<PAGE>1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 2 TO
SCHEDULE 13D
Under the Securities Exchange Act of 1934
MICKELBERRY COMMUNICATIONS INCORPORATED
(Name of Issuer)
COMMON STOCK, PAR VALUE $1.00
(Title of Class of Securities)
594780 10 8
(CUSIP Number)
Mr. George Kane
Mickelberry Communications Incorporated
405 Park Avenue
New York, New York 10022
(212) 832-0303
(Name, Address and Telephone Number
of Person Authorized to Receive Notices
and Communications)
March 29, 1995
(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following
box / /.
Check the following box if a fee is being paid with the statement / /.
<PAGE>2
SCHEDULE 13D
CUSIP No. 594780 10 8
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
MR. JAMES C. MARLAS
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
a[ ]
b[ ]
3. SEC USE ONLY
4. SOURCE OF FUNDS*
BK, PF
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
7. SOLE VOTING POWER
1,852,838
NUMBER OF 8. SHARED VOTING POWER
SHARES
BENEFICIALLY None
OWNED BY
EACH 9. SOLE DISPOSITIVE POWER
REPORTING
PERSON 1,852,838
WITH
10. SHARED DISPOSITIVE POWER
None
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,852,838
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
26.8%
14. TYPE OF REPORTING PERSON*
IN
<PAGE>3
SCHEDULE 13D
CUSIP No. 594780 10 8
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
UNION CAPITAL CORPORATION
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
a[ ]
b[ ]
3. SEC USE ONLY
4. SOURCE OF FUNDS*
BK, OO
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Nevada
7. SOLE VOTING POWER
1,974,065
NUMBER OF 8. SHARED VOTING POWER
SHARES
BENEFICIALLY None
OWNED BY
EACH 9. SOLE DISPOSITIVE POWER
REPORTING
PERSON 1,974,065
WITH
10. SHARED DISPOSITIVE POWER
None
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,974,065
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
28.6%
14. TYPE OF REPORTING PERSON*
CO
<PAGE>4
SCHEDULE 13D
CUSIP No. 594780 10 8
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
MICKELBERRY ACQUISITION CORPORATION
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
a[ ]
b[ ]
3. SEC USE ONLY
4. SOURCE OF FUNDS*
N/A
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7. SOLE VOTING POWER
None
NUMBER OF 8. SHARED VOTING POWER
SHARES
BENEFICIALLY None
OWNED BY
EACH 9. SOLE DISPOSITIVE POWER
REPORTING
PERSON None
WITH
10. SHARED DISPOSITIVE POWER
None
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0%
14. TYPE OF REPORTING PERSON*
CO
<PAGE>5
This Amendment No. 2 to Schedule 13D amends the Schedule 13D
reporting an event that occurred on November 1, 1994 (the "Schedule 13D") and
the Amendment No. 1 to Schedule 13D reporting an event that occurred on March
21, 1995 which were filed by Mr. James C. Marlas and Union Capital Corporation
with regards to Mickelberry Communications Incorporated (the "Company"), and
is being filed pursuant to Rule 13d-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as amended (the "Exchange Act").
Except as disclosed herein, there has been no change in the information
previously reported in the Schedule 13D. Unless otherwise indicated, all
capitalized terms used herein but not defined herein shall have
the same meaning as set forth in the Schedule 13D.
Item 2. Identity and Background.
Item 2 is hereby amended by deleting the first paragraph and by inserting
the following as the first paragraph:
"This statement is being filed by Mr. James C. Marlas ("Mr. Marlas"), by
Union Capital Corporation, a Nevada corporation of which Mr. Marlas is the
sole stockholder ("Union Capital"), and by Mickelberry Acquisition Corporation
("Acquisition"), a Delaware corporation of which Mr. Marlas is the sole
stockholder. Union Capital is engaged in the business of private consulting
and investment. Acquisition was created to facilitate the consummation of the
merger described in Item 4 below."
<PAGE>6
Item 2 is further amended by replacing the last sentence of the third
paragraph with the following sentence:
"Mr. Marlas is also President of Union Capital and Acquisition."
Item 2 is further amended by inserting the words "or Acquisition" after
the words "Union Capital" in the last paragraph.
Item 3. Source and Amount of Funds or Other Consideration.
Item 3 is hereby amended by replacing the first sentence of the first
paragraph with the following:
"As of the date hereof, Mr. Marlas beneficially owned 1,852,838 Shares."
Item 4. Purpose of Transaction.
Item 4 is hereby amended by adding the following paragraphs after the
third paragraph thereof:
"On March 29, 1995, a definitive Agreement and Plan of Merger (the
"Merger Agreement"), by and among the Company, Acquisition, Mr. Marlas and
Union Capital was signed pursuant to which (i) Acquisition will merge (the
"Merger") with and into the Company with the Company being the surviving
corporation, and (ii) the holders of all of the shares of the Company's Common
Stock not owned by Mr. Marlas (except for 59,400 shares owned by Mr. Marlas in
a Keogh Plan) as well as the holders of all of the shares of the Company's
Preferred Stock, par value $1 per share (the "Preferred Stock"), will receive
a cash purchase price of $4.25 per share. The Merger Agreement is filed
herewith as an
<PAGE>7
Exhibit and reference is made to such Merger Agreement for the exact terms of
the Merger.
The consummation of the transactions contemplated by the Merger
Agreement is subject to a number of conditions, including (a) the approval of
the Agreement by the affirmative vote of at least (1) the holders of a
majority of the shares outstanding or (2) 66 2/3% of the votes cast by the
holders of the shares voting at a special meeting, whichever is greater, (b) a
satisfactory agreement reached with institutional investors holding the
Debentures regarding the early retirement of these securities, (c) the receipt
of all necessary consents and governmental approvals, (d) the holders of not
more than 5% of the outstanding shares of Preferred Stock and Common Stock
shall have exercised their appraisal rights in the Merger, and (e) the receipt
of third-party financing."
<PAGE>8
Item 5. Interest in Securities of the Issuer.
Item 5 is hereby amended by replacing the chart in the first paragraph
with the following:
"Beneficial Owner Number of Shares Percentage**
Mr. James C. Marlas 1,852,838 (1)(2) 26.8%
Union Capital Corporation 1,974,065 (3) 28.6%"
Item 6. Contracts, Arrangements, Understandings or Relationships With
Respect to Securities of the Issuer.
Item 6 is hereby amended by replacing the last sentence of the first
paragraph with the following:
"As of the date hereof, option to purchase all such 50,000 Shares
are exercisable."
- ----------------------------------
** Based on 6,916,183 Shares comprised of the sum of (x) 5,877,948 Shares
outstanding as of March 13, 1995, (y) 988,235 Shares which may be
acquired upon conversion at any time by Mr. Marlas of $4,200,000 in
principal amount of the Debentures held by him, and (z) 50,000 Shares
which may be acquired by Mr. Marlas upon the exercise of certain options.
(1) Include (a) 988,235 Shares which may be acquired upon
conversion at any time by Mr. Marlas of $4,200,000 in principal
amount of Debentures held by him, (b) 144,000 Shares purchased
for the benefit of Mr. Marlas by the profit-sharing trust of
the Company, and (c) 50,000 Shares which may be acquired upon
the exercise of certain options granted to Mr. Marlas.
(2) As to all of which there is sole power to dispose or to direct
the disposition of such Shares.
(3) As to all of which there is sole power to dispose or to direct
the disposition of such Shares.
<PAGE>9
Item 7. Materials to be Filed as Exhibits.
Item 7 is hereby amended by replacing Exhibit 1 - "Agreement
Regarding Joint Filing of Schedule 13D" and by adding the following exhibits:
"Exhibit 6. Press release, dated March 29, 1995, issued by the
Company.
Exhibit 7. Agreement and Plan of Merger, dated as of March 21, 1995
by and among the Company, Acquisition, Union Capital and Mr. Marlas."
<PAGE>10
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true, complete
and correct.
