reasonably satisfied that it is accurate
and complete in all material respects. Seller and Buyer shall respectively
afford (or procure to be afforded) to the other or to the other's agents such
information and assistance as may reasonably be required to prepare, submit and
agree all relevant Returns.
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(iv) Except as provided in Section 6.7(d)(ii), Buyer, or its
duly authorized agents, shall be responsible for and have the conduct of
preparing, submitting and agreeing all Returns (and correspondence and other
documentation relating thereto) of Group Entities for Tax accounting periods
beginning on or after January 1, 2000, subject to all such Returns for which
Buyer will seek indemnification under Section 8.2(c) hereof being submitted in
draft form to Seller or to Seller's duly authorized agent for comment at least
42 days before the same are due to be submitted to the relevant Taxing
Authority. Seller or Seller's agents shall within 21 days of such submission
provide written comments thereon to Buyer and if Buyer shall not have received
comments within that period, Seller shall be deemed to have approved such draft
Returns. Such deemed approval shall not by itself constitute a waiver of
Seller's other rights, if any, under this Agreement. If Seller or Seller's
agents shall have made any written comments in accordance with the provisions of
this Section, Buyer shall not unreasonably refuse to adopt such comments
provided that Buyer and Buyer's agents shall not be obliged to submit any Return
to any relevant Taxing Authority unless reasonably satisfied that it is accurate
and complete in all material respects. Seller and Buyer shall respectively
afford (or procure to be afforded) to the other or to the other's agents such
information and assistance as may reasonably be required to prepare, submit and
agree all relevant Returns.
(e) (i) To the extent that it does not result in more than
nominal Adverse Consequences to any of them, Buyer shall procure that all Group
Entities shall cause the agreed Returns referred to in Section 6.7(d) and,
subject to Section 6.7(a) above, all such claims, disclaimers, surrenders and
elections as may be directed by Seller and Holdings relating to all such Returns
of all Group Entities ending on or before the Closing Date to be authorized,
signed and returned to Seller for submission to the Taxing Authority as soon as
is reasonably practicable. Seller and Holdings shall submit such claims,
disclaimers, surrenders and elections to the relevant Group Entity for such
signature sufficiently in advance of the required filing date for the relevant
Group Entity to adequately review such claim, disclaimer, surrender or election.
(ii) Buyer shall, and shall procure that all Group Entities,
cooperate with Seller and Holdings, and their agents, as and to the extent
reasonably requested by Seller or Holdings, in connection with Seller's or
Holdings' exercise of their rights and responsibilities under this Section 6.7.
Such cooperation shall include retention and (upon Seller's or Holdings'
request) the provision of records and information which are reasonably relevant
to such exercise, and making employees available on a mutually convenient basis
to provide additional information and explanation of any material provided
hereunder. Seller and Holdings shall reimburse Buyer and the Group Entities for
any reasonable out of pocket expenditures incurred by them by reason of such
cooperation.
6.8 LEASES. Buyer shall indemnify Seller, Holdings and their Affiliates,
in the manner and subject to the limitations set forth in Article VIII, from and
against any and all claims and Adverse Consequences arising from the Leases for
all periods after the Closing Date.
6.9 INDEMNIFYING PARTY In the event that the net worth of Seller shall,
at any time during the period for which Seller is obligated to indemnify Buyer
pursuant to Section 8.1 and 8.2
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hereof, be less than $650,000,000, Unicorn shall cause one of its Affiliates
having a net worth of not less than $650,000,000 execute such agreement(s) as
may be reasonably requested by Buyer including legal opinions or other
assurances as to the enforceability of such agreements to provide for the
assignment by Seller and the assumption by such Affiliate of Seller's
indemnification obligations pursuant to such Section, provided that in no event
shall such indemnification obligations be expanded or increased beyond the
limitations set forth in such Section.
6.10 ANDREW NUGEE Seller shall use its commercially reasonable efforts
to cause Andrew Nugee to voluntarily resign his employment by the Group Entity
by which he is currently employed on the third business day following the
Closing, and Buyer will cause such Group Entity to waive in writing its right to
notice of termination of Mr Nugee's employment with such Group Entity.
6.11 BAVARIA AND VERMONT AGREEMENTS Holdings and Buyer hereby covenant
and agree to execute and delivers prior to the Closing an agreement providing
for the sale by Holdings and the purchase by Buyer (or its permitted assignee)
of the Bavaria Shares, and Seller, Unicorn and Buyer hereby covenant and agree
to execute and deliver prior to the Closing an agreement providing for the sale
by Seller and the purchase by Buyer (or its permitted assignee) of the Vermont
Shares, in each case reflecting the terms and conditions set forth herein. Such
agreements, once executed and delivered, shall be delivered in replacement of
this Agreement, which shall terminate immediately upon the execution and
delivery of such agreements.
6.12 NEW YORK LEASE The Parties hereby covenant and agree that, for a
period of 6 months following the Closing Date, Unicorn shall be permitted to
continue its occupation of such portion of the office space located on the 5th
floor at 32 Union Square East, New York, New York as it presently occupies
pursuant to an oral sublease from FPG International, LLC (successor-in-interest
to FPG International Group, Inc., the lessee thereof pursuant to the Lease dated
August 9, 1990 with 24-32 Union Square East Associates, Limited Partnership (the
"Landlord"), as amended), on the same terms, including without limitation,
rental rate, as Unicorn presently occupies such space. The Parties hereby agree
that Unicorn's sublease shall require 6 months prior written notice for
termination by FPG International, LLC. Buyer hereby covenants and agrees that
neither it nor it's Affiliates will serve any such termination notice prior to
the six month anniversary of the Closing Date. During the initial 12 month
period, Buyer shall use its commercially reasonable efforts to assist Unicorn in
(i) securing the Landlord's consent to and approval of this Section 6.12 (with
respect to Unicorn's continued occupation, and (ii) securing a direct lease of
such space from the Landlord. On furtherance of the foregoing, the Parties
hereby agree that FPG International LLC and Unicorn shall be permitted to enter
into a written sublease reflecting the terms of the existing sublease described
above, in a form reasonably acceptable to Buyer.
6.13 SHARE OPTIONS
(a)Definitions
the "SCHEMES" the Sharesave Plan, the 1994
International Scheme, the 1994 UK
Scheme and the 1994 SAYE and any
other
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share option schemes adopted and
operated by the Sellers;
the "THE 1994
INTERNATIONAL SCHEME" the Unapproved 1994 International
Executive Share Option Scheme;
the "1994 SAYE" the Approved 1994 UK Executive Share
Option Scheme;
the "SHARESAVE PLAN" the 1997 Unapproved United News &
Media plc International Sharesave
Plan;
the "OPTION" an option over shares in the issued
ordinary share capital of Unicorn
Plc, the terms of which are as
determined by the applicable Scheme;
"RELEVANT EMPLOYEE" a person who is an employee of any
one or more Group Entities on or
after Closing and who currently has
or may in the future have any rights
under any of the Schemes, which
expression shall include the
personal representatives of such
individual and any other person
deriving rights under any such
Scheme from such individual;
"RETAINED GROUP" Sellers and any subsidiary or
subsidiary undertaking or any
holding company for the time being
of Sellers, or any subsidiary or
subsidiary undertaking of such
holding company other than the Group
Entities;
"SCHEME RIGHTS" the right of a Relevant
Employee under the Schemes to
exercise any Option under the
Schemes on or in consequence of
Closing in favour of such Relevant
Employee.
(b)SELLER'S OBLIGATIONS
Where Scheme Rights confer upon any Relevant Employee any legal
or contractual right to exercise any outstanding Option under any
Scheme and any Relevant Employee elects to exercise any
outstanding Option under any Scheme in accordance with such legal
or contractual right, then Seller shall or shall procure that all
relevant shares or securities are issued to the Relevant Employee
in satisfaction of such exercise.
(c)BUYER'S OBLIGATIONS
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Buyer shall co-operate with Sellers to ensure that, following
Closing, it shall, at the request of Sellers, take such steps as
shall be reasonably necessary or desirable to enable the Retained
Group to efficiently administer the Schemes in an effective and
timely manner in relation to the Relevant Employees (including
enabling the Retained Group to utilize the payroll services of
the Vermont Entities to effect any payment and any consequential
deductions therefrom in respect of income tax, social security or
the like required to be made as a result of the Sellers
acquitting their responsibilities under paragraph 2 above.). In
particular, and without prejudice to the generality of the
foregoing, the Buyers shall procure that neither they nor any of
the Vermont Entities grant or purport to grant any rights or
entitlements under any Scheme nor does nor purports to do
anything pursuant to any Scheme. For the avoidance of doubt, as
between the Parties, Buyer shall be responsible for any relevant
Taxes occurring upon exercise of Scheme Rights as employer of the
Relevant Employees.
ARTICLE VII
CONDITIONS TO OBLIGATION TO CLOSE
7.1 CONDITIONS TO OBLIGATION OF BUYER. The obligations of Buyer under
this Agreement and the consummation by Buyer of the transactions contemplated
hereby are subject to the satisfaction at or prior to the Closing of the
following conditions, unless waived by Buyer in writing:
(a) Performance of Obligations of Holdings and Seller. Each of
Holdings and Seller shall have materially performed all obligations required to
be performed by it under this Agreement, and materially complied with all
covenants for which compliance by it is required under this Agreement, prior to
or at the Closing.
(b) Closing Documentation. Buyer shall have received the
following documents, agreements and instruments from Seller:
(i) Duly executed Notarial Deeds, stock powers and stock
transfer forms, together with share certificates, if applicable, for the Vermont
Shares and the Bavaria Shares described in Section 2.4(b) hereof in forms
mutually agreeable to the parties;
(ii) Certificates signed by an officer or director of each
of Holdings and Seller certifying as to the matters set forth in Section 7.1(a)
above with respect to Holdings and Seller;
(iii) An opinion of Carter, Ledyard & Milburn, counsel for
Holdings and Seller, dated the date of the Closing and addressed to Buyer, in
form and substance reasonably acceptable to Buyer, together with such opinions
of Baker & McKenzie, or other counsel reasonably acceptable to Buyer, as shall
be required;
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(iv) The Shareholders Registers of VCG Holdings,
Definitive Stock and VCGLLC (which shall be updated at Closing) and statutory
company books, including the minute books and stock record books, of the Group
Entities to the extent required to be maintained or actually maintained;
(v) A certificate of a member of the Management Board of
Seller dated the Closing Date certifying (A) that attached thereto are true,
complete and correct copies of the Articles of Association of each of Seller,
VCG, VCGLLC, VCG Holdings and Definitive Stock as in effect on the date of such
certification, (B) that the Articles of Association or other organizational
document of each of the foregoing entities have not been amended since the date
of the last amendment referred to in the certificate delivered pursuant to
clause (vi) above, (C) that attached thereto are true, complete and correct
copies of resolutions, as in effect on the date of such certification, duly
adopted by the Board of Directors of Seller and VCG or a duly authorized
committee thereof, approving the transactions contemplated hereby and
authorizing the execution, delivery and performance by Seller of this Agreement
and the sale and transfer of the Vermont Shares owned by Seller and VCG in
accordance herewith, and (D) as to the incumbency and signatures of the officers
of Seller executing this Agreement and all instruments or other documents
delivered in connection with this Agreement;
(vi) A certified excerpt from the commercial register of
the Lower Court Dusseldorf regarding Holdings not older than 14 days certifying
that the persons acting on behalf as Holding as its managing directors are the
recorded managing directors of Holdings jointly authorised to represent the
company.
(vii) Signed resignation letters of all directors and
officers of the Group Entities requested by Buyer prior to Closing (or actions
of the Shareholders and Board of Directors of Vermont and/or Bavaria removing
such persons as directors and officers); and
(viii) All other instruments and documents required by
this Agreement to be delivered by Holdings or Seller to Buyer on or before the
Closing.
(c) Approval of Legal Matters. The form of all instruments,
certificates and documents to be executed and delivered by Holdings or Seller to
Buyer pursuant to this Agreement shall be reasonably satisfactory to Buyer and
its counsel, none of whose approval shall be unreasonably withheld or delayed.
(d) No Litigation. Except with respect to matters relating to
antitrust laws including the HSR Act which, for purposes of this Section 7.1 are
addressed exclusively in Section 7.1(e) below:
(i) No action, suit or other proceeding shall be pending
or threatened before any court, tribunal or governmental authority seeking or
threatening to restrain or prohibit the consummation of the transactions
contemplated by this Agreement or seeking to obtain substantial damages in
respect thereof, or involving a claim that consummation thereof would result in
the violation of any law, decree or regulation of any governmental authority
having appropriate
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jurisdiction; provided, however, that no such action, suit or proceeding
commenced or threatened by a private person or entity shall constitute failure
of a condition to Buyer's obligations under this Agreement; and
(ii) No order, decree or ruling of any governmental
authority or court shall have been entered prohibiting, restraining or otherwise
preventing the consummation of the transactions contemplated hereby.
(e) Hart-Scott-Rodino Waiting Period. All applicable waiting
periods under the HSR Act shall have expired without any indication by the
Department of Justice or the Federal Trade Commission that either of them
intends to challenge the transactions contemplated hereby, provided, however,
that nothing in this Section 7.1(e) shall be construed to constitute a
modification of Buyer's obligations as set forth in Section 5.5 hereof.
(f) Laws. No statute, rule, regulation or order shall have been
adopted or promulgated which materially adversely affects the Business, the
Assets or the Group Entities taken together as a whole.
(g) Financial Capacity. Buyer shall have obtained sufficient
funds to purchase the Vermont Shares and the Bavaria Shares on the terms and
conditions contemplated by this Agreement after using its reasonable commercial
efforts to obtain such funds.
