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Exhibit 2.2
EXECUTION COPY 30 JUNE 2000
15:39
DATED 30 June 2000
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ZIFF DAVIS PUBLISHING HOLDINGS INC.
ZIFF DAVIS MEDIA INC.
ZIFF-DAVIS UK LIMITED
ZIFF-DAVIS VERLAG GMBH & CO. KG
ZIFF-DAVIS FRANCE SA
- and -
VNU N.V.
VIEW GROUP B.V.
VNU BUSINESS PUBLICATIONS LIMITED
VNU HOLDING DEUTSCHLAND GMBH
VNU BUSINESS PUBLICATIONS FRANCE SA
__________________________________________
SALE AND PURCHASE OF CERTAIN PRINT-BASED
PUBLISHING ASSETS IN THE UK,
GERMANY AND FRANCE
__________________________________________
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CONTENTS
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1. Definitions and Interpretation
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2. Sale and Purchase of the Assets in the Business
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3. Conditions
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4. Total Consideration
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5. Interim Period
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6. Completion
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7. Obligations after Completion
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8. Excluded Assets
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9. Transfer of Contracts
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10. Assumed Obligations
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11. Apportionment
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12. Business Records, Business Information and Access Rights
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13. Risk and Insurance
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14. Representations and Warranties
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15. UK Employees
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16. German Employees
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17. French Employees
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18. Restrictions on Business Activities
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19. Assignment of Trade Marks
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20. Parent Guarantee
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21. Remedies and Waivers
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22. Assignment
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23. Further Assurance
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24. Entire Agreement
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25. Notices
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26. Announcements
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27. Confidentiality
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28. Costs and Expenses
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29. Counterparts
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30. Invalidity
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31. Choice of Governing Law and Jurisdiction
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32. Agents for Service of Process
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SCHEDULES
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Schedule 1 Part A: Assigned Trade Marks
Schedule 1 Part B: Licensed Trade Marks
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Schedule 2: Assumed Employees
Part A: UK Employees
Part B: German Employees
Part C: French Employees
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Schedule 3: Contracts
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Schedule 4: The Publications
Part A: UK Publications
Part B: German Publications
Part C: French Publications
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Schedule 5: `Editorial Voices' of the Publications
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Schedule 6: Part A: Sellers' Representations and Warranties
Part B: Purchasers' Representations and Warranties
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Schedule 7: Computations
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THIS AGREEMENT is made the 30th day of June 2000
BETWEEN
(1) ZIFF DAVIS PUBLISHING HOLDINGS INC. a company incorporated in the state of
Delaware, United States of America and whose principal place of business is
in New York (the `ZD Licensor');
(2) ZIFF DAVIS MEDIA INC. a company incorporated in the state of Delaware,
United States of America and whose principal place of business is in New
York, USA (the `ZD Parent');
(3) ZIFF-DAVIS UK LIMITED a company incorporated in England and Wales with
company number 2583304 and whose registered office is at No. 1 St.
Katherine's Way, London, United Kingdom (`ZDUK');
(4) ZIFF-DAVIS VERLAG GMBH & CO. KG a company established in the Federal
Republic of Germany and whose principal place of business is at Riesstraae
25, 80992 Munich, Germany (`ZDVG'); and
(5) ZIFF-DAVIS FRANCE SA a societe anonyme incorporated in the Republic of
France and whose registered office is at Levallois-Perrett, 92300, France
(`ZDF');
(the parties being (3) - (5) being collectively referred to as the
`Sellers');
AND
(6) VNU N.V., a company incorporated in the Netherlands with registered number
34036267 and whose registered office is at Ceylonpoort, 5-25 2037 AA
Haarlem, the Netherlands (the `VNU Parent');
(7) VIEW GROUP B.V. a company incorporated in the Netherlands with registered
number 20057297 and whose registered office is at Takkebijsters 3A, 4817 BL
Breda, the Netherlands (`VGBV');
(8) VNU BUSINESS PUBLICATIONS LIMITED registered in England and Wales with
registered number 1513633 and whose registered office is at 32-34 Broadwick
Street, London, United Kingdom (`VBPL');
(9) VNU HOLDING DEUTSCHLAND GMBH registered in Germany with registered number
HRB 41361 and whose registered office is at Darmstdter Landstrasse 16,
60598 Frankfurt am Main,Germany (`VG'); and
(10) VNU PUBLICATIONS FRANCE SA, a societe anonyme incorporated in France with
registered number 381281492 and whose registered office is at 2-6 rue des
Bourels, BP 145, 92154, Suresnes, Cedex, France (`VBF');
(the parties (7) - (10) being collectively referred to as the
"Purchasers").
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WHEREAS:
(A) The Sellers carry on the Businesses (as defined in this Agreement) and,
along with ZD Licensor, are the beneficial owners, or are otherwise able to
procure, the sale of the Assets (as defined in this Agreement).
(B) ZDUK, as owner, publisher, seller and distributor of the UK Publications,
carries on the UK Business operational from London, England.
(C) ZDVG, as owner, publisher, seller and distributor of the German
Publications, carries on the German Business operational from Munich,
Germany.
(D) ZDF, as owner, publisher, seller and distributor of the French
Publications, carries on the French Business operational from Paris,
France.
(E) The Sellers and ZD Licensor have agreed to sell (or procure the sale of)
and the Purchasers has agreed to purchase (or procure the purchase of) with
effect from the Effective Date the Assets on the terms and subject to the
conditions contained in this Agreement.
WHEREBY IT IS AGREED as follows:
1. Definitions and Interpretation
1.1 In this Agreement and the Schedules, unless the context requires otherwise:
"Accounts Receivable" means amounts payable for products or services
actually rendered, sold and invoiced by the Sellers to third parties (and
bearing all appropriate VAT or other local excise taxes), the same being
calculated in accordance with each of the Sellers' Final Balance Sheets;
"Accounts Receivable Deficit" means that amount which is the difference
between the Closing Net Receivable Amount and the Collected Amount as
defined in Clause 4.4 a. below;
"Accounts Receivable Excess" means that amount which is the difference
between the Closing Net Receivable Amount and the Collected Amount as
defined in Clause 4.4 c. below;
"Acquired Titles" means those titles to the Publications listed in Schedule
4 in the United Kingdom, France, and Germany each in Print-based form only;
"Agreed Form" means, in relation to any document, that document in a form
which has been initialed for the purposes of identification by or on behalf
of the Sellers, the Purchasers, the ZD Parent, the ZD Licensor and the VNU
Parent where appropriate;
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"Assets" means the entire, undivided beneficial right, title and interest
of the Sellers in the assets existing within the Territory and agreed to be
sold pursuant to this Agreement, all as listed in Clause 2.1 and the
Assigned Trade Marks owned by ZD Licensor;
"Assigned Trade Marks" means those trade marks pertaining to the
Publications as listed and further described in Schedule 1 Part A;
"Assumed Employees" means those employees located in the Territory and
employed by any of the Sellers, whose contracts of employment will have
effect after Completion as if originally made with the Purchasers as a
consequence of the sale and purchase of the Assets under this Agreement;
"Background" means the applicable Seller's ownership interest in any
article, feature or other text or content and any picture, photograph,
illustration, graph, table or other artwork and any research, survey or
other results or analysis;
"Businesses" means collectively the UK Business, the German Business and
the French Business concerned with the publication, circulation or sale of
the Publications, in each case as carried on at and prior to the Effective
Date by the Sellers;
"Business Day" means a day (other than a Saturday or a Sunday) on which
banks are open for business (other than solely for trading and settlement
in euros) in London;
"Business Information" means all information, know-how and techniques
(whether or not confidential and in whatever form held) used exclusively in
the Businesses on and prior to the Effective Date including, without
limitation, all:
(i) designs, specifications, drawings, data, manuals and instructions;
(ii) technical or other expertise;
(iii) market research, both historic and current; and
(iv) sales and promotional information;
"Business Intellectual Property" means Intellectual Property owned by or
licensed to the Sellers at the date of this Agreement which is used
exclusively in the Businesses on and prior to the Effective Date,
including, without limitation, all Intellectual Property owned by or
licensed to any member of the Sellers' Group in or relating to the Lists,
the Resources, the Business Records, the Work in Progress, the Library and
any Previous Issues which, in each case:
(i) is needed or useful to carry on the Businesses in the same or
materially similar manner as they are carried on as at the Effective
Date;
and/or
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(ii) is needed or useful to fulfil any of the Contracts, plans or projects
of the Businesses;
but excluding the Assigned Trade Marks, the Licensed Trade Marks and the
Acquired Titles and any rights whatsoever in and to the names "ZD," "Ziff"
or "Davis" alone or in combination;
"Business Records" means all books and records, direct mail history, sales
contracts, exhibitor contracts, advertising space reservations, insertion
orders, promotional and sales materials, circulation records, advertising
files, photo files, market studies and surveys, prospect lists, price
lists, research files and correspondence relating exclusively to the
Businesses and existing at and prior to the Effective Date and all
materials relating to conferences, summits or meetings held or to be held
in connection with the Publications, (whether in written or electronic
format) including research reports, surveys, editorial materials and
marketing and promotional materials in the possession or control of the
Sellers or which are held on behalf of the same by any third party
containing or relating to Business Information but excluding the Lists, the
Library, the Work in Progress, Previous Issues and the Resources;
"Closing Net Receivable Amount" means the amount of the Sellers' Accounts
Receivables stated on the Sellers' Final Balance Sheets other than the
Purchased Accounts Receivables, after deducting therefrom the bad debt
provision and any credit note provisions disclosed on the said Balance
Sheets;
"Companies Act" means the Companies Act 1985, as amended by the Companies
Act 1989;
"Completion" means the completion of the sale and purchase of the Assets as
contemplated under this Agreement;
"Completion Date" means the date of Completion as determined in accordance
with Clause 6 below;
"Completion Documents" means this Agreement, the Trade Mark Assignment the
Trade Mark Licence, the Trade Mark Use Agreement, the French Deed of
Transfer, the German Deed of Transfer, the assignment in respect of the
Contracts; the ZD Net Agreement and ZDNet TV Agreement together with any
other ancillary agreements required to complete the sale and purchase of
the Assets contemplated hereunder;
"Conditions" means each of the conditions set out in Clause 3;
"Contracts" means the contracts listed in Schedule 2;
"Current Issues" means the most recent Print-based issue of the
Publications prior to the Effective Date and all Print-based promotional
materials associated with the publication of any of them;
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"Debts" means such sums payable to any of the Sellers at Completion
(excluding the Accounts Receivables) or to become due to any of the Sellers
after Completion in connection with the carrying on of the Businesses prior
to Completion (whether or not currently invoiced or due);
"Deferred Consideration" means the payment by the Purchasers to the Sellers
(or such other persons as the Sellers may direct in writing on their behalf
prior to the applicable payment date), forming part of the Total
Consideration and being the sum of fifteen million Dollars (US$15,000,000)
payable in five (5) instalments of three (3) million Dollars (US$3,000,000)
the first instalment to be made on the first anniversary of the Completion
Date and payable yearly thereafter;
"Disclosure Letter" means the letter of the same date as this Agreement
from the Sellers to the Purchasers delivered by or on behalf of the Sellers
to the Purchasers on or before the date of this Agreement (but in any event
before this Agreement is executed) setting out certain exceptions to the
Sellers' Representations and Warranties;
"Effective Date" means the date of signature by the Parties of this
Agreement;
"Employees" means all the UK Employees, German Employees and French
Employees as the same are listed in Schedule 2 as of the Effective Date
(subject to any such employees resigning or being terminated prior to
Completion) and shall include those employees employed by the Sellers prior
to Completion in accordance with Clause 5.1 below;
"Encumbrances" means any mortgage, charge (whether fixed or floating),
pledge, lien, security interest or other third party right or interest in
the nature of a mortgage, charge or security interest (legal or equitable)
over or in respect of the relevant asset, security or interest;
"Estimated Balance Sheets" means the estimated balance sheets prepared by
the Sellers in accordance with Clause 7.5 dated as of the Completion Date,
all to be prepared in accordance with each of the Sellers' usual accounting
principles and otherwise in accordance with GAAP within each Territory
where the Sellers are incorporated and normally operate;
"Excluded Accounts Receivables" means all Accounts Receivables of the
Sellers other than the Purchased Accounts Receivables;
"Excluded Assets" means:
a. cash in hand or at the bank and all cheques and other securities
representing the same of the Sellers;
b. the Debts;
c. the Excluded Accounts Receivables;
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d. all other claims, obligations, expenses, litigation, violations,
penalties, assessments, losses, damages and other liabilities of the
Sellers of any nature whatsoever arising prior to Completion to the
extent not clearly assumed by the Purchasers under this Agreement or as
otherwise disclosed in the Disclosure Letter, including any Taxes or
other liabilities or expenses resulting from the ownership or operation
of the Businesses or the Assets by the Sellers, any direct costs
associated with the Previous Issues and any long term or short term
debt incurred by the Sellers whether or not relating to the Businesses
or the Assets;
e. all other Intellectual Property and including Licensed Trade Marks but
excluding the Assigned Trade Marks;
f. the Sellers' rights under this Agreement and the other Completion
Documents;
g. the corporate charter minute books, company secretarial books, Tax
returns and corporate seal of each of the Sellers; and
h. all other assets, properties, rights, titles and interests of every
kind and nature owned or leased by any of the Sellers or ZD Licensor,
whether tangible, real or personal and wherever located, to the extent
not constituting "Assets" under this Agreement.
