SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20579
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) December 11, 1995
SOFTKEY INTERNATIONAL INC.
(Exact name of registrant as specified in its charter)
DELAWARE 0-13069 94-2562108
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
ONE ATHENAEUM STREET, CAMBRIDGE, MASSACHUSETTS 02142
(Address of principal executive offices) (Zip Code)
(617) 494 - 1200
Registrant's telephone number, including area code:
N/A
(Former name or former address, if changed since last report)
Total Number of Pages
Exhibit Index Appears on Page
Item 5. Other Events.
On November 30, 1995, SoftKey International
Inc., a Delaware corporation (the "Company"), entered
into an Agreement and Plan of Merger dated November 30,
1995 (the "Merger Agreement") by and among the Company,
Cubsco I Inc., a California corporation, Cubsco II Inc.,
a Delaware corporation, Tribune Company, a Delaware
corporation ("Tribune"), Compton's NewMedia, Inc., a
California corporation ("CNI"), and Compton's Learning
Company, a Delaware corporation ("CLC"), pursuant to
which the Company agreed to purchase CNI and CLC, wholly
owned subsidiaries of Tribune, in stock-for-stock merger
transactions valued at approximately $106.5 million in
the aggregate.
Pursuant to the terms of the Merger Agreement,
the final number of shares of common stock, par value
$.01 per share, of the Company (the "SoftKey Common
Stock") to be issued in the transaction will be
determined based on the volume-weighted average price
(the "Volume-Weighted Average") of SoftKey Common Stock
on the Nasdaq National Market for a ten-trading day
period prior to the closing of the merger transactions
(the "Closing"). Also, in connection with the
acquisitions, the Company has agreed either to execute at
the Closing a promissory note to Tribune for up to $17
million of intercompany indebtedness or to issue to
Tribune at the Closing SoftKey Common Stock having a
value equal to the amount of such indebtedness (up to $17
million) based on the Volume-Weighted Average.
Also on November 30, 1995, Tribune and the
Company entered into a definitive agreement pursuant to
which Tribune agreed to make a strategic $150 million
investment in the Company through the purchase of 5 1/2%
Senior Convertible/Exchangeable Notes due 2000 of the
Company (the "Notes"), pursuant to the terms and
conditions of the Securities Purchase Agreement dated as
of November 30, 1995 by and between Tribune and the
Company (the "Securities Purchase Agreement"). The Notes
are either convertible into SoftKey Common Stock at a
conversion price of $53 per share or exchangeable for
shares of a newly designated series of preferred stock of
the Company which itself is convertible into SoftKey
Common Stock.
Pursuant to the terms of the Securities
Purchase Agreement, the strategic investment is
conditioned upon the Company acquiring a majority of the
outstanding common stock, par value $.001 per share, of
The Learning Company, a Delaware corporation ("TLC Common
Stock"), pursuant to the Company's outstanding tender
offer for TLC Common Stock.
On December 6, 1995, the Company entered into
the SoftKey/TLC Agreement and Plan of Merger dated
December 6, 1995 (the "TLC Merger Agreement") among the
Company, Kidsco Inc., a Delaware corporation, and The
Learning Company, a Delaware corporation ("TLC").
Pursuant to the terms of the TLC Merger Agreement, the
Company is offering to purchase all outstanding shares of
TLC Common Stock at a purchase price of $67.50 per share
and is extending its outstanding tender offer (the
"Offer") until 12:00 midnight, New York City time, on
Thursday, December 21, 1995. The TLC Merger Agreement
provides, among other things, that the merger of Kidsco
Inc. with and into TLC will be effected as soon as
practicable following consummation of the Offer and that
each outstanding share of TLC Common Stock (except shares
held by TLC in treasury or owned by the Company or its
affiliates and shares as to which appraisal rights are
duly demanded under Delaware law) will be converted into
the right to receive $67.50 in cash.
The foregoing descriptions of the terms and
provisions of the Merger Agreement, the Securities
Purchase Agreement and the TLC Merger Agreement are
qualified in their entirety by the Merger Agreement, the
Securities Purchase Agreement and the TLC Merger
Agreement, together with the respective exhibits thereto,
filed as Exhibits 2.1, 4.1 and 2.2 hereto, respectively,
and incorporated by reference herein.
Item 7. Exhibits.
Exhibit No. Description
2.1 Agreement and Plan of Merger, dated
November 30, 1995, by and among SoftKey
International Inc., Cubsco I Inc., Cubsco
II Inc., Tribune Company, Compton's
NewMedia, Inc. and Compton's Learning
Company.
2.2 SoftKey/TLC Agreement and Plan of Merger
dated December 6, 1995 among SoftKey
International Inc., Kidsco Inc. and
The Learning Company.
4.1 Securities Purchase Agreement dated as of
November 30, 1995 between SoftKey
International Inc. and Tribune Company.
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, as amended, the Registrant has duly
caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
SOFTKEY INTERNATIONAL INC.
By:/s/ Neal S. Winneg
Neal S. Winneg
Vice President
December 11, 1995
Exhibit Index
Exhibit Sequential
No. Description Page No.
2.1 Agreement and Plan of Merger, dated
November 30, 1995, by and among SoftKey
International Inc., Cubsco I Inc., Cubsco
II Inc., Tribune Company, Compton's
NewMedia, Inc. and Compton's Learning
Company.
2.2 SoftKey/TLC Agreement and Plan of Merger dated
December 6, 1995 among SoftKey
International Inc., Kidsco Inc. and
The Learning Company.
4.1 Securities Purchase Agreement dated as of
November 30, 1995 between SoftKey
International Inc. and Tribune Company.
AGREEMENT AND PLAN OF MERGER
by and among
SOFTKEY INTERNATIONAL INC.,
CUBSCO I INC.,
CUBSCO II INC.,
TRIBUNE COMPANY,
COMPTON'S NEWMEDIA, INC.
and
COMPTON'S LEARNING COMPANY
dated November 30, 1995
TABLE OF CONTENTS
ARTICLE I
THE CNI MERGER
1.1. General . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2. Conversion of CUBSCO I Stock . . . . . . . . . . . . . 1
1.3. Conversion of CNI Common Stock . . . . . . . . . . . . 2
1.4. CNI Surviving Corporation . . . . . . . . . . . . . . . 2
1.5. Effect of the CNI Merger . . . . . . . . . . . . . . . 2
1.6. Organizational Documents . . . . . . . . . . . . . . . 2
1.7. Directors and Officers . . . . . . . . . . . . . . . . 3
1.8. CNI Effective Time . . . . . . . . . . . . . . . . . . 3
1.9. Tax Consequences . . . . . . . . . . . . . . . . . . . 3
ARTICLE II
THE CLC MERGER
2.1. General . . . . . . . . . . . . . . . . . . . . . . . . 3
2.2. Conversion of CUBSCO II Stock . . . . . . . . . . . . . 4
2.3. Conversion of CLC Common Stock . . . . . . . . . . . . 4
2.4. CLC Surviving Corporation . . . . . . . . . . . . . . . 4
2.5. Effect of the CLC Merger . . . . . . . . . . . . . . . 5
2.6. Organizational Documents . . . . . . . . . . . . . . . 5
2.7. Directors and Officers . . . . . . . . . . . . . . . . 5
2.8. CLC Effective Time . . . . . . . . . . . . . . . . . . 5
2.9. Tax Consequences . . . . . . . . . . . . . . . . . . . 5
ARTICLE III
MATTERS RELATED TO THE MERGERS AND THE SOFTKEY SHARES
3.1. Registration; Legends; etc. . . . . . . . . . . . . . . 6
3.2. Standstill . . . . . . . . . . . . . . . . . . . . . . 6
3.3. Closing; Effectiveness of Mergers . . . . . . . . . . . 6
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER
4.1. Corporate Organization . . . . . . . . . . . . . . . . 7
4.2. Authorization . . . . . . . . . . . . . . . . . . . . 8
4.3. Capitalization . . . . . . . . . . . . . . . . . . . . 8
4.4. Ownership of Shares . . . . . . . . . . . . . . . . . 9
4.5. Consents and Approvals; Non-Contravention . . . . . . 9
4.6. Financial Statements . . . . . . . . . . . . . . . . . 10
4.7. Interim Change . . . . . . . . . . . . . . . . . . . . 10
4.8. No Undisclosed Liabilities . . . . . . . . . . . . . . 13
4.9. Litigation . . . . . . . . . . . . . . . . . . . . . . 13
4.10. No Violation . . . . . . . . . . . . . . . . . . . . . 13
4.11. NewMedia Business; Title to Assets . . . . . . . . . . 14
4.12. Intellectual Property . . . . . . . . . . . . . . . . 15
4.13. Contracts and Commitments . . . . . . . . . . . . . . 18
4.14. Customers and Suppliers . . . . . . . . . . . . . . . 22
4.15. Products . . . . . . . . . . . . . . . . . . . . . . . 22
4.16. Returns . . . . . . . . . . . . . . . . . . . . . . . 23
4.17. Competition . . . . . . . . . . . . . . . . . . . . . 23
4.18. Insurance . . . . . . . . . . . . . . . . . . . . . . 23
4.19. Access to Buyer Information . . . . . . . . . . . . . 24
4.20. Seller's Investment Intent . . . . . . . . . . . . . . 24
4.21. Securities Legend; Stop Transfer Instructions . . . . 24
4.22. Environmental Matters . . . . . . . . . . . . . . . . 25
4.23. Taxes . . . . . . . . . . . . . . . . . . . . . . . . 26
4.24. Benefit Plans . . . . . . . . . . . . . . . . . . . . 28
ARTICLE V
REPRESENTATIONS AND WARRANTIES
OF BUYER
5.1. Corporate Organization . . . . . . . . . . . . . . . . 31
5.2. Authorization . . . . . . . . . . . . . . . . . . . . . 31
5.3. SEC Filings. . . . . . . . . . . . . . . . . . . . . . 31
5.4. Authorization and Issuance of SoftKey Shares . . . . . 32
5.5. Consents and Approvals; Non-Contravention . . . . . . . 32
5.6. Litigation . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE VI
ADDITIONAL AGREEMENTS
6.1. Consents and Other Approvals . . . . . . . . . . . . . 33
6.2. Related Agreements and Instruments . . . . . . . . . . 33
6.3. Conduct of the NewMedia Business . . . . . . . . . . . 34
6.4. Audited Financial Statements . . . . . . . . . . . . . 36
6.5. Conveyance Taxes . . . . . . . . . . . . . . . . . . . 36
6.6. Severance and Termination Costs. . . . . . . . . . . . 36
6.7. Noncompetition . . . . . . . . . . . . . . . . . . . . 37
6.8. CNI Recapitalization . . . . . . . . . . . . . . . . . 39
6.9. Further Assurances . . . . . . . . . . . . . . . . . . 39
ARTICLE VII
CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS
7.1. No Injunction or Restraints . . . . . . . . . . . . . . 39
7.2. Regulatory Approvals . . . . . . . . . . . . . . . . . 40
7.3. Standstill Agreement . . . . . . . . . . . . . . . . . 40
7.4. Tax Sharing Agreement . . . . . . . . . . . . . . . . . 40
7.5. Section 1445 Certificate . . . . . . . . . . . . . . . 40
ARTICLE VIII
CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS
8.1. No Injunction or Restraints . . . . . . . . . . . . . . 40
8.2. Regulatory Approvals . . . . . . . . . . . . . . . . . 40
8.3. Registration Rights Agreement . . . . . . . . . . . . . 40
8.4. Tax Sharing Agreement . . . . . . . . . . . . . . . . . 40
8.5. Section 6.2(c) Election . . . . . . . . . . . . . . . . 40
ARTICLE IX
TERMINATION PRIOR TO CLOSING
9.1. Termination of Agreement . . . . . . . . . . . . . . . 41
9.2. Effect of Termination . . . . . . . . . . . . . . . . . 41
ARTICLE X
GENERAL PROVISIONS
10.1. Amendment and Waiver . . . . . . . . . . . . . . . . . 41
10.2. Expenses . . . . . . . . . . . . . . . . . . . . . . . 42
10.3. Broker's and Finder's Fees . . . . . . . . . . . . . . 42
10.4. Notices . . . . . . . . . . . . . . . . . . . . . . . 42
10.5. Entire Agreement; Binding Effect . . . . . . . . . . . 43
10.6. Survival . . . . . . . . . . . . . . . . . . . . . . . 43
10.7. Remedies . . . . . . . . . . . . . . . . . . . . . . . 44
10.8. Applicable Law . . . . . . . . . . . . . . . . . . . . 44
10.9. Parties in Interest . . . . . . . . . . . . . . . . . 44
10.10. Counterparts . . . . . . . . . . . . . . . . . . . . . 44
10.11. Headings; Pronouns and Conjunctions . . . . . . . . . 44
10.12. Announcements . . . . . . . . . . . . . . . . . . . . 44
Exhibit A -- Form of Merger Agreement - CNI
Exhibit B -- Form of Certificate of Merger - CLC
Exhibit C -- Form of Registration Rights Agreement
Exhibit D -- Form of Standstill Agreement
Exhibit E -- Form of Buyer's Promissory Note
Exhibit F -- Form of Tax Sharing Agreement
AGREEMENT AND PLAN OF MERGER
THIS MERGER AGREEMENT is made and entered into this
30th day of November, 1995, by and among SoftKey International
Inc., a Delaware corporation ("Buyer"), Cubsco I Inc., a
California corporation ("CUBSCO I"), Cubsco II Inc., a Delaware
corporation ("CUBSCO II"), Tribune Company, a Delaware
corporation ("Seller"), Compton's NewMedia, Inc., a California
corporation ("CNI"), and Compton's Learning Company, a Delaware
corporation ("CLC" and, together with CNI, the "Companies").