(h) Form 403 Seller shall have provided the filing by The
Telegraph Colour Library Limited at the Companies Registry of a duly executed
and completed Form 403 in respect of the charge in favour of Hambros Bank
Limited.
7.2 CONDITIONS TO OBLIGATION OF UNICORN, HOLDINGS AND SELLER. The
obligations of Unicorn, Holdings and Seller under this Agreement and the
consummation by Unicorn, Holdings and Seller of the transactions contemplated
hereby are subject to the satisfaction at or prior to the Closing of the
following conditions, unless waived by Unicorn, Holdings and Seller in writing:
(a) Performance of Obligations of Buyer. Buyer shall have
performed all obligations required to be performed by it under this Agreement,
and complied with all covenants for which compliance by it is required under
this Agreement, prior to or at the Closing.
(b) Closing Documentation. Holdings and Seller shall have
received the following documents, agreements and instruments from Buyer:
(i) Payment of the Purchase Price pursuant to Section 2.2
hereof and duly executed Notarial Deeds for the Vermont Shares and the Bavaria
Shares described in Section 2.4(b) hereof, each in forms mutually agreeable to
the parties;
(ii) A certificate signed by an officer of Buyer
certifying as to the matters set forth in Section 7.2(a) above;
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(iii) An opinion of Weil, Gotshal & Manges, LLP, counsel
for Buyer, dated the date of the Closing and addressed to Holdings and Seller,
in form and substance reasonably acceptable to Seller;
(iv) Copies of all consents, approvals and notices
referred to in Section 3.2(b) hereof;
(v) A certificate of the Secretary or an Assistant
Secretary of Buyer dated the Closing Date certifying (A) that attached thereto
are true, complete and correct copies of resolutions, as in effect on the date
of such certification, duly adopted by the Board of Directors of Buyer, or a
duly authorized committee thereof, approving the transactions contemplated
hereby and authorizing the execution, delivery and performance by Buyer of this
Agreement and the purchase and acquisition by Buyer of the Vermont Shares and
the Bavaria Shares in accordance herewith, and (B) as to the incumbency and
signatures of the officers of Buyer executing this Agreement and all instruments
or other documents delivered in connection with this Agreement; and
(vi) All other instruments and documents required by this
Agreement to be delivered by Buyer to Seller and Holdings on or before the
Closing.
(c) Approval of Legal Matters. The form of all instruments,
certificates and documents to be executed and delivered by Buyer to Seller and
Holdings pursuant to this Agreement shall be reasonably satisfactory to Seller,
Holdings and their counsel, none of whose approval shall be unreasonably
withheld or delayed.
(d) No Litigation
(i) No action, suit or other proceeding shall be pending
or threatened before any court, tribunal or governmental authority seeking or
threatening to restrain or prohibit the consummation of the transactions
contemplated by this Agreement or seeking to obtain substantial damages in
respect thereof, or involving a claim that consummation thereof would result in
the violation of any law, decree or regulation of any governmental authority
having appropriate jurisdiction; provided, however, that no such action, suit or
proceeding commenced or threatened by a private person or entity shall
constitute failure of a condition to Holdings' or Seller's obligations under
this Agreement; and
(ii) No order, decree or ruling of any governmental
authority or court shall have been entered prohibiting, restraining or otherwise
preventing the consummation of the transactions contemplated hereby.
(e) Hart-Scott-Rodino Waiting Period. All applicable waiting
periods under the HSR Act, shall have expired without any indication by the
Department of Justice or the Federal Trade Commission that either of them
intends to challenge the transactions contemplated hereby.
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ARTICLE VIII
REMEDIES FOR BREACHES OF THIS AGREEMENT
8.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Notwithstanding any
otherwise applicable statute of limitations, all of the representations and
warranties of Unicorn, Seller and Holdings contained in Section 3.1 and all of
the representations and warranties of Holdings and Seller contained in Sections
4.1 - 4.24 of Annex A hereto, or in any certificate, annex or Schedule to this
Agreement or prepared by Seller or Holdings in connection with this Agreement
(including the Disclosure Schedule) shall survive the Closing hereunder and
continue in full force and effect for the period specified below:
(a) for the representations and warranties contained in Sections
4.6 - 4.14 and 4.16-4.24 of Annex A, until the 18 month anniversary of the
Closing Date;
(b) notwithstanding Section 8.1(a) above, for claims in relation
to the lost Licensed Images or model consents with releases (or lack thereof)
known to Seller prior to the date of this Agreement ("Media Claims"), until the
5 year anniversary of the Closing Date; and
(c) for all other representations, warranties and covenants of
the parties, until the expiration of the applicable statute of limitations,
including extensions thereof.
Any Party entitled to receive indemnification pursuant to this Article
VIII shall use commercially reasonable efforts to seek recovery (including both
cost of defence and indemnity) under applicable insurance policies with respect
to any Adverse Consequences. In determining the amount payable hereunder there
shall be taken into account the dollar amount of any insurance as other net
proceeds actually received by (or paid for the benefit of) the party claiming
indemnification hereunder with respect to the events giving rise to a claim
hereunder. In the event that a Party (a "Collecting Party") receives payment
under this Article VIII from another Party (a "Paying Party"), and then
subsequently receives insurance proceeds with respect to the matter for which
such Collecting Party received indemnification payment from Paying Party,
Collecting Party shall, within two (2) business days of the receipt of such
insurance proceeds, remit such proceeds to Paying Party up to the amount
previously paid by Paying Party.
8.2 INDEMNIFICATION PROVISIONS FOR BENEFIT OF BUYER.
(a) In the event that any of Unicorn, Holdings or Seller breach
(or in the event any third party alleges facts that, if true, would mean that
any of Unicorn, Holdings or Seller has breached) any of their representations,
warranties, and covenants contained herein, or in any certificate, annex or
Schedule delivered pursuant hereto (except with respect to Media Claims subject
of Section 8.2 (b) below), and, if there is an applicable survival period
pursuant to Section 8.1 above, provided that Buyer makes a written claim for
indemnification against Seller pursuant to Section 10.6 below within such
survival period, then Seller agrees to indemnify Buyer, VCGLLC, Definitive
Stock, VCG Holdings and Bavaria from and against the entirety of any Adverse
Consequences any
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of the foregoing entities may suffer resulting from, arising out of, relating
to, in the nature of, or caused by the breach (or the alleged breach), up to,
together with Adverse Consequences under Section 8.2(c), an aggregate maximum
amount equal to one-half of the Purchase Price; provided, however, that Seller
shall have no obligation to indemnify Buyer, VCGLLC, Definitive Stock, VCG
Holdings or Bavaria from and against any Adverse Consequence (treating as a
single Adverse Consequence related Adverse Consequences arising out of a single
fact situation) that does not equal or exceed $25,000 ("De Minimis Claims"); and
provided, further, that Seller shall have no obligation to indemnify Buyer,
VCGLLC, Definitive Stock, VCG Holdings or Bavaria until all such Adverse
Consequences shall exceed $2,000,000 in aggregate amount (not including any
Adverse Consequences that are De Minimis Claims) at which time Seller shall be
liable to Buyer, Definitive Stock, VCGLLC, VCG Holdings and Bavaria for all
Adverse Consequences from the first $1 of such Adverse Consequences.
(b) In the event Buyer makes a written claim for indemnification
against Seller pursuant to Section 10.6 below within the survival period set
forth in Section 8.1(b) above with respect to Adverse Consequence suffered by
Buyer, VCGLLC, Definitive Stock, VCG Holdings and Bavaria as a result of Media
Claims. Seller agrees to indemnify the foregoing entities from and against all
such Adverse Consequences any of the foregoing entities may suffer resulting
from, arising out of or relating to such lost Licensed Images on model releases,
up to an aggregate maximum amount equal to $2,000,000, provided, however, that
Seller shall have no obligation to indemnify Buyer, VCGLLC, Definitive Stock,
VCG Holdings or Bavaria from and against any Adverse Consequences until all such
Adverse Consequences shall exceed $500,000 in aggregate amount, and provided,
further that Seller shall have no obligation to indemnify Buyer, VCGLLC,
Definitive Stock, VCG Holdings or Bavaria from and against that first $500,000
in aggregate amount of any such Adverse Consequences.
(c) Without duplication of any indemnification payments pursuant
to Section 8.2(a), Seller and Holdings agree to indemnify the Buyer from and
against (i) the Adverse Consequences of any Taxes payable by any Group Entity
for any Tax accounting period ending prior to January 1, 2000 (or, in the case
of a period that begins before December 31, 1999 and ends after such date, the
portion thereof through December 31, 1999), and (ii) one-half of the Adverse
Consequences of any income Taxes payable by any Group Entity for the period
beginning January 1, 2000 and ending on the Closing Date (the "Stub Period"), up
to, together with Adverse Consequences under Section 8.2(a), an aggregate
maximum amount equal to one-half of the Purchase Price. Whether or not an income
Tax accounting period ends on the Closing Date, income Taxes for the Stub Period
for the purposes of this Section 8.2(c) shall be determined based upon a closing
of the books on the Closing Date; provided, however that income Taxes for the
Stub Period shall exclude any Tax attributable to any extraordinary income or
gain that would not be recognized but for an action of the Buyer after the
Closing Date (including, without limitation, an election under Code Section
338). With respect to any Taxes payable for the fiscal year ending December 31,
1999 (or any portion thereof), Seller and Holdings shall be liable under the
first sentence of this Section 8.2(c) only to the extent that such Taxes are, in
the aggregate, in excess of the accrual or reserve for Taxes as of December 31,
1999 in the Audited Vermont Financial Statements or the Bavaria Financial
Statements. No claim may be brought under this Section 8.2(c) for any single Tax
item
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(or related series of items) which does not exceed $10,000. Any claim hereunder
must be brought within the time limit specified in Section 8.1(c).
8.3 INDEMNIFICATION PROVISIONS FOR BENEFIT OF SELLER AND HOLDINGS. In
the event Buyer breaches (or in the event any third party alleges facts that, if
true, would mean Buyer has breached) any of its representations, warranties, and
covenants contained herein, or in any certificate, annex or Schedule delivered
pursuant hereto, and, if there is an applicable survival period pursuant to
Section 8.1 above, provided that Seller or Holdings makes a written claim for
indemnification against Buyer pursuant to Section 10.6 below within such
survival period, then Buyer agrees to indemnify Seller, VCG and Holdings from
and against any Adverse Consequences any of the foregoing entities may suffer
(including any Adverse Consequences Seller or Holdings may suffer after the end
of any applicable survival period) resulting from, arising out of, relating to,
in the nature of, or caused by the breach (or the alleged breach), up to an
aggregate maximum amount equal to one-half of the Purchase Price, provided,
however, that Buyer shall not have any obligation to indemnify Seller or
Holdings from and against any Adverse Consequence (treating as a single Adverse
Consequence related Adverse Consequences arising out of a single fact situation)
that does not equal or exceed $25,000 ("De Minimis Claims"); and provided,
further, that Buyer shall not have any obligation to indemnify Seller, VCG or
Holdings until all such Adverse Consequences shall exceed $2,000,000 in
aggregate amount (not including any Adverse Consequences that are De Minimis
Claims) at which time Buyer shall be liable to Seller, VCG and Holdings for all
Adverse Consequences from the first $1 of such Adverse Consequences.
8.4 MATTERS INVOLVING THIRD PARTIES.
(a) If any third party shall notify any Party (the "Indemnified
Party") with respect to any matter (a "Third Party Claim") which may give rise
to a claim for indemnification against any other Party (the "Indemnifying
Party") under this Article VIII, then the Indemnified Party shall promptly
notify the Indemnifying Party thereof in writing; provided, however, that no
delay on the part of the Indemnified Party in notifying the Indemnifying Party
shall relieve the Indemnifying Party from any obligation hereunder unless (and
then solely to the extent) the Indemnifying Party thereby is prejudiced.
(b) The Indemnifying Party will have the right to defend the
Indemnified Party against the Third Party Claim with counsel of its choice
satisfactory to the Indemnified Party so long as (i) the Indemnifying Party
notifies the Indemnified Party in writing within 15 days after the Indemnified
Party has given notice of the Third Party Claim that the Indemnifying Party will
indemnify the Indemnified Party from and against the entirety of any Adverse
Consequences the Indemnified Party may suffer resulting from, arising out of,
relating to, in the nature of, or caused by the Third Party Claim, (ii) the
Indemnifying Party provides the Indemnified Party with evidence acceptable to
the Indemnified Party that the Indemnifying Party will have the financial
resources to defend against the Third Party Claim and fulfill its
indemnification obligations hereunder, (iii) the Third Party Claim involves only
money damages and does not seek an injunction or other equitable relief, (iv)
settlement of, or an adverse judgment with respect to, the Third Party Claim is
not, in the good faith judgment of the Indemnified Party, likely to establish a
precedential custom or practice
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adverse to the continuing business interests of the Indemnified Party, and (v)
the Indemnifying Party conducts the defense of the Third Party Claim actively
and diligently.
(c) So long as the Indemnifying Party is conducting the defense
of the Third Party Claim in accordance with Section 8.4(b) above, (i) the
Indemnified Party may retain separate co-counsel at its sole cost and expense
and participate in the defense of the Third Party Claim, (ii) the Indemnified
Party will not consent to the entry of any judgment or enter into any settlement
with respect to the Third Party Claim without the prior written consent of the
Indemnifying Party (not to be withheld unreasonably), and (iii) the Indemnifying
Party will not consent to the entry of any judgment or enter into any settlement
with respect to the Third Party Claim without the prior written consent of the
Indemnified Party (not to be withheld unreasonably).