"Final Balance Sheets" means the closing balance sheets dated as of the
Completion Date prepared by the Purchasers after the Completion Date in
accordance with Clause 7.5, all to be prepared in accordance with each of
the Sellers' usual accounting principles and otherwise in accordance with
GAAP within each Territory where the Sellers are incorporated and normally
operate;
"French Business" means the business carried on by ZDF in Paris, France as
at the Effective Date which currently comprises the publication and sale in
France of Print-based Publications under the titles:
[_] `PC Expert'
[_] `PC Direct; and
[_] `Yahoo! Internet Life'
(the `French Publications');
"French Employees" means those persons as the same are listed in Schedule
2 Part C as of the Effective Date (subject to any such employees resigning
or being terminated prior to Completion) and shall include those employees
employed by the Sellers prior to Completion in accordance with Clause 5.1
below;
"French Deed of Transfer" means an agreement in the Agreed Form to be
entered into between ZDF and VBF prior to Completion for the sale and
purchase of the assets pertaining to the French Business, as envisaged
hereunder;
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"Future Issues" means issues of0 the Publications in Print-based form
published after Completion and including the respective Next Issues and all
Print-based promotional materials associated with such issues;
"GAAP" means the generally accepted accounting principles consistently
applied by each of the Sellers within the Territory in which each of the
Sellers operate;
"German Business" means the business carried on by ZDVG in Munich, Germany
as at the Effective Date which currently comprises the publication and sale
in Germany of the Print-based Publications under the titles:
. `PC Professionell'
. `PC Direkt' and
. Internet Professionell
(the `German Publications');
"German Deed of Transfer" means an agreement to be entered into in the
Agreed Form between ZDG and VG prior to Completion for the sale and
purchase of the assets pertaining to the German Business, as envisaged
hereunder;
"German Employees" means those persons as the same are listed in Schedule 2
Part B as of the Effective Date (subject to any such employees resigning or
being terminated prior to Completion) and shall include those employees
employed by the Sellers prior to Completion in accordance with Clause 5.1
below;
"Goodwill" means all the goodwill owned by the Sellers and ZD Licensor
(where appropriate) in relation to the Assets together with the exclusive
right of the Purchasers to represent themselves anywhere in the world as
owning the Assets in succession to the Sellers and the ZD Licensor (where
appropriate) under the names of the Publications and to publish the Future
Issues within the Territory but at all times excluding any goodwill
relating to the Licensed Trade Marks;
"Group" means, in relation to a Party to this Agreement, that Party's
subsidiaries, holding companies and subsidiaries of such holding companies
from time to time;
"Intellectual Property" means trade marks, signs and service marks, title
rights, rights in designs, brand names, trade or business names or signs,
logos or devices, copyrights, database rights, trade secrets, know-how,
confidential and technical information (whether or not any of these is
registered and including applications for registration of any such thing)
and all rights or forms of protection of a similar nature or having
equivalent or similar effect to any of these which may subsist anywhere in
the Territory but explicitly excluding domain names and URL's;
"Interim Period" means the period from the Effective Date until the
Completion Date;
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"Library" means the library of reference materials (including, but not
limited to, Previous Issues, drafts of Previous Issues and Background for
or in connection with any Previous Issues) used exclusively for the purpose
of the Businesses by the Sellers to the extent owned by or licensed to the
Sellers;
"Licensed Trade Marks" means those European Community and national trade
marks identified in Schedule 1 Part B which shall, in relation to each
country within the Territory, be licensed by ZD Licensor to VGBV pursuant
to the terms and conditions of the Trade Mark Licence;
"Lists" means:
(i) the Sellers' subscription lists (current, lapsed and prospective)
and aged status reports in relation to current subscribers of the
Publications;
(ii) mailing, advertiser (current, lapsed and prospective) and other
lists, databases and/or spreadsheets;
(iii) advertiser record cards, registration cards, rate cards and all
other records and information relating to advertisers, wholesalers
and contracts;
(iv) distribution profiles;
(v) print orders;
(vi) details of sales patterns;
(vii) prospect and circulation lists;
(viii) details of historical or future planned promotions (including
forward trade promotion schemes and all events (including sponsored
events), activities and exhibitions); and
(ix) details of freelance contributors;
in the case of all of the foregoing insofar as they have been compiled for
or used exclusively in the Businesses and are in the possession or control
of any member of the Sellers' Group (whether in print or electronic form or
in other media);
"Next Issue" means the next Print-based issue of the Publications
following Completion in each case to be published after Completion and all
Print-based promotional materials associated with their publication;
"Party" means each of the parties to this Agreement and "Parties" shall be
construed accordingly;
"Pre-paid Expenses" means the pre-paid expenses of the Sellers arising
prior to Completion as reflected in the Final Balance Sheets in respect of
Background or other
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publishing costs for Future Issues, health insurance or other Employee
benefit coverage, company automobile leasing payments, Employee Business
expenses or any other pre-payment for which the Purchasers will receive the
economic benefit on or after Completion and which arise in the ordinary
course of trading of the Businesses;
"Previous Issues" means the issues of the Publications in Print-based form
(including, for the avoidance of doubt, the Current Issue of each
Publication) published by any member of the Sellers' Group prior to
Completion;
"Print-based" means, in relation to a publication, that publication as
produced or reproduced and printed or stored in paper-based or non-inter-
active CD-Rom form;
"Proceedings" means any proceeding, suit or action arising out of or in
connection with this Agreement and the transactions contemplated hereby;
"Process Agent" has the meaning given in Sub-Clause 32.1;
"Publications" means the UK Publications, the German Publications and the
French Publications as further set forth at Schedule 4 and, for the
avoidance of doubt, including (but not limited to) all Print-based
supplements, special editions, books, special one-off issues, or series of
issues or compilations of issues, editorials, sponsored press projects and
other Print-based editorial projects related to such Publications in each
case in Print-based form only;
"Publishing Rights" means the rights to publish Future Issues of the
Publications in Print-based form;
"Purchased Accounts Receivables" means the Accounts Receivables of the
Sellers detailed in the Sellers' Final Balance Sheets in respect of
advertising and subscriptions sold by the Sellers prior to Completion in
respect of Future Issues (and, for the avoidance of doubt, not including
any Accounts Receivables in respect of advertising or subscriptions sold by
the Sellers in respect of Previous Issues);
"Purchasers' Group" means the Purchasers, each of their subsidiaries, any
holding company of the Purchasers and all other subsidiaries of any such
holding company from time to time;
"Purchasers' Representations and Warranties" means the representations and
warranties contained in Schedule 6 Part B given by each of the Purchasers;
"Regulations" means the United Kingdom Transfer of Undertakings (Protection
of Employment) Regulations 1981;
"Representations and Warranties" means each of the Purchasers'
Representations and Warranties and each of the Sellers' Representations and
Warranties;
"Resources" means materials in any media used exclusively in the Businesses
comprising:
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(i) the Library;
(ii) all Print-based advertising and promotional material exclusively
relating to the Businesses and the Publications;
(iii) any desk top publishing style sheet used in the preparation of any
of the Publications; and
(iv) all other materials used in or for the purposes of the preparation
of the Publications;
in the case of all of the foregoing, insofar as they are in the possession
or control of any member of the Sellers' Group;
"Sellers' Group" means the Sellers, each of their subsidiaries, any holding
company of any of the Sellers and all other subsidiaries of any such
holding company from time to time;
"Sellers' Representations and Warranties" means the representations and
warranties contained in Schedule 6 Part A given by the each of the Sellers
and, where appropriate, ZD Licensor;
"Service Document" means a claim form, order, judgment or other document in
connection with any Proceeding;
"Stock" means all current paper stock of the Businesses as disclosed on the
Final Balance Sheets;
"Subscription Amount" has the meaning given in Clause 7;
"Tangible Assets" means those tangible assets of the Businesses to be
purchased by the Purchasers and to be further identified in the Interim
Period, and to be agreed between the Sellers and the Purchasers and
disclosed in the Final Balance Sheets;
"Tax" or "Taxation" includes (without limitation) all taxes and any levies,
duties, imposts, charges and withholdings in the nature of taxes, whether
arising in the Territory or elsewhere, together with all penalties, charges
and interest relating to any of them or to any failure to file any returns
required for the purposes of any of them;
"Territory" means the United Kingdom, France and Germany;
"Third Party Consent" or "Third Party Consents" means all consents,
approvals, authorisations or waivers required from third parties for the
transfer, assignment or novation of any Contract in favour of the
Purchasers or for the performance of any Contract by or on behalf of the
Purchasers;
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"Total Consideration" means the Initial Consideration, the Deferred
Consideration, the payment for the Stock, the Pre-paid Expenses and the
Tangible Assets together with those other payments to be made in accordance
with Clause 4.4;
"Trade Mark Assignments" means an agreement for the assignment of the
Assigned Trade Marks in the Agreed Form made between ZD Licensor and VGBV
and;
"Trade Mark Licence" means a licence of the Licensed Trade Marks agreed to
be in the Agreed Form at the Effective Date and made between ZD Licensor
and VGBV;
"Trade Mark Registrations" means all registrations and applications
for registration of the Assigned Trade Marks;
"Trade Mark Use Agreement" means an agreement for the use of the Assigned
Trade Marks in the Agreed Form at the Effective Date and made between ZD
Licensor and VGBV;
"UK Business" means the business carried on by ZDUK in London, UK as of the
Effective Date which currently comprises the publication and sale in the
United Kingdom of the Print-based Publications under the titles:
. `IT Week'
. `PC Magazine'
. `PC Direct' and
. `PC Gaming World'
(the `UK Publications');
"UK Employees" means those persons as the same are listed in Schedule 2
Part A as of the Effective Date (subject to any such employees resigning or
being terminated prior to Completion) and shall include those employees
employed by the Sellers prior to Completion in accordance with Clause 5.1
below;
"United States Dollars" and "US$" means the lawful tender for the time
being of the United States of America and `US' or `USA' shall be construed
accordingly;
"URL" means uniform resource locator;
"VAT" means the tax imposed by the Sixth Council Directive of the European
Communities and any national legislation implementing that Directive
together with legislation supplemental thereto;
"VNU Material" means any article, feature or other text and any picture,
photograph, illustration, graph, table or other art work and any research,
survey or other results or analysis or other material owned by the
Purchasers, a member of the Purchasers' Group or licensed to any of them
from third parties as of the Effective Date;
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"Work in Progress" means work done or being done by or on behalf of any
of the Sellers prior to Completion in relation to Future Issues to the
extent the same is owned by or licensed to a Seller including, without
limitation, Background which has been commissioned or paid for by a Seller
for Future Issues;
"Working Hours" means 9.30 a.m. to 5.30 p.m. on a Business Day;
"ZD Net Agreement" means an agreement in the Agreed Form at the Effective
Date relating to the ZD Net Licence and made between the ZD Parent and
VGBV;
"ZD Net Licence" means the licence agreement dated 5 April 2000 and made
between the ZD Parent and Ziff-Davis Inc., a third party;
"ZD TV Agreement" mean an agreement in the Agreed Form at the Effective
Date relating to the ZD TV Licence and made between ZD Parent and VGBV; and
"ZD TV Licence" means the amended and restated licence agreement dated 21
January 2000 and made among ZD Net, Inc., ZD Inc. and ZDTV, LLC., a third
party;
1.2 In this Agreement, unless otherwise specified:
a. references to clauses, sub-clauses, schedules and appendices are to
Clauses, Sub-Clauses, Schedules and Appendices to this Agreement;
b. a reference to any statute or statutory provision shall be construed
as a reference to the same as it may have been, or may from time to
time be, amended, modified or re-enacted PROVIDED THAT no such
reference shall be so construed if such construction would have the
effect of making more onerous the obligations of any Party hereunder
or creating any liability which any Party would not otherwise have
had;
c. references to a company shall be construed so as to include any
company, corporation or other body corporate, wherever and however
incorporated or established;
d. references to a person shall be construed so as to include any
individual, firm, company, government, state or agency of a state or
any joint venture, association or partnership (whether or not having
separate legal personality);
e. the expressions "holding company", "subsidiary" and "subsidiary
undertaking" shall have the meanings given in the Companies Act;
f. references to writing shall include any modes of reproducing words in
a legible and non-transitory form;
g. references to times of day are to London United Kingdom time;
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h. headings to Clauses, Schedules and Appendices are for convenience only
and do not affect the interpretation of this Agreement;
i. the Schedules and Appendices form part of this Agreement and shall
have the same force and effect as if expressly set out in the body of
this Agreement and any reference to this Agreement shall include the
Schedules and the Appendices;
j. in the event of any conflict between this Agreement and the Schedules,
the terms and conditions of this Agreement shall prevail. In the event
of conflict between the Schedules and Appendices, the Schedules shall
prevail; and
k. all obligations expressed to be of the Sellers or the Purchasers shall
be the joint and several obligations of the Sellers or the Purchasers,
as applicable.
1.3 At the Effective Date, ZDUK and ZDF had not completed all corporate
formalities necessary to execute this Agreement. The ZD Parent and the ZD
Licensor undertake that they shall cause these Sellers to complete all such
corporate formalities necessary to authorise the execution and delivery of
this Agreement promptly and in any event no later than close of business
(5.30 p.m.) on Thursday 6 July 2000 and that upon the completion of such
corporate formalities, each such entity shall immediately execute a copy of
this Agreement and become a Party hereto.
2. Sale and Purchase of the Assets in the Businesses
2.1 Upon the terms and conditions of this Agreement including but not limited
to the payment by the Purchasers of the Total Consideration and the
assumption by the Purchasers of the Assumed Obligations, each Seller and to
the extent applicable, the ZD Licensor, agrees to sell the Assets to the
Purchasers (each Seller and to the extent applicable, the ZD Licensor, as
legal and/or beneficial owner (as the case may be)) and the Purchasers
agree to purchase and assume the Assets listed below (but excluding the
Excluded Assets) free from all Encumbrances other than as disclosed in the
Disclosure Letter as at and with effect from the Completion Date and
allocated in accordance with Clause 4:
a. the Goodwill;
b. the Publishing Rights;
c. the Business Intellectual Property;
d. the Work in Progress;
e. the benefit (subject to the burden) of the Contracts;
f. the Lists;
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g. the Business Records relating exclusively to the Businesses and the
Business Information;
h. the Resources;
i. the Assigned Trade Marks;
j. the Stock;
k. the Tangible Assets;
l. the Purchased Accounts Receivables; and
m. the Trade Mark Licence
the above being referred to in this Agreement collectively as the "Assets",
it being understood and agreed by all the Parties hereto that the French
assets forming part of the French Business shall be sold under and in
accordance with the French Deed of Transfer by ZDF to VBF and the German
assets forming part of the German Business shall be transferred under and
in accordance with the German Deed of Transfer by ZDG to VG.
2.2 No assets other than those expressly set out in Sub-Clause 2.1 above shall
be included in the sale. For the avoidance of doubt the Purchasers shall
not acquire from the Sellers any of the Excluded Assets nor any
Encumbrances (except as otherwise set out in the Disclosure Letter).
2.3 Upon Completion, Clause 2.1 shall operate as an assignment of such of the
Business Intellectual Property and the Assigned Trade Marks which are not
the subject of a registration or an application for registration within the
Territory with effect from Completion. Any Assigned Trade Mark which is
registered or which is the subject of an application for registration
within the Territory shall be assigned to the Purchasers pursuant to a
Trade Mark Assignment in the Agreed Form.
2.4 The Total Consideration for the sale and purchase of the Assets hereunder
will be as set out in Clause 4.
3. Conditions
3.1 Completion is subject to the fulfillment of each of the Conditions as
follows:
i. a. that in relation to Germany and France, the Parties establish
that competition and merger legislation either does not apply in
this Agreement or that specific clearances in relation to the
same are to be sought from the appropriate German and/or French
authorities;;
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b. that all appropriate approvals and consents necessary for the Employees
under and in accordance with employment law applicable in the Territory
are obtained;
c. that the Sellers and ZD Licensor confirm in writing that there has not
occurred prior to the Completion Date any breach of the Sellers'
Representations or Warranties which would materially affect the value of
the Assets;
d. that each of the Parties hereto shall have performed in all material
respects their respective covenants and agreements required to be
performed by them pursuant to this Agreement on or prior to the
Completion Date, including the matters listed in Clause 6 hereof; and
e. that any and all approvals that are necessary for the consummation of
the transactions contemplated by this Agreement or that are required in
order to prevent a material breach or default under, a termination or
modification of, or acceleration of the terms of any material Contract
shall have been received.
3.2 The Purchasers or Sellers, as the case may be, may by notice in writing to
the other waive (insofar as they are able) any of the Conditions contained
in Clause 3.1 above in whole or in part save as to Clause 3.1 (a).
3.3 Each of the Parties shall use all reasonable endeavours to procure with all
due dispatch the satisfaction of the Conditions set out in Clause 3.1 on or
before 30 September 2000 or such later date as the Parties may agree in
writing.
4. Total Consideration
4.1 The Total Consideration for the sale and purchase of the Assets under this
Agreement, the Trade Mark Licence and the giving of the covenants in Clause
19 shall be the payment by the Purchasers to the Sellers (or such other
persons as the Sellers may direct in writing on their behalf prior to the
Completion) of the sum of thirty-one million Dollars (US$31,000,000 being
the `Initial Consideration') TOGETHER WITH the payment of the Deferred
Consideration as and when due, and TOGETHER FURTHER WITH the arrangement
for the collection of the Excluded Accounts Receivables as further set out
at Clause 4.4 below and TOGETHER FURTHER WITH the amounts identified for
the Stock, the Pre-paid Expenses and the Tangible Assets as set forth in
the Final Balance Sheets of the Sellers as of Completion. In order to
facilitate the Completion, the Parties agree that the Purchasers shall make
a payment to the Sellers on Completion (or such other persons as the
Sellers may direct in writing on their behalf prior to the Completion) an
amount equal to the book market value of the Stock, the Pre-paid Expenses
and the Tangible Assets as set forth on the Estimated Balance Sheets of the
Sellers, which payment shall be subject to adjustment as contemplated in
Clause 7.5 upon the determination of the Final Balance Sheets.
4.2 The Parties agree that, subject to this Clause 4.2, the Initial
Consideration together with the Deferred Consideration payable for each of
the Assets and for the giving of
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the covenants in Clause 19 shall be subject to allocation. Within seven (7)
Business Days following the Effective Date, or such additional period of
time as the Parties shall agree in writing, the Purchasers and Sellers
shall prepare a schedule allocating the Initial Consideration and Deferred
Consideration for each of the Assets and for the giving of the covenants in
Clause 19 based upon the relative values of the UK Business, the French
Business and the German Business and the value of the Assets used in each
of the Businesses and the giving of the covenants in Clause 19 hereof. In
the event the Purchasers and the Sellers cannot agree on the allocation of
the Initial Consideration and the Deferred Consideration within such seven
(7) Business Day period (or such longer period as they may agree in
writing) the Purchasers and the Sellers will elect within a further five
(5) Business Day period an independent accounting firm mutually acceptable
to the Purchasers and the Sellers to determine such allocation. If the
Purchasers and the Sellers are unable to agree on the choice of an
independent accounting firm within such five (5) Business Day period they
will, within a further two (2) Business Day period, select an
internationally recognised independent public accounting firm by drawing a
lot (after excluding their regular external accounting adviors). The
independent accounting firm so selected shall prepare an allocation
schedule allocating the Initial Consideration and the Deferred
Consideration amongst the Assets based upon the relative values of the UK
Business, the German Business and the French Business and the value of the
Assets of each such Business and the giving of the covenants in Clause 19
hereof. The allocation schedule finally determined in accordance with this
Clause 4.2 shall be conclusive and binding upon the Parties. The allocation
of the Assets shall be those identified and listed at Clause 2.1 above,
excluding the Stock, Tangible Assets and the Excluded Assets Receivables.
4.3 The Initial Consideration and the Deferred Consideration shall be
apportioned to the various classes of Assets in accordance with Clause 4.2
above in proportion to the amount payable for them under this Clause
(subject to any deduction from said allocation which may be imposed in
relation to a net present value in respect of the Deferred Consideration)
and as so apportioned shall be adopted by the Parties for all purposes
including Tax and stamp duty (if any) together with any other registration
taxes due and payable throughout the Territory. The Parties agree that
further sums forming part of the Total Consideration shall be added to or
subtracted from the allocation pursuant to this Clause. The Parties agree
that they will each present their computations and reliefs for Taxation
purposes on the basis of the above figures unless as otherwise varied by
the terms of this Clause.
4.4 From the Completion Date, the Purchasers shall be or the Purchasers shall
procure that they shall be responsible for collecting on behalf of the
Sellers the Excluded Accounts Receivables for a period of one (1) year from
Completion at the Purchasers' own cost and expense and shall report and
remit the same to ZDEL on a quarterly basis throughout that year (the usual
quarter days being 31 March, 30 June, 30 September and 31 December each
year) in the currency in which payments are received for the said Excluded
Accounts Receivables PROVIDED THAT:
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a. if, on the date which is one hundred and eighty (180) days from the
Completion Date (the 'Measurement Date'), the Purchasers (or one of
the Purchasers' Group) have collected and remitted or have procured
the collection and remittance to ZDEL in accordance with this Clause
4.4 an aggregate amount less than the Closing Net Receivable Amount
(said amount being the 'Collected Amount' in funds in the currencies
in which they are received) the Purchasers will pay to ZDEL a sum
equal to fifty per cent (50.00%) of the Accounts Receivable Deficit up
to a maximum capped amount of one million five hundred thousand
Dollars (US$1,500,000) (the 'Shortfall Balancing Payment'). The
Shortfall Balancing Payment shall be paid by telegraphic transfer to a
bank account designated by the Companies within thirty (30) days of
the Measurement Date;
b. if the Purchasers are required to make a Shortfall Balancing Payment
pursuant to Clause 4.4 a. above, the Purchasers shall continue to be
responsible to collect on the Sellers' behalf any remaining
outstanding Excluded Accounts Receivables and shall remit the same to
ZDEL on a quarterly basis PROVIDED THAT once the Purchasers have
remitted to ZDEL additional Excluded Accounts Receivables collected
after the Measurement Date such that the aggregate amount remitted to
ZDEL (including amounts remitted prior to the Measurement Date but
excluding the amount of the Shortfall Balancing Payment) equals the
Closing Net Receivable Amount less three million Dollars
(US$3,000,000), the Purchasers shall be entitled to retain fifty per
cent (50.00%) of any Excluded Accounts Receivables collected
thereafter in excess of such Closing Net Receivable Amount less three
million Dollars (US$3,000,000) so long as the Purchasers remit the
other fifty per cent (50.00%) of such Excluded Accounts Receivable to
ZDEL within thirty (30) days of the close of each quarter;
c. if, on the Measurement Date, the Purchasers (or one of the Purchasers'
Group) have collected and remitted or procured the collection and
remittance to ZDEL in accordance with this Clause 4.4 of an aggregate
Collected Amount equal to or in excess of the Closing Net Receivable
Amount, the Purchasers shall retain fifty per cent (50.00%) of the
Accounts Receivable Excess so long as the Purchasers (or the relevant
member of the Purchasers' Group) remits the other fifty per cent
(50.00%) of such Accounts Receivable Excess to ZDEL within thirty (30)
days of the close of each quarter;
d. for the avoidance of doubt, the Computations set out at Schedule 7
shall provide a worked example of the arrangements contemplated in
this Clause 4.4. In particular, Example 1 and Example 2 shall be an
illustrative computation for the purposes of Clause 4.4 a. and b. and
Example 3 shall be an illustrative computation for the purposes of
Clause 4.4c.
4.5 The Purchasers agree to use reasonable efforts to collect the Excluded
Accounts Receivable for the benefit of the Sellers and to make such efforts
as the Purchasers use to collect their own accounts receivable. Any
collections after the Completion Date by
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the Purchasers with respect to the accounts receivables of the Businesses
shall be credited against the accounts receivable owed by the payor in
question in the order such payor's receivables were invoiced by the
Sellers, except to the extent a payor indicates in writing that it wishes
to pay a particular account receivable with such payment. The Purchasers
shall not agree to any settlement, discount or reduction of any Excluded
Account Receivable without the prior written consent of ZDEL such consent
not to be unreasonably withheld or delayed. The Purchasers shall not
assign, pledge or grant a security interest in any of the Excluded Accounts
Receivable to any third party or claim a security interest in any of the
Excluded Accounts Receivable. After the period of one (1) year referred to
in Clause 4.4 above, the Parties agree that the Purchasers shall no longer
have any continuing responsibility, obligation or liability for the
collection and remittance of the Excluded Accounts Receivables. After this
period it shall be up to the Sellers to decide whether to continue to
collect any Excluded Accounts Receivables SAVE THAT the Purchasers shall
first consent in writing (such consent not to be unreasonably withheld or
delayed) to the bringing of any action (or such like) against any party so
obligated to any one of the Sellers for any such Excluded Accounts
Receivables after this time.