WHEREAS, Seller is the owner of all of the issued and
outstanding capital stock of CNI and CLC; and
WHEREAS, Buyer desires to acquire CNI and CLC upon the
terms and subject to conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the foregoing and
the respective representations, warranties, covenants, agreements
and conditions hereinafter set forth, and intending to be legally
bound hereby, the parties hereto agree as follows:
ARTICLE I
THE CNI MERGER
1.1. General. This Agreement and the form of Merger
Agreement attached hereto as Exhibit A (the "CNI Merger
Agreement") provide for a merger (the "CNI Merger") of CUBSCO I
with and into CNI, with CNI being the surviving corporation. In
the CNI Merger, it is contemplated that the then outstanding
shares of CNI's common stock ("CNI Common Stock") will be
converted at the CNI Effective Time (as hereinafter defined) into
the right to receive, at or subsequent to the Closing (as
hereinafter defined), an aggregate number of shares, rounded up
to the nearest whole share (the "CNI SoftKey Shares"), of Buyer's
common stock, par value $.01 per share ("SoftKey Common Stock"),
obtained by dividing $104,500,000 by the volume-weighted average
of the closing prices for SoftKey Common Stock as quoted over the
Nasdaq National Market for the 10 full trading days ending on the
second full trading day prior to the CNI Effective Time.
1.2. Conversion of CUBSCO I Stock. Each share of
CUBSCO I's common stock, par value $.01 per share ("CUBSCO I
Stock"), issued and outstanding immediately prior to the CNI
Effective Time shall, by virtue of the CNI Merger and without any
action on the part of the holder thereof, be converted into and
exchangeable for one share of common stock of CNI ("New CNI
Stock") as the CNI Surviving Corporation (as hereinafter
defined). From and after the CNI Effective Time, each
outstanding certificate theretofore representing shares of CUBSCO
I Stock shall be deemed for all purposes to evidence ownership of
and to represent the number of shares of New CNI Stock into which
such CUBSCO I Stock shall have been converted. Promptly after
the CNI Effective Time, the CNI Surviving Corporation shall issue
to Buyer a stock certificate or certificates representing shares
of New CNI Stock in exchange for the certificate or certificates
which formerly represented shares of CUBSCO I Stock (which shall
be cancelled).
1.3. Conversion of CNI Common Stock. Each share of
CNI Common Stock issued and outstanding immediately prior to the
CNI Effective Time, other than shares of CNI Common Stock which
are held by CNI or by Buyer or any subsidiary of Buyer (which
shares will be cancelled at the CNI Effective Time), shall, by
virtue of this Agreement and without any action on the part of
the holder thereof, be converted into the right to receive the
number of shares of SoftKey Common Stock obtained by dividing the
CNI SoftKey Shares by the number of shares of CNI Common Stock
outstanding immediately prior to the CNI Effective Time. In
reliance on the representations and warranties of Seller
contained in Sections 4.19 and 4.20 hereof, Buyer will deliver to
Seller at the Closing a stock certificate or certificates
representing the CNI SoftKey Shares upon surrender of the
certificate(s) representing the shares of CNI Common Stock so
converted.
1.4. CNI Surviving Corporation. In accordance with
the provisions of this Agreement and the California General
Corporation Law ("CGCL"), at the CNI Effective Time, CUBSCO I
shall be merged with and into CNI, and CNI shall be the surviving
corporation (the "CNI Surviving Corporation") and shall continue
its corporate existence under the CGCL. The name of the CNI
Surviving Corporation shall continue to be Compton's NewMedia,
Inc. The separate corporate existence of CUBSCO I shall
terminate at the CNI Effective Time.
1.5. Effect of the CNI Merger. At the CNI Effective
Time, the CNI Merger shall have the effect provided for under the
CGCL.
1.6. Organizational Documents. The Articles of
Incorporation of CNI, as in effect at the CNI Effective Time,
shall be the Articles of Incorporation of the CNI Surviving
Corporation until thereafter amended as provided by law. The By-
Laws of CNI, as in effect immediately prior to the CNI Effective
Time, shall be the By-Laws of the CNI Surviving Corporation,
until amended as provided by law and the express terms of the By-
Laws. At the Closing, Seller or CNI shall deliver or cause to be
delivered to Buyer the stock book, stock ledger, minute book and
corporate seal, if any, of CNI.
1.7. Directors and Officers. The directors and
officers of the CNI Surviving Corporation shall consist of the
directors and officers of CUBSCO I immediately prior to the
Effective Time, each to hold office in accordance with the CGCL,
the Articles of Incorporation of the CNI Surviving Corporation
and the By-Laws of the CNI Surviving Corporation. Seller shall
use reasonable efforts to deliver or cause to be delivered to
Buyer at the Closing the written resignations of all of the
officers and directors of CNI from their positions as officers or
directors, effective as of the CNI Effective Time.
1.8. CNI Effective Time. The CNI Merger shall be
effected by the filing of the CNI Merger Agreement (together with
the officer's certificate of each of CUBSCO I and CNI required
under Section 1103 of the CGCL) with the Secretary of State of
the State of California on the day of the Closing. The term "CNI
Effective Time" shall be the date and time when the CNI Merger
becomes effective, as set forth in the CNI Merger Agreement.
1.9. Tax Consequences. It is intended that the CNI
Merger shall constitute a reorganization within the meaning of
Section 368(a) of the Code Internal Revenue Code of 1986, as
amended (the "Code"), and that this Agreement shall constitute a
"plan of reorganization" for the purposes of Section 368 of the
Code.
ARTICLE II
THE CLC MERGER
2.1. General. This Agreement and the Certificate of
Merger attached hereto as Exhibit B (the "CLC Merger
Certificate") provide for a merger (the "CLC Merger" and,
together with the CNI Merger, the "Mergers") of CUBSCO II with
and into CLC, with CLC being the surviving corporation. In the
CLC Merger, it is contemplated that the then outstanding shares
of CLC's common stock, par value $1.00 per share (the "CLC Common
Stock"), will be converted at the CLC Effective Time (as
hereinafter defined) into the right to receive, at or subsequent
to the Closing, an aggregate number of shares, rounded up to the
nearest whole share (the "CLC SoftKey Shares" and, together with
the CNI SoftKey Shares, the "SoftKey Shares"), of SoftKey Common
Stock obtained by dividing $2,000,000 by the volume-weighted
average of the closing prices for SoftKey Common Stock as quoted
over the Nasdaq National Market for the 10 full trading days
ending on the second full trading day prior to the CLC Effective
Time.
2.2. Conversion of CUBSCO II Stock. Each share of
CUBSCO II's common stock, par value $.01 per share ("CUBSCO II
Stock"), issued and outstanding immediately prior to the CLC
Effective Time shall, by virtue of the CLC Merger and without any
action on the part of the holder thereof, be converted into and
exchangeable for one share of common stock, par value $1.00 per
share, of CLC ("New CLC Stock") as the CLC Surviving Corporation
(as hereinafter defined). From and after the CLC Effective Time,
each outstanding certificate theretofore representing shares of
CUBSCO II Stock shall be deemed for all purposes to evidence
ownership of and to represent the number of shares of New CLC
Stock into which such CUBSCO II Stock shall have been converted.
Promptly after the CLC Effective Time, the CLC Surviving
Corporation shall issue to Buyer a stock certificate or
certificates representing shares of New CLC Stock in exchange for
the certificate or certificates which formerly represented shares
of CUBSCO II Stock (which shall be cancelled).
2.3. Conversion of CLC Common Stock. Each share of
CLC Common Stock issued and outstanding immediately prior to the
CLC Effective Time, other than shares of CLC Common Stock which
are held by CLC or by Buyer or any subsidiary of Buyer (which
shares will be cancelled at the CLC Effective Time), shall, by
virtue of this Agreement and without any action on the part of
the holder thereof, be converted into the right to receive the
number of CLC SoftKey Shares obtained by dividing the total
number of CLC SoftKey Shares by the number of shares of CLC
Common Stock outstanding immediately prior to the CLC Effective
Time. In reliance on the representations and warranties of
Seller contained in Sections 4.19 and 4.20 hereof, Buyer will
deliver to Seller at the Closing a stock certificate or
certificates representing the CLC SoftKey Shares upon surrender
of the certificate(s) representing the shares of CLC Common Stock
so converted.
2.4. CLC Surviving Corporation. In accordance with
the provisions of this Agreement and the General Corporation Law
of the State of Delaware (the "DGCL"), at the CLC Effective Time,
CUBSCO II shall be merged with and into CLC, and CLC shall be the
surviving corporation (the "CLC Surviving Corporation") and shall
continue its corporate existence under the DGCL. The name of the
CLC Surviving Corporation shall continue to be Compton's Learning
Company. The separate corporate existence of CUBSCO II shall
terminate at the CLC Effective Time.
2.5. Effect of the CLC Merger. At the CLC Effective
Time, the CLC Merger shall have the effect provided for under the
DGCL.
2.6. Organizational Documents. The Certificate of
Incorporation of CLC, as in effect at the CLC Effective Time,
shall be the Certificate of Incorporation of the CLC Surviving
Corporation until thereafter amended as provided by law. The By-
Laws of CLC, as in effect immediately prior to the CLC Effective
Time, shall be the By-Laws of the CLC Surviving Corporation,
until amended as provided by law and the express terms of the By-
Laws. At the Closing, Seller or CLC shall deliver or cause to be
delivered to Buyer the stock book, stock ledger, minute book and
corporate seal, if any, of CLC.
2.7. Directors and Officers. The directors and
officers of the CLC Surviving Corporation shall consist of the
directors and officers of CUBSCO II immediately prior to the CLC
Effective Time, each to hold office in accordance with the DGCL,
the Certificate of Incorporation of the CLC Surviving Corporation
and the By-Laws of the CLC Surviving Corporation. Seller shall
use reasonable efforts to deliver or cause to be delivered to
Buyer at the Closing the written resignations of all of the
officers and directors of CLC from their positions as officers or
directors, effective as of the CLC Effective Time.
2.8. CLC Effective Time. The CLC Merger shall be
effected by the filing of the CLC Merger Certificate with the
Secretary of State of the State of Delaware on the day of the
Closing. The term "CLC Effective Time" shall be the date and
time when the CLC Merger becomes effective, as set forth in the
CLC Merger Certificate.
2.9. Tax Consequences. It is intended that the CLC
Merger shall constitute a reorganization within the meaning of
Section 368(a) of the Code and that this Agreement shall
constitute a "plan of reorganization" for the purposes of Section
368 of the Code.
ARTICLE III
MATTERS RELATED TO THE MERGERS AND THE SOFTKEY SHARES
3.1. Registration; Legends; etc. The SoftKey Shares
shall be registered by Buyer at the times and subject to the
terms and conditions of a Registration Rights Agreement between
Buyer and Seller substantially in the form attached hereto as
Exhibit C (the "Registration Rights Agreement"). Buyer hereby
undertakes to remove any legend described in Section 4.21 hereto
or to rescind any "stop transfer" instructions described in
Section 4.21 hereto (a) if Seller shall have furnished Buyer with
an opinion of counsel or other written information satisfactory
in form and content to Buyer that such legend or any such
instructions are no longer required (as applicable) or (b) with
respect to and at the time of the disposition of any such SoftKey
Shares pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "Securities Act").
3.2. Standstill. At or prior to the Closing, Seller
shall enter into a Standstill Agreement with Buyer substantially
in the form attached hereto as Exhibit D (the "Standstill
Agreement").
3.3. Closing; Effectiveness of Mergers. The closing
of the transactions contemplated by this Agreement (the
"Closing") shall occur at the offices of Skadden, Arps, Slate,
Meagher & Flom, One Beacon Street, Boston, Massachusetts, at
10:00 A.M., local time, two business days after the satisfaction
of the condition set forth in Sections 7.2 and 8.2 hereof, or at
such other place and time as may be agreed upon by the parties.
The CNI Effective Time and the CLC Effective Time shall occur at
the Closing. The time and date of the Closing is sometimes
referred to herein as the "Closing Date."