(d) In the event any of the conditions in Section 8.4(b) above is
or becomes unsatisfied, however, (i) the Indemnified Party may defend against,
and consent to the entry of any judgment or enter into any settlement with
respect to, the Third Party Claim in any manner it may deem appropriate (and the
Indemnified Party need not consult with, or obtain any consent from, any
Indemnifying Party in connection therewith), (ii) the Indemnifying Party will
reimburse the Indemnified Party promptly and periodically for the costs of
defending against the Third Party Claim (including reasonable attorneys' fees
and expenses), and (iii) the Indemnifying Party will remain responsible for any
Adverse Consequences the Indemnified Party may suffer resulting from, arising
out of, relating to, in the nature of, or caused by the Third Party Claim to the
fullest extent provided in this Article VIII.
(e) The Indemnified Party shall (and, in the case of Buyer, shall
cause the Group Entities to) cooperate fully, as and to the extent reasonably
requested by the other Party, in connection with any Third Party Claim. Such
cooperation shall include the retention and (upon the other Party's request) the
provision of records and information which are reasonably relevant to any such
Third Party Claim and making employees available on a mutually convenient basis
to provide additional information and explanation of any material provided
hereunder. The Parties agree (i) to retain, and (in the case of Buyer) to cause
the Group Entities to retain, all books and records with respect to Tax matters
pertinent to the Group Entities relating to any taxable period beginning before
the Closing Date until six months after the expiration of the statute of
limitations (and, to the extent notified by Buyer or Seller or Holdings, any
extensions thereof) of the respective taxable periods, and to abide by all
record retention obligations imposed by law or pursuant to agreements entered
into with any Taxing Authority, and (ii) to give the other Party reasonable
written notice prior to transferring, destroying or discarding any such books
and records and, if the other Party so requests, Buyer or Seller or Holdings, as
the case may be, shall allow the other Party to take possession of such books
and records.
8.5 SOLE REMEDY. Each Party acknowledges and agrees that the foregoing
indemnification provisions of this Article VIII (including the limitations set
forth herein) are such Party's sole and exclusive remedy against the other
Parties and their Affiliates for any claim with respect to the transactions
contemplated hereby or otherwise relating to any Vermont Entity, or the Assets
or the Business, and each Party hereby waives and releases any statutory,
equitable or common law remedies which might otherwise be available against the
other Parties and their
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Affiliates. All indemnification payments under this Article VIII shall be deemed
adjustments to the Purchase Price.
8.6 UNLIMITED CLAIMS.
(a) The proviso contained in Section 8.2 shall not apply to
Seller's liability in respect of any breach of the representations and
warranties contained in Section 3.1 or in Sections 4.1, 4.2, 4.3, 4.4 or 4.5 or
the final sentence of Section 4.6 of Annex A, with respect to which such Party's
liability shall not exceed the Purchase Price hereunder.
(b) The proviso contained in Section 8.3 shall not apply to
Buyer's liability in respect of any breach of the representations and warranties
contained in Section 3.2 with respect to which such Party's liability shall not
exceed the Purchase Price hereunder.
8.7 LITIGATION CLAIM. Notwithstanding the foregoing provisions of this
Article VIII, Seller agrees to provide to Buyer (and the appropriate Vermont
Entities following the Closing) with the benefit of Seller's insurance coverage
to the extent that it exists with respect to any Adverse Consequences Buyer or
any of the Vermont Entities may suffer in respect of the Latina claim identified
and described in Section 4.17 of the Disclosure Schedule. Seller hereby
represents and warrants that the Latina claim has been submitted to its
insurance company and has not, as of the date hereof, received any notice of
rejection or non-coverage.
ARTICLE IX
TERMINATION
9.1 TERMINATION OF AGREEMENT. This Agreement may be terminated by the
Parties as provided below:
(a) The Parties may terminate this Agreement by mutual written
consent at any time prior to the Closing;
(b) Buyer may terminate this Agreement by giving written notice
to each of Seller, Holdings and Unicorn at any time prior to the Closing if the
Closing shall not have occurred on or before March 26, 2000, by reason of the
failure of any condition precedent under Section 7.1(a) - (d) and 7.1(f) or (g)
hereof (unless the failure results primarily from Buyer itself breaching any
representation, warranty, or covenant contained in this Agreement, including,
without limitation, Buyer's covenant set forth in Section 5.5 hereof, or unless
the failure otherwise relates to the HSR Act);
(c) Any of Seller, Holdings or Unicorn may terminate this
Agreement by giving written notice to Buyer at any time prior to the Closing if
the Closing shall not have occurred on or before March 26, 2000, by reason of
the failure of any condition precedent under Section 7.2 hereof (unless the
failure results primarily from any of the Sellers themselves breaching any
representation, warranty, or covenant contained in this Agreement).
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9.2 EFFECT OF TERMINATION. If any Party terminates this Agreement
pursuant to Section 9.1 above, all rights and obligations of the Parties
hereunder shall terminate without any liability of any Party to any other Party
or their respective Affiliates, directors, officers or employees, except for the
obligations of the Parties hereto contained in this Section 9.2, Section 9.3 (if
applicable) and in all other provisions which are stated to survive any
termination of this Agreement, including, without limitation, Sections 5.2, 5.3,
10.6, 10.7, 10.8, 10.9, 10.12, 10.16 and 10.20.
9.3 LIQUIDATED DAMAGES. Notwithstanding any other provision hereof, the
Parties hereby agree that, in the event that the transactions contemplated
hereby are not consummated by March 26, 2000 Buyer shall pay to Seller and
Holdings (in such proportion as Seller and Holdings shall indicate jointly in
writing to Buyer), as liquidated damages and a break-up fee, and not as a
penalty, the aggregate amount of $2,000,000, except in the event that the
transactions contemplated are not consummated as a result of the failure of the
conditions to Closing set forth in Sections 7.1(a),(b),(c) (unless Buyer
unreasonably withholds or delays with respect to Section 7.1(c)) or (d) (with
respect to Section 7.1(d) to the extent such litigation does not arise out of
the action of Buyer.)
ARTICLE X
MISCELLANEOUS
10.1 ENTIRE AGREEMENT. This Agreement (including the Annexes, Exhibits,
Schedules and documents attached hereto or referred to herein) constitutes the
entire agreement among the Parties and supersedes any prior understandings,
agreements, or representations by or among the Parties, written or oral, to the
extent they related in any way to the subject matter hereof, except for the
Confidentiality Agreement which will remain in full force and effect for the
term provided for therein.
10.2 NO THIRD-PARTY BENEFICIARIES.
(a) Except as otherwise expressly provided for in this Agreement,
nothing in this Agreement, express or implied, is intended or shall be construed
to confer upon or give to any employee of Seller, VCG, VCGLLC, Holdings, Buyer,
Definitive Stock, VCG Holdings, Bavaria or any Subsidiary of the foregoing, or
any other Person, other than the Parties hereto (and their successors and
permitted assigns), any rights, remedies or other benefits under or by reason of
this Agreement.
(b) The Parties hereto agree and acknowledge that after the
Closing Date: (i) VCGLLC, Definitive Stock, VCG Holdings and Bavaria are
intended third party beneficiaries under this Agreement and are independently
entitled to avail themselves of all the rights and remedies of Buyer hereunder
and all benefits related thereto, and VCG is an intended third party beneficiary
under this Agreement and is independently entitled to avail itself of all of the
rights and remedies of Seller hereunder and all benefits related thereto.
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10.3 SUCCESSION AND ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of the Parties named herein and their respective successors
and permitted assigns. No Party may assign either this Agreement or any of his
or its rights, interests, or obligations hereunder without the prior written
approval of the other Parties, provided, however, that Buyer may assign, without
the approval of the other parties, all or any portion of its rights hereunder to
any entity directly or indirectly owned wholly by Buyer, in which extent Buyer
shall, notwithstanding such assignment, remain wholly and solely liable for the
obligations, representations, warranties and covenants of Buyer hereunder and
under any certificate, schedule, annex or other agreement delivered pursuant
hereto.
10.4 COUNTERPARTS. This Agreement may be executed by exchanging executed
copies or facsimile signatures and in any number of counterparts, and by any
Party on separate counterparts, each of which as so executed and delivered shall
be deemed an original, but all of which together shall constitute one and the
same instrument, and it shall not be necessary in making proof of this Agreement
as to any Party hereto to produce or account for more than one such counterpart
executed and delivered by such Party.
10.5 HEADINGS. The Article and Section headings, and the table of
contents, contained in this Agreement are inserted for convenience only and
shall not affect in any way the meaning or interpretation of this Agreement.
10.6 NOTICES. All notices, certificates, requests, demands, claims, and
other communications hereunder shall be given in writing and shall be delivered
personally (including by personal courier or delivery service) or sent by
facsimile, telex or telegram or by the registered or certified mail (return
receipt requested), postage prepaid, to the Parties at the following address (or
at such other addresses as the shall be specified by like notice):
IF TO UNICORN,
SELLER OR HOLDINGS: COPY TO:
c/o United News & Media plc Carter, Ledyard & Milburn
Ludgate House Two Wall Street
245 Blackfriars Road New York, New York 10005
London SE1 9UY, England
Facsimile No.011 44 171 928 2728 Facsimile No.: 212-732-3232
Attention: Company Secretary Attention: James E. Abbott
IF TO THE BUYER: COPY TO:
Getty Images Inc. Weil, Gotshal & Manges, LLP
701 North 34th Street 767 Fifth Avenue
Suite 4000 New York
Seattle, Washington 98103 New York 10153
Facsimile No.206 268 1201 Facsimile No.212 310 8007
Attention:Suzanne Page Attention: Stephen Besen
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Getty Images Inc.
475 Park Avenue South
31st Floor
New York
New York 10016
Facsimile No 212 471 5299
Attention:_______________
Any notice given personally or by mail or telegram shall be effective when
received. Any notice given by telex or facsimile shall be effective when the
appropriate telex or facsimile answerback is received.
10.7 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of New York as to all matters,
including but not limited to matters of validity, construction, effect,
performance and remedies (without giving effect to any choice or conflict of law
provision or rule, whether of the State of New York or any other jurisdiction,
that would cause the application of the laws of any jurisdiction other than the
State of New York).
10.8 RETURN OF INFORMATION. If for any reason whatsoever the sale and
purchase of the Vermont Shares and the Bavaria Shares pursuant to this Agreement
is not consummated, Buyer shall promptly return to Seller and Holdings all
books, records and documents of Seller, Holdings and the Group Entities
(including all copies, if any, thereof) furnished by Seller or Holdings or any
of their respective Affiliates, agents, employees, or representatives, and shall
not use or disclose the information contained in such books, records or
documents for any purpose or make such information available to any other entity
or person, except that one copy of all such information may be retained in the
files of Buyer's legal department.
10.9 AMENDMENTS AND WAIVERS. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by
Buyer, Unicorn, Holdings and Seller. Any Party hereto may, by written notice to
the other Parties, waive any provision of this Agreement. No waiver by any Party
of any default, misrepresentation, or breach of warranty or covenant hereunder,
whether intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent such
occurrence.
10.10 SEVERABILITY. The provisions of this Agreement shall be deemed
severable and any term or provision of this Agreement that is invalid or
unenforceable in any situation in any jurisdiction shall not affect the validity
or enforceability of the remaining terms and provisions hereof. If any provision
of this Agreement, or the application thereof to any person or entity or any
circumstance, is invalid or unenforceable, (i) a suitable provision shall be
substituted therefor in order to carry out, so far as may be valid and
enforceable, the intent and purpose of such invalid or unenforceable provision,
and (ii) the remainder of this Agreement and the application of such provision
to other persons, entities or circumstances shall not be affected by such
invalidity or
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unenforceability, nor shall such invalidity or unenforceability affect the
validity or enforceability of such provision, or the application thereof, in any
other jurisdiction.
10.11 EXPENSES. Except as otherwise expressly provided in this
Agreement, whether or not the transactions contemplated by this Agreement are
consummated, each of the Parties will bear its own costs and expenses
(including, but not limited to, all compensation and expenses of counsel,
financial advisors, consultants, actuaries and independent accountants) incurred
in connection with this Agreement and the transactions contemplated hereby.
10.12 CONSTRUCTION. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the Parties and no presumption or burden of proof shall arise favoring or
disfavoring any Party by virtue of the authorship of any of the provisions of
this Agreement. Any reference to any federal, state, local, or foreign statute
or law shall be deemed also to refer to all rules and regulations promulgated
thereunder, unless the context requires otherwise. The word "including" shall
mean including without limitation. The Parties intend that each representation,
warranty, and covenant contained herein shall have independent significance. If
any Party has breached any representation, warranty, or covenant contained
herein in any respect, the fact that there exists another representation,
warranty, or covenant relating to the same subject matter (regardless of the
relative levels of specificity) which the Party has not breached shall not
detract from or mitigate the fact that the Party is in breach of the first
representation, warranty, or covenant.
10.13 INCORPORATION OF EXHIBITS, ANNEXES, AND SCHEDULES. The Exhibits,
Annexes, and Schedules identified in this Agreement are incorporated herein by
reference and made a part hereof. References herein to "Section 4".x shall refer
to Section 4.x of Annex A.
10.14 SPECIFIC PERFORMANCE. Each of the Parties acknowledges and agrees
that the other Parties would be damaged irreparably in the event any of the
provisions of this Agreement are not performed in accordance with their specific
terms or otherwise are breached. Accordingly, each of the Parties agrees that
the other Parties shall be entitled to an injunction or injunctions to prevent
breaches, or threatened breaches, of the provisions of this Agreement and to
enforce specifically this Agreement and the terms and provisions hereof in any
action instituted in any court of the United States or any state thereof having
jurisdiction over the Parties and the matter (subject to the provisions set
forth in Section 10.15 below), in addition to any other remedy to which they may
be entitled, at law or in equity.