4.6 The Total Consideration payable by the Purchasers to the Parent or the
Sellers' Group (as the case may be) and as directed by the Parent to the
Purchasers from time to time shall be exclusive of any amounts in respect
of VAT payable. If the payment of any part of the Total Consideration
shall constitute the consideration for a supply of all or any part of the
Assets under this Agreement for VAT purposes, the Purchasers shall, upon
production of an appropriate invoice for VAT purposes, pay to the relevant
Seller making such supply by way of adjustment to the Total Consideration
and in accordance with Sub-Clause 4.4 an amount equal to any VAT properly
chargeable in respect of the relevant supply where such VAT is the
liability of the payee.
4.7 Any and all amounts to be paid pursuant to this Clause 4 shall be paid by
telegraphic transfer in same day funds (save as to the provisions contained
in Clause 4.4) to ZDEL's account, details of which shall be provided in
writing to the Purchasers prior to Completion.
4.8 The Purchasers declare that it is a member of a group of companies in the
Netherlands for VAT purposes.
4.9 In addition to the amounts to be paid by the Purchasers to the Sellers
pursuant to this Clause 4 as consideration for the sale and purchase of the
Assets, the Purchasers shall assume the Assumed Obligations as provided in
Clause 10 below. In addition to the above the Parties shall enter into the
Completion Documents as at the Effective Date in the Agreed Form.
5. Interim Period
5.1 Each of the Sellers, the ZD Parent and the ZD Licensor undertake and
covenants that from the Effective Date until Completion it shall:
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a. not do or omit to do nor to permit any act, matter or thing in respect
of the Assets which will cause any of the Sellers' Representations and
Warranties, when repeated immediately prior to Completion, to be
untrue, inaccurate or misleading;
b. not sell, assign, lease or otherwise transfer the Assets or any part
thereof other than Stock and Work In Progress in the ordinary course
of the Businesses or items not constituting the Assets;
c. promptly notify the Purchasers in writing of any fact or circumstance
of which any of the Sellers is aware which might cause any of the
Sellers' Representations and Warranties (whether as given on the
Effective Date or repeated immediately prior to Completion) to be
untrue or misleading in any material respect, or of any material
adverse change which may occur in relation to the Assets;
d. consult with the Purchasers and keep the Purchasers reasonably
informed in a timely manner on all matters relating to the Assets
other than that of a minor or routine nature;
e. procure that the Purchasers are given on request such information
regarding the Assets and/or the Businesses as the Purchasers may
reasonably request;
f. carry on the Businesses in the ordinary course of trading in the
manner in which the same has been carried on prior to the Effective
Date of this Agreement;
g. not employ or otherwise engage any employee or consultant or
individual in any other capacity to be an Employee in the Businesses
without the prior written consent of the Purchasers; and
h. not solicit or employ any Employee within the Sellers' Group without
the prior written consent of the Purchasers.
5.2 If at any time prior to Completion:
a. a material breach of any of the Sellers' Representations and
Warranties occurring prior to the date hereof shall come to the notice
of the Purchasers; or
b. there shall occur any act or event after the date hereof which upon
Completion will constitute a material breach of any of the Sellers'
Representations and Warranties when given or when repeated immediately
prior to Completion (other than a breach of a Sellers' Representation
or Warranty which arises out of or is the result of the announcement
of the entering into by the Parties of this Agreement and the proposed
sale of the Assets); or
c. there is any material breach or non-fulfillment by any of the Sellers
of its obligations hereunder; or
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d. if requisite clearance as required in accordance with Clause 3.1 a. is
refused or otherwise not obtained;
which in any such case is incapable of remedy or, if capable of remedy, is
not remedied by a Seller by the date scheduled for Completion hereunder or
(if earlier) within thirty (30) days or such longer period as may be agreed
after notice hereof from the Purchasers requesting the same to be remedied
then in any such case the Purchasers shall be entitled to elect by notice
in writing to the Sellers, within ten (10) Business Days of the date the
Purchasers had the right to provide such notice to the Sellers, not to
complete the purchase of the Assets in which event this Agreement shall be
of no effect and the Parties shall have no further remedy or rights the one
to the other.
5.3 If at any time prior to Completion:
a. a material breach of any of the Purchasers' Representations and
Warranties occurring prior to the date hereof shall come to the notice
of the Sellers; or
b. there shall occur any act or event after the date hereof which upon
Completion will have constituted a material breach of any of the
Purchasers' Representations or Warranties had they been repeated
immediately prior to Completion; or
c. there is any material breach or non-fulfillment by the Purchasers of
their obligations hereunder; or
d. if requisite clearance as required in accordance with Clause 3.1 a. is
refused or otherwise not obtained;
which in any such case is incapable of remedy or, if capable of remedy, is
not remedied by the Purchasers by the date scheduled for Completion
hereunder or (if earlier) within thirty (30) days or longer period as may
be agreed after notice thereof from the Sellers requesting the same to be
remedied then in any such case the Sellers shall be entitled to elect by
notice in writing to the Purchasers, within ten (10) Business Days of the
date the Sellers had the right to provide such notice to the Purchasers,
not to complete the sale of the Assets, in which event this Agreement shall
be of no effect and the Parties shall have no further remedy or rights the
one to the other.
5.4 Following the Effective Date, the Parties shall co-operate with a view to
facilitating the orderly transfer of the operations of the Assets with a
minimum of disruption and shall act in good faith in relation thereto. In
particular, the Parties shall negotiate in good faith the terms of a
transition services agreement which shall reflect, amongst other things,
the Purchasers' agreement to contribute to the overhead costs of the
Sellers (excluding ZDEL) including, for example, cost of floor space,
manpower costs, materials, systems requirements and so forth. Any costs
indicated in the said
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transition services agreement shall be for a term extendable on a month-by-
month basis.
6. Completion
6.1 Completion shall take place at such location as the Parties shall agree
(but failing such agreement, at the offices of VBPL in London) following
the date when all of the Conditions shall have been fulfilled or waived.
6.2 At Completion, the relevant Sellers and/or the ZD Licensor shall deliver or
procure the delivery of or make available to the Purchasers:
a. the Lists in mutually agreed electronic format;
b. the Resources;
c. the Business Records including the Employees' employment contracts;
e. the Work in Progress;
f. the Stock;
g. the Tangible Assets;
h. the Purchased Accounts Receivables;
i. accurate and complete originals of the Contracts to the extent that
the same exist in written form or copies thereof to the extent that
originals are not available;
j. accurate and complete copies of the minutes certified by the company
secretary of a duly convened and held meeting of the board of
directors of ZDE, ZDUK, ZDF and the ZD Parent authorising the
execution by the Sellers of the Completion Documents to which that
Seller is to be a Party;
k. a certified copy of the minutes of a duly convened and held meeting of
the board of directors of each of the Sellers of a resolution
approving the sale of the Assets to the Purchasers;
l. a counterpart of each of the Trade Mark Assignments duly executed by
the relevant Seller together with certified copies of the Assigned
Trade Marks certificates or copies thereof to the extent available and
all information and correspondence pertaining to oppositions and
applications relevant to the Assigned Trade Marks to the extent in the
possession or control of the Sellers or ZD Licensor;
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m. a certified copy of the letter sent by ZDF to local labour authorities
requesting authorisation for the transfer of protected employees in
the context of this Agreement;
n. an assignment of the benefit of the Contracts in the Agreed Form duly
executed by the relevant Sellers;
o. a certified copy of a letter or letters terminating intra-group
licences in accordance with Clause 6.4;
p. a certified copy of the counterpart of the French Deed of Transfer and
the German Deed of Transfer duly executed by ZDF and ZDG respectively;
q. the transition services agreement referred to at Clause 7.7 duly
executed by the Sellers;
r. a counterpart of the ZD Net Agreement duly executed by ZD Licensor;
s. a counterpart of the ZD Net TV Agreement duly executed by ZD Licensor;
t. a counterpart of the Trade Mark Licence duly executed by ZD Licensor;
and
u. a counterpart of the Trade Mark Use Agreement duly executed by ZD
Licensor.
6.3 At Completion, the Purchasers shall deliver to the Parent:
a. a copy, certified as a true copy and in full force and effect by the
board of directors of the Purchasers approving the purchase of the
Assets on the terms of this Agreement and authorising the Purchasers
to execute this Agreement, the Completion Documents and all other
documents contemplated hereby;
b. a copy, certified as a true copy and in full force and effect by the
board of directors of the Purchasers' holding company approving the
purchase of the Assets on the terms of this Agreement and authorising
the Purchasers to execute the Completion Documents and all other
documents contemplated hereby;
c. a counterpart of the ZD Net Agreement duly executed by the Purchasers;
d. a counterpart of the Trade Mark Assignment duly executed by VGBV;
e. a copy of the counterpart of the French Deed of Transfer and the
German Deed of Transfer duly executed by VBF and VBG, respectively;
f. the transition services agreement referred to at Clause 5.4 duly
executed by the Purchasers;
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g. a counterpart of the Trade Mark Licence duly executed by VGBV;
h. a counterpart of the Trade Mark Use Agreement duly executed by VGBV;
and
i. a counterpart of the ZD Net TV Agreement duly executed by VGBV
6.4 The Sellers shall procure that, upon Completion, all licences, sub-licences
and the like in the nature of a licence between it and any other member of
the Sellers' Group throughout the world in respect of any of the Assigned
Trade Marks and the Licensed Trade Marks (but, with respect to the Licensed
Trade Marks, only to the extent any such licence or sublicence is in
conflict with the rights granted to VGBV pursuant to the Trade Mark
Licence) in existence immediately before the Effective Date are terminated.
6.5 At Completion, the Purchasers shall pay to the Parent on behalf of the
Sellers by telegraphic transfer to the Parent's Designated Account the
Initial Consideration together with the estimated amount for the Stock,
Pre-paid Expenses and Tangible Assets required to be paid pursuant to
Clause 4 and as otherwise disclosed in the Estimated Balance Sheets.
6.6 Any provision of this Agreement and any other document referred to in it
which is capable of being performed after but which has not been performed
at or before Completion and all Representations and Warranties,
indemnities, covenants and other undertakings and obligations contained in
or entered into in accordance with this Agreement shall remain in full
force and effect in accordance with their terms notwithstanding Completion
subject to the terms of Clause 14 and 27 below.
6.7 The Parties shall execute all such other documents and do all acts and
things as may be reasonably required in order to effect the terms and
conditions of this Agreement and the Assets to be transferred hereunder and
otherwise generally to carry out the true intent of this Agreement.
7. Obligations after Completion
7.1 As soon as practicable after Completion, the Sellers shall join with the
Purchasers in sending out a notice in a form to be agreed to each of the
Sellers' suppliers and customers and other business contacts in respect of
the Businesses informing them of the sale and purchase of the Assets.
7.2 All notices, correspondence, orders or inquiries relating to the Businesses
or to the Assets which are received by the Sellers or any other member of
the Sellers' Group on or after Completion shall as soon as reasonably
possible be passed to the Purchasers to the extent that any such notices,
correspondence, orders or inquiries relate to the Assets.
7.3 All notices, correspondence, orders or enquiries not relating exclusively
to the Assets which are received by the Purchasers or any other member of
the Purchasers' Group on or after Completion shall as soon as reasonably
possible be passed to ZDEL.
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7.4 Following Completion, the Purchasers shall perform on a timely basis all
contractual obligations or other commitments (whether or not contractually
binding) which the Sellers were bound or committed to perform immediately
prior to the Completion in respect of the supply of Future Issues,
including obligations and commitments to subscribers whose names appear in
each Sellers' current subscription lists and obligations and commitments to
advertisers in respect of such Future Issues.
7.5 Prior to the Completion Date, the Sellers shall prepare the Estimated
Balance Sheets. Such Estimated Balance Sheets shall set forth, amongst
other things, the estimated amount of Tangible Assets, Pre-paid Expenses,
Purchased Accounts Receivables and Excluded Accounts Receivables and an
estimate of the cash amounts which have been received by the Sellers prior
to the Completion in respect of subscriptions for each Publication in
relation to the Businesses and which relate to Future Issues (the
"Estimated Subscription Amount"). For the purposes of Completion, the
Sellers shall pay to the Purchasers the Estimated Subscription Amount which
payment may be made in the form of an offset against the payment at the
Completion of the Initial Consideration. Within twenty (20) Business Days
of Completion, the Purchasers shall prepare and submit to ZDEL (and the
Sellers shall co-operate and assist the Purchasers in the preparation of
the same) a proposed balance sheet of each of the Sellers as of the
Completion Date in substantially the same format as the Estimated Balance
Sheet, which proposed balance sheet shall be prepared in accordance with
each of the Sellers' usual accounting principles (including, without
limitation, the amounts set forth as reserves for doubtful accounts with
respect to the Excluded Accounts Receivables) and otherwise in accordance
with GAAP within each Territory where the Sellers are organised (the "Draft
Balance Sheets"). Such Draft Balance Sheets shall set forth, amongst other
things, the amount of Tangible Assets, Pre-paid Expenses, Purchased
Accounts Receivables and Excluded Accounts Receivables and a statement
setting out the cash amounts which were received by the Sellers prior to
Completion in respect of subscriptions for each Publication in relation to
the Businesses and which relate to periods after Completion (the "Final
Subscription Amount"). ZDEL shall within thirty (30) Business Days of
receiving such statement decide whether it accepts the Draft Balance Sheets
and shall be deemed to have accepted the Draft Balance Sheets if it does
not notify the Purchasers otherwise within such thirty (30) Business Day
period PROVIDED THAT during such thirty (30) Business Day period the
Purchasers shall give to ZDEL such access as it reasonably requires to the
Business Records and Employees which or who have transferred to the
Purchasers by virtue of this Agreement for the purpose of evaluating the
Draft Balance Sheets. If ZDEL notifies the Purchasers within that thirty
(30) Business Day period that it does not accept the Draft Balance Sheets,
then the matter shall be determined upon the application of any party by an
independent chartered accountant to be appointed by agreement between the
Parties (or, in default of agreement, within ten (10) Business Days of the
application referred to above, by the President for the time being of the
Institute of Chartered Accountants). The independent accountant shall act
as an expert and not as an arbitrator and shall be instructed to issue a
decision in accordance with the regulations of the Institute of Chartered
Accountants within ten (10) Business Days of the date of being appointed.
The costs of the independent accountant shall be borne as to fifty per cent
(50.00%) by the Purchasers and as to (50.00%) by the Sellers. If there
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are no disputes regarding the Draft Balance Sheets, such Draft Balance
Sheets shall be deemed the "Final Balance Sheets" for purposes of this
Agreement. If the Purchasers have disputed any matter with respect to the
Draft Balance Sheets, upon the agreement of the Parties or, if applicable,
the resolution of such disputes by the independent chartered accountant
appointed by the Parties, the resulting balance sheets of the Sellers shall
be deemed the "Final Balance Sheets" for purposes of this Agreement. The
amount set forth on the Final Balance Sheets with respect to Excluded
Accounts Receivables, Tangible Assets, Stock, Pre-paid Expenses and the
Final Subscription Amount shall be the final amounts used for their
respective purposes under this Agreement, and the Parties agree to make
whatever payments are necessary to each other with respect to Tangible
Assets, Stock, Pre-paid Expenses and the Final Subscription Amount to
account for any variations in the amounts with respect thereto included in
the Estimated Balance Sheets used by the Parties for purposes of making
payments at the Completion and the amounts therefor shown on the Final
Balance Sheets.
7.6 Immediately following Completion, the Sellers shall procure that all rights
of access held by any member of the Sellers' Group to any part of the Lists
which is stored on a computer database or otherwise in intangible form by
or on behalf of any of the Sellers or any other member of the Sellers'
Group are transferred to or otherwise conferred on the Purchasers.
7.7 The Parties acknowledge and agree that, from the date of this Agreement,
the Sellers shall, to the extent that they are able to do so, make
available to the Purchasers all such information in their possession as the
Purchasers shall reasonably request regarding current (as at the Effective
Date) or previous (being prior to the Effective Date) advertisers in
relation to the Publications, excluding any such information previously
disclosed to the Purchasers pursuant to this Agreement.
8. Excluded Assets
8.1 The Purchasers shall not acquire the Excluded Assets. Accordingly the
Sellers shall remain owner of and be liable for the Excluded Assets and
shall, subject to the provisions of Clause 14, indemnify, keep indemnified
and hold the Purchasers harmless from the same (except to the extent
otherwise set forth in the Trade Mark Licence with respect to the Licensed
Trade Marks).
8.2 Following Completion, the Purchasers shall account and pay to ZDEL within
five (5) Business Days of the end of each month to the Sellers for any
payment received by the Purchasers during that month in respect of the
Debts. The Purchasers shall hold on trust for the Sellers any monies
received by the Purchasers in respect of such Debts.
8.3 The Sellers shall account and pay to the Purchasers within five (5)
Business Days of the end of each month following Completion to the
Purchasers for any payment received by the Sellers during that month in
respect of payments belonging to the Purchasers by virtue of this Agreement
including, without limitation, all payments in respect of subscriptions for
or advertising revenues in respect of Future Issues.
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9. Transfer of Contracts
9.1 Subject to Clause 9.2, the Purchasers shall become entitled to the benefits
(subject to the burden) of the Contracts and this Agreement shall
constitute an assignment of the benefit (subject to the burden) of each of
the Contracts to the Purchasers with effect from and after Completion.
9.2 This Agreement shall not constitute an assignment or attempted assignment
of any Contract if the assignment or attempted assignment would constitute
a breach of such Contract.
9.3 Where a Third Party Consent is required to the assignment of the benefit of
any of the Contracts to the Purchasers, the Parties shall be responsible
(both before and after Completion and at their own expense) for obtaining
and shall use all reasonable endeavours to obtain any such Third Party
Consent. Upon whichever is the later of Completion and any such Third Party
Consent being obtained, this Agreement shall constitute an assignment of
the benefit (subject to the burden) of the Contract to which that Third
Party Consent relates.
9.4 After Completion, and until any necessary Third Party Consents to the
assignment of a Contract is obtained in accordance with this Agreement, the
following provisions shall apply:
a. the relevant Seller shall be treated as holding the benefit of that
Contract in trust for the Purchasers and any benefit received by or on
behalf of the relevant Seller will be promptly paid over to the
Purchasers; and
b. the Purchasers shall perform on behalf of the relevant Seller (but at
the Purchasers' sole expense) as agent for the relevant Seller in
accordance with its terms and conditions as sub-contractor to the
relevant Seller provided that sub-contracting is permissible under the
terms of the Contract in question, and where sub-contracting is not
permissible, the Purchaser shall perform the Contract in accordance
with its terms as agent for the relevant Seller and shall indemnify
and keep indemnified such Seller against all obligations, debts,
costs, claims, demands, expenses and damages in respect thereof.