Date: April 3, 1995
By: /s/ JAMES C. MARLAS
James C. Marlas
<PAGE>11
After reasonable inquiry and to the best of our knowledge and
belief, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: April 3, 1995
UNION CAPITAL CORPORATION
By: /s/ JAMES C. MARLAS
James C. Marlas
President
<PAGE>12
After reasonable inquiry and to the best of our knowledge and
belief, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: April 3, 1995
MICKELBERRY ACQUISITION CORPORATION
By: /s/ JAMES C. MARLAS
James C. Marlas
President
<PAGE>1
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
MICKELBERRY COMMUNICATIONS INCORPORATED,
MICKELBERRY ACQUISITION CORPORATION,
UNION CAPITAL CORPORATION
AND
MR. JAMES C. MARLAS
Dated as of March 21, 1995
<PAGE>2
TABLE OF CONTENTS
ARTICLE I
THE MERGER
SECTION 1.1. Meeting of Mickelberry's Stockholders; Proxy
Statement; Schedule 13E-3 . . . . . . . . . . . . . . . . . 1
1.2. The Merger . . . . . . . . . . . . . . . . . . . . . . . . 2
1.3. Conversion of Outstanding Shares . . . . . . . . . . . . . 3
1.4. Surrender and Exchange . . . . . . . . . . . . . . . . . . 4
1.5. Certificate of Incorporation . . . . . . . . . . . . . . . 5
1.6. By-laws . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.7. Directors and Officers . . . . . . . . . . . . . . . . . . 5
1.8. Stock Transfer Books . . . . . . . . . . . . . . . . . . . 5
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF MICKELBERRY
SECTION 2.1. Corporate Organization . . . . . . . . . . . . . . . . . . 6
2.2. Capitalization . . . . . . . . . . . . . . . . . . . . . . 6
2.3. Authorization and Validity of Agreement . . . . . . . . . 6
2.4. No Conflict or Violation . . . . . . . . . . . . . . . . . 7
2.5. Consents and Approvals . . . . . . . . . . . . . . . . . . 7
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF MICKELBERRY ACQUISITION
SECTION 3.1. Corporate Organization . . . . . . . . . . . . . . . . . . 8
3.3. Subsidiaries and Equity Investments . . . . . . . . . . . 8
3.4. Authorization and Validity of Agreement . . . . . . . . . 8
3.5. No Conflict or Violation . . . . . . . . . . . . . . . . . 9
3.6. Consents and Approvals . . . . . . . . . . . . . . . . . . 9
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF UNION CAPITAL AND MARLAS
SECTION 4.1. Corporate Organization . . . . . . . . . . . . . . . . . . 10
4.2. Capitalization of Union Capital . . . . . . . . . . . . . 10
4.3. Title to Cancelled Shares . . . . . . . . . . . . . . . . 10
<PAGE>3
4.4. Authorization and Validity of Agreement . . . . . . . . . 10
4.5. No Conflict or Violation . . . . . . . . . . . . . . . . . 11
ARTICLE V
COVENANTS OF MICKELBERRY
SECTION 5.1. Conduct of Mickelberry . . . . . . . . . . . . . . . . . . 11
5.2. Access to Information . . . . . . . . . . . . . . . . . . 12
5.3. Indemnification and Insurance . . . . . . . . . . . . . . 13
5.4. Vote . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.5. Letter Agreement and Other Fees and Expenses . . . . . . . 14
5.6. Stock Options . . . . . . . . . . . . . . . . . . . . . . 14
5.7. No Mergers, Consolidations, Sale of Stock, etc. . . . . . 15
5.8. Convertible Debentures . . . . . . . . . . . . . . . . . . 15
ARTICLE VI
COVENANTS OF MICKELBERRY ACQUISITION
SECTION 6.1. Conduct of Mickelberry Acquisition . . . . . . . . . . . . 15
6.2. Access to Information . . . . . . . . . . . . . . . . . . 16
ARTICLE VII
COVENANTS OF UNION CAPITAL AND MARLAS
SECTION 7.1. Vote . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
7.2. No Sale or Disposition; Waiver . . . . . . . . . . . . . . 16
ARTICLE VIII
OTHER AGREEMENTS
SECTION 8.1. Best Efforts . . . . . . . . . . . . . . . . . . . . . . . 16
8.2. Notification of Certain Matters . . . . . . . . . . . . . 17
8.3. Further Assurances . . . . . . . . . . . . . . . . . . . . 17
ARTICLE IX
CONDITIONS TO THE MERGER
SECTION 9.1. Conditions to the Obligations of Each Party . . . . . . . 18
9.2. Conditions to the Obligation of Mickelberry . . . . . . . 18
9.3. Conditions to the Obligation of Mickelberry
Acquisition . . . . . . . . . . . . . . . . . . . . . . . 19
<PAGE>4
ARTICLE X
TERMINATION
SECTION 10.1. Termination . . . . . . . . . . . . . . . . . . . . . . . 20
10.2. Effect of Termination . . . . . . . . . . . . . . . . . . 21
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Notices . . . . . . . . . . . . . . . . . . . . . . . . . 21
11.2. Survival . . . . . . . . . . . . . . . . . . . . . . . . 21
11.3. Amendment . . . . . . . . . . . . . . . . . . . . . . . . 22
11.4. Waiver . . . . . . . . . . . . . . . . . . . . . . . . . 22
11.5. Successors and Assigns . . . . . . . . . . . . . . . . . 22
11.6. Governing Law . . . . . . . . . . . . . . . . . . . . . . 22
11.7. Integration . . . . . . . . . . . . . . . . . . . . . . . 23
11.8. Headings and References . . . . . . . . . . . . . . . . . 23
11.9. Counterparts; Effectiveness . . . . . . . . . . . . . . . 23
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
EXHIBIT A Form of Certificate of Incorporation of the Surviving
Corporation
SCHEDULES
Schedule 1.3 Certain Shares
Schedule 2.1 Subsidiaries
<PAGE>5
INDEX TO DEFINED TERMS
Defined Term Where Defined
Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . Introduction
Cancelled Shares . . . . . . . . . . . . . . . . . . . . . . . . 1.3(a)
Certificate of Merger . . . . . . . . . . . . . . . . . . . . . . 1.2(b)
Client . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2
Convertible Debentures . . . . . . . . . . . . . . . . . . . . . 2.4
Delaware Law . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2(a)
Effective Time . . . . . . . . . . . . . . . . . . . . . . . . . 1.2(b)
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1(b)
HSR Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5
Letter Agreement . . . . . . . . . . . . . . . . . . . . . . . 5.5
Marlas . . . . . . . . . . . . . . . . . . . . . . . . . . . . Introduction
Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recitals
Merger Consideration . . . . . . . . . . . . . . . . . . . . . . 1.3(a)
Mickelberry . . . . . . . . . . . . . . . . . . . . . . . . . . . Introduction
Mickelberry Acquisition . . . . . . . . . . . . . . . . . . . . . Introduction
Option Consideration . . . . . . . . . . . . . . . . . . . . . . 5.6
Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.6
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4(a)
Preferred Stock . . . . . . . . . . . . . . . . . . . . . . . . . 2.2
Proxy Statement . . . . . . . . . . . . . . . . . . . . . . . . . 1.1(b)
SEC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1(b)
Schedule 13E-3 . . . . . . . . . . . . . . . . . . . . . . . . . 1.1(b)
Share . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3(a)
Special Meeting . . . . . . . . . . . . . . . . . . . . . . . . . 1.1(a)
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1
Surviving Corporation . . . . . . . . . . . . . . . . . . . . . . 1.2(a)
Termination Agreement . . . . . . . . . . . . . . . . . . . . . . 5.6
Union Capital . . . . . . . . . . . . . . . . . . . . . . . . . . Introduction
Wertheim Opinion . . . . . . . . . . . . . . . . . . . . . . . . 2.4
<PAGE>6
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated as of March 21, 1995 (this
"Agreement") by and among MICKELBERRY COMMUNICATIONS INCORPORATED, a Delaware
corporation ("Mickelberry"), MICKELBERRY ACQUISITION CORPORATION, a Delaware
corporation ("Mickelberry Acquisition"), UNION CAPITAL CORPORATION, a Nevada
corporation ("Union Capital") and Mr. JAMES C. MARLAS ("Marlas").