10.15 SUBMISSION TO JURISDICTION. IF ANY PARTY SHALL HAVE THE RIGHT TO
SEEK RECOURSE TO A COURT WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATED
TO THIS AGREEMENT OR THE TRANSACTIONS CONTAINED IN OR CONTEMPLATED BY THIS
AGREEMENT, WHETHER IN TORT OR CONTRACT OR AT LAW OR IN EQUITY, THEN ANY ACTION
OR PROCEEDING IN RESPECT OF ANY SUCH DISPUTE SHALL BE BROUGHT EXCLUSIVELY IN THE
SUPREME COURT OF THE STATE OF NEW YORK FOR THE COUNTY OF NEW YORK ( THE "CHOSEN
COURTS") AND (I) IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE CHOSEN
COURTS FOR SUCH PURPOSES, (II) WAIVES ANY OBJECTION TO LAYING VENUE IN ANY SUCH
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ACTION OR PROCEEDING IN THE CHOSEN COURTS, (III) WAIVES ANY OBJECTION THAT THE
CHOSEN COURTS ARE AN INCONVENIENT FORUM OR DO NOT HAVE JURISDICTION OVER ANY
PARTY HERETO AND (IV) AGREES THAT SERVICE OF PROCESS UPON SUCH PARTY IN ANY SUCH
ACTION OR PROCEEDING SHALL BE EFFECTIVE IF NOTICE IS GIVEN IN ACCORDANCE WITH
SECTION 10.6 OF THIS AGREEMENT. EACH PARTY AGREES THAT A FINAL JUDGMENT IN ANY
ACTION OR PROCEEDING SO BROUGHT SHALL BE CONCLUSIVE AND MAY BE ENFORCED BY SUIT
ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW OR AT EQUITY. EACH PARTY
ALSO AGREES NOT TO BRING ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT IN ANY OTHER COURT. BUYER IRREVOCABLY DESIGNATES GETTY IMAGES
INC.'S NEW YORK OFFICE AS ITS AGENT AND ATTORNEY-IN-FACT FOR THE ACCEPTANCE OF
SERVICE OF PROCESS ON ITS BEHALF IN ANY SUCH CLAIM OR PROCEEDING AND TAKING ALL
SUCH ACTS AS MAY BE NECESSARY OR APPROPRIATE IN ORDER TO CONFER JURISDICTION
OVER IT UPON THE CHOSEN COURTS AND THE BUYER STIPULATES THAT SUCH CONSENT AND
APPOINTMENT IS IRREVOCABLE AND COUPLED WITH AN INTEREST. EACH OF SELLER,
HOLDINGS AND UNICORN IRREVOCABLY DESIGNATES C.T. CORPORATION AS ITS AGENT AND
ATTORNEY-IN-FACT FOR THE ACCEPTANCE OF SERVICE OF PROCESS AND MAKING AN
APPEARANCE ON ITS BEHALF IN ANY SUCH CLAIM OR PROCEEDING AND TAKING ALL SUCH
ACTS AS MAY BE NECESSARY OR APPROPRIATE IN ORDER TO CONFER JURISDICTION OVER IT
UPON THE CHOSEN COURTS AND EACH OF SELLER, HOLDINGS AND UNICORN STIPULATES THAT
SUCH CONSENT AND APPOINTMENT IS IRREVOCABLE AND COUPLED WITH AN INTEREST.
10.16 FULFILLMENT OF OBLIGATIONS. Any obligation of any Party to any
other Party under this Agreement, which obligation is performed, satisfied or
fulfilled by an Affiliate of such Party, shall be deemed to have been performed,
satisfied or fulfilled by such Party.
10.17 SCHEDULES. The inclusion of any matter in any schedule to this
Agreement shall be deemed to be an inclusion for all purposes of this Agreement,
including each representation and warranty to which it may relate, but inclusion
thereon shall expressly not be deemed to constitute admission by either Party,
or otherwise imply, that any such matter is material or create a measure for
materiality for the purposes of this Agreement.
10.18 DEFINITION OF "ORDINARY COURSE". For purposes of this Agreement,
the term "ordinary course" as it relates to the Business prior to the Closing
means in a manner substantially the same as that normally employed by Seller in
the ordinary course with respect to businesses it holds with a view towards
operating and maintaining such businesses rather than a view towards the sale of
such businesses to a third party.
10.19 ATTORNEY'S FEES. In any proceeding brought by any Party hereto to
enforce this Agreement, the prevailing Party shall be entitled to reasonable
attorneys' fees incurred by the prevailing Party in connection therewith, plus
court costs and experts' fees..
**************
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[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, Seller, Holdings, Unicorn and Buyer have each
executed or caused this Agreement to be executed by their duly
authorized officers, as the case may be, each as of the date first above
written.
GETTY IMAGES INC.
By: /s/ NICHOLAS EVANS-LOMBE
------------------------------------
Name: Nicholas Evans-Lombe
Title: Senior Vice President, Strategy
and Corporate Development
UNITED BUSINESS INFORMATION B.V.
By: /s/ R. RAN DER RHEE
------------------------------------
Name: R. Ran Der Rhee
Title: Managing Director
LUDGATE HOLDINGS GMBH
By: /s/ EDWIN PINEDO
------------------------------------
Name: Edwin Pinedo
Title: Director
UNITED NEWS & MEDIA PLC
By: /s/ CHARLES STERN
------------------------------------
Name: Charles Stern
Title: Director
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ANNEX A
4.1 INTEREST IN RELATED ENTITIES. Except as set forth in Section 4.1 of
the Disclosure Schedule, neither Seller, Holdings nor any Affiliate of Seller or
Holdings (i) has any direct or indirect interest in any person or entity which
is a lessor of assets or properties to, material supplier of, or provider of
services to any Group Entity, (ii) has a direct or indirect interest in or is a
party to any contract or agreement to which any Group Entity is a party, or
(iii) owns directly or, to the Knowledge of Seller, indirectly, any tangible or
intangible property which any Group Entity uses in the conduct of the Business,
or (iv) has any outstanding indebtedness to any Group Entity. For purposes of
this Section, any investment by Seller, Holdings or any Affiliate of Seller or
Holdings in any company whose stock is listed on a national securities exchange
or actively traded in the over-the-counter market, which investment represents
no more than 5% of the outstanding voting power of such company, shall be deemed
not to constitute a direct or indirect interest in such company.
4.2 ORGANIZATION; QUALIFICATION; POWER. VCG Holdings is a corporation
duly organized and validly existing and in good standing under the laws of
England and Wales. Bavaria is a corporation duly organized and validly existing
in good standing under the laws of Germany. Definitive Stock is a corporation
duly organised, validly existing and in good standing under the laws of
Delaware. VCGLLC is a limited liability company duly organized, validly existing
and in good standing under the laws of Delaware Each of the Subsidiaries of
Bavaria, VCG Holdings, Definitive Stock and VCGLLC is duly organized, validly
existing and in good standing (with respect to jurisdictions that recognize such
concept) under the laws of its jurisdiction of domicile. The Group Entities have
all requisite corporate power and authority to own, lease and operate the Assets
and to carry on the Business as it is now being conducted, except to the extent
any failure to be so empowered or authorized does not have a Material Adverse
Effect. Prior to the Closing, Seller and Holdings shall have delivered to Buyer
true, complete and correct copies of the Articles of Association or other
organizational document (including all amendments thereto) and the By-Laws, as
currently in effect, of each of the Group Entities. Each of the Group Entities
is duly qualified or licensed and in good standing (with respect to
jurisdictions that recognize such a concept) to do business in each jurisdiction
in which the property owned, leased or operated by it or the nature of the
business conducted by it makes such qualification or licensing necessary. The
information contained in the Excerpt from the Commercial Register at the Lower
Court of Dusseldorf under number HRB 37832 dated __________, 2000 in regard to
Bavaria is true, correct and, with regard to the information which has to be
registered, complete.
Seller represents and warrants that the records and minutes of
the meetings of the shareholders and the boards of directors as well as the
reports of the statutory auditors of Pix SA, Photographie Giraudon SA and, where
applicable, iSwoop EURL, have been maintained in accordance with French law
since the respective dates of incorporation thereof.
Any shares in Pix SA held by Pix SA as a result of the Merger
have been acquired, held and recorded in accordance with French law governing
the merger by absorption of a company by the subsidiary thereof.
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4.3 CAPITALIZATION. All of the Vermont Shares and the Bavaria Shares are
duly authorized, validly issued, fully paid and non-assessable. No depository
certificates of shares in the share capital of Vermont or Bavaria have been
issued. Section 4.3 of the Disclosure Schedule sets forth a list of all of the
Group Entities, the number of shares of each such entities' authorized capital
stock and the number and class of shares thereof duly issued and outstanding or,
if the entity is a limited partnership, the partnership's capital and the
capital contributions including their respective amounts. Each outstanding share
of capital stock of each of the Group Entities is duly authorized, validly
issued fully paid and non-assessable. The capital contributions of group
entities being limited partnerships have been duly taken over, fully paid and
are non-assessable. Seller owns all of the outstanding shares of capital stock
of VCG, which owns all of the outstanding shares of capital stock or other
equity interests of VCG Holdings, Definitive Stock and VCGLLC, in each case free
and clean of all encumbrances. Bavaria owns directly or indirectly all of the
outstanding shares of capital stock or all of the capital contributions of the
partnership capital of each Bavaria Entity (other than Bavaria) free and clear
of all Encumbrances. There are no pre-emptive rights, whether at law or
otherwise, to purchase any of the securities of Vermont or Bavaria and there are
no outstanding options, warrants, subscriptions, agreements, plans or other
commitments pursuant to which any Group Entity is or may become obligated to
sell or issue any security.
4.4 INVESTMENTS. Except as set forth in Section 4.4 of the Disclosure
Schedule, as of the Closing Date, no Group Entity owns or maintains, directly or
indirectly, any capital stock or other equity or ownership or proprietary
interest in any corporation, partnership, association, trust, joint venture or
other entity.
4.5 NO VIOLATIONS. The execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby and the performance by
Seller and Holdings of their respective obligations hereunder and under the
agreements to be executed and delivered pursuant hereto, do not and will not
conflict with or violate any of the terms of the Articles of Association,
By-Laws or other organizational documents of Seller, VCG or any Group Entity.
4.6 TITLE TO ASSETS; ENCUMBRANCES; DEBT. The Group Entities own, lease
or have the legal right to use all of the material Assets, including, without
limitation, real and personal property, presently used in the conduct of the
Business of the Group Entities, or which is otherwise owned, leased or used by
the Group Entities and, with respect to contract rights, enjoys the right to the
benefits of all material Contracts. The Group Entities have good and marketable
title to the Assets (except with respect to the Intellectual Property included
in such Assets, with respect to which, to the Knowledge of Seller, the Group
Entities have good and marketable title), free and clear of all Encumbrances,
except those specified in Section 4.6 of the Disclosure Schedule, liens for
taxes not yet due and payable, and Encumbrances that do not in the aggregate
have a Material Adverse Effect on the value or use by the Group Entities of the
Assets and the Intellectual Property, as currently used. At the Closing, and
following repayment of all Intercompany Debt, the Group Entities shall be free
of all debt of whatever kind or nature, except for debts between the Group
Entities, accounts payable and other liabilities arising in the ordinary course
of business.
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4.7 POSSESSION. Except as set forth in Section 4.7 of the Disclosure
Schedule, no other Person has a right of possession or, to the Knowledge of
Seller, claims possession of any material part of the Assets, except for the
rights of lessors over (a) the leased Personal Property identified in Section
4.8 of the Disclosure Schedule and (b) the leased Real Property identified in
Section 4.9 of the Disclosure Schedule.
4.8 PERSONAL PROPERTY.
(a) Set forth in Section 4.8(a) of the Disclosure Schedule is a
list of all material machinery and equipment, apparatus, motor vehicles,
furniture, furnishings and fixtures owned or leased by the Group Entities (the
"Personal Property").
(b) Each lease of Personal Property is valid and in full force
and effect, and none of the Group Entities is in default on any of their
material obligations under such leases and there is no event or condition that
with the giving of notice or the passage of time, or both, would create such a
default other than defaults that in the aggregate would not result in a Material
Adverse Effect. To the Knowledge of Seller, (i) no lessor under any of such
leases is in default of any of its obligations thereunder and (ii) there is no
event or condition that with the giving of notice or the passage of time, or
both, would create a default by any such lessor under any such lease. The
Personal Property has been maintained in good operating condition (in each case
taking into account the age of such Personal Property) a manner consistent with
the ordinary course of the Business.
4.9 REAL PROPERTY.
(a) No Owned Real Property. The Group Entities do not own any
real property.
(b) Leased Real Property. Section 4.9 of the Disclosure Schedule
sets forth all leases, subleases and other agreements under which any Group
Entity uses or occupies or has the legal right to use of occupy, now or in the
future, any real property (the "Leases").
(c) Compliance with Leases. Each of the Leases and each lease of
real property identified in Section 4.22 of the Disclosure Schedule is valid and
in full force and effect, and the Group Entities are not in default on any of
their obligations under such Leases and, to the Knowledge of Seller, there is no
event or condition that the giving of notice or the passage of time, or both,
would create such a default other than, in each case, defaults that in the
aggregate would not have a Material Adverse Effect. To the Knowledge of Seller,
(i) no lessor under any of such leases is in default of any of its obligations
thereunder and (ii) there is no event or condition that with the giving of
notice or the passage of time, or both, would create a default by any such
lessor under any such lease.
(d) Pix Lease. To the extent required, the principal lessor
consented to the sublease entered into between Photographie Giraudon SA, as
sub-lessee, and Agence Generale d'Image, AGI SA, as sub-lessor, dated 1 October,
1994.
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4.10 INTELLECTUAL PROPERTY.