9.5 Each of the Purchasers shall indemnify the Sellers against any action,
proceeding, loss, liability, cost, claim or demand which the Sellers may
incur as a result of the Purchasers' performance or non-performance of the
obligations and liabilities created by or arising under the Contracts after
Completion including, without limitation, any loss, liability, cost, claim
or demand reasonably incurred by the Sellers as a result of defending or
settling any allegation of such liability.
9.6 Each of the Sellers shall indemnify the Purchasers against any action,
proceeding, loss, liability, cost, claim or demand which the Purchasers may
incur as a result of the Sellers' performance or non-performance of the
obligations and liabilities created by or arising under the Contracts
before Completion including, without limitation, any loss, liability, cost,
claim or demand reasonably incurred by the Purchasers as a result of
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defending or settling any allegation of such liability except to the extent
expressly assumed in this Agreement.
10. Assumed Obligations
10.1 Except as otherwise expressly provided in this Agreement, the Purchasers
undertake to the Sellers that, with effect from Completion, it will
properly perform, assume and pay and discharge when due, and indemnify the
Sellers, against all Assumed Obligations and against any liabilities,
losses, charges, costs, expenses, claims or demands arising as a result of
any failure by the Purchasers to perform, assume, pay and/or discharge any
Assumed Obligations.
10.2 In this Agreement, "Assumed Obligations" mean:
(i) all of the obligations and liabilities of the relevant Sellers under
the Contracts in accordance with Clause 9.1;
(ii) the obligations with respect to Future Issues assumed by the
Purchasers under clause 7.4; and
(iii) the obligations with respect to the Assumed Employees assumed by the
Purchasers under Clauses 15, 16 and 17 irrespective of the objection
of any Employee to the transfer to the Purchasers.
10.3 Except as otherwise provided in this Agreement, the Purchasers undertake
that from Completion it will perform the outstanding obligations and
liabilities under the Contracts on a timely basis in accordance with the
terms of each such Contract. Notwithstanding this undertaking, nothing in
this Agreement shall:
a. require the Purchasers to perform any such obligation falling due
for performance, or which should have been performed, before
Completion or to pay for any product or service delivered or
supplied to the relevant Seller before Completion; or
b. make the Purchasers liable for any act, neglect, default or omission
in respect of any of the Contracts which is in each case committed
by any Seller or occurring before Completion; or
c. impose any obligation on the Purchasers for or in respect of any
product delivered by the relevant Seller or any service performed by
the relevant Seller before Completion and the relevant Seller shall
indemnify the Purchasers on an after Tax basis against any
liabilities, losses, charges, costs, claims or demands arising from
any such matters.
10.4 Without limitation to the rest of this Clause 10, the Purchasers will not
be required to place any advertising in any of the Publications which may
have been offered by any of the Sellers to any other member of the Sellers'
Group in return for or in combination with advertising in other
publications (print or other media).
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10.5 The Sellers shall be responsible for discharging all debts, liabilities and
obligations to third parties in existence at the Completion Date in
connection with the Businesses not assumed by the Purchasers under the
express terms of this Agreement (even if assumed by the Purchasers by
operation of law) and shall indemnify the Purchasers on an after Tax basis
against all liabilities, losses, charges, costs, claims or demands in
respect of all third party claims in respect of such debts, liabilities and
obligations.
11. Apportionment
11.1 The following provisions shall apply to the apportionment of the benefits
and the burdens under the Contracts except for Contracts relating to
subscriptions, advertising and the Employees. Where anything (including any
service) is to be provided by the Purchasers under any of the Contracts
after Completion, but any payment (whether by way of deposit, prepayment or
otherwise) in respect of the price or cost of it has been received by the
relevant Seller before Completion the relevant Seller shall pay a sum equal
to the amount of that payment (excluding any amount in respect of output
VAT for which the relevant Seller is required to account) to the Purchasers
and shall hold such sum in trust for the Purchasers until it is promptly
paid over.
11.2 Where anything (including any service) is to be provided to the Purchasers
under any of the Contracts after Completion, but any payment (by way of
deposit, prepayment or otherwise) has been made by the relevant Seller in
respect of the price or cost of it before Completion, the Purchasers shall
pay a sum equal to the amount of that payment (together with an amount
equal to any amount in respect of VAT paid by the relevant Seller in
relation to the supply for which the payment by the relevant Seller is made
that is irrecoverable) to the relevant Seller and shall hold such sum in
trust for the relevant Seller until it is promptly paid over.
11.3 If any payments made by or to the Purchasers and the relevant Seller
respectively pursuant to Clauses 11.1 or 11.2 are treated as consideration
for a supply for VAT purposes, the payer shall, in addition to such
payments, pay to the payee an amount equal to any VAT properly chargeable
in respect of the relevant supply where such VAT is the liability of the
payee upon production of an appropriate VAT invoice and the payee must
remit the appropriate sum to the appropriate tax authorities.
11.4 All moneys or other items belonging to the Purchasers which are received by
the Sellers or any of them or any other member of the Sellers' Group on or
after Completion in connection with the Assets shall be held in trust by
the Sellers for the Purchasers and shall be promptly paid over to the
Purchasers.
11.5 All moneys or other items belonging to the Sellers or any of them which are
received by the Purchasers or any other member of the Purchasers' Group on
or after Completion in connection with the Businesses or any of the Assets
shall be held in trust by the Purchasers for the Sellers and shall be
promptly paid over to the Sellers.
12. Business Records, Business Information and Access Rights
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12.1 Subject to any delivery provisions in Clause 6, the Sellers (and, where
applicable, ZD Licensor) shall deliver or procure the delivery of or make
available to the Purchasers on Completion in London, Munich and Paris where
the appropriate Business Records (including copies of the Employee
contracts) are maintained as at the Effective Date.
12.2 In respect of any:
a. Business Records;
b. Stock;
c. Tangible Assets;
d. items from the Library;
e. Print-based advertising and promotional material with respect to the
Publications;
f. desk top publishing style sheets or other materials used in the
preparation of any of the Publications; or
g. accounting or Tax records;
in each case in existence at the date of this Agreement, which are in any
case not delivered to the Purchasers pursuant to this Agreement and which
contain information which is of material importance to but does not relate
exclusively to the Businesses, the Sellers shall make that part of such
Business Records and other materials available for inspection by
representatives of the Purchasers (during Working Hours) and copying and
use (at the Purchasers' expense) for a period of seven (7) years from the
date of this Agreement (in relation to accounting or Tax records) and for a
period of six (6) years from the date of this Agreement (in relation to
other materials) PROVIDED THAT the Purchasers shall not be entitled to
inspect or copy any such information to the extent that the Sellers or any
of them reasonably regard such information as confidential to their
business which is not the subject of the sale and purchase under this
Agreement, and the Purchasers shall only be entitled to use such
information (subject to the obligation of confidentiality set forth in
Clause 27) in the ongoing operation of the Assets only to the extent and in
the manner currently used in the Businesses in relation to the Assets, and
not for any other purpose.
12.3 During the relevant period of six (6) or seven (7) years after Completion
(as the case may be and without limiting any of the Representations and
Warranties) if any Business Information is not, or any accounting or Tax
records are not, in the possession of the Purchasers or readily
discoverable by the Purchasers but is or are in the possession or under the
control of or available to any member of the Sellers' Group, the Sellers
shall procure that such Business Information is provided to the Purchasers
as soon as reasonably practicable on request.
13. Risk and Insurance
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Risk of loss in the Assets shall pass on Completion and the Sellers shall
not be responsible for insuring the Assets after Completion.
14. Representations and Warranties
14.1 The Sellers and ZD Licensor severally represent and warrant to the
Purchasers at Completion in the terms of the Sellers' Representations and
Warranties and such Sellers' Representations and Warranties shall be deemed
to be repeated immediately prior to Completion (other than a breach of a
Sellers' Representation or Warranty which arises out of or is the result of
the announcement of the entering into by the Parties of this Agreement and
the proposed sale of the Assets). The Purchasers severally represent and
warrant to the Sellers at Completion in the terms of the Purchasers'
Representations and Warranties and such Purchasers' Representations and
Warranties shall be deemed to be repeated immediately prior to Completion.
14.2 The Sellers and ZD Licensor each agree that each Purchaser is entering into
this Agreement in reliance upon each of the Sellers' Representations and
Warranties. The Purchasers agree that each Seller is entering into this
Agreement in reliance upon each of the Purchasers' Representations and
Warranties.
14.3 Each of the Sellers' Representations and Warranties and Purchasers'
Representations and Warranties shall be construed as a separate
Representation and Warranty and shall not be limited or restricted by
reference to, or inference from, the terms of any other Representation or
Warranty or any other term of this Agreement.
14.4 The Sellers' Representations and Warranties contained in paragraph 2 of
Schedule 6 Part A to this Agreement and the covenants and agreements
contained in this Agreement and in any certificate delivered pursuant
hereto shall terminate upon Completion or upon termination of this
Agreement pursuant to clause 5.2 or Clause 5.3, as the case may be, except
that the agreements and covenants contained in this Agreement which by
their express terms are to be performed following the Completion Date shall
survive Completion in accordance with their respective terms. With respect
to the Sellers' Representations and Warranties contained in paragraphs 1
and 3 of Schedule 6 Part A, such Sellers' Representations and Warranties
shall expire on the second anniversary of the Completion Date. No claim
shall be brought against any Seller (or ZD Licensor where relevant) in
respect of a breach of the Sellers' Representations and Warranties
surviving Completion (and such claim shall be wholly barred and
unenforceable) unless the Purchasers shall have given written notice within
a reasonable period of time following discovery of such claim to ZD Parent
of such claim specifying (in reasonable detail) the matter which gives rise
to the breach of claim, the nature of the breach or claim and the amount
claimed in respect thereof, and such notice was received by the ZD Parent
on or before the second anniversary of Completion. With respect to the
Purchasers' Representations and Warranties contained in Schedule 6 Part B,
these shall expire on the second anniversary of the Completion Date.
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14.5 Where the Purchasers are at any time entitled to recover from some other
person any sum in respect of any matter giving rise to a claim under the
Representations and Warranties, the Purchasers shall take reasonable
steps to enforce recovery before making a claim against the Sellers on
condition that, if such recovery takes place, the relevant time limit for
bringing a claim against the Sellers under Clause 14.4 above shall be
calculated from the date of recovery from the person in question instead
of from Completion.
14.6 In the event that the Purchasers shall recover any amount from another
person, the amount of any claim against the Sellers shall then reduce by
the amount recovered (less all reasonable costs and expenses incurred by
the Purchasers in recovering that sum from the other person including all
appropriate legal and other ancillary costs incurred in relation thereto)
or extinguish such claim.
14.7 The Sellers and ZD Licensor (where appropriate) shall be under no
liability in respect of any claim under the Sellers' Representations and
Warranties:
a. where the liability of the Sellers and ZD Licensor (where
appropriate) in respect of that claim would (but for this Clause)
have been less than five thousand Dollars (US$5,000); or
b. unless and until and only to the extent that the liability in
respect of that claim when aggregated with the liability of the
Sellers and ZD Licensor (where appropriate) in respect of all such
claims shall exceed two hundred and fifty thousand Dollars
(US$250,000).
14.8 Notwithstanding anything in this Agreement to the contrary, the aggregate
liability of the Sellers and ZD Licensor in respect of all claims under
this Agreement shall not in any circumstances exceed the amount of the
Initial Consideration and the Deferred Consideration.
14.9 The Sellers and ZD Licensor (where appropriate) shall be under no
liability in respect of any claim under the Sellers' Representations and
Warranties if the facts or circumstances giving rise thereto are
disclosed or expressly referred to in the Disclosure Letter or provided
for or stated to be exceptions under the terms of this Agreement or
within the Purchasers' actual knowledge on or prior to the Completion.
14.10 In assessing any liabilities, damages or other amounts recoverable by the
Purchaser as a result of any claim under the Sellers' Representations and
Warranties or otherwise, there shall be taken into account any benefit
accruing to the Purchaser's Group including, without prejudice to the
generality of the foregoing, any amount of any Tax relief obtained by the
Purchaser's Group and any amount by which any taxation for which the
Purchaser's Group is or may be liable to be assessed or accountable is
reduced or extinguished, arising directly or indirectly in consequence of
the matter which gives rise to such claim.
14.11 In the case of any claim asserted by a third party against a person
entitled to indemnification under this Agreement (the "Indemnified
Party"), notice shall be given
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by the Indemnified Party to the Party or Parties required to provide
indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity
may be sought, and the Indemnified Party shall permit the Indemnifying
Party (at the cost and expense of such Indemnifying Party) to assume the
defense of any claim or litigation resulting therefrom PROVIDED THAT (i)
the counsel for the Indemnifying Party who shall conduct the defense of
such claim or litigation shall be reasonably satisfactory to the
Indemnified Party, (ii) the Indemnified Party may participate in such
defense at such Indemnified Party's expense, and (iii) the omission by
any Indemnified Party to give notice as provided herein shall not relieve
the Indemnifying Party of its indemnification obligation under this
Agreement except to the extent such Indemnifying Party is prejudiced as a
result of such failure to give notice. Except with the prior written
consent of the Indemnified Party, no Indemnifying Party, in the defence
of any such claim or litigation, shall consent to entry of any judgment
or enter into any settlement that provides for injunctive or other non-
monetary relief affecting the Indemnified Party. In the event that the
Indemnified Party shall in good faith determine that the conduct of the
defence of any claim subject to indemnification hereunder or any proposed
settlement of any such claim by the Indemnifying Party might be expected
to materially adversely affect the ability of the Purchasers to conduct
their business, or that the Indemnified Party may have available to it
one or more defenses or counterclaims that are inconsistent with one or
more of those that may be available to the Indemnifying Party in respect
of such claim or any litigation relating thereto, the Indemnified Party
shall have the right at all times to take over and assume control of the
defense, settlement, negotiations or litigation relating to any such
claim at the sole cost of the Indemnifying Party, provided that if the
Indemnified Party does so take over and assume control, the Indemnified
Party shall not settle such claim or litigation without the written
consent of the Indemnifying Party, such consent not to be unreasonably
withheld.
14.12 Upon Completion, the only remedies available to the Purchasers in respect
of this Agreement and the other Completion Documents and the transactions
contemplated hereby and thereby are damages for breach of contract
(subject to the limitations set out in this Agreement) and, for the
avoidance of doubt, upon Completion, the Purchasers shall not have any
right to rescind or terminate any Completion Documents either for breach
of contract or for misrepresentation or otherwise; PROVIDED THAT the
provisions of this Clause 14.12 shall not exclude any liability which any
of the parties would otherwise have to any other party or any right which
any of them may have to rescind this Agreement in respect of any
statements made fraudulently by any of them prior to the execution of
this Agreement or any rights which any of them may have in respect of
fraudulent concealment by any of them.
14.13 The Sellers have represented that they acquired the Assets under and in
accordance with the terms of a sale and purchase agreement (the 'Softbank
Agreement') which has not been fully disclosed to the Purchasers but
which is subject to the laws of the State of New York (the 'New York
Laws'). None of the Purchasers are assuming any of the obligations of the
Sellers under the Softbank Agreement. In this regard, and without
limitation on the Sellers' Representations and Warranties given under
this Agreement by each of the Sellers, the Sellers shall indemnify and
hold the Purchasers harmless
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from any claim that the vendor under the Softbank Agreement may bring
against the Purchasers, the VNU Parent or any member of the Purchasers'
Group, under the New York Laws (including legal and other advisory costs
related thereto) except to the extent such claim arises out of or results
from a breach by the Purchasers of any of their obligations hereunder or
under any of the Completion Documents.
15. UK Employees
15.1 The Parties anticipate that the Regulations will apply to the sale and
purchase of the UK Business under this Agreement and ZDUK and VBPL shall
comply with their obligations under the Regulations and otherwise inform
and consult with representatives of the UK Employees affected by the sale
and purchase of the UK Business.
15.2 On the Completion Date, the employment of all active UK Employees shall
transfer to VBPL under the Regulations, including, for the avoidance of
doubt, UK Employees who are temporarily absent from work for short-term
disability, military service, worker's compensation or maternity leave
reasons, on terms and conditions which are the same as the terms and
conditions under which such UK Employees are employed prior to the
Effective Date. During the period commencing on the Completion Date and
ending on the first anniversary of the closing of the Softbank Agreement,
VBPL shall continue to provide to the UK Employees employee benefit plans,
programs, policies and arrangements (other than share option or other plans
involving the potential issuance of securities) which in the aggregate are
no less favourable than those provided under the employee benefit plans,
programs, policies and arrangements of ZDUK in effect at the Effective Date
PROVIDED THAT ZDUK shall use all reasonable endeavours to assist VBPL in
the continued provision by VBPL of said benefits during the period
including but not limited to assistance in assuming the obligations of ZDUK
to any existing policy for the same to VBPL. As part of fulfilling its
obligations under Clause 15.2, VNU shall do the following:
a. the UK Employees shall be given credit under each employee benefit
plan, program, policy or arrangement of VBPL in which the UK Employees
are eligible to participate for all service with ZDUK and any
predecessor employer (to the extent such credit was given by ZDUK) for
purposes of eligibility, vesting, benefit accrual, severance and
vacation entitlement;
b. VBPL shall take all such action as is necessary or appropriate in
order to ensure that employees of ZDUK who accept employment with VBPL
and their spouses and dependent children covered by the group health
plans sponsored by ZDUK (the "Seller Health Plans") as of the
Effective Date become eligible for coverage under a substantially
comparable group health plan maintained by VBPL effective immediately
after Completion. VBPL shall cause the group health plan maintained by
it to (i) waive any waiting periods, evidence of insurability
requirements or pre-existing condition limitations and (ii) honour any
deductible, co-payment and out-of-pocket expenses incurred by the UK
Employees and their beneficiaries under the Seller Health Plans during
the portion of 2000 preceding Completion;
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c. the Purchaser shall take all such action as is necessary or
appropriate in order to ensure that UK Employees covered by the group
term life insurance plan sponsored by the Sellers or members of the
Sellers' Group (the "Seller Life Plan") as of the Effective Date
become eligible for substantially comparable coverage under a group
term life insurance plan maintained by VBPL effective immediately
after Completion. VBPL shall cause such plan to waive any medical
certification for such employees up to the amount of coverage the
employees had under the Seller Life Plan;
d. UK Employees who are on short-term disability as at the Effective Date
shall be covered under a short-term disability plan maintained by VBPL
effective immediately after Completion and shall be transferred to a
plan maintained by VBPL upon becoming permanently disabled or
otherwise entitled to long-term disability benefits under such plan.