WHEREAS, each of Mickelberry Acquisition and Union Capital is wholly
owned by Marlas;
WHEREAS, each of Union Capital and Marlas owns shares of common stock of
Mickelberry;
WHEREAS, the parties hereto desire to effect the merger of Mickelberry
Acquisition with and into Mickelberry (the "Merger") pursuant to the terms of
this Agreement;
WHEREAS, upon the consummation of the Merger, each share of common stock
of Mickelberry Acquisition will be converted into and become one share of
common stock of the surviving corporation; and
WHEREAS, the Board of Directors of each of Mickelberry and Mickelberry
Acquisition have determined that the Merger contemplated hereby is fair to and
in the best interests of Mickelberry and its shareholders and Mickelberry
Acquisition and its sole shareholder;
NOW THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
ARTICLE I
THE MERGER
SECTION 1.1. Meeting of Mickelberry's Stockholders; Proxy Statement;
Schedule 13E-3. (a) Mickelberry will take all action necessary in accordance
with applicable law to convene a meeting of its stockholders (the "Special
Meeting") as promptly as practicable after the date hereof to consider and
vote upon the Merger. The Board of Directors of Mickelberry, subject to its
fiduciary duties as advised by counsel, will recommend that Mickelberry's
stockholders vote in favor of the Merger and the approval and adoption of this
Agreement.
(b) As soon as practicable, Mickelberry shall file with the Securities
and Exchange Commission (the "SEC") under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"),
<PAGE>7
and shall use its best efforts to have cleared by the SEC, a proxy statement
(together with any amendments or supplements thereto, the "Proxy Statement"),
with respect to the Special Meeting. In addition, Mickelberry and Mickelberry
Acquisition shall file with the SEC and make available to Mickelberry's
shareholders, as required by applicable law, a joint Schedule 13E-3 (together
with any amendments or supplements thereto, the "Schedule 13E-3") with respect
to the Special Meeting and the Merger. Mickelberry Acquisition, Union Capital
and Marlas will provide all information relating to them or their affiliates
(other than Mickelberry or any of its subsidiaries) for use in preparation of
the Proxy Statement and Schedule 13E-3. Mickelberry will provide all
information, other than that relating to Mickelberry Acquisition, Union
Capital, Marlas or their respective affiliates (other than Mickelberry or any
of its subsidiaries), for use in the Proxy Statement and in the Schedule 13E-
3. The information provided and to be provided by Mickelberry, Mickelberry
Acquisition, Union Capital and Marlas, respectively, for use in the Proxy
Statement and in the Schedule 13E-3 shall be true and correct in all material
respects and shall not omit to state any material fact necessary in order to
make such information not misleading as of the date of the Proxy Statement or
the Schedule 13E-3, as the case may be, and as of the date of the Special
Meeting. Mickelberry will promptly advise Mickelberry Acquisition, Union
Capital and Marlas and Mickelberry Acquisition, Union Capital or Marlas, as
the case may be, will promptly advise Mickelberry, in writing if at any time
prior to the Effective Time Mickelberry, Mickelberry Acquisition, Union
Capital or Marlas shall obtain knowledge of any facts that might make it
necessary or appropriate to amend or supplement the Proxy Statement or the
Schedule 13E-3 in order to make the statements contained or incorporated by
reference therein not misleading or to comply with applicable law. The Proxy
Statement shall contain the recommendation of the Board of Directors of
Mickelberry referred to in subdivision (a) of this Section 1.1 as well as the
conclusion of the Board of Directors of Mickelberry that the terms and
conditions of the Merger are fair to the shareholders of Mickelberry (other
than Union Capital and Marlas).
SECTION 1.2. The Merger. (a) At the Effective Time, the Merger shall
occur in accordance with the General Corporation Law of the State of Delaware
("Delaware Law"), whereupon the separate existence of Mickelberry Acquisition
shall cease, and Mickelberry shall be the surviving corporation (the
"Surviving Corporation").
(b) As soon as practicable after all of the conditions set forth in
Article VII have been satisfied or waived, Mickelberry
<PAGE>8
and Mickelberry Acquisition will file, or cause to be filed, with the
Secretary of State of the State of Delaware a certificate of merger for the
Merger in accordance with Delaware Law (the "Certificate of Merger"). The
Merger shall become effective at the time such filing is made or at such other
time as is set forth in the Certificate of Merger (the "Effective Time").
(c) From and after the Effective Time, the Surviving Corporation shall
possess all the rights, privileges, powers and franchises and be subject to
all of the restrictions, disabilities and duties of Mickelberry and
Mickelberry Acquisition, all as provided under Delaware Law.
SECTION 1.3. Conversion of Outstanding Shares.
(a) At the Effective Time:
(i) each share of Preferred Stock and of Common Stock of
Mickelberry (a "Share" and, collectively, the "Shares") outstanding
immediately prior to the Effective Time (except for the Cancelled Shares)
shall, except as otherwise provided in subsections (a)(iii) and (b) of
this Section 1.3, be converted into and represent the right to receive
$4.25 in cash (the "Merger Consideration");
(ii) each Share held by Union Capital and by Marlas outstanding
immediately prior to the Effective Time other than those listed on
Schedule 1.3 hereof (a "Cancelled Share" and, collectively, the
"Cancelled Shares") shall, by virtue of the Merger, and without any
action on the part of the holder thereof, be cancelled and retired and
cease to exist, without any conversion thereof; provided, however, that
in connection with, and only in connection with, the consummation of the
Merger, each of Union Capital and Marlas waives its right to receive the
Merger Consideration and consents to being treated less favorably than
the other shareholders of Mickelberry;
(iii) each Share held by Mickelberry as treasury stock immediately
prior to the Effective Time or owned by any direct or indirect subsidiary
of Mickelberry immediately prior to the Effective Time shall be
cancelled, and no payment shall be made with respect thereto; and
(iv) each share of common stock of Mickelberry Acquisition
outstanding immediately prior to the Effective Time shall be converted
into and become one share of common stock of the Surviving Corporation.
<PAGE>9
(b) Notwithstanding subsection (a)(i) of this Section 1.3, Shares
outstanding immediately prior to the Effective Time and held by a holder who
has not voted in favor of the Merger or consented thereto in writing and who
has demanded appraisal for such Shares in accordance with Delaware Law shall
not be converted into a right to receive the Merger Consideration pursuant to
such subsection (a)(i) unless such holder fails to perfect or withdraws or
loses his right to appraisal. If after the Effective Time such holder fails
to perfect or withdraws or loses his right to appraisal, such Shares shall
thereupon be deemed to have been converted into and to represent the right to
receive, at the Effective Time, the Merger Consideration pursuant to the terms
of subsection (a)(i) of this Section 1.3, without any interest thereon or
addition thereto. Mickelberry shall give Mickelberry Acquisition prompt
notice of any demands received by Mickelberry for appraisal of Shares, and
Mickelberry Acquisition shall have the right to participate in all
negotiations and proceedings with respect to such demands. Mickelberry shall
not, except with the prior written consent of Mickelberry Acquisition, make
any payment with respect to, or settle or offer to settle, any such demands.
SECTION 1.4. Surrender and Exchange. (a) Promptly after the Effective
Time, the Surviving Corporation, or such bank or trust company acting as
paying agent (the "Paying Agent") for the Merger pursuant to an agreement in a
form to be mutually agreed upon by Mickelberry and Mickelberry Acquisition,
shall mail or cause to be mailed to each (i) holder of Shares at the Effective
Time a letter of transmittal for use in surrendering for exchange the
certificate or certificates representing such Shares, and (ii) holder of
Options at the Effective Time a letter of transmittal for use in transmitting
the Termination Agreement. After the Effective Time, each such holder, upon
surrender to the Paying Agent of such certificate or certificates or
Termination Agreement, as the case may be (together with such letter of
transmittal duly executed), will be entitled to receive the Merger
Consideration or the Option Consideration, as the case may be. Until so
surrendered, each such certificate shall after the Effective Time represent
for all purposes only the right to receive the Merger Consideration. At the
Effective Time, Mickelberry Acquisition shall furnish or cause to be furnished
to the Paying Agent funds equal to the aggregate Merger Consideration payable
to the holders of Shares and the aggregate Option Consideration payable to the
holders of Options. After the Effective Time, there shall be no further
registration or transfers of Shares. The Surviving Corporation shall
establish reasonable procedures for the delivery of the Merger
<PAGE>10
Consideration to holders of Shares whose stock certificates have been lost,
destroyed or mutilated.