(a) Section 4.10 (a) of the Disclosure Schedule sets forth a true
and complete list of all (i) patents and patent applications, trademark and
service mark registrations, trademark and service mark applications and, to the
knowledge of Seller, all material common law trademarks and service marks,
registered copyrights and copyright applications, and Internet domain names, in
each case owned by a Group Entity and material to the business of the Group
Entities ("Listed Intellectual Property"), (ii) Software (as defined herein),
and (iii) licenses, sublicenses, and other agreements pertaining to Intellectual
Property, Software or Images (as defined herein) to which a Group Entity is a
party, including agreements with major Internet service providers and major
Internet portals, in each case that are material to the business of the Group
Entities ("Licensed Intellectual Property"). For purposes hereof, "Intellectual
Property" means any and all of the following, but excluding Images: (i) United
States, international, and foreign patents, patent applications and statutory
invention registrations, (ii) trademarks, service marks, intent to use
registrations, trade names, trade dress, slogans, logos, and Internet domain
names, including registrations and applications for registration thereof, (iii)
copyrights, including registrations and applications for registration thereof
and (iv) confidential and proprietary information. For purposes hereof, "Owned
Intellectual Property" means Listed Intellectual Property and any copyright,
confidential proprietary information including trade secrets and knowhow, owned
by a Group Entity and, to the knowledge of Seller, material to the business of
the Group Entity, "Image" means a reproduction of any artwork, photograph,
illustration, font, video, clip art, map art, film, animation or any other type
of image. For purposes hereof, "Software" means all material computer software
developed by or on behalf of a Group Entity, or used by a Group Entity,
including all material computer software and databases operated or used by
Vermont or Bavaria on their web sites or used by Vermont or Bavaria in
connection with processing customer orders, storing customer information,
storing Image related vendor information, or storing and archiving Images. For
purposes hereof, "Approved Images" means Images used or held for use by the
Group Entities in connection with their business for which a Group Entity has
the right to grant licenses or sublicenses in writing to third parties. For
purposes hereof, "Unapproved Images" means Images used or held for use by the
Group Entities in connection with their business which are not Approved Images
(the Approved Images and Unapproved Images collectively being "Licensed
Images").
(b) To the Knowledge of Seller, the use of the Owned Intellectual
Property, Software, Licensed Images, and Licensed Intellectual Property by the
Group Entities in the ordinary course of business does not infringe upon or
misappropriate the valid Intellectual Property rights of any third party. Except
as set forth in section 4.10(b) of the Disclosure Schedule, no claim has been
received that the use of the Owned Intellectual property, Software, Licensed
Images, or Licensed Intellectual Property in the ordinary course of business
does or may infringe upon or misappropriate the Intellectual Property rights,
right of privacy or right of publicity of any third party.
(c) The Group Entities are the owner of the entire and
unencumbered right, title and interest in and to each item of Owned Intellectual
Property, and the Group Entities are entitled to use the Owned Intellectual
Property in the ordinary day-to-day conduct of business.
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(d) The Owned Intellectual Property and the Licensed Intellectual
Property include all of the material Intellectual Property and Software used in
the ordinary day-to-day conduct of the business of the Group Entities, and there
are no other items of Intellectual Property or Software that are material to
such ordinary day-to-day conduct of such business. Except as set forth in
Section 4.10(d) of the Disclosure Schedule, to the knowledge of Seller, the
Owned Intellectual Property and Licensed Intellectual Property, is not subject
to any claim or challenge in relation to subsistence, validity or enforceability
and has not been adjudged invalid or unenforceable in whole or part and, to the
actual knowledge of the Seller, the Listed Intellectual Property is subsisting,
valid and enforceable.
(e) Except as set forth in Section 4.10(e) of the Disclosure
Schedule, no claims have been made, asserted, are pending, or, to the Knowledge
of Seller, threatened against a Group Entity, and no international agent
licensee of the Owned Intellectual Property or end user of the Owned or Licensed
Intellectual Property has informed Seller that any claims have been made,
asserted, are pending or threatened against a Group Entity, (i) based upon or
challenging or seeking to deny or restrict the use, license, sublicense,
distribution, display, copying, performance, marketing or creation of derivative
works by a Group Entity of any of the Owned Intellectual Property or Licensed
Intellectual property, (ii) alleging that any services provided by, processes
used by, licenses by, sublicenses by, distribution by, display by, copying by,
performances by, marketing by or creation of derivative works by or products
manufactured or sold by a Group Entity infringe upon or misappropriate any
Intellectual Property right, right of privacy or right of publicity of any third
party, or (iii) alleging that any Intellectual Property licensed under the
Licensed Intellectual property infringes upon any Intellectual Property right of
any third party or is being licensed or sublicensed in conflict with the terms
of any license or other agreement and to the Knowledge of Seller no such claims
have been made, asserted, are pending, or threatened against any third party
licensor, any licensee, or end user of the Owned Intellectual Property.
(f) Except as set forth in Section 4.10(f) of the Disclosure
Schedule, to the Knowledge of Seller no person is engaging in any activity that
infringes upon the Owned Intellectual Property or any Intellectual Property
Licensed to the Group Entities under the Licensed Intellectual Property. No
Group Entity has granted any license or other right to any third party with
respect to the Owned Intellectual Property or Licensed Intellectual Property on
a free or `pro bono' basis without the consent of or a licence from the owner of
such Intellectual Property. The consummation of the transactions contemplated by
this Agreement will not result in the termination or material impairment of any
of the Owned Intellectual Property.
(g) Seller and Holdings have delivered or made available to the
Buyer correct and complete copies of all the material licenses and sublicenses
of the Licensed Intellectual Property (excluding for such purposes all Images
included therein) including all amendments thereto, and all current standard
forms of all model and property releases which are in the custody, or under the
control, of Seller, Holdings and the Group Entities.
With respect to each such material license and sublicense:
(i) such license or sublicense is valid and binding and in
full force and effect with respect to the Group Entities and, to the
knowledge of the Seller, with respect to
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the relevant counterparty and represents the entire agreement between
the respective licensor and licensee with respect to the subject matter
of such license or sublicense;
(ii) such license or sublicense will not cease to be valid
and binding and in full force and effect on terms identical to those
currently in effect as a result of the consummation of the transaction
contemplated by this Agreement, nor will the consummation of the
transactions contemplated by this Agreement constitute a breach or
default under such license or sublicense or otherwise give the licensor
or sublicensor other than a Group Entity a right to terminate such
license or sublicense;
(iii) Except as set forth in Section 4.10 of the
Disclosure Schedule, (A) no Group Entity has received any notice of
termination or cancellation under such license or sublicense, (B) no
Group Entity has received any notice of a breach or default under such
license or sublicense, which breach has not been cured, and (C) to the
Knowledge of the Seller no Group Entity has granted to any other third
party any rights, adverse or otherwise, under such license or sublicense
that would constitute a breach of such license or sublicense; and
(iv) no Group Entity, nor, to the Knowledge of Seller, any
other party to such license or sublicense is in breach or default in any
material respect, and, to the Knowledge of Seller, no event has occurred
that, with notice or lapse of time would constitute such a breach or
default or permit termination, modification or acceleration under such
license or sublicense.
(h) To the Knowledge of Seller, the Software is as of the Closing
Date free of all viruses, worms, trojan horses and other material known
contaminants, and does not contain any bugs, errors, or problems in each case
which is of a material nature that disrupts its operation or have an adverse
impact on the operation of other software programs or operating systems. The
Group Entities do not import or export from the United States any Software. No
rights in the Software have been transferred to any third party except to the
customers of a Group Entity to whom a Group Entity licensed such Software in the
ordinary course of business.
(i) The Group Entities have the right to use all software
development tools, library functions, compilers, and other third party software
that is material to the business of the Group Entities, or that is required to
operate or modify the Software in a manner necessary for the ongoing operation
of the business. The Software which the Group Entities purport to own was either
developed (i) by employees of the Group Entities within the scope of their
employment; (ii) by independent contractors who have assigned their rights to
the Group Entities pursuant to enforceable written agreements; or (iii) has
otherwise been rightfully assigned. The source code for such Software is
maintained on the premises of the Group Entities and can be compiled from the
associated source code without undue burden. The Group Entities have copies of
all material documentation which exists relating to use, maintenance and
operation of such Software used in the conduct of the Business.
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(j) The Group Entities have taken reasonable steps in accordance
with normal industry practice to maintain the confidentiality of their trade
secrets and other confidential Intellectual Property. To the Knowledge of
Seller: (i) there has been no misappropriation of any material trade secrets or
other material confidential Intellectual Property of any Group Entity by any
person, (ii) no employee, independent contractor or agent of any Vermont Entity
has misappropriated any material trade secrets of any other person in the course
of such performance as an employee, independent contractor or agent and (iii) no
Employee, independent contractor or agent of any Group Entity is in material
default or breach of any term of any employment agreement, non-disclosure
agreement, assignment of proprietary rights agreement or similar agreement or
contract relating in any way to the protection, ownership, development, use or
transfer of Owned or Licensed Intellectual Property.
(k) To the Knowledge of Seller, the Internal MIS Systems are Euro
Compliant. For purposes hereof, "Internal MIS Systems" means any computer
software and systems (including hardware, firmware, operating system software,
utilities and applications software) used in the ordinary course of the Business
that process financial information and that are material to the operation of the
Business, including, where applicable, payroll, accounting, billing/receivables,
purchasing payables, inventory, asset tracking, customer service, and human
resources. For purposes hereof, "Euro Compliant" means that the Internal MIS
Systems will record, store, process and present currency denominated in Euros,
in the same manner, and with the same functionality, as the Internal MIS Systems
record, store, process and present currencies denominated in U.S. Dollars and
major European currencies.
(l) The Group Entities have obtained the necessary permissions
from the appropriate parties for links on its web sites to third party web sites
and to use third party marks in association with those links.
(m-1) To the Knowledge of the Seller, the Group Entities have
obtained all necessary releases and permissions in writing for the use of any
artists' name, biography, likeness, and Image used in marketing and advertising
materials distributed by the Group Entities. Except as set forth in Section
4.10(m) of the Disclosure Schedule, the Group Entities' registered trademarks
and service marks as listed at Section 4.10(a) of the Disclosure Schedule have
been duly registered with, filed in or issued by, as the case may be, the United
States Patent and Tradesman Office or such other domestic or foreign office of
appropriate jurisdiction, and such registrations, filings, issuances and other
actions remain in full force and effect, are current and unexpired.
(n) Except for public domain imagery as set forth in Section
4.10(n) of the Disclosure Schedule, the Group Entities validly own or license
all Images used or held for use by a Group Entity which are material to the
operation of the business of any Group Entity as currently conducted. With
respect to each Image owned by a Group Entity ("Owned Images"), the Group
Entity, as applicable, has the right to display, reproduce, distribute, sell,
market, perform, advertise, bundle with other derivative works, create
derivative works, license and sublicense the use of such Image to the extent
required for the continued day-to-day operation of the business in a manner
consistent with past practices. The Owned Images and Licensed Images include all
of the Images used or held for use by the Group Entities which are material to
the day-to-day operation of the
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business as currently conducted. With respect to the public domain Images
offered by the Group Entities, each Image, to the Knowledge of Seller, does not
require a license or the payment of a fee for the Group Entities' use in a
manner consistent with past practice. Without prejudice to the generality of the
foregoing, nothing in this Section shall be deemed to be or construed as a
representation or warranty with respect to the Licensor's ownership or license
of Images.
(o) To the Knowledge of Seller, (a) no Group Entity has granted
any license, sublicense or other right to any other person with respect to any
Unapproved Images (b) no Group Entity has granted any license, sublicense or
other right to any other person with respect to any Approved Image that would
constitute a breach of any agreement or license pertaining to such Approved
Image, and (c) except as disclosed at Section 4.10 of the Disclosure Schedule no
Group Entity has granted any license, sublicense or other right to any other
person with respect to any Approved Image for which such Group Entity has no
model or property release where such licence, sub-licence or other right would
constitute a breach of a third party's rights without such model or property
release.
(p) To the Knowledge of the Seller, (a) the display, sale,
marketing, distribution, bundling with other works, creation of derivative
works, copying, marketing, performance and advertising of the Licensed Images,
and the licensing and sublicensing of Approved Images as done, authorized or
agreed to by the Group Entities does not infringe upon the Intellectual Property
right, right of publicity, or right of privacy of any third party, and (b) the
display, sale marketing, performance, distribution, bundling with other works,
creation of derivative works, copying and advertising of the Licensed Images,
and the licensing and sublicensing of Approved Images, as done, authorized or
agreed to by the Group Entities does not constitute a breach of any agreement or
license to which a Group Entity is a party.
(q) Except as set forth in Section 4.10(q) of the Disclosure
Schedule, no claims have been made, asserted, are pending, or to the Knowledge
of Seller threatened, against any Group Entity, and no international agent
licensee of the Licensed Images or end user of the Licensed Images has informed
Seller that any claims have been made, asserted, are pending or threatened
against a Group Entity, (i) based upon or challenging or seeking to deny or
restrict the display, sale, marketing, performance, distribution, bundling with
other works, creation of derivative works, copying, advertising, licensing or
sublicensing by any Group Entity of any of the Licensed Images, (ii) alleging
that the sale, reproduction, distribution, bundling with other derivative works,
creation of derivative works, copying, advertising, licensing or sublicensing of
the Licensed Images by any Group Entity or in accordance with the terms granted
by any Group Entity does or may infringe upon the Intellectual Property rights,
right of publicity, right of privacy of any third party, (iii) claiming in
respect of loss or damage to Licensed Images, (iv) claiming in respect of model
or property releases (or lack thereof) in respect of the Licensed Images, (v)
challenging the ownership of the Owned Images or the Group Entities' rights to
the Licensed Images, and to the Knowledge of Seller, no such claims have been
made, asserted, are pending, or threatened against any third party licensor, any
licensee, or any end user of a Licensed Images or an international agent for a
Group Entity. Except as set forth in Schedule 4.10(q) of the Disclosure
Schedule, no person has requested indemnification from any Group Entity based on
the proper use of an Owned Image or Licensed Image within the last 24 months.