15.3 ZDUK and VBPL undertake that they have complied with their obligations
under Regulation 10 of the Regulations and otherwise to inform and consult
with representatives of the UK Employees affected by the sale and purchase
of the UK Business under this Agreement.
15.4 All obligations of the Sellers with respect to bonuses and vacation pay
which is accrued as at the Completion Date of any UK Employee arising in
the ordinary course of their employment and with respect to "stay" bonuses
as disclosed in the Disclosure Letter shall be assumed by and shall be the
sole responsibility of VBUK (and shall form part of the "Assumed
Obligations" for the purposes of this Agreement) and VBUK shall pay,
perform and discharge such obligations (and any Taxes related thereto) in a
timely manner.
15.5 The Sellers shall indemnify and keep indemnified the Purchasers on an after
Tax basis against all liabilities, obligations, costs (including, without
limitation, reasonable legal costs), claims and demands arising out of or
relating to any breach by any of the Sellers' Group of its obligations
under Regulation 10 of the Regulations save to the extent any such breach
is caused by the Purchasers' failure to comply with their obligations under
Regulation 10 of the Regulations.
15.6 The Sellers shall indemnify and keep indemnified the Purchasers on an after
Tax basis against any liabilities, obligations, costs (including, without
limitation, reasonable legal costs), claims and demands arising out of or
relating to the termination of employment of any other employee or person
engaged in the UK Business who is not a UK Employee where such liabilities
arose prior to the Effective Date and transferred to the Purchasers
pursuant to the Regulations.
15.7 The Purchasers shall indemnify and keep indemnified ZDUK against all
liabilities, obligations, claims, demands, costs (including, without
limitation, legal costs) arising out of or in connection with any act or
omission of the Purchasers after Completion relating to the employment or
termination of employment of any UK Employee.
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15.8 The Purchasers shall indemnify and keep indemnified the Sellers on an
after-Tax basis against all liabilities, obligations, costs (including,
without limitation, reasonable legal costs) claims and demands arising out
of or relating to any breach by any of the Purchasers' Group of its
obligations under Regulation 10 of the Regulations save to the extent any
such breach is caused by the Sellers' failure to comply with their
obligations under Regulation 10 of the Regulations.
16. German Employees
16.1 The Sellers and the Purchasers assume that in relation to the German
Employees the transaction contemplated under this Agreement qualifies as a
transfer of an undertaking in accordance with Section 613a of the German
Civil Code and ZDVG and VG shall comply with their obligations under the
German legal provisions and otherwise inform and consult with
representatives of the German Employees affected by the sale and purchase
of the German Business.
16.2 On the Completion Date, the employment of all active German Employees shall
transfer to VG in accordance with Section 613a. of the German Civil Code
(and VG shall also assume the employment obligations owed to the Managing
Director of ZDVG) including those Employees who are temporarily absent from
work for short-term disability, military service, worker's compensation or
maternity leave reasons, on terms and conditions which are the same as the
terms and conditions under which such German Employees are employed prior
to the Effective Date. A German Employee who objects against his/her
transfer to the Purchasers pursuant to Section 613a. of the German Civil
Code and who, therefore, continues to be an employee of ZDVG shall receive
notice of termination from ZDVG without undue delay; the Purchasers shall
indemnify and reimburse ZDVG for all payments including salaries and
severence ZDVG has to pay to such employee from the date of Completion.
During the period commencing on the Completion Date and ending on the first
anniversary of the closing of the Softbank Agreement, VG shall continue to
provide to the German Employees employee benefit plans, programs, policies
and arrangements (other than share option or other plans involving the
potential issuance of securities) which in the aggregate are no less
favourable than those provided under the employee benefit plans, programs,
policies and arrangements of ZDG in effect at the Effective Date (if any)
and as disclosed in the Disclosure Letter PROVIDED THAT ZDG shall use all
reasonable endeavours to assist VG in the continued provision by VG of said
benefits during the period including but not limited to assistance in
assuming the obligations to ZDG to any existing parties to ZDUK. As part
of fulfilling its obligations under Clause 15.2, VNU shall do the
following:
a. the German Employees shall be given credit under each employee benefit
plan, program, policy or arrangement of VG in which the German
Employees are eligible to participate for all service with ZDG and any
predecessor employer (to the extent such credit was given by ZDG) for
purposes of eligibility, vesting, benefit accrual, severance and
vacation entitlement;
b. VG shall take all such action as is necessary or appropriate in order
to ensure that the German Employees of ZDG who accept employment with
VG and their
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spouses and dependent children covered by the group health plans
sponsored by ZDG (the "Seller Health Plans") as of the Effective
Date become eligible for coverage under a substantially comparable
group health plan maintained by VG;
c. VG shall take all such action as is necessary or appropriate in
order to assure that German Employees covered by the group term life
insurance plan sponsored by ZDG (the "Seller Life Plan") as of the
Effective Date become eligible for substantially comparable coverage
under a group term life insurance plan maintained by VG effective
immediately after Completion. VG shall cause such plan to waive any
medical certification for such German Employees up to the amount of
coverage the employees had under the Seller Life Plan; and
d. German Employees who are on short-term disability as of the
Effective Date shall be covered under a short-term disability plan
maintained by VG effective immediately after Completion, and shall
be transferred to a plan maintained by VG upon becoming permanently
disabled or otherwise entitled to long-term disability benefits
under such plan.
16.3 All wages, salaries, benefits and other payments (other than bonuses and
vacation pay) in respect of the German Employees for any period of time
up to Completion shall be borne by ZDVG and for any period of time after
that day shall be borne by VG.. All obligations of the Sellers with
respect to bonuses and vacation pay which is accrued as at the Completion
Date of any German Employee arising in the ordinary course of their
employment and with respect to "stay" bonuses as disclosed in the
Disclosure Letter shall be assumed by and shall be the sole
responsibility of VG (and shall form part of the "Assumed Obligations"
for the purposes of this Agreement) and VG shall pay, perform and
discharge such obligations (and any Taxes related thereto) in a timely
manner.
16.4 VG shall be bound to pay to the German Employees any paid leave, extra
month's salary (the `thirteenth month') and other bonuses or benefits,
according to whether such relevant German Employee was present at a
certain date or during that year, to the extent that the date on which
such sums become due and payable after the date of this Agreement and to
pay all related social security contributions.
16.5 The Sellers shall indemnify and keep indemnified the Purchasers on an
after-Tax basis against any liabilities, obligations, costs (including,
without limitation, reasonable legal costs), claims and demands arising
out of or relating to any breach by any of the Sellers' Group of its
obligations to the German Employees incurred prior to Completion (save as
otherwise provided in Clause 16.1).
16.6 The Sellers shall indemnify and keep indemnified the Purchasers on an
after-tax basis against any liabilities, obligations, costs (including,
without limitation, reasonable legal costs), claims and demands arising
out of or related to the termination of employment of any other employee
or person engaged in the German Business who is not a German Employee
where such liabilities transfer to the Purchasers in accordance with
Section 613 a. of the German Civil Code.
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<PAGE>
16.7 VG shall indemnify and keep indemnified ZDVG against all liabilities,
obligations, costs (including, without limitation, reasonable legal
costs), claims and demands arising out of or relating to any act or
omission of VG after Completion relating to the employment or termination
of employment of any German Employee.
16.8 ZDVG undertakes to reimburse all of the evidenced debts outstanding at
the date of Completion kept with respect to the German Employees
remaining unpaid after Completion to the Purchasers which is bound to
forward such amounts to the German Employees in accordance with Section
613a. of the German Civil Code.
17. French Employees
17.1 The Purchasers or the Purchasers' Group undertakes to take on and
continue, in accordance with paragraph 2 of article L 122-12 of the
French Labour Code, with effect from the Completion Date, the employment
contracts of the French Employees and ZDF and VF shall comply with their
obligations under the French legal provisions and otherwise inform and
consult with representatives of the French Employees affected by the sale
and purchase of the French Business.
17.2 On the Completion Date, the employment of all active French Employees
shall transfer to ZDF, including, for the avoidance of doubt, French
Employees who are temporarily absent from work for short-term disability,
military service, worker's compensation or maternity leave reasons, on
terms and conditions which are the same as the terms and conditions under
which such French Employees are employed prior to the Effective Date.
During the period commencing on the Completion Date and ending on the
first anniversary of the closing of the Softbank Agreement, VF shall
continue to provide to the French Employees employee benefit plans,
programs, policies and arrangements (other than stock option or other
plans involving the potential issuance of securities) which in the
aggregate are no less favourable than those provided under the French
Employee benefit plans, programs, policies and arrangements of ZDF in
effect at the Effective Date (if any) and as disclosed in the Disclosure
Letter PROVIDED THAT ZDF shall use all reasonable endeavours to assist VF
in the continued provision by VF of said benefits during the period
including but not limited to assitance in assuming the obligations of VF
to any existing plans to ZDF. As part of fulfilling its obligations under
Clause 17.2, VNU shall do the following:
a. the French Employees shall be given credit under each employee
benefit plan, program, policy or arrangement of VF in which the
French Employees are eligible to participate for all service with
ZDF and any predecessor employer (to the extent such credit was
given by ZDF) for purposes of eligibility, vesting, benefit accrual,
severance and vacation entitlement;
b. VF shall take all such action as is necessary or appropriate in
order to ensure that employees of ZDF who accept employment with VF
and their spouses and dependent children covered by the group health
plans sponsored by ZDF (the "Seller Health Plans") as of the
Effective Date become eligible for coverage under a substantially
comparable group health plan maintained by VF effective
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immediately after Completion. VF shall cause the group health plan
maintained by it to (i) waive any waiting periods, evidence of
insurability requirements or pre-existing condition limitations and
(ii) honour any deductible, co-payment and out-of-pocket expenses
incurred by the French Employees and their beneficiaries under the
Seller Health Plans during the portion of 2000 preceding Completion;
c. VF shall take all such action as is necessary or appropriate in
order to ensure that French Employees covered by the group term life
insurance plan sponsored by ZDF (the "Life Plan") as of the
Effective Date become eligible for substantially comparable coverage
under a group term life insurance plan maintained by VF effective
immediately after Completion; and
d. French Employees who are on short-term disability as at the
Effective Date shall be covered under a short-term disability plan
maintained VF effective immediately after Completion, and shall be
transferred to a plan maintained by VF upon becoming permanently
disabled or otherwise entitled to long-term disability benefits
under such plan.
17.3 If required by French law, ZDF undertakes to exercise reasonable
endeavours to procure authorisation from the French local labour
authorities for the transfer of the French Employees' employment
contracts. ZDF shall consult with VF in relation to the course of action
which it proposes to take in relation to such French Employees before
incurring such costs.
17.4 ZDF undertakes to solicit authorisation from the French local labour
authorities for the transfer of the French Employees' employment
contracts within three (3) days of obtaining the minutes of the meeting
of the works council of ZDF.
17.5 If the Purchasers or any member of the Purchasers' Group requires the
services of any French Employee before the prior authorisation referred
to in Clause 17.3 has been obtained, ZDF shall enter into a service
agreement with the Purchasers (or any relevant company within the
Purchasers' Group) in respect of such services in a form to be agreed.
17.6 The Purchasers shall be bound to pay to the French Employees any paid
leave, extra month's salary ("treizieme mois") and other bonuses or
benefits, according to whether each relevant French Employee was present
at a certain date or during the year, to the extent that the date on
which such sums become due and payable after the date of this Agreement,
and to pay all related social security contributions including "stay"
bonuses as set forth in the Disclosure Letter.
17.7 ZDF and the Purchasers or its relevant company within the Purchasers'
Group undertake that they will comply with their obligations to inform
and consult with representatives of employees affected by the sale and
purchase of the French Business.
17.8 ZDF shall indemnify and keep indemnified the Purchasers or its relevant
company within the Purchasers' Group on an after Tax basis against any
liabilities, obligations,
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costs (including, without limitation, legal costs) claims and demands
arising out of or relating to employment until termination or termination
of employment of any other employee or person engaged in the French
Business who is not a French Employee where such liabilities transfer to
the Purchasers or its relevant company within the Purchasers' Group
pursuant to the Art. 122-12 of the French Labour Code.
17.9 ZDF shall bear the cost of, and repay to the Purchasers or its relevant
company within the Purchasers' Group pro rata temporis within eight (8)
days from payment by the Purchasers or its relevant company within the
Purchasers' Group, the portion of the relevant indemnities relating to
the period prior to Completion as well as the related social security
contributions.
17.10 ZDF undertakes to reimburse all of the evidenced debts outstanding at the
date of this Agreement kept with respect to the French Employees
remaining unpaid after Completion to the Purchasers or the relevant
company within the Purchasers' Group which is bound to forward such
amounts to the French Employees by virtue to article L 122-12 of the
French Labour Code.
17.11 ZDF shall keep the Purchasers or the relevant company within the
Purchasers' Group indemnified on an after Tax basis against all expenses
in relation to the French Employees (including the fees and expenses of
counsel or "avocats" incurred in defending itself, responding to claims
or reaching settlements) and the prejudicial consequences relating to or
arising out of any claim or action concerning an act or omission by ZDF,
at any time prior to Completion, including (without limitation) non-
compliance with any contractual or legal obligation, a dismissal for
economic or personal reasons and the termination of office of any
corporate officer such as a Directeur Generale
17.12 All obligations of the Sellers with respect to bonuses and vacation pay
which is accrued as at the Completion Date of any French Employee arising
in the ordinary course of their employment and with respect to "stay"
bonuses as disclosed in the Disclosure Letter shall be assumed by and
shall be the sole responsibility of VBF (and shall form part of the
"Assumed Obligations" for the purposes of this Agreement) and VBF shall
pay, perform and discharge such obligations (and any Taxes related
thereto) in a timely manner.
18. Restrictions on Business Activities
18.1 Subject to Clause 18.4, the Sellers, ZD Licensor and the ZD Parent
jointly and severally undertake that they shall not, and shall procure
that none of their respective subsidiaries or other undertakings shall,
either alone or in conjunction with or on behalf of any other person, own
or have an ownership interest in, manage, operate, control, render
services to or otherwise be associated or affiliated and do any of the
following things for a period of four (4) years following Completion in
relation to Clause 18.1 a. and for a period of two (2) years following
Completion in relation to Claues 18.1. b.:
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a. be engaged or be directly or indirectly interested in launching,
distributing or publishing in a portion of the Territory any Print-
based Publication which has an "editorial voice" which is the same
or substantially the same as the "editorial voices" of any of the
Publications (determined as of the Completion Date) published by the
Purchasers in the same portion of the Territory (for the avoidance
of doubt, the "editorial voices" of each of the Publications are
described in Schedule 5_); or
b. employ, hire, induce, solicit, encourage or otherwise entice any
Employee to leave the employ of the Purchasers.
18.2 It is understood and agreed between the Parties that the restrictions on
the Sellers and ZD Parent set forth in Clause 18.1 a. shall not apply to
any of the current ZD Publications as listed in the Disclosure Letter.
18.3 Each of the Sellers and ZD Licensor shall not from Completion use or
authorise any third party to use any of the Assigned Trade Marks and/or
confusingly similar trade mark or name within the portions of the
Territory covered by each applicable Assigned Trade Mark or use or
authorise any third party to use any of the Licensed Trade Marks in a
manner that violates the terms of the Trade Mark Licence.
18.4 Each undertaking contained in this Clause shall be construed as a
separate undertaking and if one or more of the undertakings is held to be
against the public interest or unlawful or in any way an unreasonable
restraint of trade, the remaining undertakings shall continue to bind
each of the persons giving them.
18.5 Any provision of this Agreement, or of any agreement or arrangement of
which it forms part, by virtue of which such agreement or arrangement is
subject to registration under for UK purposes the Competition Act 1998
shall only take effect the day after particulars of agreement or
arrangement have been duly furnished to the Director General of Fair
Trading pursuant to the provisions of the Act.
18.6 The Sellers and the ZD Parent agree that monetary damages may not
adequately compensate the Purchasers for the breach or any threatened
breach of any of the provisions of this Clause 19 and the Sellers and the
Purchasers acknowledge that the Purchasers shall be entitled to
injunctive relief in addition to damages arising as a result hereof.
19. Provisions Concerning Trade Marks
19.1 Subject to the satisfaction of the Conditions set forth in Clause 3.1,
upon the Completion the ZD Licensor shall assign to the Purchasers the
Assigned Trade Marks.
19.2 The Purchasers undertake not to and to procure that no other member of
the Purchasers' Group, or any of their agents, distributors or licensees,
actively solicit subscriptions or sales of the Publications outside the
Territory but they shall not be prohibited from accepting any unsolicited
orders for the Publications which they may receive from any other country
within the European Union from time to time. The
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Sellers, ZD Parent and ZD Licensor undertake not to and to procure that
no other member of the Sellers' Group, or any of their agents,
distributors or licensees, actively solicit subscriptions or sales of any
ZD Publications in the Territory of any ZD publication which has title
which is the same as any of the Acquired Titles in the applicable portion
of the Territory but they shall not be prohibited from accepting any
unsolicited orders for the ZD Publications which they may receive from
any other country within the European Union from time to time.
19.3 The Sellers shall have the right to register and use domain names or URLs
incorporating the Licensed Trade Marks or Acquired Titles in combination
with any suffix, including ".fr," ".co.uk" and ".de".
19.4 It is understood and agreed between the Parties that nothing in this
Agreement or any of the Completion Documents shall prevent or limit the
Sellers' or any member of the Sellers' Group's respective rights to use
any of the Licensed Trade Marks on-line, including on the Internet or any
other electronic, wireless or digital media now known or hereafter
developed in relation to the same.
20. Parent Guarantees
20.1 In consideration of the Purchasers agreeing to purchase or procure the
purchase of the Assets on the terms set out in this Agreement, the ZD
Parent hereby unconditionally and irrevocably guarantees to the
Purchasers the due and punctual performance and observance by the Sellers
of all of their respective obligations, commitments and undertakings
under or pursuant to this Agreement or any other document referred to in
it and agrees, subject to the limitations set forth in Clause 14 above,
to indemnify the Purchasers in respect of any breach by any Seller of any
of its obligations, commitments and undertakings under or pursuant to
this Agreement or any other document referred to in it PROVIDED THAT ZD
Parent shall have all rights, remedies, defences and claims assertable by
the applicable Sellers in connection with the obligations so guaranteed,
other than rights under principles of suretyship or guaranty law which
constitute a defence to the obligations of ZD Parent under this Clause
20.
20.2 Subject to the provisions of Clause 20.1, if and whenever any Seller
defaults for any reason whatsoever in the performance of any obligation,
commitment or undertaking undertaken or expressed to be undertaken under
or pursuant to this Agreement or any other document referred to in it,
the ZD Parent shall forthwith unconditionally perform (or procure
performance of) and satisfy (or procure satisfaction of) the obligation,
commitment or undertaking in regard to which such default has been made
in the manner prescribed by this Agreement or any other document referred
to in it and so that the same benefits shall be conferred on the
Purchasers as would have been received if such obligation, commitment or
undertaking had been duly performed and satisfied by the relevant Seller
in accordance with the terms of this Agreement.