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents, warrants and agrees as
follows:
4.1. Corporate Organization.
(a) Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State
of Delaware and has the corporate power and authority to own or
lease its properties and to carry on its business as it is
presently being conducted.
(b) CNI is a corporation duly organized, validly
existing and in good standing under the laws of the State of
California, and CLC is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware. The Companies have the corporate power and authority
to own or lease their respective properties and to carry on their
respective businesses (collectively, the "NewMedia Business") as
they are presently being conducted. The Companies are duly
qualified or licensed as foreign corporations to do business and
are in good standing in the respective jurisdictions listed in
Section 4.1(b) of the disclosure schedule delivered by Seller to
Buyer on or prior to the date hereof (the "Disclosure Schedule"),
which constitute every jurisdiction where the character of the
Companies' respective properties (owned or leased) or the nature
of their respective activities makes such qualification or
licensure necessary, except for failures, if any, to be so
qualified or licensed which would not in the aggregate have a
Material Adverse Effect (as hereinafter defined). As used in
this Agreement, any reference to any event, change or effect
having a "Material Adverse Effect" shall mean that such event,
change or effect is materially adverse to the business,
operations, properties, assets (including intangible assets),
liabilities (including contingent liabilities), financial
condition or results of operations of the Companies, taken
together.
(c) Except as set forth in Section 4.1(c)(i) of
the Disclosure Schedule, the Companies do not own, directly or
indirectly, any capital stock of any corporation or have any
direct or indirect equity or ownership interest of any kind in
any business, joint venture, partnership or other entity. The
copies of the Articles of Incorporation or Certificate of
Incorporation and By-Laws of each of the Companies heretofore
delivered to Buyer and set forth in Section 4.1(c)(ii) of the
Disclosure Schedule are complete and correct copies of such
instruments as presently in effect.
4.2. Authorization. Each of Seller and the Companies
has requisite corporate power and corporate authority to enter
into this Agreement and the other agreements, documents and
instruments to be executed and delivered by each of them pursuant
hereto (the "Additional Seller's Documents") and to carry out the
transactions contemplated hereby and thereby. The Board of
Directors of Seller and the Board of Directors and sole
stockholder of each of the Companies have taken all action
required by law, their respective charters, their respective By-
Laws or otherwise to be taken by each of them to authorize the
execution, delivery and performance of this Agreement and the
Additional Seller's Documents, and when fully executed and
delivered, this Agreement and the Additional Seller's Documents
will constitute the valid and binding agreements of each of them,
as the case may be, enforceable against each of them, as the case
may be, in accordance with their respective terms.
4.3. Capitalization.
(a) As of the date and time of execution of this
Agreement, the authorized capital stock of CNI (the issued and
outstanding shares of which are referred to hereinafter as the
"CNI Shares") consists of: (i) 10,000,000 shares of CNI Common
Stock, 1,173,333 of which are issued and outstanding; and (ii)
5,000,000 shares of preferred stock, of which 762,000 shares of
Series A Preferred Stock (the "Series A Preferred Stock") are
issued and outstanding, 561,375 shares of Series B Preferred
Stock (the "Series B Preferred Stock") are issued and
outstanding, and 450,101 shares of Series C Preferred Stock (the
"Series C Preferred Stock") are issued and outstanding. All of
the CNI Shares have been validly issued, are fully paid,
nonassessable and free and clear of any mortgage, pledge,
security interest, encumbrance, lien, claim or charge of any kind
or right of others of whatever nature ("Liens"), preemptive
rights or other restrictions with respect thereto and are owned
of record and beneficially by Seller. There are no securities
outstanding which are convertible into or exercisable or
exchangeable for shares of capital stock of CNI, and there are no
outstanding options, rights, contracts, warrants, subscriptions,
conversion rights or other agreements or commitments pursuant to
which CNI may be required to purchase, redeem, issue or sell any
shares of capital stock or other securities of CNI or in any way
relating to the issuance or voting of any capital stock or other
securities of CNI.
(b) As of the date and time of execution of this
Agreement, the authorized capital stock of CLC consists of 10,000
shares of CLC Common Stock, 1,000 of which are issued and
outstanding (the "CLC Shares"). All of the CLC Shares have been
validly issued, are fully paid, nonassessable and free of any
Liens, preemptive rights or other restrictions with respect
thereto and are owned of record and beneficially by Seller.
There are no securities outstanding which are convertible into or
exercisable or exchangeable for shares of capital stock of CLC,
and there are no outstanding options, rights, contracts,
warrants, subscriptions, conversion rights or other agreements or
commitments pursuant to which CLC may be required to purchase,
redeem, issue or sell any shares of capital stock or other
securities of CLC or in any way relating to the issuance or
voting of any capital stock or other securities of CLC.
4.4. Ownership of Shares. Seller has good and valid
title to the CNI Shares and the CLC Shares, and at the CNI
Effective Time and the CLC Effective Time, respectively, Buyer
will have good and valid title to the New CNI Stock and the New
CLC Stock, in each case, free and clear of any Liens (except for
Liens created by or through Buyer).
4.5. Consents and Approvals; Non-Contravention.
Except as set forth in Section 4.5 of the Disclosure Schedule,
neither the execution, delivery or performance of this Agreement
or of any of the Additional Seller's Documents, nor the
consummation by Seller and the Companies of the transactions
contemplated hereby or thereby, nor compliance by Seller and the
Companies with any of the provisions hereof or thereof will (a)
violate any provision of the Charter or By-Laws of Seller or
either of the Companies, (b) except as may be required under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended
(the "HSR Act"), require any filing with, or permit,
authorization, consent or approval of, any court, arbitral
tribunal, administrative agency or commission or other
governmental or regulatory authority or agency (a "Governmental
Entity"), (c) violate any order, writ, injunction, decree,
statute, rule or regulation applicable to Seller or either of the
Companies or any of their respective properties or assets or (d)
require any consent, approval or authorization under any
contract, lease or other agreement, or result in a violation or
breach of, or constitute (with or without notice or lapse of time
or both) a default (or give rise to any right of termination,
amendment, cancellation or acceleration or any loss of a material
benefit) under, or result in the creation or imposition of (or
the obligation to create or impose) any Lien upon any of the
respective properties or assets of Seller or either of the
Companies under, any note, bond, mortgage, indenture, lease,
license, contract, agreement or other instrument or obligation to
which Seller or either of the Companies is a party or by which
Seller or either of the Companies or any of their respective
properties or assets may be bound, except, (i) in the case of
clause (c), for such violations of statutes, rules or
regulations, and (ii) in the case of clause (d), for such
violations, breaches, defaults or Liens which, in either such
case, would not materially impair the ability of Seller to
perform its obligations hereunder or under any other agreements
entered into between Buyer and Seller, either alone or together
with other parties thereto, as of the date of this Agreement and
which would not, either individually or in the aggregate, have a
Material Adverse Effect.
4.6. Financial Statements. The unaudited balance
sheets of each of the Companies as of December 25, 1994 and
September 24, 1995 and the unaudited operating statements of each
of the Companies for the year ended December 25, 1994 and the
nine months ended September 24, 1995, heretofore delivered to
Buyer and set forth in Section 4.6 of the Disclosure Schedule
(collectively, the "Financial Statements"), fairly present the
financial condition of each Company as of the dates and for the
periods indicated (subject in the case of interim statements to
normal recurring year-end adjustments) and, except as disclosed
in writing to Buyer in Section 4.6 of the Disclosure Schedule,
have been prepared in accordance with generally accepted
accounting principles as historically and consistently applied,
subject to the absence of footnote disclosure.
4.7. Interim Change. Since September 24, 1995, (i)
the Companies have been operating only in, and have not engaged
in any material transaction other than in, the ordinary course of
the NewMedia Business and consistent with past practice, and (ii)
neither of the Companies has (nor, as applicable, has Seller on
behalf of either of the Companies):
(a) suffered any change, nor has there occurred
or arisen any event, having or which in the future could
reasonably be expected to have a Material Adverse Effect;
(b) forgiven or cancelled any debts or claims or
waived, released or relinquished any contract right or any other
rights of the NewMedia Business other than in the ordinary course
of the NewMedia Business and consistent with past practice;
(c) paid, discharged or satisfied any Liens,
liabilities or obligations (absolute, accrued, contingent or
otherwise) other than in the ordinary course of the NewMedia
Business and consistent with past practice;
(d) suffered any damage, destruction or loss of
property, whether or not covered by insurance, which has had or
would be reasonably likely to have a Material Adverse Effect;
(e) accelerated the collection of, granted any
discounts with respect to or sold or assigned to third parties
any accounts receivable or delayed the payment of any payables of
the Companies or written off as uncollectible any accounts
receivable or any portion thereof, in each such case, other than
in the ordinary course of the NewMedia Business and consistent
with past practice;
(f) changed their respective policies with
respect to the recording of return reserve provisions or
provisions for bad debt;
(g) created, incurred or assumed any long-term
debt (including obligations in respect of capital leases), or
assumed, guaranteed, endorsed or otherwise become liable or
responsible (whether directly, contingently or otherwise) for the
obligations of any other individual, corporation, partnership,
joint venture, association, organization or other entity (a
"Person"), or made any loans, advances or capital contributions
to, or investment in, any other Person (other than cash advances
to employees for travel or entertainment expenses in the ordinary
course of the NewMedia Business);
(h) mortgaged, pledged or subjected to any Lien,
except for liens for current Taxes (as hereinafter defined) not
yet due, or sold, assigned or transferred, except for sales of
inventory and minor amounts of personal property in the ordinary
course of the NewMedia Business and consistent with past
practice, any of its properties or assets (real, personal or
mixed, tangible or intangible);
(i) (i) increased in any manner the wages,
salaries or other compensation of any officer or employee, except
as required under any written plan, agreement or arrangement in
effect as of September 24, 1995 and except for increases in the
ordinary course of the NewMedia Business and consistent with past
practice, (ii) paid or agreed to pay any pension, retirement
allowance or other employee benefit not required or contemplated
by any plan, agreement or arrangement in effect as of September
24, 1995 to any officer or employee or (iii) committed itself to
any additional pension, profit-sharing, bonus, severance pay,
retirement or other benefit plan, agreement or arrangement, or to
any employment or consulting agreement with or for the benefit of
any person or to amend any of such plans, agreements or
arrangement in effect as of September 24, 1995, except as may
have been required to comply with applicable law;
(j) experienced or, to Seller's knowledge, been
threatened with any work stoppage or other labor dispute or
controversy;
(k) acquired (i) by merger or consolidation with,
or by the purchase of the assets of, or by any other manner, any
business or any corporation, partnership, association or other
business organization or division thereof or (ii) any assets that
are material in the aggregate to the Companies, except purchases
of inventory, materials and supplies in the ordinary course of
business and consistent with past practice and capital
expenditures for additions to property, plant, equipment or
intangible capital assets not exceeding $50,000 in the aggregate;
(l) entered into any agreement, contract or
commitment, other than in the ordinary course of business, with
respect to the manufacture of any software product of either of
the Companies or any update, upgrade or derivative thereof,
whether now in process, under contract or in publication, which
has ever been or is currently being produced by the Company
(collectively, the "Products");
(m) declared, paid or set aside for payment any
dividend or other distribution (whether in cash, stock or
property or any combination thereof) directly or indirectly to
Seller (other than payments in respect of the indebtedness of CNI
or CLC to Seller);
(n) made any change in its accounting principles
or methods, except as may have been required by a change in
generally accepted accounting principles as required by the
Federal Accounting Standards Board (or another authorized
accounting body) or the SEC;
(o) amended their respective Articles of
Incorporation or By-Laws; or
(p) authorized any of, or committed or agreed,
whether in writing or otherwise, to take any of, the actions
described elsewhere in this Section 4.7.
4.8. No Undisclosed Liabilities. Except as set forth
in Section 4.8 of the Disclosure Schedule and as and to the
extent of the amounts specifically reflected or reserved against
in the Financial Statements (including without limitation
charges, accruals and reserves for Taxes), and other than current
liabilities which were incurred, and obligations under
agreements, commitments or contracts entered into, in the
ordinary course of the NewMedia Business and consistent with past
practice and not in excess of current requirements and other than
liabilities which could not reasonably be expected to have a
Material Adverse Effect, the Companies have no liabilities or
obligations of any nature (whether absolute or accrued, known or
unknown, contingent or otherwise and whether due or to become
due), including without limitation liabilities for Taxes.
4.9. Litigation. Except as set forth in Section 4.9
of the Disclosure Schedule, there is no claim, action, suit,
inquiry, proceeding or investigation by or before any
Governmental Entity pending or, to the knowledge of Seller,
threatened against Seller or either of the Companies or affecting
any of the respective properties or assets of Seller or the
Companies which could, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, or
which in any manner (a) seeks injunctive or other non-monetary
relief which relief is reasonably likely to cause a Material
Adverse Effect or (b) seeks to prevent, enjoin, alter or delay
any transaction contemplated hereby. Neither Seller nor either
of the Companies is subject to any order, writ, injunction or
decree which, individually or in the aggregate, has or in the
future could reasonably be expected to have a Material Adverse
Effect or a material adverse effect on the ability of Seller to
consummate the transactions contemplated hereby.