(b) If any delivery of the Merger Consideration is to be made pursuant
to Section 1.3(a)(i) to a person other than the registered holder of the
certificate or certificates surrendered in exchange therefor, it shall be a
condition to such delivery that the certificate or certificates so surrendered
shall be properly endorsed or be otherwise in proper form for transfer and
that the person requesting such delivery shall (i) pay to the Paying Agent any
transfer or other taxes required as a result of delivery to a person other
than the registered holder or (ii) establish to the satisfaction of the Paying
Agent that such tax has been paid or is not payable.
(c) Any holder of Shares who has not exchanged his Shares for the Merger
Consideration in accordance with subsection (a) within six months after the
Effective Time shall have no further claim upon the Paying Agent and shall
thereafter look only to the Surviving Corporation for payment in respect of
his Shares. Notwithstanding the foregoing, no party hereto shall be liable to
a holder of Shares for any amount paid to a public official pursuant to
applicable abandoned property laws.
SECTION 1.5. Certificate of Incorporation. The Certificate of
Incorporation of the Surviving Corporation shall be amended in the Merger to
read as set forth in Exhibit A.
SECTION 1.6. By-laws. The By-laws of Mickelberry Acquisition in effect
at the Effective Time shall be the By-laws of the Surviving Corporation until
amended in accordance with applicable law.
SECTION 1.7. Directors and Officers. From and after the Effective Time,
until successors are duly elected or appointed in accordance with applicable
law, (a) the directors of Mickelberry at the Effective Time shall be the
directors of the Surviving Corporation and (b) the officers of Mickelberry at
the Effective Time shall be the officers of the Surviving Corporation.
SECTION 1.8. Stock Transfer Books. At the Effective Time the stock
transfer books of Mickelberry shall be closed and no transfer of Common Stock
shall thereafter be made on such stock transfer books.
<PAGE>11
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF MICKELBERRY
Mickelberry represents and warrants to Mickelberry Acquisition, Union
Capital and Marlas that:
SECTION 2.1. Corporate Organization. Each of Mickelberry and its
Subsidiaries (as defined below) is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation, and has all requisite corporate power and authority to own its
properties and assets and to conduct its businesses as now conducted.
"Subsidiary" or "Subsidiaries" means any corporation of which Mickelberry
owns, directly or indirectly, shares of capital stock having in the aggregate
50% or more of the total combined voting power of the issued and outstanding
shares of capital stock entitled to vote generally in the election of
directors of such corporation. Schedule 2.1 contains a list of all the
Subsidiaries together with Mickelberry's percentage of ownership of each such
Subsidiary.
SECTION 2.2. Capitalization. The authorized capital stock of
Mickelberry consists of 25,000,000 shares, consisting of 5,000,000 shares of
Preferred Stock, par value $1.00 per share (the "Preferred Stock"), and
20,000,000 shares of Common Stock, par value $1.00 per share (the "Common
Stock"), and 242,334 and 5,877,948 shares of Preferred Stock and Common Stock,
respectively, are issued and outstanding. The shares of Common Stock and the
shares of Preferred Stock have been duly authorized and validly issued, and
are fully paid and nonassessable and no personal liability attaches to the
ownership thereof. The Common Stock and the Preferred Stock are the only
outstanding capital stock of Mickelberry.
SECTION 2.3. Authorization and Validity of Agreement. Mickelberry has
the corporate power to enter into this Agreement, to carry out its obligations
hereunder, and to consummate the Merger. The execution and delivery of this
Agreement and the performance of Mickelberry's obligations hereunder have been
duly authorized by all necessary corporate action, including, without
limitation, by the Board of Directors of Mickelberry. The consummation of the
Merger has been duly authorized by all necessary corporate action, other than
the affirmative vote of the stockholders of Mickelberry in accordance with
applicable law and this Agreement, and approval of the Merger by the
stockholders of Mickelberry has been recommended by the Board of
<PAGE>12
Directors of Mickelberry. Wertheim Schroder & Co. Incorporated has delivered
to the Special Committee of the Board of Directors of Mickelberry its opinion,
dated March 21, 1995, that the Merger Consideration is fair from a financial
point of view to the holders of the Shares (the "Wertheim Opinion") other than
Union Capital and Marlas. This Agreement has been duly executed by
Mickelberry and constitutes the valid and binding obligation of Mickelberry
enforceable against Mickelberry in accordance with its terms, except (i) to
the extent that enforceability may be limited by applicable bankruptcy,
insolvency, reorganization or other laws affecting the enforcement of
creditors' rights generally, and (ii) that the availability of equitable
remedies, including specific performance, is subject to the discretion of the
court before which any proceeding therefor may be brought.
SECTION 2.4. No Conflict or Violation. As of the Effective Time, the
execution, delivery and performance by Mickelberry of this Agreement and
consummation of the Merger does not and will not (i) violate or conflict with
any provision of the Restated Certificate of Incorporation or By-laws of
Mickelberry, (ii) violate any provision of law, or any order, judgment or
decree of any court or other governmental or regulatory authority, and (iii)
violate or result in a breach of or constitute (with due notice or lapse of
time or both) a default under any contract, lease, loan agreement, mortgage,
security agreement, indenture (other than the indenture for Mickelberry's 8%
Convertible Debentures due May 2002 (the "Convertible Debentures")) or other
agreement (other than the two Equipment Financings by Sandy Alexander, Inc.,
as obligor, NationsBank Leasing Corporation, as lender and Mickelberry as
guarantor dated March 25, 1993 and April 7, 1993, respectively) or instrument
to which Mickelberry or any of its Subsidiaries is a party or by which it is
bound or to which its properties or assets are subject, nor will result in the
creation or imposition of any lien, charge or encumbrance of any kind
whatsoever upon any of the properties or assets of Mickelberry or any of its
Subsidiaries, nor will adversely affect or result in the cancellation,
modification, revocation or suspension of any of the licenses, franchises,
permits, authorizations or approvals issued or granted to Mickelberry or any
of its Subsidiaries by the United States, any state or local government, any
foreign national or local government, or any department, agency, board,
commission, bureau or instrumentality of any of the foregoing, except (in the
case of clauses (ii) and (iii) above only) for such violations or breaches
which would not, individually or in the aggregate, present a reasonable
likelihood of having a material adverse effect on the business, assets or
financial condition of Mickelberry and its subsidiaries, taken as whole.
<PAGE>13
SECTION 2.5. Consents and Approvals. As of the Effective Time, no
material consent, waiver, authorization or approval of any governmental or
regulatory authority, domestic or foreign, or of any other person, firm or
corporation, and no material declaration or notification to or filing or
registration with any such governmental or regulatory authority, is required
on the part of Mickelberry in connection with the execution and delivery of
this Agreement by Mickelberry, the performance by Mickelberry of its
obligations hereunder, or the consummation of the Merger, other than in
connection with or in compliance with the applicable provisions of Delaware
Law, the Exchange Act or the Hart-Scott-Rodino Antitrust Improvements Act of
1976 (the "HSR Act").
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF MICKELBERRY ACQUISITION
Mickelberry Acquisition represents and warrants to Mickelberry that:
SECTION 3.1. Corporate Organization. Mickelberry Acquisition is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware. Since its date of incorporation, Mickelberry
Acquisition has not engaged in any activities not related to the acquisition,
or proposed acquisition, of Shares or the transactions contemplated by this
Agreement and the Merger and as of the Effective Time Mickelberry Acquisition
will have no liabilities other than those incurred to facilitate or in
connection with the acquisition, or proposed acquisition, of Shares or the
transactions contemplated by this Agreement and the Merger.
SECTION 3.2. Capitalization of Mickelberry Acquisition. The authorized
capital stock of Mickelberry Acquisition consists of 4,000,000 shares of
common stock, par value $1.00 per share, 3,000,000 of which are issued and
outstanding, and all of which are owned by Marlas.