20.3 The guarantee given by the ZD Parent is to be a continuing guarantee and
accordingly is to remain in force until all the obligations of each of
the Sellers shall have been performed or satisfied in accordance with the
terms of this Agreement notwithstanding
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<PAGE>
the winding-up, liquidation, dissolution or other incapacity of any of
the Sellers or any change in the status, control or ownership of any of
the Sellers. This guarantee is in addition to, without limiting and not
in substitution for, any rights which the Purchasers may now or after the
date of this Agreement have or hold for the performance and observance of
the obligations, commitments and undertakings of any or all of the
Sellers under or in connection with this Agreement or any other document
referred to in it.
20.4 In consideration of the Sellers agreeing to sell or procure the sale of
the Assets to the Purchasers on the terms set out in this Agreement, the
VNU Parent hereby unconditionally and irrevocably guarantees to the
Sellers the due and punctual performance and observance by the Purchasers
of all of their respective obligations, commitments and undertakings
under or pursuant to this Agreement or any other document referred to in
it and agrees, subject to the provisions of Clause 14, to indemnify the
Sellers in respect of any breach by any Purchaser of any of its
obligations, commitments and undertakings under or pursuant to this
Agreement or any other document referred to in it PROVIDED THAT VNU
Parent shall have all rights, remedies, defences and claims assertable by
the applicable Purchasers in connection with the obligations so
guaranteed, other than rights under principles of suretyship or guaranty
law which constitute a defence to the obligations of VNU Parent under
this Clause 20.
20.5 Subject to the provisions of Clause 20.4, if and whenever any Purchaser
defaults for any reason whatsoever in the performance of any obligation,
commitment or undertaking undertaken or expressed to be undertaken under
or pursuant to this Agreement or any other document referred to in it,
the VNU Parent shall forthwith unconditionally perform (or procure
performance of) and satisfy (or procure satisfaction of) the obligation,
commitment or undertaking in regard to which such default has been made
in the manner prescribed by this Agreement or any other document referred
to in it and so that the same benefits shall be conferred on the Sellers
as would have been received if such obligation, commitment or undertaking
had been duly performed and satisfied by the relevant Purchaser in
accordance with the terms of this Agreement.
20.6 This guarantee to be given by the VNU Parent is to be a continuing
guarantee and accordingly is to remain in force until all the obligations
of each of the Purchasers shall have been performed or satisfied in
accordance with the terms of this Agreement notwithstanding the winding-
up, liquidation, dissolution or other incapacity of any of the Purchasers
or any change in the status, control or ownership of any of the
Purchasers. This guarantee is in addition to, without limiting and not in
substitution for, any rights which the Sellers may now or after the date
of this Agreement have or hold for the performance and observance of the
obligations, commitments and undertakings of any or all of the Purchasers
under or in connection with this Agreement or any other document referred
to in it.
21. Remedies and Waivers
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21.1 No delay or omission on the part of any Party to this Agreement in
exercising any right, power or remedy provided by law or under this
Agreement or any other documents referred to in it shall:
a. impair such right, power or remedy; or
b. operate as a waiver thereof.
21.2 The single or partial exercise of any right, power or remedy provided by
law or under this Agreement shall not preclude any other or further
exercise thereof or the exercise of any other right, power or remedy.
21.3 The rights, powers and remedies provided in this Agreement are cumulative
and not exclusive of any rights, powers and remedies provided by law.
22. Assignment
No Party to this Agreement may assign its rights or obligations under
this Agreement without the other Party's consent, which consent shall not
be unreasonably withheld or delayed, except that any Party may assign to
another member of that Party's Group SAVE THAT obligations of ZD Parent
and VNU Parent under Clause 20 may not be assigned without the prior
written consent of the other Parties. This Agreement shall inure to the
benefit of each Party's permitted successors and assigns.
23. Further Assurance
Each of the Parties shall from time to time, on being reasonably required
to do so by any other Party, now or at any time in the future, do or
procure the carrying out of all such acts and/or execute or procure the
execution of all such documents in a form satisfactory to such other
Party as such other Party may reasonably consider necessary for giving
full effect to this Agreement and securing to such other Party the full
benefit of the rights conferred upon such Party in this Agreement at such
other Party's cost.
24. Entire Agreement
24.1 For the purposes of this Clause, "Pre-Contractual Statement" means a
draft, agreement, undertaking, representation, warranty, promise,
assurance, indemnities, covenant, commitment or arrangement of any nature
whatsoever, whether or not in writing, relating to any of the Completion
Documents made or given by a Party thereto or any other person at any
time prior to the execution of the Completion Documents.
24.2 The Completion Documents constitute the whole and only agreement between
the Parties relating to the sale and purchase of the Assets forming part
of the Businesses.
24.3 Except to the extent repeated in any of the Completion Documents, the
Completion Documents supersede and extinguish any Pre-Contractual
Statement.
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24.4 Each Party acknowledges that in entering into the Completion Documents or
any of them on the terms set out therein, it is not relying upon any Pre-
Contractual Statement which is not expressly set out therein.
24.5 None of the Parties shall have any right of action against any other
Party to this Agreement arising out of or in connection with any Pre-
Contractual Statement (except in the case of fraud) except to the extent
that such Pre-Contractual Statement is repeated in the Completion
Documents.
24.6 This Agreement may only be varied in writing executed by or on behalf of
each of the parties.
25. Notices
25.1 Any notice or other communication given or made under or in connection
with the matters contemplated by this Agreement shall be in writing.
25.2 Any such notice or other communication shall be addressed as provided
below and, if so addressed, shall be deemed to have been duly given or
made as follows:
a. if sent by personal delivery, upon delivery at the registered
address of the relevant Party;
b. if sent by first class post, five (5) clear Business Days after the
date of posting; and
c. if sent by facsimile or electronic mail, when dispatched.
25.3 The relevant address, addressee and facsimile number of each Party for
the purposes of this Agreement is:
<TABLE>
<CAPTION>
Name of Party Address and addressee Facsimile number
-------------------------------------------------------------------------------------------
<S> <C> <C>
The Sellers, ZD Licensor c/o Ziff Davis Media Inc. (212) 503-3550
and Parent 28 East 28th Street
New York, NY 10016
Attn: Chief Executive Officer
with a copy to:
Ziff Davis 28 East 28th Street (212) 503-3560
New York, NY 10016
Attn: General Counsel
and
Kirkland & Ellis 200 East Randolph Drive (312) 861-2200
Chicago, Illinois 60601
</TABLE>
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<PAGE>
Attention: John Weissenbach
David A. Breach
and
The Purchasers and c/o VNU Business Publications (207) 316 9009
The VNU Parent 32-34 Broadwick Street
London
W1A 2HG
Attention: Managing Director
25.4 Any Party may notify any other Party to this Agreement of a change to its
name, relevant address or addressee for the purposes of this Clause 25
PROVIDED THAT such notification shall only be effective on:
a. the date specified in the notification as the date on which the change
is to take place; or
b. if no date is specified or the date specified is less than five (5)
clear Business Days after the date on which notice is given, the date
falling five (5) clear Business Days after notice of any such change
has been given.
25.5 For the avoidance of doubt, the Parties agree that the provisions of this
Clause 25 shall not apply in relation to the service of Service Documents.
26. Announcements
26.1 No announcement concerning the sale and purchase of the Assets or any
ancillary matter related hereto shall be made by any Party to this
Agreement without the prior written approval of the other Parties (such
approval not to be unreasonably withheld or delayed). This Sub-Clause shall
not apply in the circumstances described in Sub-Clause 26.2.
26.2 Any Party may, after consultation or written notice with the other
Parties, make an announcement concerning the transactions contemplated by
this Agreement or any ancillary matter related hereto if required by:
a. law; or
b. any securities exchange or regulatory or governmental body to which
that Party is subject or submits, wherever situated, including
(amongst other bodies) London Stock Exchange Limited, the Brussels
Stock Exchange, the Luxembourg Stock Exchange, the Amsterdam Stock
Exchange, the New York Stock Exchange and the NASDAQ whether or not
the requirement has the force of law.
26.3 The restrictions contained in this Clause shall continue to apply after
Completion without limit in time.
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27. Confidentiality
27.1 From the Effective Date, each Party shall treat as confidential all
information obtained a result of entering into or performing this Agreement
which relates to:
a. the provisions of this Agreement;
b. the negotiations relating to this Agreement; and
c. in the case of the Sellers, the Purchasers and the other members of
the Purchasers' Group and, in the case of the Purchasers, each of the
Sellers and the other members of the Sellers' Group
PROVIDED THAT any Party may disclose information which would otherwise be
confidential if and to the extent:
a. required by the law of any relevant jurisdiction;
b. required by any securities exchange or regulatory or governmental body
to which such Party is subject or submits, wherever situated,
including (without limitation) London Stock Exchange Limited, The
Panel on Takeovers and Mergers, the New York Stock Exchange, the
NASDAQ, the Brussels Stock Exchange, the Luxembourg Stock Exchange and
the Amsterdam Stock Exchange, whether or not the requirement for
information has the force of law;
c. required to vest the full benefit of this Agreement in such Party;
d. disclosed on a confidential basis to the professional advisers,
auditors or bankers of such Party;
e. the information has come into the public domain through no fault of
that Party;
f. the other Parties have given prior written approval to the disclosure,
such approval not to be unreasonably withheld or delayed; or
g. it is required to be disclosed under the terms of this Agreement
and in the case of any disclosure pursuant to Sub-Clauses a. or b. above
shall take reasonable steps to keep the other Parties informed.
27.2 The restrictions contained in this Clause shall continue to apply after
Completion without limit in time.
27.3 The terms of the Letter Agreement dated 18 April 2000 and made between Ziff
Davis Media Inc. and VNU NV shall terminate with full force and effect on
the Effective Date and no obligation thereunder will continue to survive.
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<PAGE>
28. Costs and Expenses
Except as otherwise stated in any other provision of this Agreement, each
Party shall pay its own costs and expenses in relation to the negotiations
leading up to the transactions contemplated by this Agreement and to the
preparation, execution and carrying into effect of this Agreement.
29. Counterparts
29.1 This Agreement may be executed in any number of counterparts, and by the
Parties on separate counterparts, but shall not be effective until each
Party has executed at least one counterpart.
29.2 Each counterpart shall constitute an original of this Agreement, but the
counterparts shall together constitute but one and the same instrument.
30. Invalidity
If at any time any provision of this Agreement is or becomes illegal,
invalid or unenforceable in any respect under the law of any jurisdiction,
that shall not affect or impair:
a. the legality, validity or enforceability in that jurisdiction of any
other provision of this Agreement; or
b. the legality, validity or enforceability under the law of any other
jurisdiction of that or any other provision of this Agreement.
31. Choice of Governing Law and Jurisdiction
31.1 This Agreement is governed by and shall be construed in accordance with
English Law.
31.2 The courts of England are to have exclusive jurisdiction to settle any
dispute arising out of or in connection with this Agreement for the purpose
of any suit, action or other proceeding arising out of or based upon this
Agreement. Any Proceedings must therefore be brought in the English courts.
This jurisdiction agreement is irrevocable. The Parties hereby waive and
agree not to assert by way of a motion, as a defence or otherwise, in any
such proceeding, any claim that is not subject personally to the
jurisdiction of England, that its property is exempt or immune from
attachment or execution, that any such proceeding brought in a court in
England is brought in an inconvenient form, that the venue is improper or
that the Agreement, or that the transactions contemplated hereby, may not
be enforced in or by such court.
31.3 Each Party irrevocably waives (and irrevocably agrees not to raise) any
objection, on the ground of forum not convenient or on any other ground, to
the taking of Proceedings in any court referred to in this Clause. Each
Party also irrevocably agrees that a judgment against it in Proceedings
brought in any jurisdiction referred to in this
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Clause shall be conclusive and binding upon that Party and may be enforced
in any other jurisdiction.
32. Agents for Service of Process
32.1 Each of the Parties incorporated outside England and Wales hereby
appoints the agent set against its name below to be its agent for the
receipt of service of process in England and agrees that any Service
Document may be effectively served on it in connection with Proceedings in
England and Wales by service on its agent:
Name of Party Agent
-------------------------
[Sellers] to be provided prior to Completion
The Purchasers and VNU Business Publications Limited
VNU Parent 32-34 Broadwick Street
London
W1A 2HG
Attention: Managing Director
The agent for the receipt of service of process of a Party is referred to
in this Clause as its "Process Agent".
32.2 Any Service Document shall be deemed to have been duly served on a Party
if marked for the attention of that Party's Process Agent at the address
above or such other address within England or Wales as may be notified to
the Party wishing to serve the document and:
a. left at the specified address; or
b. sent to the specified address by first class post.
In the case of Sub-Clause 32.2 a., the Service Document shall be deemed to
have been duly served when it is left. In the case of Clause 32.2. b., the
Service Document shall be deemed to have been duly served two (2) clear
Business Days after the date of posting.
32.3 If a Process Agent at any time ceases for any reason to act as such, the
Party for whom that Process Agent acted shall appoint a replacement Process
Agent having an address for service in England or Wales and shall notify
the other Parties of the name and address of the replacement Process Agent.
Failing such appointment and notification, any other Party shall be
entitled by notice to the relevant Party to appoint a replacement Process
Agent to act on the relevant Party's behalf. The provisions of this Clause
applying to service on a Process Agent apply equally to service on a
replacement Process Agent.
32.4 A copy of any Service Document served on a Process Agent shall be sent by
post to the appointor of the Process Agent. Failure or delay in so doing shall
not prejudice the effectiveness of service of the Service Document.
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IN WITNESS of which this document has been executed on the date which first
appears on page one (1) above.
SIGNED by /s/ Thomas McGrade
__________________________________
for and on behalf of ZIFF DAVIS PUBLISHING HOLDINGS INC.
SIGNED by _____________________________________
for and on behalf of ZIFF DAVIS MEDIA INC.
SIGNED by _____________________________________
for and on behalf of ZIFF-DAVIS UK
LIMITED
SIGNED by /s/ illegible
_____________________________________
for and on behalf of ZIFF-DAVIS
VERLAG GMBH & CO. KG
SIGNED by /s/ Carolyn Schurr Levin
_____________________________________
for and on behalf of ZIFF-DAVIS FRANCE
SA
SIGNED by _____________________________________
for and on behalf of VNU N.V.
SIGNED by _____________________________________
for and on behalf of VIEW GROUP B.V.
52
<PAGE>
SIGNED by _____________________________________
for and on behalf of VNU BUSINESS PUBLICATIONS
LIMITED
SIGNED by _____________________________________
for and on behalf of VNU DEUTSCHLAND GMBH
SIGNED by _____________________________________
for and on behalf of VNU PUBLICATIONS
FRANCE SA
53
<PAGE>
Schedule 1
Part A: Assigned Trade Marks
Subject to the terms and conditions of the Trade Mark Assignment, the following
shall constitute the "Assigned Trade Marks"
<TABLE>
<CAPTION>
UNITED KINGDOM
-----------------------------------------------------------------------------------------------------------------------
Mark Registration No. Dated Class 16 Goods Transferred
-----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
PC DIRECT B1465258 23 May 1991 Magazines; printed periodical
publications; all relating to personal
computers; all included in Class 16;
all the aforesaid goods in paper-based
or non-interactive CD-ROM form.
-----------------------------------------------------------------------------------------------------------------------
PC DIRECT Logo B1466192 4 June 1991 Magazines; printed periodical
(without slogan) publications; all relating to personal
computers; all included in Class 16;
all the aforesaid goods in paper-based
or non-interactive CD-ROM form.
-----------------------------------------------------------------------------------------------------------------------
PC MAGAZINE Logo 2001332 31 October 1994 Magazines (in paper-based or
non-interactive CD-ROM form.).
-----------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
FRANCE
-----------------------------------------------------------------------------------------------------------------------
Mark Registration No. Dated Class 16 Goods Transferred
-----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
PC DIRECT 1703566 5 November 1991 Magazines, printed periodicals (each of
the foregoing in paper-based or
non-interactive CD-ROM form).
-----------------------------------------------------------------------------------------------------------------------
PC EXPERT Logo 1699200 15 October 1991 Paper and printed matter, namely books,
newspapers, reviews and all
publications in the field of computers
and computing (each of the foregoing in
paper-based or non-interactive CD-ROM
form).
-----------------------------------------------------------------------------------------------------------------------
PC DIRECT Logo 1707667 25 November 1991 Printed matter, magazines and
newspapers (each of the foregoing in
paper-based or non-interactive CD-ROM
form).
-----------------------------------------------------------------------------------------------------------------------
PC DIRECT Logo with 1667174 24 May 1991 Printed matter, journals and
Slogan "Quoi Acheter periodicals (each of the foregoing in
comment Acheter" paper-based or non-interactive CD-ROM
form).
-----------------------------------------------------------------------------------------------------------------------
INTERNET LIFE 95579267 6 July 1995 Printed publications destined to
network users, newspapers, magazines,
books, periodicals and booklets (each
of the foregoing in paper-based or
non-interactive CD-ROM form).
-----------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
FRANCE
-----------------------------------------------------------------------------------------------------------------------
Mark Registration No. Dated Class 16 Goods Transferred
-----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
-----------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
GERMANY
-----------------------------------------------------------------------------------------------------------------------
Mark Registration No. Dated Class 16 Goods Transferred
-----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
PC DIREKT Logo 2042020 9 August 1993 Publications, in particular newspapers,
magazines and books (all in paper-based
or non-interactive CD-ROM form).
-----------------------------------------------------------------------------------------------------------------------
PC DIREKT Slogan 2042019 9 August 1993 Printed matter, in particular
newspapers, magazines, books (each of
the foregoing in paper-based or
non-interactive CD-ROM form).
-----------------------------------------------------------------------------------------------------------------------
</TABLE>
Together with all title rights attaching to the Assigned Trade Marks.
Part B: Licensed Trade Marks
Subject to the terms and conditions of the Trade Mark License, the
following shall constitute the "Licensed Trade Marks"
<TABLE>
<CAPTION>
UK CTM Trademarks
------------------------------------------------------------------------------------------------------------------------------------
ID Country Mark Classes App. # App. Date Reg. # Reg. Date Status
------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C>
18138 European IT WEEK [16] 16, 38, 463901 2/11/1997 Pending
Union 42
------------------------------------------------------------------------------------------------------------------------------------
19271 European IT WEEK LOGO 16, 35, 763821 3/5/1998 Pending
Union [16] 38, 41, 42
------------------------------------------------------------------------------------------------------------------------------------
13718 European PC DIRECT [2] 9, 16, 35, 142034 4/1/1996 142034 8/19/1998 Registered
Union 38, 41, 42
------------------------------------------------------------------------------------------------------------------------------------
13720 European PC DIRECT LOGO 9, 16, 42 146886 4/1/1996 146886 11/18/1998 Registered
Union [2]
------------------------------------------------------------------------------------------------------------------------------------
13706 European PC MAGAZINE 9, 16, 35, 142158 4/1/1996 142158 11/12/1998 Registered/Opposed
Union LOGO [12], [4], [6], 38, 41,
[7] 42
------------------------------------------------------------------------------------------------------------------------------------
13709 European PC MAGAZINE LOGO [12] 9, 16, 42 141408 4/1/1996 141408 8/3/1998 Registered
Union (COLOR), [4], [6], [7]
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Local Trademarks
------------------------------------------------------------------------------------------------------------------------------------
ID Country Mark Classes App. Date Reg. # Reg. Date Applicable Goods and Services
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
13996 France INTERNET LIFE 9, 16, 38, 42 7/6/1995 95/579267 7/6/1995 All goods and services covered by the
[10] registration except for any printed
publications destined to network users,
newspapers, magazines, books,
periodicals and booklets in paper-based
or non-interactive CD-ROM form.