4.10. No Violation. Neither Seller nor either of the
Companies is in breach or violation of, or in default under (and
no event has occurred which with notice or lapse of time or both
would constitute such a breach, violation or default), any term,
condition or provision of (a) their respective Charter or By-
Laws, (b) any order, writ, decree, statute, rule or regulation
applicable to Seller or either of the Companies or any of their
respective properties or assets or (c) any note, bond, mortgage,
indenture, lease, license, contract, agreement or other
instrument or obligation to which Seller or either of the
Companies is a party or by which Seller or either of the
Companies or any of their respective properties or assets may be
bound, except, in the case of clauses (a), (b) and (c), for such
breaches, violations or defaults, which, when taken individually
or in the aggregate, would neither materially impair the ability
of Seller to perform its obligations hereunder or under any other
agreement entered into between Buyer and Seller, either alone or
together with other parties thereto, as of the date of this
Agreement and which would not, either individually or in the
aggregate, have a Material Adverse Effect. To the best knowledge
of Seller, the Companies have, and are in compliance with, all
licenses, permits, variances, exemptions, orders, approvals and
other authorizations of all Governmental Entities as are
necessary in order to enable them to own and conduct the NewMedia
Business as currently conducted and to enter into the
transactions contemplated hereby, the lack of which, under
applicable law, rule or regulation, (x) would render legally
impermissible the transactions contemplated by this Agreement, or
(y) could reasonably be expected to have a Material Adverse
Effect.
4.11. NewMedia Business; Title to Assets.
(a) The NewMedia Business as currently conducted
consists of (i) the development, publication and worldwide
distribution of interactive multimedia CD-ROM Software in the
areas of reference (including "Compton's Interactive
Encyclopedia" and related titles), education, entertainment and
lifestyle and (ii) such other businesses, operations, properties,
assets (including intangible assets) and liabilities (including
contingent liabilities) as are conducted, held, utilized or had
by the Companies as of the date and time of execution of this
Agreement.
(b) Either CNI or CLC has good and marketable
title, free and clear of all Liens (other than Liens for current
taxes not yet due and minor imperfections of title or minor
encumbrances, if any, which in the aggregate do not materially
detract from the value of the property subject thereto or impair
in any material respect the continued use by the Companies of the
property subject thereto for the use being made thereof), to all
of the material assets, real property, interest in real property,
rights, franchises, licenses and properties tangible or
intangible, real or personal, wherever located, which are used in
or necessary for the conduct of the NewMedia Business in
substantially the same manner as it is presently conducted (the
"Assets"), other than Intellectual Property (as hereinafter
defined) and property that is leased or licensed. Either CNI or
CLC has valid and enforceable leases or licenses, as the case may
be, with respect to the Assets consisting of property that is
leased or licensed (other than Intellectual Property), under
which there exists no default, event of default or event which,
with notice or lapse of time or both, would constitute a default,
except for such defaults which would not have, either
individually or in the aggregate, a Material Adverse Effect.
4.12. Intellectual Property. (a) Except as set forth
in Section 4.12(a) of the Disclosure Schedule, which shall be
delivered by Seller to Buyer on or before December 15, 1995,
either CNI or CLC owns, licenses or otherwise has the right to
use, sell, or license the Intellectual Property (as defined in
this subparagraph 4.12(a)) as used in the NewMedia Business as
heretofore conducted. Section 4.12 of the Disclosure Schedule, to
be delivered by Seller to Buyer on or before December 15, 1995,
shall include a true and complete listing of the following: (i)
Section 4.12(a)(i) shall list all issued patents and pending
patent applications, registered trademarks and service marks and
applications therefor, and copyright registrations and
applications ("Registered Intellectual Property") which are owned
by CNI or CLC; (ii) Section 4.12(a)(ii) shall list all other
products and titles (including print, CD-ROM and online titles
and computer programs) which are not the subject of copyright
registrations, common law trade names, trademarks or service
marks ("Unregistered Intellectual Property") which are owned by
or licensed to CNI or CLC and which are currently used in and
necessary to the NewMedia Business as heretofore conducted ;
(iii) Section 4.12(a)(iii) shall list (X) each license or other
agreement in which CNI or CLC has licensed or granted to another
rights to or permission to use the subject matter of Registered
Intellectual Property or Unregistered Intellectual Property owned
by either CNI or CLC which is either material to the NewMedia
Business as heretofore conducted or in which such grant or
license is exclusive in whole or in part ("Licensor Agreements")
and (Y) each material license or other agreement in which CNI or
CLC has been licensed or otherwise received from another rights
to or permission to use Registered Intellectual Property or
Unregistered Intellectual Property of another ("Licensee
Agreements"); (all of the foregoing collectively referred to
herein as "Intellectual Property"). For purposes of (Y) above,
the term "material" refers to materiality to any individual
product, title or product line currently used in and necessary to
the NewMedia Business as heretofore conducted.
(b) Except as set forth in Section 4.12 (b) of
the Disclosure Schedule, which shall be delivered by Seller to
Buyer on or before December 15, 1995:
(i) either CNI or CLC has the sole and
exclusive right to use, sell, license, or bring actions for the
infringement of its rights to the Intellectual Property used in
the NewMedia Business as heretofore conducted, as the case may
be, subject to rights of such third rights as are set forth in
Section 4.12(b)(i) of the Disclosure Schedule;
(ii) the consummation of the transaction
contemplated hereby will not (i) give rise to any right of
termination, amendment, renegotiation, cancellation or
acceleration with respect to any Licensor Agreements or Licensee
Agreements so as to have a Material Adverse Effect on the
NewMedia Business as presently conducted or (ii) have a Material
Adverse Effect on the NewMedia Business as presently conducted so
as to impair the right of either of the Companies to use, sell,
license, or bring actions for the infringement of either of the
Companies' rights to the Intellectual Property or any portion
thereof;
(iii) all Registered Intellectual Property
owned by the Companies is duly subsisting and the registrations
therefor are not subject to any pending claim, ruling, or order
to the effect that they are lapsed, abandoned, invalid or
cancelled;
(iv) no former or present employees, officers
or directors of either of the Companies holds any right, title or
interest, directly or indirectly, in whole or in part, in or to
any Intellectual Property which either of the Companies currently
uses, sells, or licenses, or the use, sale or licensure of which
is necessary for the conduct of the NewMedia Business as
presently conducted;
(v) neither Seller nor either of the
Companies is a party to any employment contract, patent
disclosure agreement or any other contract or agreement relating
to the relationship of any employee of Seller (working in or
supporting the NewMedia Business) or either of the Companies
relating in any way to Intellectual Property owned by CNI or CLC;
(vi) each Licensor Agreement and Licensee
Agreement is a valid, legally binding obligation of CNI or CLC,
enforceable in accordance with its terms, and neither CNI or CLC
is in breach, violation, default or termination thereof (and no
event has occurred which with the giving of notice or the passage
of time or both would constitute such a breach, violation,
default or termination or give rise to any right of termination,
amendment, renegotiation, cancellation or acceleration under any
such Licensor Agreement or Licensee Agreement) so as to have a
Material Adverse Effect on the NewMedia Business as presently
conducted, and neither Seller nor either of the Companies has
knowledge of any facts that would constitute a breach, violation,
default or termination by any other party to any such Licensor
Agreement or Licensee Agreement so as to have a Material Adverse
Effect on the NewMedia Business as a whole;
(vii) to the best knowledge of Seller, the
manufacture, marketing, use, sale or licensure of any
Intellectual Property currently made, marketed, used, sold or
licensed by either of the Companies does not violate any license
or agreement with any third party or infringe any patent,
trademark, copyright, trade secret, publicity right or similar
intellectual property rights of any Person so as to have a
Material Adverse Effect on the NewMedia Business as presently
conducted, nor has such an infringement been alleged within the
preceding three years; there is no pending or, to the best
knowledge of Seller, threatened claim or litigation challenging
or questioning the validity, ownership or right to use, sell, or
license of any Intellectual Property so as to have a Material
Adverse Effect upon the NewMedia Business as presently conducted,
nor, to the best knowledge of Seller, is there a valid basis for
any such claim, nor has Seller or either Company received any
notice asserting that the proposed use, sale, or licensure by
either of the Companies of any of their respective Intellectual
Property conflicts with or will conflict with the rights of any
other party so as to have a Material Adverse Effect upon the
NewMedia Business as presently conducted, nor is there, to the
best knowledge of Seller, a valid basis for any such claim or
assertion; and
(viii) neither Seller nor either of the
Companies has asserted any claim of infringement,
misappropriation or misuse within the past three years with
respect to any Intellectual Property owned by CNI or CLC and used
in connection with the NewMedia Business;
(ix) the Intellectual Property owned by CNI
and CLC is not subject to any liens, security interests, pledges,
mortgages, or other encumbrances.
(c) To the best knowledge of Seller, the
exceptions to be set forth on Section 4.12 of the Disclosure
Schedule shall not, either individually or in the aggregate,
create or constitute a Material Adverse Effect with respect to
the Intellectual Property as used in the NewMedia Business as
heretofore conducted; it being understood that any exceptions set
forth in Section 4.12 of the Disclosure Schedule relating to the
use of any photographs in any online application shall not
constitute a Material Adverse Effect.
4.13. Contracts and Commitments.
(a) A complete and accurate list of all of the
following contracts and agreements (whether written or oral) of
the Companies (such contracts and agreements, the contracts and
agreements as set forth in Section 4.13(b) of the Disclosure
Schedule and all agreements relating to Intellectual Property set
forth in Section 4.12 of the Disclosure Schedule being "Material
Contracts") shall be delivered by Seller to Buyer on or before
December 15, 1995 and shall constitute Section 4.13(a) of the
Disclosure Schedule:
(i) agreements providing for royalty
obligations relating to any of the Products which has generated
at least $250,000 in revenue within the Companies' last three
fiscal years or which is reasonably anticipated to generate
revenue of at least $250,000 in fiscal year 1995 or fiscal year
1996;
(ii) agreements providing for advances made
with respect to or on account of the Products which remain
outstanding and which have not been written off;
(iii) (A) editorial development agreements
relating to the Products which have involved or are reasonably
anticipated to involve commitments of over $50,000 and which have
not been fully performed and (B) distributor, dealer or
manufacturer's representative contracts or agreements relating to
the Products which are currently offered for sale by either of
the Companies (to the extent the obligations under such
agreements are not reflected on the Disclosure Schedule lists
provided pursuant to Section 4.13(a)(i) and (ii));
(iv) distributor, dealer or manufacturer's
representative contracts or agreements which are not terminable
on less than 90 days notice without cost or other liability to
the Company or Companies party thereto (except for contracts
which, in the aggregate, are not material to the NewMedia
Business);
(v) sales contracts which entitle any
customer to a rebate or right of set-off, to return any product
to either of the Companies after acceptance thereof or to delay
the acceptance thereof;
(vi) contracts or other commitments with any
supplier containing any provision permitting any party other than
the Company or Companies party thereto to renegotiate the price
or other terms, or containing any pay-back or other similar
provision, upon the occurrence of a failure by that Company to
meet its obligations under the contract when due or the
occurrence of any other event;
(vii) credit agreements, notes, indentures,
security agreements, pledges, guarantees of or agreements to
acquire any such debt obligation of others or similar documents
relating to indebtedness for borrowed money (including without
limitation interest rate or currency swaps, hedges or straddles
or similar transactions) to which either of the Companies is a
party or by which any of their respective assets are bound,
restricted or encumbered;
(viii) all employment, consulting, severance
or termination agreements which require or may require either of
the Companies to pay more than $50,000 in base salary in the case
of employment contracts in any 12-month period;
(ix) agreement, or group of related
agreements with the same party or any group of affiliated
parties, requiring payments in excess of $50,000 per year, under
which either of the Companies has leased or has agreed to lease
any property as lessee or lessor;
(x) all deeds, title documents, title
reports or similar documents related to any real property owned
by either of the Companies; and
(xi) all contracts, agreements, arrangements
or understandings with Seller or any affiliate or associate (as
such terms are defined in Rule 12b-2 under the Securities
Exchange Act of 1934, as amended) of Seller, together with a
description of the nature of any applicable affiliate or
associate relationship.