SECTION 3.3. Subsidiaries and Equity Investments. As of the date of
this Agreement there are no corporations of which Mickelberry Acquisition
owns, directly or indirectly, shares of capital stock having in the aggregate
50% or more of the total combined voting power of the issued and outstanding
shares of capital stock entitled to vote generally in the election of
directors of such corporation.
<PAGE>14
SECTION 3.4. Authorization and Validity of Agreement. Mickelberry
Acquisition has the corporate power to enter into this Agreement and to carry
out its obligations hereunder. The execution and delivery of this Agreement,
the performance of Mickelberry Acquisition's obligations hereunder and the
consummation of the Merger have been duly authorized by the Board of Directors
and by the sole shareholder of Mickelberry Acquisition and no other
proceedings on the part of Mickelberry Acquisition are necessary to authorize
such execution, delivery and performance. This Agreement has been duly
executed by Mickelberry Acquisition and is the legal, valid and binding
obligation of Mickelberry Acquisition, enforceable against Mickelberry
Acquisition in accordance with its terms, except (i) to the extent that
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other laws affecting the enforcement of creditors' rights
generally, and (ii) that the availability of equitable remedies, including
specific performance, is subject to the discretion of the court before which
any proceeding therefor may be brought.
SECTION 3.5. No Conflict or Violation. As of the Effective Time, the
execution, delivery and performance by Mickelberry Acquisition of this
Agreement and consummation of the Merger does not and will not (i) violate or
conflict with any provision of the charter documents or By-laws of Mickelberry
Acquisition, (ii) violate any provision of law, or any order, judgment or
decree of any court or other governmental or regulatory authority, and (iii)
violate or result in a breach of or constitute (with due notice or lapse of
time or both) a default under any contract, lease, loan agreement, mortgage,
security agreement, trust indenture or other agreement or instrument to which
Mickelberry Acquisition is a party or by which Mickelberry Acquisition is
bound or to which its properties or assets are subject, nor will result in the
creation or imposition of any lien, charge or encumbrance of any kind
whatsoever upon any of the properties or assets of Mickelberry Acquisition,
nor will adversely affect or result in the cancellation, modification,
revocation or suspension of any of the licenses, franchises, permits,
authorizations or approvals issued or granted to Mickelberry Acquisition by
the United States, any state or local government, any foreign national or
local government, or any department, agency, board, commission, bureau or
instrumentality of any of the foregoing except (in the case of clauses (ii)
and (iii) above only) for such violations or breaches which would not,
individually or in the aggregate, present a reasonable likelihood of having a
material adverse effect on the business, assets or financial condition of
Mickelberry Acquisition.
<PAGE>15
SECTION 3.6. Consents and Approvals. As of the Effective Time, no
material consent, waiver, authorization or approval of any governmental or
regulatory authority, domestic or foreign, or of any other person, firm or
corporation, and no material declaration or notification to or filing, or
registration with any such governmental or regulatory authority, is required
in connection with the execution and delivery of this Agreement by Mickelberry
Acquisition, the performance by Mickelberry Acquisition of its obligations
hereunder or the consummation of the Merger, other than in connection with or
in compliance with the applicable provisions of Delaware Law, the Securities
Act of 1933, as amended, the Exchange Act or the HSR Act.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF UNION CAPITAL AND MARLAS
Each of Union Capital and Marlas represents and warrants to Mickelberry
that:
SECTION 4.1. Corporate Organization. Union Capital is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Nevada.
SECTION 4.2. Capitalization of Union Capital. The authorized capital
stock of Union Capital consists of 1,000 shares of common stock, no par value,
100 of which are issued and outstanding, and all of which are owned by Marlas.
SECTION 4.3. Title to Cancelled Shares. All of the Cancelled Shares are
owned of record and beneficially by Union Capital or Marlas, as the case may
be, in each case free and clear of all liens.
SECTION 4.4. Authorization and Validity of Agreement. Union Capital has
the corporate power to enter into this Agreement and to carry out its
obligations hereunder. Marlas has full legal capacity to enter into this
Agreement and to carry out its obligation hereunder. The execution and
delivery of this Agreement and the performance of Union Capital's obligations
hereunder have been duly authorized by the board of directors and by the sole
shareholder of Union Capital and no other proceedings on the part of Union
Capital are necessary to authorize such execution, delivery and performance.
This Agreement has been duly executed by each of Union Capital and Marlas and
is the legal, valid and binding obligation of Union Capital and Marlas,
enforceable against Union Capital and Marlas in accordance with
<PAGE>16
its terms, except (i) to the extent that enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or other laws affecting the
enforcement of creditors' rights generally, and (ii) that the availability of
equitable remedies, including specific performance, is subject to the
discretion of the court before which any proceeding therefor may be brought.
SECTION 4.5. No Conflict or Violation. As of the Effective Time, the
execution, delivery and performance by each of Union Capital and Marlas of
this Agreement and consummation of the Merger does not and will not (i)
violate or conflict with any provision of the charter documents or By-laws of
Union Capital, (ii) violate any provision of law, or any order, judgment or
decree of any court or other governmental or regulatory authority, and (iii)
violate or result in a breach of or constitute (with due notice or lapse of
time or both) a default under any contract, lease, loan agreement, mortgage,
security agreement, trust indenture or other agreement or instrument to which
Union Capital or Marlas is a party or by which Union Capital or Marlas is
bound or to which its properties or assets are subject, nor will result in the
creation or imposition of any lien, charge or encumbrance of any kind
whatsoever upon any of the properties or assets of Union Capital or Marlas,
nor will adversely affect or result in the cancellation, modification,
revocation or suspension of any of the licenses, franchises, permits,
authorizations or approvals issued or granted to Union Capital by the United
States, any state or local government, any foreign national or local
government, or any department, agency, board, commission, bureau or
instrumentality of any of the foregoing except (in the case of clauses (ii)
and (iii) above only) for such violations or breaches which would not,
individually or in the aggregate, present a reasonable likelihood of having a
material adverse effect on the business, assets or financial condition of
Union Capital or Marlas, as the case may be.
ARTICLE V
COVENANTS OF MICKELBERRY
Mickelberry agrees that:
SECTION 5.1. Conduct of Mickelberry. From and after the date of this
Agreement and until the Effective Time, Mickelberry shall conduct its business
solely in the ordinary course consistent with past practice and, without the
prior written consent of Mickelberry Acquisition, will not, except as required
<PAGE>17
or permitted pursuant to the terms hereof or as may occur in the ordinary
course of business consistent with past practice:
(i) make any material change in the conduct of its businesses and
operations or enter into any material transaction;
(ii) make any change in its Restated Certificate of Incorporation or
By-laws; issue any additional shares of capital stock or equity
securities (other than an exercise of options or convertible securities,
in each case outstanding on the date hereof), grant any option, warrant
or right to acquire any capital stock or equity securities, issue any
security convertible into or exchangeable for its capital stock, alter in
any material respect the terms of any of its outstanding securities, or
make any change in its outstanding shares of capital stock or in its
capitalization, whether by reason of a reclassification,
recapitalization, stock split or combination, exchange or readjustment of
shares, stock dividend or otherwise;
(iii) incur, assume or guarantee any indebtedness for borrowed money,
issue any notes, bonds, debentures or other corporate securities or grant
any option, warrant or right to purchase any thereof;
(iv) make any sale, assignment, transfer, abandonment or other
conveyance of any of its assets or any part thereof;
(v) subject any of its assets, or any part thereof, to any lien or
suffer such to be imposed other than such liens as may arise by operation
of law;
(vi) redeem, retire, purchase or otherwise acquire, directly or
indirectly, any shares of its capital stock or declare, set aside or pay
any dividends (other than regular quarterly dividends on its Common Stock
and Preferred Stock of $0.015 and $0.075 per share, respectively) or
other distribution in respect of such shares;
(vii) take any other action that would cause any of the
representations and warranties made in this Agreement not to remain true
and correct; or
(viii) commit itself to do any of the foregoing.
<PAGE>18
SECTION 5.2. Access to Information. From and after the date hereof and
subject to the execution of such confidentiality agreements as Mickelberry
shall reasonably require, Mickelberry will give Mickelberry Acquisition and
its counsel, financial advisors, auditors and other authorized representatives
reasonable access to the offices, properties, books and records of Mickelberry
and will instruct Mickelberry's employees, counsel, financial advisors and
financing sources to cooperate with any such person in its investigation of
Mickelberry.