------------------------------------------------------------------------------------------------------------------------------------
14813 France PC DIRECT [2] 16 11/5/1991 1703566 11/5/1991 Magazines, printed periodicals; except
any of the aforesaid in paper-based or
non-interactive CD-ROM form.
------------------------------------------------------------------------------------------------------------------------------------
13739 France PC DIRECT [2] 35 4/15/1992 92415170 4/15/1992 All goods and services covered by the
registration.
------------------------------------------------------------------------------------------------------------------------------------
14214 France PC DIRECT [2] 9, 38, 42 9/6/1993 93482457 9/6/1993 All goods and services covered by the
registration.
------------------------------------------------------------------------------------------------------------------------------------
15541 France PC DIRECT [2] 9, 38, 42 6/18/1992 92423217 6/18/1992 All goods and services covered by the
registration.
------------------------------------------------------------------------------------------------------------------------------------
14808 France PC DIRECT LOGO 16 11/25/1991 1707667 11/25/1991 Printed matter, magazines and
[2] newspapers; except any of the aforesaid
in paper-based or non-interactive
CD-ROM form.
------------------------------------------------------------------------------------------------------------------------------------
15204 France PC DIRECT LOGO 16, 41 5/24/1991 1667174 5/24/1991 All goods and services covered by the
WITH SLOGAN [2] registration except for any printed
matter, journals and periodicals in
paper-based or non-interactive CD-ROM
form.
------------------------------------------------------------------------------------------------------------------------------------
14833 France PC EXPERT LOGO 16, 41 10/15/1991 1699200 10/15/1991 Paper and printed matter, namely books,
newspapers, reviews and all
publications in the field of computers
and computing; except any of the
foregoing in paper-based or non-
interactive CD-ROM form.
------------------------------------------------------------------------------------------------------------------------------------
13440 France PC EXPERT LOGO 9, 35, 38, 42 9/10/1993 93/483084 9/10/1993 All goods and services covered by the
registration.
------------------------------------------------------------------------------------------------------------------------------------
15781 Germany PC DIREKT LOGO 16, 41 11/25/1991 2,042,020 8/9/1993 Publications, in particular newspapers,
[2] magazines and books; except any of the
aforesaid in paper-based or non-
interactive CD-ROM form.
------------------------------------------------------------------------------------------------------------------------------------
13538 Germany PC DIREKT SLOGAN 16, 41 11/25/1991 2,042,019 8/9/93 Printed matter, in particular
newspapers, magazines, books; except
any of the aforesaid in paper-based or
non-interactive CD-ROM form.
------------------------------------------------------------------------------------------------------------------------------------
14655 United PC DIRECT [2] 16 5/23/1991 B1465258 5/23/1991 Magazines; printed periodical
Kingdom publications; all relating to personal
computers; all included in Class 16;
except for any of the foregoing in
paper-based or non-interactive CD-ROM
form.
------------------------------------------------------------------------------------------------------------------------------------
14668 United PC DIRECT LOGO 16 6/4/1991 B1466192 6/4/1991 Magazines; printed periodical
Kingdom [2] publications; all relating to personal
computers; all included in Class 16;
except for any of the foregoing in
paper-based or non-interactive CD-ROM
form.
------------------------------------------------------------------------------------------------------------------------------------
15715 United PC MAGAZINE LOGO 16 10/31/1994 2001332 10/31/1994 Magazines (other than in paper-based or
Kingdom [12] non-interactive CD-ROM form.)
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
Schedule 2
Assumed Employees
Part A: The UK Employees
--------------------------------------------------------------------------------
Arias Alexander Labs Technician
--------------------------------------------------------------------------------
Bailey David Editor
--------------------------------------------------------------------------------
Baker Maxwell Photographer
--------------------------------------------------------------------------------
Barrick Gordon Art editor
--------------------------------------------------------------------------------
Beckett Tara Marketing Executive
--------------------------------------------------------------------------------
Bennett John Associate Editor
--------------------------------------------------------------------------------
Bennett Jonathan Network Editor
--------------------------------------------------------------------------------
Bennington Hazel Art editor
--------------------------------------------------------------------------------
Bidlake Julian Senior Account Director
--------------------------------------------------------------------------------
Bingley Lemuel Management Editor
--------------------------------------------------------------------------------
Blundell Debra Director of Custom Publishing
--------------------------------------------------------------------------------
Bright Simon Publisher
--------------------------------------------------------------------------------
Brown Aaron Senior Sub Editor
--------------------------------------------------------------------------------
Brownlow Patrick Account Manager
--------------------------------------------------------------------------------
Bryant Jackie Production Manager
--------------------------------------------------------------------------------
Button Paul Inside Sales Executive
--------------------------------------------------------------------------------
Carsey Jill Deputy Art editor
--------------------------------------------------------------------------------
Cashmore James Account Manager
--------------------------------------------------------------------------------
Chesters Sophie Marketing Executive
--------------------------------------------------------------------------------
Child Mark Technical Director
--------------------------------------------------------------------------------
Childs Claire Marketing Assistant
--------------------------------------------------------------------------------
Collins-White Rupert Staff Writer
--------------------------------------------------------------------------------
Corbin Daniel Project Manager
--------------------------------------------------------------------------------
Corless Fiona Editor
--------------------------------------------------------------------------------
Courtney Martin News Editor
--------------------------------------------------------------------------------
Craver David MD // Group Vice President
--------------------------------------------------------------------------------
Cree Bob Deputy Art editor
--------------------------------------------------------------------------------
Crisp Simon Assistant PC Analyst
--------------------------------------------------------------------------------
Daley Claire Assistant Billings Controller
--------------------------------------------------------------------------------
Doran Andrew Editorial Assistant
--------------------------------------------------------------------------------
Dryer Jeanette Sales Manager
--------------------------------------------------------------------------------
Dubash Manek Editor
--------------------------------------------------------------------------------
Dykes Alan Editor
--------------------------------------------------------------------------------
Edmunds Christopher Marketing Manager
--------------------------------------------------------------------------------
Edmunds Nicholas Enterprise Editor
--------------------------------------------------------------------------------
Farmer Barnaby Inside Sales Executive
--------------------------------------------------------------------------------
Garrard Beth Production Controller
--------------------------------------------------------------------------------
Gay Eve Key Account Manager
--------------------------------------------------------------------------------
Gilmour Caroline Staff Writer
--------------------------------------------------------------------------------
Gregory Wendy Subscription Manager
--------------------------------------------------------------------------------
<PAGE>
--------------------------------------------------------------------------------
Grew Maria Marketing Manager
--------------------------------------------------------------------------------
Hague Peter Newsstand Manager
--------------------------------------------------------------------------------
Hallam Laurence Senior Designer
--------------------------------------------------------------------------------
Hamilton Mark Production Editor
--------------------------------------------------------------------------------
Hands Adrian Account Director
--------------------------------------------------------------------------------
Harkus Kate Art Editor
--------------------------------------------------------------------------------
Harris Christian CD Editor
--------------------------------------------------------------------------------
Head Warren Digital Production Editor
--------------------------------------------------------------------------------
Henning Edward Director ZD Labs
--------------------------------------------------------------------------------
Howorth Roger US Labs Editor
--------------------------------------------------------------------------------
Hurst Joanne Production Director
--------------------------------------------------------------------------------
Jackson Peter Editorial Fellow
--------------------------------------------------------------------------------
Jenkins James IT Support Analyst
--------------------------------------------------------------------------------
Jenkins Michael Operations Assistant
--------------------------------------------------------------------------------
Johnston Sean Art Editor
--------------------------------------------------------------------------------
Johnstone Vickie Deputy Production Editor
--------------------------------------------------------------------------------
Jones Cal Reviews Editor
--------------------------------------------------------------------------------
Judge Peter Network editor
--------------------------------------------------------------------------------
Kelcz Frank Vice President Sales
--------------------------------------------------------------------------------
Kerr Victoria Secretary/Coordinator to Zen
--------------------------------------------------------------------------------
Kewney Guy Editorial Fellow
--------------------------------------------------------------------------------
Kotadia Munir Reporter
--------------------------------------------------------------------------------
Lake Matthew Chief Sub-Editor
--------------------------------------------------------------------------------
Lewis Rhys Features Editor
--------------------------------------------------------------------------------
Loney Matthew Senior Reporter
--------------------------------------------------------------------------------
Lyon Michael Financial Controller
--------------------------------------------------------------------------------
Macrae Eric Sub Editor
--------------------------------------------------------------------------------
Magni Peter Operations Manager
--------------------------------------------------------------------------------
Masud Rana Account Manager
--------------------------------------------------------------------------------
Mclellan Charles First Looks Editor
--------------------------------------------------------------------------------
Mcnab Andrew Account Manager
--------------------------------------------------------------------------------
McNeill Laura Sub editor
--------------------------------------------------------------------------------
Mohamed Arif Senior Reporter
--------------------------------------------------------------------------------
Monckton Paul Project Manager
--------------------------------------------------------------------------------
Moore Matthew Senior Technical Editor
--------------------------------------------------------------------------------
Morgan Gareth Editorial Assistant
--------------------------------------------------------------------------------
Morrell Robin Account Manager
--------------------------------------------------------------------------------
Neal Katrina Key Account Manager
--------------------------------------------------------------------------------
Neal David Editorial Assistant
--------------------------------------------------------------------------------
Nesbitt Alyson Facilities Manager
--------------------------------------------------------------------------------
Nott Philip Senior Account Director
--------------------------------------------------------------------------------
Oliva Lynsey Account Manager
--------------------------------------------------------------------------------
Patel Vikash CD Rom Executive
--------------------------------------------------------------------------------
Penzer Noel Senior Outside Sales Executive
--------------------------------------------------------------------------------
Phillips Guy Publisher
--------------------------------------------------------------------------------
<PAGE>
--------------------------------------------------------------------------------
Raouf Alison Staff Writer
--------------------------------------------------------------------------------
Reidy Margaret Billings Manager
--------------------------------------------------------------------------------
Relph Knight Terence Labs Manager
--------------------------------------------------------------------------------
Renwick Matthew Account Manager
--------------------------------------------------------------------------------
Roberts Nicholas Outside Sales Executive
--------------------------------------------------------------------------------
Robinson Daniel Technical Editor
--------------------------------------------------------------------------------
Roffey Emma Publishing Director
--------------------------------------------------------------------------------
Roffey Kate Project Manager
--------------------------------------------------------------------------------
Sandeman Florence PA to FD IMG/Travel Manager
--------------------------------------------------------------------------------
Sankey Lorraine PA to Publisher
--------------------------------------------------------------------------------
Shaikh Lubna Customer Services Executive
--------------------------------------------------------------------------------
Shami Sameena CD Rom Manager
--------------------------------------------------------------------------------
Sly Wendy Circulation Director
--------------------------------------------------------------------------------
Snowden Gemma Production Controller
--------------------------------------------------------------------------------
Stamper Matthew Credit Controller
--------------------------------------------------------------------------------
Stoodley Vanessa Production Editor
--------------------------------------------------------------------------------
Sullivan Eamonn Client/Consultant editor
--------------------------------------------------------------------------------
Taylor MKelvyn Senior Technical Advisor
--------------------------------------------------------------------------------
Taylor Martin Advertisement Manager
--------------------------------------------------------------------------------
Thompson Iain Technical Editor
--------------------------------------------------------------------------------
Tucker Henry Staff Writer
--------------------------------------------------------------------------------
Turnbull Peta Finance Director
--------------------------------------------------------------------------------
Valpuesta Robert Production Editor
--------------------------------------------------------------------------------
Veitch Martin Editor
--------------------------------------------------------------------------------
Wallis Lucy Editorial Assistant
--------------------------------------------------------------------------------
Walsh Christine Circulation Assistant
--------------------------------------------------------------------------------
Waraker Abigail Senior Reporter
--------------------------------------------------------------------------------
Webster Sarah Admin Assist
--------------------------------------------------------------------------------
Weston Gary Graphic Artist
--------------------------------------------------------------------------------
Wolpe Toby Editor in Chief
--------------------------------------------------------------------------------
Woodcock Robert Deputy Production Editor
--------------------------------------------------------------------------------
Woodhead Jennifer Exec asst to Group VP of IMG
--------------------------------------------------------------------------------
Wynn Jones Philip Deputy Usability Editor
--------------------------------------------------------------------------------
Yegliss Rebecca Production Assistant
--------------------------------------------------------------------------------
Yeo Bob Circulation Database Manager
--------------------------------------------------------------------------------
Young Kenneth Internet Editor
--------------------------------------------------------------------------------
<PAGE>
Part B: The German Employees
------------------------------------------------------------------------------
Name Vorname Tatigkeit
------------------------------------------------------------------------------
Adelberg Thimo Assistant Lab PCPro
------------------------------------------------------------------------------
Angerer Claudia Projektkoordinatorin
------------------------------------------------------------------------------
Assunta Aprede Assistant
------------------------------------------------------------------------------
Barnden Victoria Erziehungsurlaub
------------------------------------------------------------------------------
Bauer Markus Editor Net
------------------------------------------------------------------------------
Benz Thomas Qualitatssicherung Testlab.
------------------------------------------------------------------------------
Berthold Karl-Heinz Circ./Distr. Manager
------------------------------------------------------------------------------
Braun Ralf Outside Sales
------------------------------------------------------------------------------
Breyer Konstantin Editor
------------------------------------------------------------------------------
Dhein Jens Publisher
------------------------------------------------------------------------------
Diesl Petra Assistant und Sales (Stellen)
------------------------------------------------------------------------------
Donmez Semra Assistant
------------------------------------------------------------------------------
Dornberger Gerda Ad Coordinator
------------------------------------------------------------------------------
Duster Nicola Sales
------------------------------------------------------------------------------
Eickhoff Wiltrud Assistant General Manager
------------------------------------------------------------------------------
Elster Hans-Erich Ad Manager PCD
------------------------------------------------------------------------------
Faber Sascha Editor HW
------------------------------------------------------------------------------
Friese Gerda Accountant
------------------------------------------------------------------------------
Fugmann Manuel Tecnical Assistant
------------------------------------------------------------------------------
Gobel Matthias Editor
------------------------------------------------------------------------------
Goldmann Thomas Key Account Mgr.
------------------------------------------------------------------------------
Gorissen Brigitte Erziehungsurlaub bis 21.8.00
------------------------------------------------------------------------------
Grotzke Stefan Web Lab Projektleiter
------------------------------------------------------------------------------
Gumpert Georgia Mgr. ZD Productions
------------------------------------------------------------------------------
Gunther Heike Assistant Ad
------------------------------------------------------------------------------
Hage Marco Sales Support
------------------------------------------------------------------------------
Hannemann Birgit Sales
------------------------------------------------------------------------------
Heffter Frauke Event Managerin
------------------------------------------------------------------------------
Held Silvia Accountant
------------------------------------------------------------------------------
Henn Andrea Assistant Circulation
------------------------------------------------------------------------------
Hess Sabine Praktikantin
------------------------------------------------------------------------------
Hiermaier Marion Reception
------------------------------------------------------------------------------
Hoffmann Anne Inhouse Support
------------------------------------------------------------------------------
Hohertz Mark Trainee
------------------------------------------------------------------------------
Huber Stephan Accountant
------------------------------------------------------------------------------
Jannot Thomas Editor-in-chief
------------------------------------------------------------------------------
Jonischkeit Dirk Editor Lab
------------------------------------------------------------------------------
Kahles Katja Erziehungsurlaub
------------------------------------------------------------------------------
Kalbreier * Anja Assistant Editorial
------------------------------------------------------------------------------
Klotz Hans Production Manager
------------------------------------------------------------------------------
<PAGE>
<TABLE>
<S> <C> <C>
-----------------------------------------------------------------------------------------------
Kluge Oliver Editor
-----------------------------------------------------------------------------------------------
Konig Juliane Assistant
-----------------------------------------------------------------------------------------------
Koser Wolfgang Editor-in-chief
-----------------------------------------------------------------------------------------------
KreiB Tino Executive Editor
-----------------------------------------------------------------------------------------------
Kruse Uta Sales
-----------------------------------------------------------------------------------------------
Kuhn Stefan Executive Editor
-----------------------------------------------------------------------------------------------
Kuppe Heike Int. Sales Coordination
-----------------------------------------------------------------------------------------------
Lepusa Sinisa Ad-Service
-----------------------------------------------------------------------------------------------
Lucia Thomas Handyman
-----------------------------------------------------------------------------------------------
Lutz Arlett Editor
-----------------------------------------------------------------------------------------------
Mann Annette Chefin vom Dienst
-----------------------------------------------------------------------------------------------
Marcon Felix Editor HW
-----------------------------------------------------------------------------------------------
Mark Christopher Ad Coordinator Mgr.
-----------------------------------------------------------------------------------------------
Moersch Siegfried Editor
-----------------------------------------------------------------------------------------------
MoBner Petra Marketing Coordination
-----------------------------------------------------------------------------------------------
Muhle Jorg Ad Manager PCP
-----------------------------------------------------------------------------------------------
Muller-Kuritka Margot Erziehungsurlaub
-----------------------------------------------------------------------------------------------
Neumeier Franz Executive Editor
-----------------------------------------------------------------------------------------------
Paproth Bettina Layout
-----------------------------------------------------------------------------------------------
Piendl Susanne Sales
-----------------------------------------------------------------------------------------------
Pohl Jaqueline Editor
-----------------------------------------------------------------------------------------------
Prinz Sabine Erziehungsurlaub bis 31.7.00
-----------------------------------------------------------------------------------------------
Reifer Heike Photographer
-----------------------------------------------------------------------------------------------
Sass von Christine Layout
-----------------------------------------------------------------------------------------------
Schafer Christian Inhouse Support
-----------------------------------------------------------------------------------------------
Scharfenberger Michael General Manager
-----------------------------------------------------------------------------------------------
Scharl Annemarie Ad Manager Internet Pro
-----------------------------------------------------------------------------------------------
Schauer Alexander Editor HW
-----------------------------------------------------------------------------------------------
Schell Dietmar Proofreader
-----------------------------------------------------------------------------------------------
Schenkl Michaela Editor
-----------------------------------------------------------------------------------------------
Schillinger Martin Editor Lab
-----------------------------------------------------------------------------------------------
Schmerer Kai Tecnical Director
-----------------------------------------------------------------------------------------------
Scholz Christiane Accountant
-----------------------------------------------------------------------------------------------
Scholze Christoph Executive Editor
-----------------------------------------------------------------------------------------------
Schrader Alfons Publisher
-----------------------------------------------------------------------------------------------
Schroder Jens Editor
-----------------------------------------------------------------------------------------------
Schuler Ralph Editor Lab
-----------------------------------------------------------------------------------------------
Staudte Andrea Assistant
-----------------------------------------------------------------------------------------------
Steiner Tina Photographer (Group l.)