(b) Except as set forth in Section 4.13(b) of the
Disclosure Schedule, which shall be delivered by Seller to Buyer
on or before December 15, 1995:
(i) no supply or purchase contract of either
of the Companies (or group of related contracts with the same
party): (A) continues for a period of more than six months
(including renewals or extensions at the option of another
party); (B) requires payment by the Company or Companies party
thereto of more than $50,000 in any 12-month period; or (C) is
not terminable by the Company or Companies party thereto without
penalty upon notice of 30 days or less (excluding any contract or
group of contracts with a customer of either of the Companies for
the sale, lease, license or rental of Products of either of the
Companies if such contract or group of contracts was entered into
in the ordinary course of the NewMedia Business);
(ii) neither of the Companies has any
agreement, arrangement or understanding with respect to payment
of (A) minimum royalty or license fees or (B) fees, costs and
expenses in connection with "work for hire" which, in the case of
any such agreement, arrangement or understanding or group of
related agreements, arrangements or understandings, provide for
payments in excess of $150,000;
(iii) neither of the Companies has any
outstanding contract with respect to the employment of any
officer, individual, employee, agent, consultant, adviser,
salesperson, representative or other person (whether of a legally
binding nature or in the nature of informal understandings) on a
full-time, part-time, contract or consulting basis which is not
terminable by the Company or Companies party thereto on notice of
30 days or less without cost or other liability to the Company or
Companies party thereto, including without limitation any penalty
or premium or provision for the payment of any bonus or
commission based on sales or earnings;
(iv) neither of the Companies has any
pension, profit-sharing, bonus, severance pay, retirement,
hospitalization, insurance, stock purchase, stock option or other
benefit plan, arrangement, understanding or agreement with or for
the benefit of any Person (a "Benefit Plan") or any other
employment or consulting agreement that contains any severance or
termination pay, liability or obligation;
(v) neither of the Companies has any Benefit
Plan other than group insurance plans applicable to employees
generally;
(vi) neither of the Companies has any
employee to whom it is paying base salary at an annual rate of
more than $100,000 for services rendered;
(vii) neither of the Companies is restricted
by any agreement from carrying on the NewMedia Business in any
material respect anywhere in the world (other than by geographic
or use restrictions contained in licenses relating to
Intellectual Property);
(viii) neither of the Companies has any
outstanding loan to any Person, other than travel advances to
employees for travel and entertainment expenses in the ordinary
course of the NewMedia Business;
(ix) neither of the Companies has any power
of attorney outstanding (except those granted in the ordinary
course of the NewMedia Business) or any obligation or liability
(whether absolute, accrued, contingent or otherwise), as surety,
co-signer, endorser, co-maker, indemnitor or otherwise in respect
of the obligation of any Person;
(x) there exists no voting trust,
stockholders' agreement, pledge agreement or buy-sell agreement
relating to any securities of either of the Companies which is or
will be in effect as of the Closing;
(xi) neither of the Companies has any
agreement or obligation (contingent or otherwise) to issue or
sell or to repurchase or otherwise acquire or retire any shares
of its capital stock or any of its other equity securities; and
(xii) neither of the Companies has any other
contract which is material to its business, operations or
prospects or any other contract, instrument, commitment, plan or
arrangement, a copy of which would be required to be filed with
the SEC as an exhibit to a registration statement on Form S-1, if
that Company were registering securities under the Securities
Act.
(c) The Material Contracts constitute all
contracts, agreements and arrangements necessary for the conduct
of the NewMedia Business in substantially the same manner as it
is presently conducted. Each Material Contract is, to the best
knowledge of Seller, valid and binding on the other party or
parties thereto (subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to
creditors' rights and remedies generally and general principles
of equity) and is in full force and effect and shall continue in
full force and effect without penalty or other adverse
consequence. Neither of the Companies nor, to the best knowledge
of Seller, any other party to any Material Contract is in breach
of, or default under, any Material Contract, which breach or
default has or could reasonably be expected to have a Material
Adverse Effect.
4.14. Customers and Suppliers. A list of (a) the ten
largest customers of the Companies, taken together, in terms of
sales during the nine months ended September 24, 1995, showing
the approximate total sales by the Companies to each such
customer during the nine months ended September 24, 1995 and (b)
the ten largest suppliers of goods and materials to the
Companies, taken together, in terms of purchases during the nine
months ended September 24, 1995, showing the approximate total
purchases by the Companies from each supplier during the nine
months ended September 24, 1995 shall be delivered by Seller to
Buyer on or before December 15, 1995 and shall constitute
Sections 4.14(a) and 4.14(b), respectively, of the Disclosure
Schedule. Except to the extent set forth in Section 4.14(c) of
the Disclosure Schedule, there have not been any adverse changes
in the business relationship of the Companies with any customers
or suppliers since September 24, 1995 which could reasonably be
expected to have in the aggregate a Material Adverse Effect.
4.15. Products.
(a) A summary of product information consisting
of: (i) a complete and accurate list of all Products currently
developed, licensed, manufactured, sold, distributed or otherwise
published by either of the Companies ("Current Products"),
setting forth the specific nature of the arrangement as to any of
the foregoing, the date of any agreement with respect thereto and
any other material provisions of any such arrangement; (ii) if
applicable, the current version number of each Current Product;
and (iii) information as to whether all rights to each Current
Product and its software code are owned by either of the
Companies or are licensed from one or more third parties, naming
any such third party, shall be delivered by Seller to Buyer on or
before the earlier to occur of the Closing Date or December 31,
1995 and shall constitute Section 4.15(a) of the Disclosure
Schedule.
(b) A list of all license or other agreements
pursuant to which any part or component of any Current Product is
licensed by either of the Companies from a third party and a
detailed description of the part or component so licensed shall
be delivered by Seller to Buyer on or before the earlier to occur
of the Closing Date or December 31, 1995 and shall constitute
Section 4.15(b) of the Disclosure Schedule.
(c) A detailed description of the video clips,
audio clips, photography, animations and other "content" files
utilized or incorporated in any Current Product, including
information as to (i) whether such files are owned by either of
the Companies or licensed from a third party and (ii) the sources
of such files shall be delivered by Seller to Buyer on or before
the earlier to occur of the Closing Date or December 31, 1995 and
shall constitute Section 4.15(c) of the Disclosure Schedule.
4.16. Returns. The general returns policy of the
Companies is as set forth in Section 4.16 of the Disclosure
Schedule.
4.17. Competition. Except as set forth in Section
4.17 of the Disclosure Schedule, Seller does not own, directly or
indirectly, any capital stock or other equity securities of, has
no direct or indirect equity or ownership interest in, and is not
serving as a director, officer, employee or consultant of any
Person which competes with, or conducts the same business as,
either of the Companies.
4.18. Insurance. A list of all policies or binders of
insurance held by or on behalf of either of the Companies
(specifying the insurer, amount of the coverage, type of
insurance, expiration date of each policy, risks insured and any
pending claims thereunder) shall be delivered by Seller to Buyer
on or before December 15, 1995 and shall constitute Section
4.18(a) of the Disclosure Schedule. There has not been any
failure to give any notice or present any material claim under
any such policy or binder in a timely fashion or in the manner or
detail required by the policy or binder. There are no
outstanding past due premiums or claims, and there are no
provisions for retroactive or retrospective premium adjustments.
No notice of cancellation or non- renewal with respect to, or
disallowance of any claim under, any such policy or binder has
been received by the Seller or either of the Companies or any
director or officer thereof since December 1, 1993. A
description of all outstanding bonds and other surety
arrangements issued or entered into in connection with the
NewMedia Business shall be delivered by Seller to Buyer on or
before December 15, 1995 and shall constitute Section 4.18(b) of
the Disclosure Schedule.
4.19. Access to Buyer Information. Seller hereby
represents that (a) it has been furnished by Buyer during the
course of this transaction with all information regarding Buyer
which it had requested, (b) all documents that have been
reasonably requested by Seller have been made available for
Seller's or Seller's counsel's inspection and review, (c) it has
been afforded the opportunity for its duly authorized officers
and other representatives to ask questions of and receive answers
from duly authorized officers or other representatives of Buyer
concerning the terms and conditions of the issuance and delivery
of the SoftKey Shares to Seller by Buyer in the Mergers and (d)
any other additional information which it has requested has been
provided.
4.20. Seller's Investment Intent. Seller represents
that the SoftKey Shares being issued and delivered to it
hereunder are being acquired for its own account, for investment
for an indefinite period of time, not as nominee or agent for any
other person, firm or corporation and not for distribution or
resale to others; provided, however, that the parties hereto
acknowledge that Seller may dispose of some or all of its SoftKey
Shares pursuant to an effective registration statement under the
Securities Act, or in any transaction exempt from registration
under the Securities Act. Seller agrees that it will not sell or
otherwise transfer its SoftKey Shares unless they are registered
under the Securities Act or unless an exemption from such
registration is available.
4.21. Securities Legend; Stop Transfer Instructions.
Seller consents to the placement of a legend on any certificate
or other document evidencing its SoftKey Shares, stating that
such SoftKey Shares have not been registered under the Securities
Act or any state securities or "blue sky" laws and setting forth
or referring to the restrictions on transferability and sale
thereof, including the restrictions set forth herein. Seller is
aware that Buyer will make a notation in its appropriate records
with respect to the restrictions on the transferability of such
SoftKey Shares. Seller also consents and acknowledges that "stop
transfer" instructions may be noted against the SoftKey Shares
received by it hereunder.
4.22. Environmental Matters.
(a) To the knowledge of Seller, during any period
that either of the Companies has leased or owned its properties
or owned or operated any facilities, there have not been any
disposals, releases or, to the best knowledge of Seller,
threatened releases of oil or petroleum or Hazardous Materials
(as hereinafter defined) on, from or under such properties or
facilities. For the purposes of this Agreement, the terms
"facility," "disposal," "release" and "threatened release" shall
have the definitions assigned thereto by the Comprehensive
Environmental Response, Compensation and Liability Act of 1980,
42 U.S.C. SECTION 9601 et seq., as amended ("CERCLA"). For the
purposes of this Agreement, "Hazardous Materials" shall mean any
hazardous or toxic substance, material or waste which is or
becomes prior to the Closing regulated under, or defined as a
"hazardous substance," "pollutant," "contaminant," "toxic
chemical," "hazardous materials," "toxic substance" or "hazardous
chemical" under: (i) CERCLA; (ii) any similar federal, state or
local law; or (iii) regulations promulgated under any of the
above laws or statutes.
(b) To the best knowledge of Seller, none of the
properties, facilities or operations of either of the Companies
is in violation of any federal, state or local law, ordinance,
regulation or order relating to industrial hygiene or to the
environmental conditions on, under or about such properties or
facilities, including, but not limited to, soil and ground water
condition. To the knowledge of Seller, during the time that the
Companies have owned or leased their respective properties and
facilities, neither of the Companies has used, generated,
manufactured or stored on, under or about such properties or
facilities or transported to or from such properties or
facilities any Hazardous Materials.
(c) To the knowledge of Seller, during the time
that the Companies have owned or leased their respective
properties and facilities, there has been no litigation brought
or, to the best knowledge of Seller, threatened against and no
request for information made to Seller or either of the Companies
by, or any settlement reached by Seller or either of the
Companies with, any party or parties alleging the presence,
disposal, release or threatened release of any oil or petroleum
or Hazardous Materials on, from or under any of such properties
or facilities.