SECTION 5.3. Indemnification and Insurance. (a) For a period of three
years from the Effective Time, Mickelberry, as the Surviving Corporation,
shall maintain in its Certificate of Incorporation the provisions with respect
to indemnification set forth in paragraph 8 of Exhibit A attached hereto,
which provisions shall not be amended, repealed or otherwise modified for such
a period in any manner that would adversely affect the rights thereunder of
persons who at the Effective Time were directors, officers, employees or
agents of Mickelberry (such persons being third-party beneficiaries of this
Section 5.3) with respect to actions and omissions occurring prior to the
Effective Time, unless such modification is required by law.
(b) For a period of three years from the Effective Time, the Surviving
Corporation shall use its best efforts to maintain in effect directors' and
officers' liability insurance covering those persons who are currently covered
by Mickelberry's directors' and officers' liability insurance policy with
respect to actions and omissions occurring prior to the Effective Time on
terms no less favorable than the terms of such current insurance coverage.
Notwithstanding the foregoing, if the directors' and officers' liability
insurance referred to in this subdivision (b) is unavailable for the Current
D&O Premium, the Surviving Corporation shall obtain as much insurance as can
be obtained for a premium not in excess (on an annualized basis) of the
current D&O Premium. The Company will use its best efforts to give to any
director and officer covered by this Section 5.3, 30 days prior written notice
of any reduction on coverage or cancellation of the directors' and officers'
liability insurance referred to in this subdivision (b). For purposes of this
subdivision (b), the "Current D&O Premium" shall be an amount not greater than
125% of the premium paid by Mickelberry (on an annualized basis) for
directors' and officers' liability insurance during the period from October 1,
1994 to the Effective Time.
(c) In the event the Surviving Corporation or any of its successors or
assigns (i) consolidates with or merges into any other person and shall not be
the continuing or surviving
<PAGE>19
corporation or entity of such consolidation or merger or (ii) transfers all or
substantially all of its properties and assets to any person, then and in each
such case, proper provision shall be made so that the successors and assigns
of the Surviving Corporation shall assume all of the obligations set forth in
this Section 5.3.
SECTION 5.4. Vote. From and after the date hereof, Mickelberry will, to
the extent required by applicable law or as otherwise reasonably requested by
Mickelberry Acquisition and in accordance with Delaware Law and its
certificate of incorporation and By-laws, use its best efforts to (a) solicit
from the shareholders of Mickelberry proxies in favor of the approval of this
Agreement and (b) take all other action necessary or helpful to secure a vote
of shareholders in favor of the Merger and to approve this Agreement.
SECTION 5.5. Letter Agreement and Other Fees and Expenses. Whether or
not the Merger is consummated (except as provided below), from and after the
date hereof and without the execution of any further instrument, Mickelberry
will (a) assume all of the obligations of Marlas and of any entity formed by
him for purposes of completing the Merger (including but not limited to
Mickelberry Acquisition) (collectively, the "Client") under that certain
Letter Agreement dated November 23, 1994 (the "Letter Agreement"), by and
among the Client, The Argosy Group L.P. and The Argosy Securities Group L.P.,
including, without limitation, indemnities, contribution, compensation and
expense reimbursements, all in accordance with Section 15 of such Letter
Agreement and in connection therewith Mickelberry will reimburse the Client
for any amounts previously paid by it pursuant to the Letter Agreement and (b)
pay all reasonable attorneys' fees, expenses and disbursements of the Client
incurred prior to or after the date hereof in connection with the transactions
contemplated by this Agreement; provided, however, that Mickelberry shall not
be obligated to assume any obligation or to pay any fees and expenses under
this Section 5.5 (and Marlas shall repay to Mickelberry any amounts paid by
Mickelberry pursuant to this Section 5.5) if this Agreement is terminated
because of a material breach by Mickelberry Acquisition, Union Capital or
Marlas of any of its representations, warranties or covenants contained
hereunder.
SECTION 5.6. Stock Options. Prior to the Effective Time, Mickelberry
shall use its best efforts to cause the holders (other than Marlas) of all
outstanding options (the "Options") under the 1981 Incentive Stock Option Plan
and the 1992 Stock Option Plan to agree in writing to cancel such Options as
of and
<PAGE>20
subject to the occurrence of the Effective Time, pursuant to an Option
Termination Agreement (the "Termination Agreement") in form and substance
satisfactory to Mickelberry Acquisition. Each holder of an Option who so
executes and delivers such a Termination Agreement and whose Option has an
exercise price less than the Merger Consideration, shall have the right to
receive in cash, if the Option is presently exercisable, an amount equal to
the Merger Consideration less the exercise price for each such Option and any
applicable withholding taxes (the "Option Consideration").
SECTION 5.7. No Mergers, Consolidations, Sale of Stock, etc. From and
after the date hereof, neither Mickelberry nor any of its Subsidiaries will
directly or indirectly, through officers, employees, representatives or
agents, solicit any inquiries or proposals to enter into or continue any
discussions, negotiations or agreements relating to the sale or exchange of
the Shares, the merger, reorganization or business combination of Mickelberry
with, or the disposition of a significant amount of Mickelberry's assets or
business to, any person other than Mickelberry Acquisition or its affiliates.
SECTION 5.8. Convertible Debentures. From and after the date hereof,
Mickelberry will assist Mickelberry Acquisition and take all actions deemed
necessary by Mickelberry Acquisition to obtain the consent of the holders
(other than Marlas) of the Convertible Debentures to the prepayment and/or the
cancellation, as of the Effective Time, of all the Convertible Debentures on
terms reasonably satisfactory to Mickelberry Acquisition.
ARTICLE VI
COVENANTS OF MICKELBERRY ACQUISITION
Mickelberry Acquisition agrees that:
SECTION 6.1. Conduct of Mickelberry Acquisition. From and after the
date of this Agreement and until the Effective Time, Mickelberry Acquisition
shall conduct its business solely in the ordinary course consistent with past
practice and, without the prior written consent of Mickelberry, will not,
except as required or permitted pursuant to the terms hereof or as may occur
in the ordinary course of business consistent with past practice:
(i) make any change in its Certificate of Incorporation; or
<PAGE>21
(ii) take any other action that would cause any of the
representations and warranties made in this Agreement not to remain true
and correct; or
(iii) commit itself to do any of the foregoing.
SECTION 6.2. Access to Information. From and after the date hereof and
subject to the execution of such confidentiality agreements as Mickelberry
Acquisition shall reasonably require, Mickelberry Acquisition will give
Mickelberry and its counsel, financial advisors, auditors and other authorized
representatives reasonable access to the offices, properties, books and
records of Mickelberry Acquisition and will instruct Mickelberry Acquisition's
employees, counsel, financial advisors and financing sources to cooperate with
any such person in its investigation of Mickelberry Acquisition.
ARTICLE VII
COVENANTS OF UNION CAPITAL AND MARLAS
Each of Union Capital and Marlas agrees that:
SECTION 7.1. Vote. Union Capital and Marlas will vote the Cancelled
Shares and the Shares listed on Schedule 1.3 in favor of the approval and
adoption of this Agreement and the approval of the Merger.
SECTION 7.2. No Sale or Disposition; Waiver. From and after the date of
this Agreement and until the earlier of the Effective Time and the termination
of this Agreement, (i) neither Union Capital nor Marlas will sell or otherwise
dispose of any Cancelled Shares or Shares listed on Schedule 1.3 other than to
any of its respective affiliates or otherwise to facilitate the consummation
of the transactions contemplated by this Agreement and (ii) Marlas agrees to
waive any default or event of default under the Convertible Debentures if such
default or event of default has occurred and is continuing solely as a result
of the transactions contemplated by this Agreement.
<PAGE>22
ARTICLE VIII
OTHER AGREEMENTS
The parties hereto agree that:
SECTION 8.1. Best Efforts. Upon the terms and subject to the conditions
set forth in this Agreement, each party shall use its best efforts to take, or
cause to be taken, all actions and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations,
including without limitation under the HSR Act, to consummate the transactions
contemplated by this Agreement as promptly as possible. Without limiting the
generality of the foregoing, Mickelberry Acquisition agrees to use its best
efforts to obtain the financing referred to in Section 9.3(c).