-----------------------------------------------------------------------------------------------
Strobel Meike Assistant
-----------------------------------------------------------------------------------------------
Stromer Gerald Editor
-----------------------------------------------------------------------------------------------
Stroux Annette Assistant Editorial
-----------------------------------------------------------------------------------------------
Thaler Silvia Personnel
-----------------------------------------------------------------------------------------------
Tolksdorf Bianca Sales
-----------------------------------------------------------------------------------------------
Toprak Mehmet Editor Aktuell
-----------------------------------------------------------------------------------------------
Unterberg Janina Ciruclations Koordination
-----------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
-----------------------------------------------------------------------------------------------
Vogl Romana Sales
-----------------------------------------------------------------------------------------------
Weinstein Anja Editor
-----------------------------------------------------------------------------------------------
Weiss Helmut Mgr. Inhouse Support
-----------------------------------------------------------------------------------------------
Widmann Britta Editor
-----------------------------------------------------------------------------------------------
Wild Christian Production
-----------------------------------------------------------------------------------------------
Zeiler Katrin Manager Finance/Facility
-----------------------------------------------------------------------------------------------
Zimmermann Inge Sales
-----------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
Part C: The French Employees
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------
Last name First Name Position
---------------------------------------------------------------------------------------------
<S> <C> <C>
Alipo Sylvia Trainee
---------------------------------------------------------------------------------------------
Antomarchi Celina Human Resources Assistant
---------------------------------------------------------------------------------------------
Bader Nicolas Trainee
---------------------------------------------------------------------------------------------
Belot Nicholas Editor
---------------------------------------------------------------------------------------------
Berlemont Pierre Senior Sub Editor
---------------------------------------------------------------------------------------------
Bohbot Jerome Photographer
---------------------------------------------------------------------------------------------
Botton Frederic Senior Editor
---------------------------------------------------------------------------------------------
Boutier Frederic Editor
---------------------------------------------------------------------------------------------
Bray Vincent Finance Manager
---------------------------------------------------------------------------------------------
Cappe de baillon M Research Director
---------------------------------------------------------------------------------------------
Chavanne Sabine Production Manager
---------------------------------------------------------------------------------------------
Claverie Nelly Hostess
---------------------------------------------------------------------------------------------
Colin Carole Circulation Manager
---------------------------------------------------------------------------------------------
Coulaud Patricia Manufacturer
---------------------------------------------------------------------------------------------
Courouble Carole Artist Manager
---------------------------------------------------------------------------------------------
Creusot Pascal Senior Editor
---------------------------------------------------------------------------------------------
Cutman Lauwiks Labs Editor
---------------------------------------------------------------------------------------------
Dazord Marianne Marketing Manager
---------------------------------------------------------------------------------------------
De lacvivier Bertrand Sales PCD
---------------------------------------------------------------------------------------------
De lamaisonneuve Lorna Sales PCE
---------------------------------------------------------------------------------------------
Delion Sandrine Trainee
---------------------------------------------------------------------------------------------
Demagahaeles Sandra Marketing
---------------------------------------------------------------------------------------------
Demont Faucon Elise Trainee
---------------------------------------------------------------------------------------------
Derouet Thierry Director and Editor in Chief
---------------------------------------------------------------------------------------------
Der sahaguian Philip Associate Group Publisher
---------------------------------------------------------------------------------------------
Dessillons Cedric Stock Manager
---------------------------------------------------------------------------------------------
Dessommes Isabelle Sub-Editor
---------------------------------------------------------------------------------------------
Dondon Meric Trainee
---------------------------------------------------------------------------------------------
Douay Michele Associate Editor in Chief
---------------------------------------------------------------------------------------------
Dragovic Slobodan Labs Editor
---------------------------------------------------------------------------------------------
El Bouzidi Nazha Production Assistant
---------------------------------------------------------------------------------------------
Favalier Anne Sub-Editor Manager
---------------------------------------------------------------------------------------------
Flores Joscelyn Associate Editor in Chief
---------------------------------------------------------------------------------------------
Fontaine Alan Production Manager
---------------------------------------------------------------------------------------------
Gabiot Bruno Artist Manager
---------------------------------------------------------------------------------------------
Georges Benoit Associate Editor in Chief
---------------------------------------------------------------------------------------------
Ghislaine Georges Human Resources Assistant
---------------------------------------------------------------------------------------------
Grousset Bertrand Artist Director
---------------------------------------------------------------------------------------------
Hamani Oihcen Facilities Assistant
---------------------------------------------------------------------------------------------
Henriol Muriel Trainee
---------------------------------------------------------------------------------------------
Huet Benoit Senior Editor
---------------------------------------------------------------------------------------------
Jacob Isabelle Financial Controller
---------------------------------------------------------------------------------------------
Jajolet Vincent Senior Editor
---------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
---------------------------------------------------------------------------------------------
Joncret Brigitte Credit Manager
---------------------------------------------------------------------------------------------
Kharaman Tulin Accountant
---------------------------------------------------------------------------------------------
Labousset Pierre Assistant Editor in Chief
---------------------------------------------------------------------------------------------
Lavizzari Cyrille Sales
---------------------------------------------------------------------------------------------
Legrand Yves Facilities Manager
---------------------------------------------------------------------------------------------
Lenhard Gentlane Editor
---------------------------------------------------------------------------------------------
Leroy Guillaume Sales
---------------------------------------------------------------------------------------------
Lesant Stephanie
---------------------------------------------------------------------------------------------
Lourier Florence Products Chief
---------------------------------------------------------------------------------------------
Marechaux Carole Sales Inside
---------------------------------------------------------------------------------------------
Martin Alain Sales Manager
---------------------------------------------------------------------------------------------
Messager Olivier
---------------------------------------------------------------------------------------------
Miguel Fernando Senior Manager
---------------------------------------------------------------------------------------------
Mitrani Marc Senior Editor / Labs Director
---------------------------------------------------------------------------------------------
Monflier Frederic Editor
---------------------------------------------------------------------------------------------
Monnier Alexandrine Assistant
---------------------------------------------------------------------------------------------
Morand Catherine Sales PCD
---------------------------------------------------------------------------------------------
Obert Virginie Traffic Assistant
---------------------------------------------------------------------------------------------
Pagel Claudia Artist
---------------------------------------------------------------------------------------------
Petit Dominique Human Resources Director
---------------------------------------------------------------------------------------------
Pognon Paulette Accountant Manager
---------------------------------------------------------------------------------------------
Redureau Bernard Sub-Editor Manager
---------------------------------------------------------------------------------------------
Renavot Katell Circulation Assistant
---------------------------------------------------------------------------------------------
Riviere Pascal F & A Deputy General Director
---------------------------------------------------------------------------------------------
Rodrigues Christophe Labs Editor
---------------------------------------------------------------------------------------------
Romanos Chadi Senior Editor
---------------------------------------------------------------------------------------------
Saroufim Alain Circulation Director
---------------------------------------------------------------------------------------------
Scherer Patrick Editorial Director
---------------------------------------------------------------------------------------------
Seror Louise Hostess
---------------------------------------------------------------------------------------------
Simonnot Anne Executive Assistant
---------------------------------------------------------------------------------------------
Surena Frank Group Publisher
---------------------------------------------------------------------------------------------
Tarrieu Herve Digital Assistant
---------------------------------------------------------------------------------------------
Thorin Nicolas Sales
---------------------------------------------------------------------------------------------
Tonneau Edouard Editor
---------------------------------------------------------------------------------------------
Vekeman Cedric Artist PAO
---------------------------------------------------------------------------------------------
Venite Louisa
---------------------------------------------------------------------------------------------
Vermel Christophe
---------------------------------------------------------------------------------------------
Zerdazi Pierre Photographer
---------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
Schedule 3
Contracts
United Kingdom
--------------
1. Printing Agreement Terms and Conditions
2. Printing Agreement with St. Ives dated 1 January 2000
3. Secondary Research Contracts:
a. with Media Monitoring Services
b. with Dataquest
c. with IDC
4. Mobile phone contracts relevant to the UK Employees
5. Company Car Leases
6. Business Agreement with PC Direct Limited restricting use of `PC Direct'
Trade Mark dated 6 October 1992
7. All employment agreements relating to the UK Employees
8. Letter to David Craven dated 19 October 1999 *
9. Subscription Fulfillment Agreement between ZDUK and Tower Publishing Limited
dated 8 July 1998
10. Sales distribution agreement between ZDUK and Market Force Limited dated 21
August 1998
Germany
1. Kooperationsvertrag fur exklusive Sponsorship Partner - CD's mit dem Title
"PC Direkt" with AOL Bertselsmann Online GmBH & Co. KG * and ZDG. The
parties are operating under three similar unexecuted agreements that have
been formalised for AOL for execution)
2. All employment agreements relating to the German Employees
3. Terms and Conditions of employment
4. Mobile telephone contracts
5. Company Car leases
<PAGE>
France
1. Yahoo! Licence Agreement between Yahoo and Ziff Davis Publishing dated 15
January 1996 insofar as it relates to the Print-based Publications
2. Company car leases
3. Mobile telephone contracts
4. Co-operative des publications parisiennes *
5. Contract Commercial Courier - Colis 98 - La Post *
6. Distribution Costs Agreement with France Routage dated 31 August 1997 *
7. Fulfillment Agreement with Axime Direct dated 1 August 1995 *
8. Sales representatives agreement with Phillipe le Grix de la Salle &
Associates dated [ ]
9. Charter Data Mailing Contracts *
10. Employment agreements relating to the French Employees
11. Production Contract with Maury Imprimeur dated 1 February 1997
12. Fulfillment Agreement with La Societe KOBA
<PAGE>
Schedule 4
The Publications
Part A:
-------
UK Publications
---------------
IT Week
PC Magazine
PC Direct
PC Gaming World
Part B:
-------
German Publications
-------------------
PC Professionell
PC Direkt
Internet Professionell
Part C:
-------
French Publications
-------------------
PC Expert
PC Direct
Yahoo Internet Life
<PAGE>
Schedule 5
`Editorial Voices' of the Publications
U.K. Publications
-----------------
PC Magazine
PC Magazine delivers authoritative, labs-based comparative reviews of computing
and Internet products. PC Magazine provides in-depth reviews and accurate,
repeatable benchmark testing from PC Magazine Labs.
IT Week
IT Week provides in-depth news analysis and case studies for most important
technology buyers at the U.K.'s most intensive IT sites. The key difference from
the other IT books in the U.K. is that it is about how to do the job versus how
to get a job.
PC Direct
PC Direct targets professional and at-home buyers who purchase from direct
sellers and retailers. The magazine provides expert advice on what, where and
how to buy computer products for buyers who prefer to purchase direct, via
telephone, facsimile or the Internet. The magazine provides test results on all
types of products including computers, components, drives and motherboards and
provides pricing advice on a wide variety of computer products.
PC Gaming World
PC Gaming World's focus is toward the higher spending, more affluent gaming
player. It is used by serious gamers who are looking to purchase new games. The
editorial focus is to cover every new PC product released in the game
marketplace each month and to offer comprehensive, in-depth reviews of such
games.
German Publications
-------------------
PC Professionell
PC Professionell delivers authoritative, labs-based comparative reviews of
computing and Internet products. PC Professionell provides in-depth reviews and
accurate, repeatable benchmark testing from PC Magazine Labs.
PC Direkt
PC Direkt targets professional and at-home buyers who purchase from direct
sellers and retailers. The magazine provides expert advice on what, where and
how to buy computer products for buyers who prefer to purchase direct, via
telephone, facsimile or the Internet. PC Direkt provides test results on all
types of products including computers, components, drives and motherboards and
provides pricing advice on a wide variety of computer products.
Internet Professionell
Internet Professionell is positioned towards technology professionals with
buying power or who are developing, managing and maintaining web sites. It is
used as an information source for the rapidly growing and constantly changing
Internet marketplace.
<PAGE>
French Publications
-------------------
PC Expert
PC Expert delivers authoritative, labs-based comparative reviews of computing
and Internet products. PC Expert provides in-depth reviews and accurate,
repeatable benchmark testing from PC Magazine Labs.
PC Direct
The magazine targets professional and at-home buyers who purchase from direct
sellers and retailers. The magazine provides expert advice on what, where and
how to buy computer products for buyers who prefer to purchase direct, via
telephone, facsimile or the Internet. The magazine provides test results on all
types of products including computers, components, drives and motherboards and
provides pricing advice on a wide variety of computer products.
Yahoo! Internet Life
Yahoo! Internet Life is a consumer based magazine that focuses on showing
consumers how the Internet can change their everyday life by explaining how and
where to access and utilize the most valuable content on the World Wide Web.
The editorial focus of the magazine helps novices discover the World Wide Web.
<PAGE>
Schedule 6
Part A -The Sellers' Representations and Warranties
The following representations and warranties are qualified by all matters set
forth in the Disclosure Letter.
1. Capacity of the Sellers
1.1 The ZD Parent is a company duly incorporated and validly existing under the
laws of the state of Delaware, United States of America.
1.2 ZDEL and ZDF are companies duly incorporated and validly existing under the
laws of England and Wales.
1.3. ZDVG is a company duly organised and validly existing under the laws of
Germany, not yet entered into the Commercial Register.
1.4 ZDF is a company duly incorporated and validly existing under the laws of
France.
1.5 Each of the Sellers, ZD Licensor and the Parent has the requisite power and
authority to enter into and perform this Agreement and any other agreement
referred to in it.
1.6 The Completion Documents will, when executed, constitute binding
obligations of the Sellers, ZD Licensor and the ZD Parent being Party to
them in accordance with their respective terms.
1.7 The execution and delivery of this Agreement and the performance by
each of the Sellers, ZD Licensor and the Parent of its obligations under
it, will not:
a. result in a breach of any provision of its memorandum or articles of
association or equivalent constitutional documents;
b. result in a breach of, or constitute a default under, any instrument
to which it is a party or by which it is bound;
c. result in a breach of any order, judgment or decree of any court,
governmental agency or regulatory body to which it is a party or by
which it is bound; or
d. require the consent of its shareholders or of any other person.
2. Accuracy of Information
All information contained in this Agreement and the Disclosure Letter and all
other information given or made available to the Purchasers, their solicitors,
accountants, agents or other representatives by or on behalf of the Sellers and
ZD Licensor concerning or which might concern the Businesses and/or the Assets
has been given in good faith and believed in good faith to be true and correct
in all material respects and no matter or fact has been knowingly withheld, the
omission of which renders any such information materially untrue or
<PAGE>
misleading and all facts specific to the Businesses and/or the Sellers, ZD
Licensor and ZD Parent which could materially affect the value of the Assets
have been disclosed in this Agreement or the Disclosure Letter or otherwise
provided to the Purchasers, their employees, solicitors and accountants.
3. Ownership of the Businesses and the Assets
3.1 No person other than the Sellers and ZD Licensor has any interest in any of
the Businesses and/or the Assets.
3.2 Each of the Assets is owned both legally and beneficially by one or more of
the Sellers or ZD Licensor free from any third party rights, and the same
being capable of possession is in the possession of the Sellers and/or ZD
Licensor and situated in the Territory.
3.3 No Encumbrance or equity on, over or affecting the whole or any part of the
Assets is outstanding and there is no agreement or commitment to give or
create any and no claim has been made by any person to be entitled to any.
3.4 Neither the Sellers nor ZD Licensor is under any obligation of any kind
whatsoever to sell, charge or otherwise dispose of the Assets or any
interests therein to any other person.
<PAGE>
Schedule 6
Part B
The Purchasers' Representations and Warranties
1. Capacity of the Purchasers
1.1 VNU Parent is a company duly incorporated and validly existing under the
laws of the Netherlands.
1.2 VG is a company duly incorporated and validly exiting under the laws of
the Netherlands.
1.3 VBPL is a company duly incorporated and validly existing under the laws of
England.
1.4 VG is a company duly incorporated and validly existing under the laws of
Germany.
1.5 VBF is a company duly incorporated and validly existing under the laws of
France.
1.6 The Purchasers have the requisite power and authority to enter into and
perform this Agreement and any other agreements referred to herein.
1.7 The Completion Documents constitute binding obligations of the Purchasers
in accordance with their respective terms.
1.8 The execution and delivery of this Agreement and the performance by the
Purchasers of their obligations under it will not :
a. result in a material breach of any provision of their memorandum or
articles of association or equivalent constitutional documents;
b. result in a material breach of, or constitute a default under, any
agreement or instrument to which any of the Purchasers are a party or
by which any of them may be bound;
c. result in a breach of any order, judgment or decree of any court,
governmental agency or regulatory body to which any of the Purchasers
is a party or by which any of them may be bound; or
d. require the consent of their shareholders or any other person.
2. Financial Capacity
2.1 The Purchasers acknowledge that their obligations under this Agreement to
purchase the Assets and to pay the Initial Consideration are not subject to
any financing condition or contingency on the part of Purchasers and the
Purchasers have sufficient financial resources to pay the Initial
Consideration (and other payments due) at Completion.
<PAGE>
Schedule 7
The Computations
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Example 1: Purchasers' Collected Amount is less than the
Closing Net Receivable Amount:
. Closing Net Receivable Amount: US$12,000,000
. Collected Amount: US$11,000,000
. Accounts Receivable Deficit: US$1,000,000
Purchasers remit to ZDEL US$11,500,000 being the
Collected Amount of US$11,000,000 plus 50.00% of
the Shortfall Balancing Payment of US$500,000
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Example 2: Purchasers' Collected Amount is less than the
Closing Net Receivable Amount:
. Closing Net Receivable Amount: US$14,000,000
. Collected Amount: US$10,000,000
. Accounts Receivable Deficit: US$4,000,000
Purchasers remit to ZDEL US$11,500,000 being the
Collected Amount of US$10,000,000) plus
US$1,500,000 being the capped amount of
the Accounts Receivable Deficit
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Example 3: Purchasers' Collected Amount is equal to or more
than the Closing Net Receivable Amount:
. Closing Net Receivable Amount: US$14,000,000
. Collected Amount: US$16,000,000
. Accounts Receivable Excess: US$2,000,000
Purchasers remit to ZDEL US$15,000,000 being the
Closing Net Receivable Amount of US$14,000,000
plus US$1,000,000 being 50.00% of the Accounts
Receivable Excess.
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