4.23. Taxes.
(a) Except as disclosed in Section 4.23 of the
Disclosure Schedule:
(i) all returns, declarations, reports,
estimates, information returns, and statements (collectively,
"Tax Returns") required to be filed by or on behalf of either of
the Companies (including without limitation any consolidated or
combined Tax Returns which include either of the Companies) for
all periods ending on or before the Closing Date have been (or
will be) timely filed (except for failures to so file which do
not, in the aggregate, constitute a Material Adverse Effect and
except for Tax Returns which Buyer is responsible for filing
under the Tax Sharing Agreement (as hereinafter defined)), and
all such Tax Returns are true, correct and complete (except for
misrepresentations and omissions which do not, in the aggregate,
constitute a Material Adverse Effect); neither of the Companies
is required to file (or be included in) any material state Tax
Returns other than in the State of California or the State of
Delaware;
(ii) the Companies have timely paid (or
Seller has paid on their behalf) all Taxes due or claimed to be
due by either of them by any federal, state, local or foreign
taxing authority;
(iii) there are no liens for Taxes upon the
assets of either of the Companies except liens for Taxes not yet
due and payable;
(iv) no deficiency for any Taxes has been
proposed, asserted or assessed against Seller (as to either of
the Companies) or against either of the Companies which has not
been resolved and paid in full; there are no outstanding waivers,
extensions or comparable consents regarding the application of
the statute of limitations with respect to any Taxes or Tax
Returns that have been given by or on behalf of either of the
Companies (including the time for filing of Tax Returns or paying
Taxes) and there are no pending requests for any such waivers,
extensions or comparable consents;
(v) no audit or other proceeding by any
federal, state, local or foreign court, governmental, regulatory,
administrative or similar authority is presently pending (or is
the subject of a written notice) with respect to any Taxes or Tax
Return of either of the Companies (or with respect to any Tax
Return of Seller which relates to Taxes of either of the
Companies); provided, however, that the description of any such
audit or proceeding disclosed in Schedule 4.23(a)(v) shall set
forth the nature of the audit or proceeding, the type of Tax
Return, any deficiencies proposed, asserted or assessed and the
amount thereof and the tax year in question;
(vi) neither Seller (as to either of the
Companies) nor either of the Companies is a party to, is bound by
or has any obligation under any Tax allocation, indemnity, or
sharing agreement or similar contract or arrangement, except as
provided for herein;
(vii) neither Seller (as to either of the
Companies) nor either of the Companies has made any change in
accounting methods, received a ruling from any taxing authority
or signed an agreement with any taxing authority which is
reasonably likely to have a Material Adverse Effect;
(viii) Seller (as to the Companies and the
NewMedia Business) and the Companies have each complied in all
material respects with all applicable laws, rules and regulations
relating to the payment and withholding of Taxes of the Companies
(including, without limitation, withholding of Taxes pursuant to
Sections 1441 and 1442 of the Code or similar provisions under
any foreign laws) and have each, within the time and the manner
prescribed by law, withheld from employee wages and paid over to
the proper governmental authorities all amounts required to be so
withheld and paid over under applicable laws;
(ix) no power of attorney granted by Seller
(as to either of the Companies) or by either of the Companies
with respect to any Taxes is currently in force;
(x) neither Seller (as to either of the
Companies) nor either of the Companies has, with regard to any
assets or property held, acquired or to be acquired by any of
them, filed a consent to the application of Section 341(f) of the
Code, or agreed to have Section 341(f)(2) of the Code apply to
any disposition of a subsection (f) asset (as such term is
defined in Section 341(f)(4) of the Code) owned by either of the
Companies;
(xi) neither Seller (as to either of the
Companies) nor either of the Companies is a party to any
agreement, contract or arrangement that could result, separately
or in the aggregate, in the payment of any "excess parachute
payments" within the meaning of Section 280G of the Code;
(xii) neither of the Companies is, nor has
been during the applicable period specified in Section
897(c)(1)(A)(ii) of the Code, a United States real property
holding company (as defined in Section 897(c)(2) of the Code);
(xiii) neither the Companies nor the Seller
(nor any member of a "controlled group" (within the meaning of
Section 993(a)(3) of the Code) that includes either of the
Companies or the Seller) have participated in, or cooperated
with, an "international boycott" within the meaning of Section
999 of the Code;
(xiv) neither of the Companies is subject to
any joint venture, partnership or other arrangement or contract
that is treated as a partnership for U.S. federal income tax
purposes; and
(xv) excluding any liability (under U.S.
Treasury Regulation SECTION 1.1502-6) for U.S. federal income taxes of
the affiliated group of corporations of which Seller is the
common parent corporation and which includes the Companies,
neither of the Companies is subject to liability for Taxes of any
other person, including, without limitation, liability arising
from the application of U.S. Treasury Regulation SECTION 1.1502-6 or
any analogous provision of Tax law.
(b) For purposes of this Agreement, "Taxes"
(including, with correlative meaning, the term "Tax") shall mean
all taxes, charges, fees, levies or other assessments, including,
without limitation, all net income, gross income, gross receipts,
sales, use, service, service use, ad valorem, transfer,
franchise, profits, license, withholding, Social Security,
payroll, employment, excise, estimated, severance, stamp,
recording, occupation, property or other taxes, customs duties,
fees, assessments or charges of any kind whatsoever, whether
computed on a separate, consolidated, unitary or combined basis,
together with any interest, fines, penalties, additions to tax or
other additional amounts imposed thereon or with respect thereto,
by any taxing authority (domestic or foreign).
4.24. Benefit Plans.
(a) A true and complete list of each Benefit
Plan, and each other "employee benefit plan" (within the meaning
of Section 3(2) of the Employee Retirement Income Security Act of
1974, as amended, and the rules and regulations promulgated
thereunder ("ERISA")), that is or was maintained or contributed
to by either of the Companies or any affiliate of either of the
Companies or by any trade or business, whether or not
incorporated, which together with either of the Companies would
be deemed a "single employer" within the meaning of Section 4001
of ERISA (an "ERISA Affiliate") within the last three years, for
the benefit of any employee, former employee, consultant, officer
or director of either of the Companies or any ERISA Affiliate (an
"ERISA Plan") shall be delivered by Seller to Buyer on or before
December 15, 1995 and shall constitute Section 4.24 of the
Disclosure Schedule. Neither Seller nor either of the Companies
has any commitment, whether formal or informal and whether
legally binding or not, to create any additional ERISA Plan which
could have a Material Adverse Effect.
(b) No ERISA Plan is a "multiemployer plan," as
such term is defined in Section 3(37) of ERISA; no ERISA Plan is
subject to Section 412 of the Code or Title IV of ERISA; each of
the ERISA Plans is, and has always been, operated in all material
respects in accordance with the requirements of all applicable
laws, and all persons who participate in the operation of such
ERISA Plans and all ERISA Plan "fiduciaries" (within the meaning
of Section 3(21) of ERISA) have always acted substantially in
accordance with the provisions of all applicable laws. None of
the ERISA Plans is intended to be "qualified" within the meaning
of Section 401(a) of the Code; no ERISA Plan has an accumulated
or waived funding deficiency within the meaning of Section 412 of
the Code; within the past six years no "reportable event," as
such term is defined in Section 4043(b) of ERISA, has occurred
with respect to any ERISA Plan; and no condition exists that
presents a material risk to either of the Companies or any ERISA
Affiliate of incurring a liability to or on account of an ERISA
Plan pursuant to Title IV of ERISA.
(c) Full payment has been made, or will be made
in accordance with Section 404(a)(6) of the Code, of all amounts
which either of the Companies or any ERISA Affiliate is required
to pay under the terms of each of the ERISA Plans as of the last
day of the most recent plan year thereof ended prior to the date
of this Agreement, and all such amounts properly accrued through
the Closing Date with respect to the current plan year thereof
have been paid by or on behalf of either of the Companies or are
properly reflected in accordance with GAAP on the financial
statements of the Companies.
(d) No ERISA Plan provides benefits, including,
without limitation, death or medical benefits (whether or not
insured), with respect to current or former employees of either
of the Companies or any ERISA Affiliate for periods extending
beyond their retirement or other termination of service for which
either of the Companies are or could be liable.
(e) There has been no prohibited transaction
(within the meaning of Section 406 of ERISA or Section 4975 of
the Code) with respect to any ERISA Plan; neither of the
Companies has incurred any material liability for any excise tax
arising under Section 4972 or 4980B of the Code and no fact or
event exists that could reasonably give rise to any such
liability with respect to the filing of reports with respect to
any ERISA Plan; there are no pending, threatened or anticipated
claims (other than routine claims for benefits) by, on behalf of
or against any of the ERISA Plans, or any trusts related thereto
or any trustee or administrator thereof, and no material
litigation or administrative or other proceeding (including,
without limitation, any litigation or proceeding under Title IV
of ERISA) has occurred or, to the best knowledge of Seller, is
threatened involving any ERISA Plan or any trusts related thereto
or any trustee or administrator thereof.
(f) Except as set forth in Section 4.24 of the
Disclosure Schedule or as expressly provided herein, the
consummation of the transactions contemplated by this Agreement
will not (i) entitle any current or former employee or officer of
either of the Companies to severance pay, unemployment
compensation or any other similar payment, (ii) accelerate the
time of payment or vesting or increase the amount of compensation
due any such employee or officer, (iii) result in any employment-
related expenses or liabilities the full cost of which will not
be paid by Seller or (iv) result in any prohibited transaction
described in Section 406 of ERISA or Section 4975 of the Code for
which an exemption is not available.
(g) No employee, officer or director of either of
the Companies will be entitled to receive any compensation,
remuneration or financial benefit of any kind resulting from this
Agreement or the transactions contemplated hereby, except as
expressly provided herein.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
OF BUYER
Buyer hereby represents and warrants to Seller as
follows:
5.1. Corporate Organization. Buyer and CUBSCO II are
corporations duly organized, validly existing and in good
standing under the laws of the State of Delaware. CUBSCO I is a
corporation duly organized, validly existing and in good standing
under the laws of the State of California.
5.2. Authorization. Each of Buyer and CUBSCO I and
CUBSCO II has the requisite corporate power and corporate
authority to enter into this Agreement and the other agreements,
documents and instruments to be executed and delivered by each of
them pursuant hereto (the "Additional Buyer's Documents") and to
carry out the transactions contemplated hereby and thereby. The
Boards of Directors of Buyer, CUBSCO I and CUBSCO II and the sole
stockholder of CUBSCO I and CUBSCO II have taken all actions
required by law, their respective charters, their respective By-
Laws or otherwise to be taken by each of them to authorize the
execution, delivery and performance of this Agreement and the
Additional Buyer's Documents, and when fully executed and
delivered, this Agreement and each of the Additional Buyer's
Documents will constitute the valid and binding agreements of
each of them, as the case may be, enforceable against each of
them, as the case may be, in accordance with their respective
terms.
5.3. SEC Filings.
(a) Buyer has filed all forms, reports and
documents (the "SEC Reports") required to be filed by it with the
SEC since January 1, 1995. The SEC Reports (i) were prepared in
accordance with the requirements of the Securities Act and the
Securities Exchange Act of 1934, as amended, as the case may be,
and the rules and regulations thereunder, as amended
(collectively, the "Rules and Regulations"), and (ii) did not at
the time they were filed contain any untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements made
therein, in the light of the circumstances under which they were
made, not misleading.
(b) Each of the consolidated financial statements
(including, in each case, any notes thereto) contained in the SEC
Reports was prepared in accordance with United States generally
accepted accounting principles applied on a consistent basis
throughout the periods indicated (except as may be indicated in
the notes thereto), and each fairly presented the consolidated
financial position, results of operations and changes in
financial position of Buyer and its consolidated subsidiaries as
of the respective dates thereof and for the respective periods
indicated therein, except as otherwise noted therein (subject, in
the case of unaudited statements, to normal and recurring year-
end adjustments which were not and are not expected, individually
or in the aggregate, to have a material adverse effect on Buyer).
5.4. Authorization and Issuance of SoftKey Shares.
The issuance of the SoftKey Shares has been duly authorized by
Buyer, and upon delivery to Seller of the certificates therefor
in accordance with Articles I and II hereof, the SoftKey Shares
will be validly issued, fully paid and nonassessable, free and
clear of all Liens and restrictions other than the restrictions
imposed herein or by the Rules and Regulations.
5.5. Consents and Approvals; Non-Contravention.
Neither the execution, delivery or performance of this Agreement
or any of the Additional Buyer's Documents by Buyer, CUBSCO I or
CUBSCO II nor the consummation by each of them of the
transactions contemplated hereby or thereby nor compliance by
each of them with any of the provisions hereof or thereof will
(a) violate any provision of the Restated Certificate of
Incorporation, as amended, or By-Laws of Buyer or the
Certificates of Incorporation of CUBSCO I or CUBSCO II, (b)
except as may be required under the HSR Act, require any filing
with, or permit, authorization, consent or approval of, any
Governmental Entity, (c) violate any order, writ, injunction,
decree, statute, rule or regulation applicable to Buyer or any of
its properties or assets, (d) violate any contract to which Buyer
is a party or by which it is bound or (e) violate any applicable
law, statute, ordinance, rule or regulation, except in the case
of clauses (c) and (d), for such violations which would not
materially impair the ability of Buyer to perform its obligations
hereunder or under any agreements entered into between Buyer and
Seller, either alone or together with any other parties thereto,
as of the date of this Agreement and which would not,
individually or in the aggregate, have a material adverse effect
on Buyer.
5.6. Litigation. There is no claim, action, suit,
inquiry, proceeding or investigation by or before any
Governmental Entity pending or, to Buyer's knowledge, threatened
against or involving Buyer which in any manner seeks injunctive
or other non-monetary relief with respect to the transactions
contemplated hereby or otherwise seeks to prevent, enjoin, alter
or delay any transaction contemplated hereby, nor is there any
basis for any such claim, action, suit, inquiry, proceeding or
investigation. Buyer is not subject to any order, writ,
injunction or decree which, individually or in the aggregate, has
or in the future would have a material adverse effect on the
ability of Buyer to consummate the transactions contemplated
hereby.
ARTICLE VI
ADDITIONAL AGREEMENTS
6.1. Consents and Other Approvals. Buyer and Seller
shall, and Seller shall cause the Companies to, use their
respective best efforts to comply promptly with all legal
requirements which may be imposed on itself with respect to the
transactions contemplated hereby and will promptly cooperate with
and furnish information to each other in connection with any such
requirements imposed on any of them in connection with the
transactions contemplated hereby. Buyer and Seller shall, and
Seller shall cause the Companies to, use their respective best
efforts to obtain (and shall cooperate with each other in
obtaining) any consent, authorization, order or approval of, or
any exemption by, any Governmental Entity or other public or
private third party, required to be obtained or made by Buyer,
Seller or either of the Companies in connection with the
transactions contemplated hereby.