SECTION 8.2. Notification of Certain Matters. Each party to this
Agreement will give prompt notice to the other parties hereof of:
(i) any notice or other communication from any person or entity
alleging that the consent of such person or entity is or may be required
in connection with the transactions contemplated by this Agreement;
(ii) any notice or other communication from any governmental or
regulatory agency or authority in connection with the transactions
contemplated by this Agreement;
(iii) any action, suit, claim, investigation or proceeding commenced
or, to its knowledge, threatened against, relating to or involving or
otherwise affecting Mickelberry on the one hand, or Mickelberry
Acquisition, Union Capital and/or Marlas on the other hand, which is
reasonably likely to affect materially the transactions contemplated by
this Agreement;
(iv) the occurrence, or failure to occur, of any event or change in
circumstances where such occurrence or failure to occur would be likely
to cause any representation or warranty contained in this Agreement to be
untrue and inaccurate in any material respect at any time from the date
hereof to the Effective Time; and
(v) any material failure of such party to comply with or satisfy
any covenant, condition or agreement to be complied with or satisfied by
it hereunder.
<PAGE>23
No such notification shall affect the representations or warranties of the
parties or the conditions to the obligations of the parties hereunder.
SECTION 8.3. Further Assurances. At and after the Effective Time, the
officers and directors of the Surviving Corporation will be authorized to
execute and deliver, in the name and on behalf of Mickelberry or Mickelberry
Acquisition, any deeds, bills of sale, assignments or assurances and to take
and do in the name and on behalf of Mickelberry or Mickelberry Acquisition any
other actions and things to vest, perfect or confirm of record or otherwise in
the Surviving Corporation any and all right, title and interest in, to and
under any of the rights, properties or assets of Mickelberry acquired or to be
acquired by the Surviving Corporation as a result of, or in connection with,
the Merger.
ARTICLE IX
CONDITIONS TO THE MERGER
SECTION 9.1. Conditions to the Obligations of Each Party. The
obligations of Mickelberry and Mickelberry Acquisition to consummate the
Merger are subject to (a) the approval of the Merger and this Agreement at the
Special Meeting by the affirmative vote of at least (1) the holders of a
majority of the Shares outstanding on the record date of such Special Meeting
or (2) 66 % of the votes cast by the holders of the Shares voting at the
Special Meeting, whichever is greater, (b) the Wertheim Opinion not being
withdrawn, (c) any waiting period applicable to the Merger under the HSR Act
shall have terminated or expired, (d) the absence of any statute, rule or
regulation which makes consummation of the Merger illegal or otherwise
prohibited or any order, decree, injunction or judgment enjoining the
consummation of the Merger, and (e) the receipt of an opinion of counsel to
Mickelberry, in form and substance reasonably satisfactory to Mickelberry and
Mickelberry Acquisition, as to the validity of the Merger under Delaware Law.
SECTION 9.2. Conditions to the Obligation of Mickelberry. The
obligation of Mickelberry to consummate the Merger is subject to the
satisfaction or waiver of the following further conditions:
(a) Mickelberry Acquisition shall have performed in all material
respects all of its obligations hereunder required to be performed by it
at or prior to the Effective Time;
<PAGE>24
(b) the representations and warranties of Mickelberry Acquisition
contained in this Agreement and in any certificate or other writing
delivered by Mickelberry Acquisition pursuant hereto shall be true in all
material respects at and as of the Effective Time as if made at and as of
such time (other than any inaccuracies in such representations or
warranties that are attributable to Mickelberry);
(c) receipt by Mickelberry of a certificate signed by an executive
officer of Mickelberry Acquisition to the effect set forth in paragraphs
(a) and (b) of this Section;
(d) consummation on terms satisfactory to Mickelberry of third-
party financing for (1) the Merger Consideration, (2) the Option
Consideration and (3) the repayment of the Convertible Debentures; and
(e) no action or proceeding shall have been commenced or threatened
for the purpose of obtaining an injunction, order or damages before any
court or governmental agency or other regulatory or administrative agency
or commission, domestic or foreign, which Mickelberry shall on advice of
counsel, reasonably determine would (1) result in the imposition of
material limitations on the ability of Mickelberry or Mickelberry
Acquisition effectively to consummate the Merger, (2) have the effect of
rendering the Merger violative of any applicable law, or (3) have a
material adverse effect on the business, assets or financial condition of
the Surviving Corporation.
SECTION 9.3. Conditions to the Obligation of Mickelberry Acquisition.
The obligation of Mickelberry Acquisition to consummate the Merger is subject
to the satisfaction or waiver of the following further conditions:
(a) Mickelberry shall have performed in all material respects all
of its obligations hereunder required to be performed by it at or prior
to the Effective Time;
(b) the representations and warranties of Mickelberry contained in
this Agreement and in any certificate or other writing delivered by
Mickelberry pursuant hereto shall be true in all material respects at and
as of the Effective Time as if made at and as of such time;
(c) receipt by Mickelberry Acquisition of a certificate signed by
an executive officer of Mickelberry to
<PAGE>25
the effect set forth in paragraphs (a) and (b) of this Section;
(d) consummation on terms satisfactory to Mickelberry Acquisition
of third-party financing for (1) the Merger Consideration, (2) the Option
Consideration and (3) the repayment of the Convertible Debentures;
(e) the holders of not more than 5% of the outstanding shares of
Preferred Stock and Common Stock shall have exercised their appraisal
rights in the Merger in accordance with Delaware Law;
(f) the prepayment and cancellation of all Convertible Debentures;
(g) holders of Options constituting at least 95% of the shares
represented thereby shall have entered into Termination Agreements with
respect thereto in form and substance satisfactory to Mickelberry
Acquisition; and
(h) no action or proceeding shall have been commenced or threatened
for the purpose of obtaining an injunction, order or damages before any
court or governmental agency or other regulatory or administrative agency
or commission, domestic or foreign, which Mickelberry Acquisition shall
on advice of counsel, reasonably determine would (1) result in the
imposition of material limitations on the ability of Mickelberry or
Mickelberry Acquisition effectively to consummate the Merger, (2) have
the effect of rendering the Merger violative of any applicable law, or
(3) have a material adverse effect on the business, assets or financial
condition of the Surviving Corporation.
ARTICLE X
TERMINATION
SECTION 10.1. Termination. This Agreement may be terminated and the
Merger may be abandoned at any time prior to the Effective Time:
(a) by mutual written consent of Mickelberry and Mickelberry
Acquisition after approval of their respective Board of Directors; or
<PAGE>26
(b) by either Mickelberry or Mickelberry Acquisition after approval
of the Board of Directors of Mickelberry or Mickelberry Acquisition, as
the case may be, if the Merger has not been consummated on or before
September 30, 1995; provided, however, that neither party may terminate
this Agreement pursuant to this clause (b) if the failure of such party
to fulfill any of its obligations under this Agreement shall have been
the reason that the Merger shall not have been consummated on or before
said date.
SECTION 10.2. Effect of Termination. If this Agreement is terminated
pursuant to Section 10.1, this Agreement shall become void and of no effect
with no liability on the part of any party hereto.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including facsimile or similar
writing) and shall be given:
(a) if to Mickelberry to:
Mickelberry Communications Incorporated
405 Park Avenue
New York, New York 10022
Facsimile: (212) 832-0554
Attention: Mr. John C. Mickle
(b) if to Mickelberry Acquisition to:
Mickelberry Acquisition Corporation
c/o Mickelberry Communications Incorporated
405 Park Avenue
New York, New York 10022
Facsimile: (212) 832-0554
Attention: Mr. James C. Marlas
or such other address or facsimile number as such party may hereafter specify
by notice to the other party hereto. Each such notice, request or other
communication shall be effective (i) if given by facsimile, when such
facsimile is transmitted to the facsimile number specified in this Section and
the appropriate confirmation is provided, (ii) if given via United States
mail,
<PAGE>27
three days after such notice is deposited in the mail in a postage pre-paid
envelope, or (iii) if given by any other means, when delivered at the address
specified in this Section.