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(r) To the Knowledge of Seller, no person is engaging in any
activity that infringes upon the Licensed Images or upon the rights of any Group
Entity therein. The consummation of the transactions contemplated by this
Agreement will not result in the termination or impairment of any right of a
Group Entity to sell, copy, market, advertise, perform, bundle with other works,
create derivative works of, distribute or sublicense any of the Licensed Images.
(s) To the Knowledge of the Seller, except as set forth in
Section 4.10(s) of the Disclosure Schedule, each of the Group Entities has,
prior to any display, bundling, marketing, performance, advertisement, sale,
reproduction, distribution or sublicensing of any Licensed Image, obtained in
writing all such releases and/or other third party consents or authorizations
required by law for such display, bundling, marketing, performance,
advertisement, sale, reproduction, distribution or sublicensing, or taken
reasonable steps to ensure that such releases, consents or authorizations have
been given. Except as set forth in Schedule 4.10(s) of the Disclosure Schedule
the Group Entities have not entered into any contract under which a Group Entity
has assumed any obligation for the storage and handling of Images outside of the
ordinary course of business.
(t) With respect to each material license or agreement by which
Vermont or Bavaria has obtained the right to display, perform, advertise,
market, sell, reproduce, distribute, bundle with other derivative works, create
derivative works, market copy, license or sublicense the Licensed Images or by
which Vermont or Bavaria has granted to any third party the right to display,
sell, reproduce, perform or distribute any Licensed Images:
(i) such license or agreement is legal, valid, binding and
enforceable and in full force and effect with respect to the Group
Entities and, to the Knowledge of the Seller, with respect to the
relevant counterparty and represents the entire agreement between the
parties thereto with respect to the subject matter thereof;
(ii) such license or agreement will not cease to be legal,
valid, binding and enforceable and in full force and effect on terms
identical to those currently in effect as a result of the consummation
of the transactions contemplated by this Agreement, nor will the
consummation of the transactions contemplated by this Agreement
constitute a breach or default under such license or agreement, or
otherwise give any party thereto a right to terminate such license or
agreement;
(iii) except as set out in Section 4.10 of the Disclosure
Schedule, with respect to each such license or agreement, (A) no Group
Entity has received any notice of termination or cancellation under such
license or agreement, and no party thereto has any right of termination
or cancellation thereunder except in accordance with its terms (B) no
Group Entity has received any notice of a breach or default under such
license or agreement which breach or default has not been cured, and (C)
to the Knowledge of the Seller no Group Entity has granted to any other
person any rights, adverse or otherwise, under such license or agreement
that would constitute a breach of such licence or agreement; and
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(iv) none of the Group Entities nor, to the Knowledge of
Seller, any other party to such license or agreement, is in breach or
default thereof in any material respect, and, to the Knowledge of
Seller, no event has occurred that, with notice or lapse of time would
constitute such a breach or default or permit termination, modification
or acceleration under such license or agreement.
(u) No Group Entity has granted to any Person the right to
distribute or sell the Licensed Images except in the ordinary course of
business.
(v) Section 4.10(v) of the Disclosure Schedule identifies each
material contract between Group Entity and a photographer or other content
provider to a Group Entity that has been terminated or revoked since January 1,
1998 that involves the display, reproduction, distribution, creation of
derivative works, bundling with other works, licensing or sublicensing the use
of any Image owned or controlled by such third party.
(w) All publicly and freely available electronic versions of
Owned Images and Licensed Images with a resolution level at or above "comping
resolution" distributed or made available by the Group Entities on a web site,
contain watermarks or similar protection mechanisms advertising or marketing
material.
4.11 ENVIRONMENTAL PROTECTION.
(a) Except as set forth in Section 4.11 of the Disclosure
Schedule:
(i) no notice, notification, demand, request for
information, citation, summons or order has been received by, no
complaint has been filed against, no penalty has been assessed against,
and no investigation, action, claim, suit, proceeding or review is
pending or, to the Knowledge of Seller, threatened, by any person or
Governmental Authority against, any Group Entity with respect to any
matters relating to or arising out of any Environmental Law which,
individually or in the aggregate, would have a Material Adverse Effect;
(ii) to the Knowledge of Seller, no Hazardous Substance
has been discharged, disposed of, dumped, injected, pumped, deposited,
spilled, leaked, emitted or released at, on or under any property now or
previously owned, leased or operated by any Vermont Entity which
circumstance, individually or in the aggregate, would have a Material
Adverse Effect; and
(iii) there are no Environmental Liabilities that,
individually or in the aggregate, have had or would have a Material
Adverse Effect.
(b) For purposes of this Section, the following terms shall have
the meanings set forth below:
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(i) "Group Entity" shall include any entity which is, in
whole or in part, a predecessor of any Group Entity;
(ii) "Environmental Laws" means any and all federal,
state, local and foreign law (including common law), treaty, judicial
decision, regulation, rule, judgment, order, decree, injunction, permit,
or governmental restrictions or any agreement with any Governmental
Authority or other third party, relating to human health and safety, the
environment or to pollutants, contaminants, wastes or chemicals or
toxic, radioactive, ignitable, corrosive, reactive or otherwise
hazardous substances, wastes or materials, in each case to the extent in
effect on the date hereof;
(iii) "Environmental Liabilities" means any and all
liabilities of or relating to the Group Entities of any kind whatsoever,
whether accrued, contingent, absolute, determined, determinable or
otherwise, which (A) have arisen under or relate to matters covered by
Environmental Laws and (B) have arisen from actions occurring or
conditions existing on or prior to the Closing; and
(iv) "Hazardous Substances" means any pollutant,
contaminant, waste or chemical or any toxic, radioactive, corrosive,
reactive or otherwise hazardous substance, waste or material, or any
substance having any constituent elements displaying any of the
foregoing characteristics, including, without limitation, petroleum, its
derivatives, by-products and other hydrocarbons, or any substance, waste
or material regulated under any Environmental Laws.
4.12 FINANCIAL STATEMENTS. Seller has previously furnished Buyer with a
true and complete copy of the audited consolidated balance sheets of VCG as of
December 31, 1999 and the related audited statements of income for the fiscal
year then ended including the notes thereto (the "Audited Vermont Financial
Statements"). Holdings has previously furnished Buyer with a true and complete
copy of the unaudited consolidated balance sheets of Bavaria as of December 31,
1999 and the related statements of income for the fiscal year then ended (the
"Bavaria Financial Statements"). Subject to the elimination of transactions and
balances between the Vermont Entities and transactions and balances between the
Bavaria Entities, the Audited Vermont Financial Statements and the Bavaria
Financial Statements present fairly in all material respects the financial
position of the Group Entities results of operations and changes in financial
position and the income of the Business for the period ended on the date thereof
in conformity with generally accepted accounting principles in the relevant
country where such statements were prepared, applied on a consistent basis.
There are no debts, liabilities or obligations of any kind, whether accrued or
fixed, absolute or contingent, matured or unmatured or determined or
determinable, to the extent required by GAAP to be reflected on financial
statements ("Liabilities") of any Group Entity, other than Liabilities (i)
reflected or reserved against on the Audited Vermont Financial Statements and
the Bavaria Financial Statements or (ii) incurred in the ordinary course of
business, consistent with the past practices of the Group Entities, since
December 31, 1999, provided, however, that to the extent any such Liabilities
exist, they shall be offset against any assets reflected on the Audited Vermont
Financial Statements and the Bavaria Financial Statements which are later
determined to have a greater value than as reflected thereon.
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4.13 ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as set forth in
Section 4.13 of the Disclosure Schedule, since the date of the Audited Vermont
Financial Statements and the Bavaria Financial Statements, there has not been
any event, change or effect which has had or would reasonably be expected to
have a Material Adverse Effect in the financial condition, properties, business,
results of operations or, to the Knowledge of Seller, prospects of the Group
Entities taken as a whole. None of the Group Entities are currently in default
on any installment or installments on indebtedness for borrowed money, or on any
rental payment on any long-term lease.
4.14 ABSENCE OF CHANGES. Except as set forth in Section 4.14 of the
Disclosure Schedule, since the date of the Audited Vermont Financial Statements
and the Bavaria Financial Statements, the Business has been operated in the
ordinary course, and there has not been incurred, nor has there occurred:
(a) Any material damage, destruction or loss (whether or not
covered by insurance), adversely affecting the Business or any of the material
Assets;
(b) Any issuance, declaration, setting aside or payment of any
dividend or other distribution of cash or property on any of the capital stock
of any Group Entity, or any direct or indirect redemption, purchase or other
acquisition of any shares of capital stock of any Group Entity or any agreement
or commitment by any Group Entity to do so;
(c) Any strikes, work stoppages or other material labor disputes
involving any Employees;
(d) Any sale, transfer or other disposition of any of the Assets,
except for sales made in the ordinary course of business;
(e) Any amendment, termination, waiver or cancellation of any
Material Agreement included in the Assets, or of any right or claim thereunder;
(f) Any (i) general uniform increase in the compensation of the
Employees of the Group Entities (including, without limitation, any increase
pursuant to any bonus, pension, profit-sharing or other plan or commitment),
other than in the ordinary course of business and consistent with past practice,
(ii) increase in any compensation payable by any Group Entity to any officer,
director, Employee, consultant or agent of any Group Entity, other than in the
ordinary course of business and consistent with past practice, (iii) loan or
commitment therefor made by any Group Entity to any officer, director,
stockholder, Employee, consultant or agent of a Group Entity, (iv) grant of any
severance or termination pay to any director, officer or Employee of any Group
Entity, or (v) entering into any employment, deferred compensation or other
similar agreement (or any amendment to any such existing agreement) with any
director, officer or Employee of any Group Entity.
(g) Any change in the accounting methods, procedures or practices
followed by the Group Entities;
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(h) Any material change in policies, operations or practices of
the Group Entities, including, without limitation, with respect to selling
methods, returns, discounts or other terms of sale, as well as payments of
liabilities;
(i) Any sales contracts or commitments which will be materially
in excess of the capacity of the Group Entities as of the Closing Date;
(j) Any purchase contracts or commitments materially in excess of
the requirements of the Business in the ordinary course;
(k) Except as contemplated by clause (i) of Section 5.8 hereof,
any capital appropriation, expenditure or commitment therefor by the Group
Entities;
(l) Except as contemplated by clauses (ii) and (iii) of Section
5.8 hereof and except with respect to the Severance Plans, any material change
in policies, operations or practices of the Group Entities concerning the
Employees thereof, including, without limitation, with respect to any Employee
fringe Benefit Plans;
(m) Any event, occurrence or development within the control of
Seller and the Group Entities which has, or would reasonably be expected to have
a Material Adverse Effect;
(n) Any creation or assumption by any Group Entity of any
Encumbrance on any Asset other than in the ordinary course of business,
consistent with past practice;
(o) Any making of any loan, advance or capital contribution to or
investment in any person by any Group Entity, involving an amount in excess of
Two Hundred Thousand Dollars ($200,000);
(p) Any making or rescission of any material express or deemed
election relating to Taxes, settlement or compromise of any material claim,
action, suit, litigation, proceeding, arbitration, investigation, audit or
controversy relating to Taxes, or except as may be required by applicable law,
made any change to any of its material methods of reporting income or deductions
for federal income tax purposes from those employed in the preparation of its
most recently filed federal and foreign income tax returns; and
(q) Any agreement, whether in writing or otherwise, for any Group
Entity to take any of the actions enumerated in this Section 4.14 or any other
material action outside of the ordinary course of business.
4.15 TAX MATTERS. Except as will be disclosed prior to the Closing Date
in a Schedule 4.15:
(a) (i)each U.S. Group Entity (as defined below) utilizes the
accrual method of accounting for computing its federal income Tax liability;
(ii) to the Knowledge of Seller, all Returns
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required to be filed by or on behalf of any Group Entity have been timely filed
in accordance with all applicable laws (including allowance for extension of
time to file); (iii) to the Knowledge of Seller, such Returns are true, correct
and complete in all material respects (excluding, however, any inaccuracy the
correction of which would not cause a net Tax deficiency on such Returns); (iv)
all Taxes shown on such Returns as due and payable have been paid; (v) each
Group Entity has maintained with respect to transfer pricing proper intercompany
agreements and concurrent and supporting documentation as required under OECD
guidelines, such that no transfer pricing amounts will be denied as deductions
in any jurisdiction by reason of a lack of proper agreements or supporting
documentation; (vi) there are no agreements or consents currently in effect for
the extension or waiver of the time (A) to file any Return or (B) for assessment
or collection of any Taxes relating to the income, properties, employees or
operations of the Group Entities; (vii) to the Knowledge of Seller, all Taxes
which the Group Entities are required by law to withhold or collect have been
duly withheld or collected, and have been timely paid over to the appropriate
Taxing Authority to the extent due and payable; and (viii) to the Knowledge of
Seller, no power of attorney with respect to any Tax matter of any Group Entity
is currently in force.
(b) Each Group Entity that is a U.S. corporation (a "U.S. Group
Entity"), or is a non-U.S. corporation but is engaged in trade or business in
the United States, has filed all reports and has created and/or retained all
records required under Code Section 6038A with respect to its ownership by and
transactions with related parties. Each related foreign person required to
maintain records under Code Section 6038A with respect to transactions between
such Group Entity and the related foreign person has maintained such records.
All documents that are required to be created and /or preserved by the related
foreign person with respect to transactions with any such Group Entity are
either maintained in the United States, or such Group Entity is exempt form the
record maintenance requirements of Code Section 6038A with respect to such
transactions under Treasury Regulation Section 1.6038A-1. No such Group Entity
is a party to any record maintenance agreement with the Internal Revenue Service
with respect to Code Section 6038A.