6.2. Related Agreements and Instruments.
(a) Buyer and Seller each agree to execute and
deliver the Registration Rights Agreement on or prior to the
Closing Date.
(b) Seller and Buyer each agree to execute and
deliver the Standstill Agreement on or prior to the Closing Date.
(c) Seller agrees to present evidence
satisfactory to Buyer, prior to the Closing Date, of the full
amount of all indebtedness of CNI to Seller and Seller's
affiliates as of the Closing. Buyer agrees either: (i) to
execute and deliver to Seller a promissory note for the full
amount of all indebtedness of CNI to Seller and Seller's
affiliates as of the Closing (but in no event in an amount
greater than $17 million) substantially in the form attached
hereto as Exhibit E in full satisfaction of all indebtedness of
CNI to Seller and Seller's affiliates as of the Closing (the
"Buyer's Note") or (ii) to issue and deliver to Seller at the
Closing, in full satisfaction of all indebtedness of CNI to
Seller and Seller's affiliates as of the Closing, the number of
shares of SoftKey Common Stock obtained by dividing the full
amount of all indebtedness of CNI to Seller and Seller's
affiliates as of the Closing (but in no event in an amount
greater than $17 million) by the volume-weighted average of the
closing prices for SoftKey Common Stock as quoted over the Nasdaq
National Market for the 10 full trading days ending on the second
full trading day prior to the Closing. All indebtedness of CLC
to Seller and Seller's affiliates will be cancelled immediately
prior to the Closing.
(d) CNI, CLC, Seller and Buyer each agree to
execute and deliver to the other parties on or prior to the
Closing Date a Tax Sharing Agreement in the form attached hereto
as Exhibit F (the "Tax Sharing Agreement").
(e) Seller agrees to execute and deliver a
certificate satisfying the requirements of Section 1445(b)(2) or
Section 1445(b)(3) of the Code, as the case may be, in either
case, in form and substance satisfactory to Buyer (the "Tax
Certificate").
6.3. Conduct of the NewMedia Business. Prior to the
Closing, unless Buyer shall otherwise agree in writing, or as
otherwise expressly contemplated by this Agreement:
(a) the Companies shall conduct the NewMedia
Business only in the ordinary and usual course consistent with
past practice, and the Companies shall use all reasonable efforts
to preserve intact the present business organization, keep
available the services of their respective present officers and
key employees, and preserve the goodwill of those having business
relationships with each of them;
(b) neither of the Companies shall (i) amend its
Articles of Incorporation, By-Laws or other organizational
documents, (ii) split, combine or reclassify any shares of its
outstanding capital stock, (iii) declare, set aside or pay any
dividend or other distribution payable in cash, stock or property
(except that the Companies are permitted to make a distribution
to Seller of any receivable owing to Seller to the extent arising
under any existing tax sharing agreement between Seller and
either of the Companies) or (iv) directly or indirectly redeem or
otherwise acquire any shares of its capital stock;
(c) neither of the Companies shall (i) authorize
for issuance, issue or sell or agree to issue or sell any shares
of, or rights or securities of any kind to acquire, or rights or
securities convertible into, any shares of its capital stock
(whether through the issuance or granting of options, warrants,
commitments, subscriptions, rights to purchase or otherwise);
(ii) merge or consolidate with another entity; (iii) acquire or
purchase an equity interest in or a substantial portion of the
assets of another entity or otherwise acquire any assets outside
the ordinary course of the NewMedia Business and consistent with
past practice or otherwise enter into any material contract,
commitment or transaction outside the ordinary course of the
NewMedia Business and consistent with past practice; (iv) sell,
lease, license, waive, release, transfer, encumber or otherwise
dispose of any of its assets outside the ordinary course of the
NewMedia Business and consistent with past practice; (v) incur,
assume or prepay any material indebtedness or any other material
liabilities other than in the ordinary course of the NewMedia
Business and consistent with past practice; (vi) incur or assume
any additional indebtedness to Seller or any of Seller's
affiliates other than in the ordinary course of the NewMedia
Business and consistent with past practice; (vii) assume,
guarantee, endorse or otherwise become liable or responsible
(whether directly, contingently or otherwise) for the obligations
of any other Person other than in the ordinary course of the
NewMedia Business and consistent with past practice; (viii) make
any loans, advances or capital contributions to, or investments
in, any other Person (other than cash advances to employees for
travel or entertainment expenses in the ordinary course of the
NewMedia Business); (ix) authorize or make capital therefor; (x)
permit any insurance policy naming either of the Companies as a
beneficiary or a loss payee to be cancelled or terminated other
than in the ordinary course of the NewMedia Business; or (xi)
enter into any contract, agreement, commitment or arrangement
with respect to any of the foregoing;
(d) neither of the Companies shall (i) adopt,
enter into, terminate or amend (except as may be required by
applicable law) any Benefit Plan or other arrangement for the
current or future benefit or welfare of any director, officer or
current or former employee, (ii) increase in any manner the
compensation or fringe benefits of, or pay any bonus to, any
director, officer or employee (except for normal increases in
compensation (including without limitation salary and bonus) in
the ordinary course of the NewMedia Business and consistent with
past practice) or (iii) take any action to fund or in any other
way secure, or to accelerate or otherwise remove restrictions
with respect to, the payment of compensation or benefits under
any Benefit Plan;
(e) neither of the Companies shall take any
action with respect to, or make any material change in, its
accounting policies or procedures, except as may be required by a
change in generally accepted accounting principles as required by
the Federal Accounting Standards Board (or another authorized
accounting body) or the SEC;
(f) neither of the Companies shall knowingly take
any action which would jeopardize qualification of the Mergers as
reorganizations within the meaning of Section 368(a) of the Code;
and
(g) neither of the Companies shall make any Tax
election or settle or compromise any income Tax liability or file
any income Tax Return prior to the last day (including
extensions) prescribed by law, which election, liability or Tax
Return is material to the business, financial condition or
results of operations of the Companies or the NewMedia Business.
6.4. Audited Financial Statements. Seller shall
provide Buyer with audited financial statements of the Companies
as of and for the years ended December 26, 1993 and December 25,
1994 (and, if the Closing shall occur after December 31, 1995, as
of and for the year ended December 31, 1995) at or prior to the
Closing or as soon as practicable after the Closing.
6.5. Conveyance Taxes. Seller and Buyer shall
cooperate in the preparation, execution and filing of all
returns, questionnaires, applications or other documents
regarding (i) any real property transfer gains, sales, use,
transfer, value-added, stock transfer and stamp Taxes, (ii) any
recording, registration and other fees and (iii) any similar
Taxes or fees that become payable in connection with the
transactions contemplated hereby that are required or permitted
to be filed on or before the Closing Date.
6.6. Severance and Termination Costs. Seller agrees
to directly pay, or to promptly reimburse Buyer and its
subsidiaries for the payment of any Losses (as hereinafter
defined) incurred or sustained by any of them, directly or
indirectly, as a result of or in connection with the termination
by Buyer during the period commencing at the Closing Date and
ending six months after the Closing Date of any employee of
either of the Companies immediately prior to the Closing;
provided, however, that notwithstanding anything contained herein
to the contrary, (a) Seller shall only be obligated to make such
payments or reimbursements for Losses (i) to the extent that such
Losses are incurred or sustained by Buyer pursuant to (A)
provisions in Benefit Plans, agreements and arrangements in
existence prior to the Closing (whether or not written), (B)
requirements of or under applicable law, rules and regulations
and (C) any other ordinary and customary practices and policies
of Seller or either of the Companies as in effect immediately
prior to the Closing, including such practices with respect to
payments made pursuant to Clause (a)(i)(A) or (a)(i)(B) of this
Section 6.6; and (b) in no event shall Seller be obligated to
make such payments or reimbursements for any Losses in excess of
$750,000 in the aggregate (except for any such Losses relating to
the lawful termination during the periods specified above of any
of the five individuals listed in Section 6.6 of the Disclosure
Schedule, as to each of which individuals Seller shall be
obligated to make payments or reimbursements hereunder for any
such Losses in excess of ten weeks aggregate compensation for
such individual). "Losses" shall, include any loss, liability
(including without limitation any liability for Taxes), damage,
deficiency, cost and expense (including without limitation
reasonable expenses of investigation and reasonable attorneys'
fees). Buyer agrees to provide to Seller, on or before the date
which is 30 days after the Closing Date, a list setting forth the
names of any such employees which it intends to terminate within
the six-month period referenced in the preceding sentence,
together with a description of any severance and termination
costs and expenses expected to be incurred by Buyer and its
Subsidiaries in accordance with the preceding sentence.
6.7. Noncompetition.
(a) For a period of two years after the Closing
(the "Noncompete Period"), neither Seller nor any of its
affiliates shall, directly or indirectly, compete (as hereinafter
defined) with Buyer without the prior written consent of Buyer,
except that any financial interest or other relationship or
arrangement with a third party existing on the date hereof shall
not be deemed to "compete" with Buyer as provided herein. For
purposes of this Section 6.7(a), the term "compete" shall mean:
(i) directly or indirectly having a financial interest in any
entity which has as a substantial part of its business the
distribution of consumer software on CD-ROMS to retailers and
end-users, except that Seller's beneficial ownership of not more
than 20% of the securities of any such entity having total
revenues of less than $20 million for the twelve-month period
ending as of the end of the most recent fiscal quarter of each
entity prior to Seller's initial acquisition of such ownership
shall not constitute a violation of this Section 6.7(a); or (ii)
directly or indirectly engaging or participating in, or
conducting as an owner, manager or consultant of, or having a
financial interest in, or aiding or assisting anyone else in the
conduct of, any publisher of encyclopedia products for on-line
(or other electronic) distribution or for production and
distribution on CD-ROMS.
(b) During the Noncompete Period, Seller shall
not: (i) hire, entice or in any other manner persuade or attempt
to persuade any employee of either of the Companies (immediately
prior to the Closing) or Buyer or any of their respective
subsidiaries or affiliates to discontinue his or her relationship
or violate any agreement with either of the Companies
(immediately prior to the Closing) or Buyer or any of their
respective subsidiaries or affiliates as employee, unless (A)
Seller locates or identifies the employee for recruiting and
employment through general recruiting efforts in the ordinary
course of business and consistent with past practice or (B)
contact between Seller and the employee, is initiated by that
employee (without any prior direct or indirect intervention,
prompting or notice by or from Seller, except as permitted in
clause (A) of this Section 6.7(b)(i); or (ii) knowingly induce or
knowingly attempt to induce any independent contractor, dealer,
supplier client or customer of either of the Companies to
discontinue his or her relationship or violate any agreement with
either of the Companies as independent contractor, dealer,
supplier, client or customer, respectively.
(c) In the event the restrictions against
engaging in competitive activity contained in Section 6.7(a)
shall be determined by any court of competent jurisdiction to be
unenforceable by reason of their extending for too great a period
of time or over too great a geographical area or by reason of
their being too extensive in any other respect, they shall be
interpreted to extend only for the maximum period of time for
which they may be enforceable, and over the maximum geographical
area as to which they may be enforceable, and to the maximum
extent in all other respects as to which they may be enforceable,
all as determined by such court in such action.
6.8. CNI Recapitalization. Prior to the Closing,
Seller shall contribute to the capital of CNI each outstanding
share of Series A Preferred Stock, Series B Preferred Stock and
Series C Preferred Stock in a transaction constituting a
recapitalization within the meaning of Section 368(a)(1)(E) of
the Code. As a result of the recapitalization transaction, no
shares of Series A Preferred Stock, Series B Preferred Stock or
Series C Preferred Stock will be outstanding at and as of the
Closing.
6.9. Further Assurances. From time to time after the
Closing, Seller will use all reasonable efforts: (a) to obtain
any licenses, permits, waivers, consents, authorizations,
qualifications and orders of Governmental Entities or other
Persons or entities as Buyer shall reasonably request to enable
the Companies to enjoy after the Closing the rights and benefits
presently enjoyed by the Companies in the conduct of the NewMedia
Business; (b) to transfer to the Companies, at the expense of
Seller all rights in respect of the Assets or any leases,
licenses or other contracts, commitments or agreements held by
Seller or any of the Companies' respective affiliates used in or
necessary for the conduct of the NewMedia Business in
substantially the same manner as it is presently conducted
(including without limitation those relating to the Assets) or
otherwise use all reasonable efforts to provide benefits to the
Companies or their respective assignees of such Assets or under
such leases, licenses and other contracts, commitments and
agreements which are at least as favorable as those in effect
immediately prior to the Closing and (c) to provide Buyer with
any additional information reasonably requested by Buyer to
enable Buyer to comply with SEC reporting and other legal
compliance requirements.