SECTION 11.2. Survival. None of the representations, warranties,
agreements or covenants contained herein shall survive the Effective Time
except for the agreements contained in Sections 1.3, 1.4, 1.5, 1.6, 1.7, 1.8,
5.3, 5.5 and 8.3.
SECTION 11.3. Amendment. Subject to applicable law, any provision of
this Agreement may be amended by the parties hereto, by action of each of
their respective Boards of Directors or by their respective officers duly
authorized by such Board of Directors, at any time prior to the Effective
Time; provided, however, that any decrease of the amount or change in the type
of the Merger Consideration or any amendment to Article IX, Article X or this
Section 11.3 shall also be approved by the Special Committee of the Board of
Directors of Mickelberry. Any amendment to this Agreement shall be in writing
signed by all the parties hereto.
SECTION 11.4. Waiver. (a) At any time prior to the Effective Time,
Mickelberry Acquisition on the one hand, and Mickelberry on the other hand,
may (i) extend the time for the performance of any agreement of the other
party or parties hereto, (ii) waive any accuracy in the representations and
warranties contained herein or in any document delivered pursuant hereto, or
(iii) waive compliance with any agreement or condition contained herein;
provided, however, that if such waiver would have the same effect as any
decrease of the amount or change in the type of the Merger Consideration or
any amendment to Article IX, Article X or Section 11.3 hereof, such waiver
shall also be approved by the Special Committee of the Board of Directors of
Mickelberry. Any agreement on the part of any party to any such extension or
waiver shall be effective only if set forth in a writing signed on behalf of
such party and delivered to the other parties.
(b) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other right, power or privilege. The
rights and remedies herein provided shall be cumulative and not exclusive of
any rights or remedies provided by law.
SECTION 11.5. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns;
<PAGE>28
provided, however, that no party may assign or otherwise transfer any of its
rights under this Agreement without the consent of the other parties hereto.
SECTION 11.6. Governing Law. This Agreement shall be construed in
accordance with and governed by the internal laws of the State of Delaware
without regard to principles of conflict of laws.
SECTION 11.7. Integration. This Agreement embodies the entire agreement
and understanding among the parties hereto and supersedes all prior agreements
and understandings relating to the subject matter hereof.
SECTION 11.8. Headings and References. The headings of the Articles and
Sections of this Agreement are inserted for convenience only and shall not
constitute a part hereof.
SECTION 11.9. Counterparts; Effectiveness. This Agreement may be signed
in any number of counterparts, each of which shall be an original, with the
same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto
shall have received counterparts hereof signed by the other party hereto.
<PAGE>29
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
MICKELBERRY COMMUNICATIONS INCORPORATED
/s/George Kane
By: George Kane
Title: Senior Vice President
MICKELBERRY ACQUISITION CORPORATION
/s/James C. Marlas
By: James C. Marlas
Title: President
UNION CAPITAL CORPORATION
/s/James C. Marlas
By: James C. Marlas
Title: Chairman
JAMES C. MARLAS
/s/James C. Marlas
<PAGE>30
EXHIBIT A
RESTATED
CERTIFICATE OF INCORPORATION
OF
MICKELBERRY COMMUNICATIONS INCORPORATED
* * * * * * * *
1. The name of the corporation (the "Corporation") is:
Mickelberry Communications Incorporated.
2. The address of its registered office in the State of Delaware is
1209 Orange Street in the City of Wilmington, County of New Castle. The name
of its registered agent at such address is The Corporation Trust Company.
3. The nature of the business or purposes to be conducted or
promoted by the Corporation is to engage in any lawful act or activity for
which corporations may be organized under the General Corporation Law of the
State of Delaware.
4. The total number of shares of stock which the Corporation shall
have authority to issue is 4,000,000 shares of Common Stock, each of which
shall have a par value of one dollar ($1.00) per share.
5. In furtherance and not in limitation of the powers conferred by
statute, the by-laws of the Corporation may be made, altered, amended or
repealed by the stockholders or by a majority of the entire board of
directors.
<PAGE>31
6. Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers
appointed for this Corporation under the provisions of Section 279 of Title 8
of the Delaware Code order a meeting of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of this Corporation, as
the case may be, to be summoned in such manner as the said court directs. If
a majority in number representing three fourths in value of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of
this Corporation, as the case may be, agree to any compromise or arrangement
and to any reorganization of this Corporation as consequence of such
compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or
on all stockholders or class of stockholders of this Corporation, as the case
may be, and also on this Corporation.
<PAGE>32
7. Elections of directors need not be by written ballot.
8. A director of the Corporation shall not be personally liable to
the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or
a knowing violation of law, (iii) under Section 174 of the General Corporation
Law of the State of Delaware, or (iv) for any transaction from which the
director derived any improper personal benefit. If the Delaware General
Corporation Law is amended after approval by the stockholders of this
provision to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent permitted by
the General Corporation Law of the State of Delaware, as so amended.
Any repeal or modification of the foregoing paragraph by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such
repeal or modification.
<PAGE>33
SCHEDULE 1.3
Certain Shares
59,400 shares of Common Stock held by Marlas in its Keogh Plan
<PAGE>34
SCHEDULE 2.1
Subsidiaries
Percentage Owned
Name by Mickelberry
Bender, Browning, Dolby & Sanderson 100%
Excel Importing Corp. 100%
M C Graphics, Inc. 100%
Mickelberry Mining Corporation 100%
Mickelberry Holding Corporation 100%
Excel Showroom, Inc. 100%
Nadler & Larimer (Europe) Corporation 100%
Newcourt Industries 100%
Partners & Shevack Inc. 100%
Sandy Alexander, Inc. 100%
Sandy Alexander Realty, Inc. (NJ) 100%
Ventura Associates International, Inc. 100%
Mibon Marketing Inc. 100%
Excel Plus, Ltd. 50%
<PAGE>1
EXHIBIT 1
AGREEMENT REGARDING
JOINT FILING OF SCHEDULE 13D
This will evidence our agreement, in accordance with SEC Rule 13d-
1(f), that the attached statement on Schedule 13D is filed on behalf of the
undersigned.
By: /s/ JAMES C. MARLAS
James C. Marlas
UNION CAPITAL CORPORATION
By: /s/ JAMES C. MARLAS
James C. Marlas
President
MICKELBERRY ACQUISITION CORPORATION
By: /s/ JAMES C. MARLAS
James C. Marlas
President
<PAGE>1
EXHIBIT 6
PRESS RELEASE
FOR: Mickelberry Communications Incorporated
405 Park Avenue
New York, New York 10022
CONTACT: Gregory J. Garville
212 832-4297
FOR IMMEDIATE RELEASE
MICKELBERRY COMMUNICATIONS INCORPORATED
SIGNS MERGER AGREEMENT
March 29, 1995/New York, New York: Mickelberry Communications
Incorporated (NYSE:MBC) announced today that it has signed a definitive
Agreement and Plan of Merger with an affiliate of Mr. James C. Marlas, the
Chairman, President and Chief Executive Officer of the Company, pursuant to
which the holders of all of the shares of the Company's Common Stock not owned
by Mr. Marlas as well as all of the Company's Preferred Stock will receive a
cash purchase price of $4.25 per share. Mr. Marlas beneficially owns,
directly or indirectly, approximately 48% of the Company's Common Stock, not
including shares issuable upon conversion of debentures owned by him.
The Company's special committee of Directors evaluated Mr. Marlas
proposal and on March 21, 1995 recommended that the Company enter into the
merger transaction and the Board of Directors approved the Agreement and Plan
of Merger on March 21, 1995.
The consummation of the transactions contemplated by he Agreement and
Plan of Merger is subject to a number of conditions, including (a) the
approval of the Agreement by the affirmative vote of at least (1) the holders
of a majority of the shares outstanding or (2) 66 2/3% of the votes cast by
the holders of the shares voting at a special meeting, whichever is greater,
(b) a satisfactory agreement reached with institutional investors holding the
Company's Convertible Subordinated Debentures regarding the early retirement
of these securities, (c) the receipt of all necessary consents and
governmental approvals, (d) the holders of not more than 5% of the outstanding
shares of Preferred Stock and Common Stock shall have exercised their
appraisal rights in the Merger, and (e) the receipt of third-party financing.