(c) There is no action, suit, proceeding, investigation, audit or
claim currently pending or, to the Knowledge of Seller, threatened, regarding
any Taxes relating to the income, properties or operations of the Group
Entities.
(d) No U.S. Group Entity (i) nor any Person on behalf of any U.S.
Group Entity has (A) executed or entered into a closing agreement pursuant to
Code Section 7121 (or any similar provision of U.S. state or local law) that is
currently in force and determines the Tax liabilities of the U.S. Group Entities
or (B) agreed to or is required to make any adjustments pursuant to Code Section
481(a) by reason of a change in accounting method initiated by (or on behalf of)
any U.S. Group Entity, nor does Seller have Knowledge that any Taxing Authority
has proposed any such adjustment or change in accounting method, nor does any
U.S. Group Entity have any application pending with any Taxing Authority
requesting permission for any changes in accounting methods that relate to the
business or operations of any of the U.S.Group Entities or (ii) is subject to
any private letter ruling of the Internal Revenue Service nor is any request for
such a ruling pending with the Internal Revenue Service.
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(e) (i) No Group Entity has executed or entered into a binding
agreement with a non-U.S.Taxing Authority, similar to a Closing Agreement
pursuant to US Code Section 7121, that is currently in force and will determine
the Tax Liability of such Group Entity for any period ending after the Closing
Date; and (ii) to the Knowledge of Seller, no Group Entity is subject to any
written ruling addressed to it by a non-U.S. Taxing Authority, comparable to a
private letter ruling of the Internal Revenue Service, nor has any such ruling
been requested.
(f) No Group Entity (i) is treated for any taxation purpose as
resident in a country other than the country of its incorporation or (ii) has
been subject to a claim by a Taxing Authority in a jurisdiction where a Group
Entity does not file Returns that it is or may be subject to taxation by that
jurisdiction.
(g) None of the Group Entities (i) has entered into any tax
sharing or similar agreement or arrangement (whether or not written and
including without limitation any arrangement under which tax losses or tax
reliefs are surrendered or claimed or agreed to be surrendered or claimed)
pursuant to which it will have any obligation to make any payments after the
Closing with respect to any period commencing after December 31, 1999, or (ii)
is liable to taxation chargeable primarily on any other company which is not a
Group Entity.
(h) There are no liens for any Tax on the assets of the Group
Entities except for taxes not yet due and payable.
(i) No Group Entity will be subject to a clawback of any Irish
stamp duty relief claimed under the Irish stamp duty legislation nor any capital
gains tax deferred under the Irish Taxes Acts by virtue of the entering into
and/or completion of this Agreement. To the Knowledge of Seller (limited,
however, to actual knowledge), no charge to taxation will arise on, nor will any
gain or loss otherwise be recognized by, any Group Entity by virtue of the
entering into and/or completion of this Agreement (excluding any charge to
taxation that would not arise, and gain or loss that would not be recognized,
but for an action of the Buyer after the Closing Date, including, without
limitation, an election under Code Section 338).
(j) To the Knowledge of Seller, each Group Entity is duly
registered in any country or jurisdiction where it could legally be subject to
the collection or payment of value added Tax ("VAT").
(k) Complete and correct copies of the Returns set forth in
Schedule 4.15 (to be provided prior to the Closing Date) were made available to
the Buyer prior to the date of this Agreement.
(l) There is no contract, agreement, plan or arrangement of any
Group Entity covering any person that, individually or collectively, will give
rise to the payment of any amount that would not be deductible by Buyer or its
Affiliates by reason of Code Sections 280G or 162(m).
(m) None of the U.S. Group Entities (i) is required to treat any
of their assets as owned by another person pursuant to the "safe harbor" leasing
provisions of the Code, (ii) owns
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assets that are "tax-exempt use property" within the meaning of Code Section
168(h), "tax-exempt bond financed property" within the meaning of Code Section
168(g), "limited use property" (as that term is defined in Rev. Proc. 76-30) or
security for debt the interest on which is tax-exempt under Code Section 103(a)
or (iii) is required to apply any of the foregoing rules under any comparable
U.S. state or local Tax provision.
(n) No (i) U.S. Group Entity nor any other Person on behalf of
any U.S. Group Entity has filed a consent pursuant to Code Section 341(f) or any
comparable foreign, state or local Tax provision or agreed to have Code Section
341(f)(2) or any comparable foreign, state or local Tax provision apply to any
disposition of a subsection (f) asset (as such term is defined in Code Section
341(f)(4)) owned by a Group Entity and (ii) UK Group Entity has acquired any of
its assets by virtue of a transfer from a group company under Section 171 of the
UK Taxation of Chargeable Gains Act 1992.
(o) No claim has been made under Section 152 of the UK Taxation
of Chargeable Gains Act 1992 that affects the amount of the consideration which
would be allowable under Section 8 of such Act on a disposal of an asset by a
Group Entity.
(p) No Group Entity has at any time after April 6, 1965 repaid,
redeemed or purchased or agreed to repay, redeem or purchase, or granted an
option under which it may become liable to purchase, any shares of any class of
its share capital nor has any Group Entity after that date capitalized or agreed
to capitalize in the form of shares or debentures any profits or reserves of any
class or description or otherwise issued or agreed to issue any share capital
other than for the receipt of a new consideration (within the meaning of Part VI
of the UK Income and Corporation Taxes act 1988) or passed or agreed to pass any
resolution to do so.
(q) No indebtedness of any U.S. Group Entity is "corporate
acquisition indebtedness" within the meaning of Code Section 279(b), an
"applicable high yield discount obligation" within the meaning of Code Section
163(i) or debt on which any portion of the interest thereon is "disqualified
interest" within the meaning of Code Section 163(h).
(r) None of the Group Entities is or has ever been a "United
States real property holding corporation," a "controlled foreign corporation," a
"personal holding company," a "foreign personal holding company," a "foreign
investment company," or a "passive foreign investment company," as each of those
terms is defined in the U.S. Code. None of the Group Entities would, for 1999,
have constituted a foreign investment company or a passive foreign investment
company had it had U.S. shareholders.
(s) None of the U.S. Group Entities has participated in, or
cooperated with, an "international boycott" within the meaning of Code Section
999.
(t) Each Group Entity that is incorporated in Ireland or is
engaged in a trade or business in Ireland (an "Irish Group Entity") has (a)
delivered a notice of particulars to the Irish Revenue pursuant to Section 882
of the Taxes Consolidation Act 1997 and (b) complied with the
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provisions of Chapter 8A of the Taxes Consolidation Act 1997 in respect of all
dividends paid and distributions made.
(u) No Irish Group Entity (a) will be required to make any
payment under Section 411 of the Taxes Consolidation Act 1997 for the trading
losses surrendered in excess of the amount surrendered or (b) has made any
disposals of capital assets which would require Irish Revenue clearance under
Section 980 of the Taxes Consolidation Act 1997.
4.16 COMPLIANCE WITH LAWS, ETC. To the Knowledge of Seller, except with
respect to Environmental Laws, compliance with which is the subject of Section
4.11 hereof: (i) the Group Entities are in compliance with (A) all applicable
Laws and (B) all applicable orders, writs, judgments, injunctions, decrees and
similar commands of Governmental Authorities and all decisions and awards of any
arbitration panel or tribunal, except in each case where noncompliance would
have a Material Adverse Effect; and (ii) except as set forth in Section 4.16 of
the Disclosure Schedule, since the date of the Audited Vermont Financial
Statements and the Bavaria Financial Statements, the Group Entities have not
received any notification of any asserted present or past failure by it to
comply with such Laws or such orders, writs, judgments, injunctions or decrees.
4.17 LITIGATION REGARDING THE VERMONT ENTITIES. Except as set forth in
Section 4.17 of the Disclosure Schedule, there are no (i) civil or criminal
actions, suits, claims, investigations or legal or administrative or arbitration
(or other binding alternative dispute resolution) proceedings pending or, to the
Knowledge of Seller, threatened against any Group Entity or any of the Assets
that seek damages in excess of $25,000 or which seek equitable relief, or (ii)
orders, writs, judgments, injunctions, decrees, awards or similar commands of
any Governmental Authority, or any arbitration tribunal or panel, applicable to
any Group Entity, except, in each case in this Section 4.17(ii), for those
orders, writs, judgments, injunctions, decrees, awards or similar commands which
would not have Material Adverse Effect.
4.18 PERMITS, ETC. Set forth in Section 4.18 of the Disclosure Schedule
is a list of all material governmental licenses, permits, certificates or
inspection, other authorizations, filings and registrations which are necessary
for the Group Entities to own and operate the Business and Assets as presently
operated in all material respects (collectively, the "Authorizations"). All the
Authorizations have been duly and lawfully secured or made by Seller and
Holdings and are in full force and effect and the Group Entities are in material
compliance with all such Authorizations. There are no proceedings pending or, to
the Knowledge of Seller, threatened to revoke or limit any Authorization. None
of Seller, Holdings or the Group Entities have received notice of any violation
of any Authorization. Except as set forth in Section 4.18 of the Disclosure
Schedule, none of the transactions contemplated by this Agreement will
terminate, violate or limit the effectiveness of any of the Authorizations. The
Group Entities have made, in a timely manner, all material filings, reports,
notices and other communications with the appropriate Governmental Authority,
and have otherwise taken, in a timely manner, all other action required to be
taken by them, reasonably necessary to secure the renewal of the Authorizations
prior to the dates of their respective expirations.
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4.19 EMPLOYEES; LABOR RELATIONS. (a) Except as set forth in Section 4.19
of the Disclosure Schedule (i) the Group Entities (A) are not delinquent in the
payment to or on behalf of any past or present Employees of the Group Entities
of any wages, salaries, social security premiums, commissions, bonuses, benefit
plan contributions or other compensation (including without limitation
disability compensation) for all periods prior to the date hereof and (B) are
not delinquent in the payment of any amount which is due and payable to any
state or state fund pursuant to any workers' compensation statute, rules or
regulations or any amount which is due and payable to any workers' compensation
claimant or any other party arising under or with respect to a claim that has
been filed under state workers' compensation statutes and approved in the
ordinary course in accordance with the policies of the Group Entities regarding
workers' compensation and/or any applicable state statute or administrative
procedure; (ii) there is no labor strike, slowdown or work stoppage in progress
against any Group Entity; (iii) no collective bargaining agreement currently
exists or is currently being negotiated by any Group Entity; (iv) to the
Knowledge of Seller, there has been no request to any Group Entity for
collective bargaining on behalf of any Employees not represented currently by a
union or from the National Labor Relations Board in respect of any Employees of
any Group Entity; (v) to the Knowledge of Seller, no union representation or
jurisdictional dispute or question exists respecting any Employees of any Group
Entity; (vi) no material dispute exists between any Group Entity and any of
their respective sales representatives or, to the Knowledge of Seller, between
any such sales representatives with respect to territory, commissions, products
or any other terms of their representation; and (vii) to the knowledge of the
Seller, there has been no "mass layoff" or "plant closing" as defined by WARN
with respect to any of the Group Entities within the six (6) months prior to
Closing.
(b) With respect to Pix SA, Photographie Giraudon SA and iSwoop
EURL, and since the respective dates of incorporation thereof, all employer
contributions payable to any state social security agency (including, without
limitation, L'Union pour le Recouvrement des cotisations de Securite Sociale et
d'Allocations Familiales) have been paid in a timely manner.
4.20 EMPLOYEE BENEFITS.
(a) Benefit Plans. Section 4.20(a) of the Disclosure Schedule
lists each employee benefit plan (within the meaning of Section 3(3) of ERISA)
consulting or other compensation agreements, incentive, equity or equity-based
compensation, severance pay, sick leave, vacation pay, salary continuation for
disability, retirement benefits scheme (within the meaning of Section 611 of the
UK Income and Corporation Taxes Act 1988 (the "Taxes Act") personal pension
scheme (within the meaning of Section 630 of the Taxes Act) pension or
superannuation arrangement stock purchase plan, stock option plan, fringe
benefit plan, bonus plan and any other deferred compensation agreement or plan
or funding arrangement which covers any Employee immediately prior to Closing
and which is sponsored or maintained or to which contributions are required to
be made by (i) Seller, VCG or Holdings or (ii) any other organization which is a
member of a controlled group of organizations (within the meanings of Sections
414(b), (c), (m) or (o) of the Code) or an associated employer (within the
meaning of Section 590A(3) or (4) of the Taxes Act) of which Seller or Holdings
is a member (the "Controlled Group"), such plans described in this sentence
being referred to collectively as the "Benefit Plans." Except as set forth on
Section 4.20(a) of the Disclosure Schedule, there are no material employee
plans, arrangements,
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benefit programs or similar plans which cover Employees immediately prior to
Closing. Schedule 4.20(a) separately sets forth each Benefit Plan which is a
multiemployer plan, as defined in Section 3(37) of ERISA ("Multiemployer Plan"),
or is or has been subject to Sections 4063 or 4064 of ERISA ("Multiple Employer
Plans").
(b) Documents Furnished. Seller and Holdings have made available
to Buyer a current, accurate and complete copy of each Benefit Plan specified in
Section 4.20(a) of the Disclosure Schedule and, to the extent applicable, copies
of the most recent:
(i) determination letter or outstanding request for a
determination letter with respect to Benefit Plans intended to be
qualified under Section 401(a) of the Code or, as the case may be,
Chapters I or IV Part XIV or the Taxes Act; and
(ii) Form 5500 with respect to all Benefit Plans, as
applicable, for which separate Form 5500's are filed, with all
attachments and schedules thereto.
(c) The Seller has made available to the Buyer copies of all
agreements, trust deeds and rules currently governing the UK Benefit Plans
together with copies of explanatory literature issued to members of the UK
Benefit Plans and a list of the Employees who are members of the UK Benefit
Plans with all details relevant to their membership including the basis upon
which their entitlements to benefits are calculated.
(d) Except as set forth on Section 4.20(c) of the Disclosure
Schedule, for each Benefit Plan specified below, the following is true:
(i) each such Benefit Plan which is intended to qualify
under Section 401(a) of the Code as the case may be, Chapters I or IV
Part XIV or the Taxes Act has received a favorable determination letter
as to its qualification under the Code or the Taxes Act, and to the
Knowledge of Seller nothing has occurred, whether by action or failure
to act, which would cause the loss of such qualification;
(ii) with respect to all Benefit Plans, there are no
actions, suits or claims (other than routine claims for benefits in the
ordinary course) pending, and to the Knowledge of Seller there are no
threatened actions, suits or claims (other than routine claims for
benefits in the ordinary course);
(iii) each of the Benefit Plans is, and its administration
is and has been since inception, in compliance with ERISA and the Code
or equivalent UK laws and regulation, except for such failures to comply
which could not reasonably be expected to have a Material Adverse Effect
on the Business;
(iv) all contributions and other payments required to be
made by Seller, VCG, Holdings or any Group Entity to any Benefit Plan
under the terms of such Benefit Plan in respect of Employees for any
period ending on the Closing have been made;
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(v) no employer securities, employer real property or
other employer property is included in the assets of any Benefit Plan;
(vi) no assurance, promise or guarantee (oral or written)
has been made or given to an employee who is a member of a UK Benefit
Plan of any particular kind or amount of benefits (other than insured
death in service benefits) to be provided for or in respect of him on
retirement, death or leaving service;
(vii) Buyer will not have (x) any obligation to make any
contribution to any Multiemployer Plan under which Seller or the
Controlled Group had contribution obligations prior to the Closing Date
or (y) any withdrawal liability from any such Multiemployer Plan under
Section 4201 of ERISA;
(viii) there has been no "reportable event" as that term
is defined in Section 4043 of ERISA and the regulations thereunder with
respect to the Benefit Plans which would require the giving of notice or
any event requiring disclosure under Section 4041(c)(3)(C) or 4063(a) of
ERISA;
(ix) none of the Seller nor the Controlled Group has
terminated any Benefit Plan, or incurred any outstanding liability under
Section 4062 of ERISA to the PBGC, or to a trustee appointed under
Section 4042 of ERISA. All premiums due to the PBGC with respect to the
Benefit Plans have been paid;
(x) neither the Seller nor the Controlled Group or any
organization to which Seller is a successor parent corporation, within
the meaning of Section 4069(b) of ERISA, has engaged in any transaction,
within the meaning of Section 4069 of ERISA; and
(xi) none of the Benefit Plans which are "welfare benefit
plans" within the meaning of Section 3(1) of ERISA provide for
continuing benefits or coverage for any participant or any beneficiary
of a participant post-termination of employment, except as may be
required under the Consolidated Omnibus Budget Reconciliation Act of
1985, as amended ("COBRA") or benefits at the expense of the participant
or the participant's beneficiary and each of the Seller and the
Controlled Group which maintains a "group health plan" within the
meaning of Section 5000(b)(1) of the Code has complied with the notice
and continuation requirements of Section 4980B of the Code, COBRA, Part
6 of Subtitle B of Title I of ERISA and the regulations thereunder,
except for such failures to comply which could not reasonably be
expected to have a Material Adverse Effect on the Business.
(e) No Changes. Except as set forth in Section 4.20 of the
Disclosure Schedule, on or after the date hereof and before the Closing, no
Benefit Plan as it affects the Employees has been, or will be (i) amended in any
manner which would materially increase the benefits accrued, or which may be
accrued, by any participating or sponsoring employer thereunder or (ii) amended
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in any manner which would increase the cost to Seller, VCG, Holdings, any Group
Entity, or Buyer of maintaining such Benefit Plan except to the extent required
by law.
4.21 POWERS OF ATTORNEY. On the Closing Date, there will be no persons,
firms, associations, corporations or business organizations or entities holding
general or special powers of attorney from any Group Entity.
4.22 AGREEMENTS, ETC. Set forth in Section 4.22 of the Disclosure
Schedule is a list of all of the following contracts, agreements, documents,
instruments, understandings or arrangements, written or oral, included in the
Assets (collectively, the "Material Agreements"):
(a) Contracts involving the expenditure of more than Two Hundred
Thousand Dollars ($200,000) in any instance for the purchase of materials,
supplies, equipment or services, specifying those which are not cancelable on
thirty (30) days notice without penalty;
(b) Collective Bargaining Agreements with labor unions;
(c) Contracts and agreements relating to the leasing (as lessor
or lessee) or to the conditional purchase or sale of any property, real,
personal or mixed in excess of Two Hundred Thousand Dollars ($200,000) per year;
(d) Indentures, mortgages, promissory notes, loan agreements,
capital leases, security agreements, or other agreements or commitments for the
borrowing of money, or the purchase of assets involving deferred payments (in
the latter case, involving payments in excess of Two Hundred Thousand Dollars
per year), or which otherwise evidence indebtedness for borrowing or which
create an Encumbrance on any of the Assets;
(e) Guarantees of the obligations of a third party or agreements
to indemnify third parties;
(f) Individual employment, severance or consulting agreements or
arrangements under which payments were in excess of Two Hundred Thousand Dollars
($200,000) during 1999 or are reasonably projected to exceed Two Hundred
Thousand Dollars ($200,000) in 2000;
(g) Distributor, dealer, sales, advertising, agency,
manufacturer's representative, franchise or similar contracts or any other
contract relating to the payment of a commission under which payments were in
excess of Two Hundred Thousand Dollars ($200,000) during 1999 or are reasonably
projected to exceed Two Hundred Thousand Dollars ($200,000) in 2000;
(h) contracts granting a right of first refusal or first
negotiation with respect to the capital stock of any Group Entity;
(i) partnership or joint venture agreements with unaffiliated
third parties;
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(j) agreements for the acquisition, sale or lease of material
properties or assets of any Group Entity since December 31, 1996 which involve
payments in excess of Two Hundred Thousand Dollars ($200,000) per year;
(k) agreements that purport to limit, curtail or restrict the
ability of any Group Entity to compete in any geographic area or line of
business, except for exclusive distributor or agency agreements pursuant to
which a Group Entity is not the distributor or agent;
(l) agreements between any Group Entity, on the one hand, and
Seller, Holdings or Affiliate of Seller or Holdings, or any officer, director or
Employee of any Group Entity, on the other hand;
(m) contracts or agreements with any Governmental Authority which
involve payments in excess of Two Hundred Thousand Dollars ($200,000) per year;
and
(n) agreements relating to the license, purchase, right to use or
other supply of still photographic images to any Group Entity which involve
payments in excess of Two Hundred Thousand Dollars ($200,000) per year.
True copies of all written Material Agreements, described on Section
4.22 of the Disclosure Schedule have been furnished to the Buyer. Each of the
Material Agreements constitutes a valid and binding obligation of the Group
Entity party thereto, enforceable in accordance with its terms and is valid and
in full force and effect and, except as set forth in Section 4.22 of the
Disclosure Schedule, the transactions contemplated hereby will not require the
consent of any party thereto or otherwise adversely affect the validity and
effectiveness thereof. The Group Entities are not in default in any material
respect or alleged to be in default in any material respect under any Material
Agreement nor, to the Knowledge of Seller, is any other party to any of the
Material Agreements in default of any of its obligations thereunder.
4.23 CERTAIN MATTERS CONCERNING PIX.
(a) Pix SA is the resultant company from the merger by absorption
of Photographie Giraudon SA by Pix SA having as its effective date January 1,
1999 (the "Merger"). Seller further represents that the Merger (in particular,
any and all assessments or valuations made in connection therewith) was effected
in compliance with applicable French law and that the Merger has been duly
consummated, with retroactive effect to January 1, 1999, and is therefore valid
and opposable to third parties. Without in any way limiting the generality of
the foregoing, prior to the Merger, the share transfer agreement between Visual
Communications Group Limited and Photographie Giraudon SA dated 30 November,
1999, was validly made and duly filed with the clerk's office of the relevant
Commercial Court in a timely manner and that, with respect to the Merger, the
following formalities were duly complied with in a timely matter:
(i) consultation of workers' councils;
(ii) draft merger agreement approved by the boards;
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(iii) appointment by the Court of a merger auditor;
(iv) filing of draft merger agreement with the Commercial
Court;
(v) publication in a legal newspaper;
(vi) appropriate notice to shareholders ;
(vii) appropriate notice to creditors;
(viii) special report of the boards; and
(ix) special report of the merger auditor.
(b) The actual net value of the assets of Photographie Giraudon
SA transferred to Pix SA pursuant to the Merger as compared to the net value of
said assets as valued in the Merger does not require adjustment or correction to
Pix SA's share capital as presently stated.
(c) Subsequent to the Merger, Pix SA had no off-balance sheet
liabilities other than those disclosed in Section 4.23 of the Disclosure
Schedule.
4.24 INSURANCE. Section 4.24 of the Disclosure Schedule sets forth a
list of insurance policies (including information on the premiums payable in
connection therewith and the scope and amount of the coverage provided
thereunder) maintained by any Group Entity, which policies have been issued by
insurers which, to the Knowledge of Seller, are reputable and financially sound
and provide coverage for the operations conducted by the Group Entities of a
scope and coverage consistent with customary industry practice.
4.25 ADDITIONAL REPRESENTATIONS OR WARRANTIES. Except as expressly set
forth in Section 3.1 and in Sections 4.1 through 4.24 hereof or in the
certificates, annexes, Exhibits and Schedules hereto, Seller makes no
representations or warranties to the Buyer (including, without limitation, no
representations or warranties with respect to financial projections), express or
implied, and no representations or warranties by Seller, Holdings or Unicorn to
the Buyer shall be deemed to arise hereafter except as set forth (i) in this
Agreement and the documents contemplated hereby including any certificates,
annexes or schedules executed and/or delivered at the Closing by Seller or
Holdings or (ii) in documents otherwise delivered by Seller or Holdings to the
Buyer on or after the date of this Agreement that have been executed by Seller
or Holdings and which expressly makes representations and warranties to the
Buyer.
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PENSION SCHEDULE
1. In this Schedule the following words shall, unless the context otherwise
requires, have the following meanings:
"APPROVAL" approval by the Board of Inland
Revenue as an exempt approved scheme
for the purposes of Chapter 1 of
Part XIV of the Income and
Corporation Taxes Act 1988;
"THE EMPLOYEE MEMBERS" those employees and directors of the
Vermont Entities who are active
members of the UNM Plans at Closing
(with the exception of those
Employees who are members of the UNM
Plans for life assurance benefits
only);
"THE PENSION TRANSFER DATE" 1 June 2000 or such other date as is
agreed in writing by the Seller and
the Buyer;
"THE TRANSITIONAL PERIOD" the period commencing on the day
immediately following Closing and
ending on the day immediately
preceding the Pension Transfer Date;
and
"THE UNM PLANS" each of:
(a) the United Money Purchase
Pension Plan;
(b) the United Pension Plan; and
(c) the United Magazines Final
Salary Pension Scheme.
2. The Seller and the Buyer shall use their reasonable endeavours to
procure the continued participation of the Vermont Entities in the UNM
Plans during the Transitional Period for the purpose of the continued
membership of the Employee Members.
3. The Buyer undertakes that during the Transitional Period the relevant
Vermont Entities will:
3.1 pay contributions determined in accordance with the Rules of the UNM
Plans to the Trustees of the UNM Plans by no later than the 14th day of
the month following that in which the relevant contributions are due;
3.2 in respect of life assurance benefits for Employee Members of the United
Money Purchase Pension Plan and the United Pension Plan, pay
contributions equal to 0.5% of pensionable pay to the Trustees of those
Plans;
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3.3 in respect of Mr C Baxendale, pay to the trustees of the United
Magazines Final Salary Pension Scheme employer contributions at the rate
of 13.1% and employee contributions at the rate of 5% of his pensionable
pay;
3.4 not do or omit to do any act or thing which would or might prejudice the
Approval of the UNM Plans or the contracted-out status of the United
Magazines Final Salary Pension Scheme;
3.5 cooperate with the Seller to ensure that Mr C Baxendale continues to be
in contracted out employment in respect of the United Magazines Final
Salary Pension Scheme.
4. The Seller undertakes that during the Transitional Period it will take
no voluntary action and shall use its reasonable endeavours to procure
that no action is taken to wind-up the UNM Plans or alter the provisions
of the UNM Plans to the detriment of the Employee Members or the Buyer
or the Vermont Entities without the prior written consent of the Buyer
which will not be withheld unreasonably.
5. The Buyer shall arrange for those of the Employee Members who are still
in the employment of the Vermont Entities on the Pension Transfer Date
to be offered membership of a group personal pension arrangement with
effect from the Pension Transfer Date.
6. Notwithstanding that an Employee Member may not have been a member of a
UNM Plan for two years and therefore have no legal entitlement to
preserved benefits under Chapter IV of the Pension Schemes Act 1993, the
Seller shall use its reasonable endeavours to procure that the trustees
of the relevant UNM Plan will treat such an Employee Member as being so
entitled.
7. The Seller hereby agrees with the Buyer (contracting for itself and as
trustee for the Vermont Entities) to indemnify the Buyer and the Vermont
Entities against all losses, costs, expenses, damages, liabilities,
demands, claims, actions and proceedings which may be suffered or
incurred by or made or brought against the Buyer or the Vermont Entities
directly or indirectly in connection with or as a consequence of the
application of section 75 of the Pensions Act 1995 and any regulations
made thereunder in relation to the United Magazines Final Salary Pension
Scheme.
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