ARTICLE VII
CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS
All obligations of Buyer to consummate the transactions
contemplated by this Agreement are subject to the satisfaction or
waiver prior to or at the Closing of the following conditions:
7.1. No Injunction or Restraints. No temporary
restraining order, preliminary or permanent injunction or other
order issued by any court of competent jurisdiction prohibiting
or preventing consummation of the transactions contemplated by
this Agreement (an "Injunction") shall be in effect.
7.2. Regulatory Approvals. All applicable waiting
periods under the HSR Act with respect to the transactions
contemplated hereby shall have expired or been terminated.
7.3. Standstill Agreement. Seller shall have executed
and delivered the Standstill Agreement.
7.4. Tax Sharing Agreement. Seller, CNI and CLC shall
have executed and delivered the Tax Sharing Agreement.
7.5. Section 1445 Certificate. Seller shall have
delivered to the Buyer the Tax Certificate.
ARTICLE VIII
CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS
All obligations of Seller to consummate the
transactions contemplated by this Agreement are subject to the
satisfaction or waiver prior to or at the Closing of the
following conditions:
8.1. No Injunction or Restraints. No Injunction shall
be in effect.
8.2. Regulatory Approvals. All applicable waiting
periods under the HSR Act with respect to the transactions
contemplated hereby shall have expired or been terminated.
8.3. Registration Rights Agreement. Buyer shall have
executed and delivered the Registration Rights Agreement.
8.4. Tax Sharing Agreement. Buyer shall have executed
and delivered the Tax Sharing Agreement.
8.5. Section 6.2(c) Election. Buyer shall have either
(a) executed and delivered to Seller the Buyer's Note or (b) made
the election provided for in clause (ii) of Section 6.2(c).
ARTICLE IX
TERMINATION PRIOR TO CLOSING
9.1. Termination of Agreement. This Agreement and the
transactions contemplated hereby may be terminated prior to the
Closing, as follows:
(a) by mutual written consent of Buyer and
Seller; or
(b) by Seller or Buyer, if the Closing has not
occurred on or before December 31, 1996 and this Agreement has
not previously been terminated; provided, however, that the right
to terminate the Agreement under this Section 9.1(b) shall not be
available to any party whose failure to fulfill any obligation
under this Agreement has been the cause of, or resulted in, the
failure of the Closing to occur on or before such date.
9.2. Effect of Termination. In the event this
Agreement is terminated pursuant to Section 9.1 hereof, this
Agreement shall become wholly void and of no force or effect,
without any liability or further obligation on the part of the
Seller or the Buyer, except that the provisions and obligations
set forth in Sections 10.2, 10.3, 10.7, 10.8 and 10.12 shall
survive such termination. No termination of this Agreement shall
terminate or otherwise impair the Confidentiality Agreement dated
November 8, 1995 between the Buyer and Tribune New Media Company
(the "Confidentiality Agreement").
ARTICLE X
GENERAL PROVISIONS
10.1. Amendment and Waiver. No amendment of any
provision of this Agreement shall in any event be effective,
unless the same shall be in writing and signed by the parties
hereto. Any failure of any party to comply with any obligation,
agreement or condition hereunder may only be waived in writing by
the other parties, but such waiver shall not operate as a waiver
of, or estoppel with respect to, any subsequent or other failure.
No failure by any party to take any action against any breach of
this Agreement or default by the other parties shall constitute a
waiver of such party's right to enforce any provision hereof or
to take any such action.
10.2. Expenses. Except as otherwise expressly
provided for herein, whether or not the transactions contemplated
by this Agreement shall be consummated, each of the parties
hereto agrees to pay all costs and expenses incurred by it in
connection with this Agreement and the transactions contemplated
hereby, including without limitation the fees of its counsel,
consultants and accountants.
10.3. Broker's and Finder's Fees. Except for
investment banking fees payable by Seller to Salomon Brothers Inc
and Buyer to Montgomery Securities in connection with this
Agreement and the transactions contemplated hereby as previously
disclosed, Seller hereby represents and warrants to Buyer with
respect to Seller and the Companies, and Buyer hereby represents
and warrants to Seller with respect to Buyer, that no Person or
entity is entitled to receive from Seller or either of the
Companies, on the one hand, or from Buyer, on the other hand, any
investment banking, brokerage or finder's fee or fees for
financial consulting or advisory services in connection with this
Agreement or the transactions contemplated hereby.
10.4. Notices. All notices, requests and other
communications hereunder shall be in writing and shall be deemed
given if delivered personally, if telecopied (only if confirmed),
if sent by FedEx or other overnight courier or delivery service
or if mailed by registered or certified mail (postage prepaid,
return receipt requested) to the parties at the following
addresses or facsimile numbers:
(a) If to Buyer, CUBSCO I or CUBSCO II
c/o SoftKey International Inc.
One Athenaeum Street
Cambridge, Massachusetts 02142
Facsimile No.: (617) 494-5660
Attention: Neal S. Winneg, Esq.
With a copy to:
Skadden, Arps, Slate, Meagher & Flom
One Beacon Street
Boston, Massachusetts 02108
Facsimile No.: (617) 573-4822
Attention: Louis A. Goodman, Esq.
(b) If to Seller:
c/o Tribune New Media Company
Two Prudential Plaza
Suite 1200
Chicago, Illinois 60601
Facsimile No.: (312) 540-4677
Attention: President
With a copy to:
Tribune Company
435 North Michigan Avenue
Chicago, Illinois 60611
Facsimile No.: (312) 222-4206
Attention: Vice President and
General Counsel
The address or facsimile number of a party, for the purposes of
this Section 10.4(b), may be changed by giving written notice to
the other party of such change in the manner provided herein for
giving notice. Unless and until such written notice is received,
the addresses and facsimile numbers provided herein shall be
deemed to continue in effect for all purposes hereunder.
10.5. Entire Agreement; Binding Effect. This
Agreement and the documents referred to herein (a) constitute the
entire agreement and supersede all other agreements and
understandings, both written and oral, between the parties with
respect to the subject matter hereof (provided that the
Confidentiality Agreement shall survive the execution of this
Agreement) and (b) shall not be assigned by either party (by
operation of law or otherwise) without the prior written consent
of the other party, except that Buyer may assign, in its sole
discretion, any of its rights, interests and obligations
hereunder to any wholly owned subsidiary of Buyer; provided,
however, that no such assignment shall relieve Buyer of its
obligations hereunder.
10.6. Survival. No representation or warranty
contained in this Agreement shall survive the Closing; provided,
however, that the representations and warranties set forth in
Sections 4.2, 4.4, 5.2 and 5.4 shall survive the Closing for two
years, but thereafter shall be of no further force or effect.
This Section 10.6 shall not limit any covenant or agreement of
the parties which by its terms contemplates performance after the
Closing.
10.7. Remedies. The remedies available to any party
for any breach of this Agreement by any other party shall be
cumulative and shall not preclude the assertion by any such party
of any other rights or the seeking of any other legal, equitable
or statutory remedies against any other party.
10.8. Applicable Law. This Agreement shall be
governed by and be construed in accordance with the laws of the
State of Delaware, without giving effect to the principles
thereof relating to conflicts of laws, except that the CNI Merger
shall be governed by the CGCL.
10.9. Parties in Interest. This Agreement shall be
binding upon and inure solely to the benefit of each party hereto
and, subject to Section 10.5(b) hereof, their respective
successors and assigns, and nothing in this Agreement, express or
implied, is intended to confer upon any other Person any rights
or remedies of any nature whatsoever under or by reason of this
Agreement.
10.10. Counterparts. This Agreement may be executed
in any number of counterparts and by the different parties hereto
on separate counterparts, each of which when so executed and
delivered shall be deemed an original, but all of which together
shall constitute one and the same instrument.
10.11. Headings; Pronouns and Conjunctions. The
section and other headings contained in this Agreement are for
reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Unless otherwise
indicated herein or the context otherwise requires, the masculine
pronoun shall include the feminine and neuter, the singular shall
include the plural and the plural shall include the singular.
The word "or" shall not be deemed exclusive.
10.12. Announcements. Except as required by law or
the rules of any national securities exchange, for so long as
this Agreement is in effect (or as provided in Section 9.2
hereof), no announcement of this Agreement or the transactions
contemplated hereby shall be made by any of the parties without
the written consent of the other party or parties, which consent
shall not be unreasonably withheld.
IN WITNESS WHEREOF, the parties hereto have signed this
Agreement under seal as of the date first written above.
SOFTKEY INTERNATIONAL INC.
By:/s/ Michael J. Perik
Name: Michael J. Perik
Title: Chief Executive Officer
CUBSCO I INC.
By:/s/ Michael J. Perik
Name: Michael J. Perik
Title: Chief Executive Officer
CUBSCO II INC.
By:/s/ Michael J. Perik
Name: Michael J. Perik
Title: Chief Executive Officer
TRIBUNE COMPANY
By:/s/ David Hiller
Name: David Hiller
Title: Senior Vice President
COMPTON'S NEWMEDIA, INC.
By:/s/ Stanley Gradowski
Name: Stanley Gradowski
Title: Secretary
COMPTON'S LEARNING COMPANY
By:/s/ Stanley Gradowski
Name: Stanley Gradowski
Title: Secretary
____________________________________________________________________________
Exhibit A
AGREEMENT OF MERGER
This Agreement of Merger is made as of [ ], 1995
("Agreement") by and between Compton's NewMedia, Inc., a
California corporation ("CNI"), SoftKey International
Inc., a Delaware corporation ("Parent"), and Cubsco I
Inc. ("Cubsco I"), a California corporation and a wholly
owned subsidiary of Parent.
CNI is hereinafter called "Surviving Corporation."
Cubsco I is hereinafter called "Merging Corporation."
Surviving Corporation and Merging Corporation together
are herein sometimes called the "Constituent
Corporations."
Parent is organized in Delaware. Its authorized
capital stock consists of 60,000,000 shares of common
stock, par value $.01 per share (the "Parent common
stock"). As of the date hereof, approximately [ ]
shares have been issued and are outstanding. Parent
shall be authorized, at the time of the merger provided
for herein, to issue the number of shares of Parent
common stock issuable to the sole stockholder of CNI
under the Merger Agreement (as hereinafter defined).
Parent, as the sole holder of all issued and outstanding
shares of capital stock of Merging Corporation is
entitled to cast one vote per share on the adoption and
approval of this Agreement and on all other matters
submitted to it as the sole stockholder of Merging
Corporation.
Surviving Corporation is organized in California.
Its authorized capital stock consists of 10,000,000
shares of common stock (the "Surviving common stock").
As of the date hereof, 1,173,000 shares have been issued
and are outstanding.
Merging Corporation is organized in California. Its
authorized capital stock consists of 1000 shares of
capital stock, par value $.01 per share (the "Merging
common stock"). As of the date hereof, 1,000 shares have
been issued and are outstanding.
This Agreement is being entered into pursuant to an
Agreement and Plan of Merger, dated November 30, 1995,
(the "Merger Agreement") by and between SoftKey
International Inc., a Delaware corporation, Cubsco I
Inc., a California corporation, Cubsco II Inc., a
Delaware corporation, Tribune Company, a Delaware
corporation, Compton's NewMedia, Inc., a California
corporation, and Compton's Learning Company, a Delaware
corporation.
The Boards of Directors of each of Surviving
Corporation, Merging Corporation and Parent (a) have
determined that the merger of Merging Corporation with
and into Surviving Corporation (the "Merger") is in the
best interests of each such corporation, respectively,
and the respective sole stockholders of Merging
Corporation and Surviving Corporation and (b) have
approved the Merger as provided herein.
In consideration of the foregoing and the
mutual covenants and agreements herein contained, and
intending to be legally bound hereby, the parties hereby
agree as follows:
1. Merger. Merging Corporation shall be merged with
and into Surviving Corporation and Surviving Corporation
shall survive the Merger.
2. Effective Date. Pursuant to Section 110(c) of
the California General Corporation Law (the "CGCL"), this
instrument and the Merger contemplated herein shall
become effective when a copy of this Agreement, with the
required officers' certificates attached, is filed in
accordance with Section 1103 of the CGCL. The date and
time upon which the Merger becomes effective in
accordance with the foregoing sentence is sometimes
referred to herein as the "Effective Date." The Merger
shall have the effects set forth in the CGCL.
3. Articles of Incorporation and Bylaws. The
articles of incorporation of Surviving Corporation, as
amended and in effect on the Effective Date, shall
continue to be the articles of incorporation of Surviving
Corporation without change or amendment until further
amended in accordance with the provisions thereof and
applicable law. The Bylaws of Surviving Corporation, as
amended and in effect on the Effective Date, shall
continue to be the Bylaws of Surviving Corporation
without change or amendment until further amended in
accordance with the provisions thereof and applicable
law.
4. Directors and Officers. The directors and
officers of Surviving Corporation shall consist of the
directors and officers of Merging Corporation immediately
prior to the Effective Date, each to hold office in
accordance with the CGCL and the articles of
incorporation and Bylaws of Surviving Corporation, until
their respective successors are duly elected and
qualified.
5. Succession. On the Effective Date, Surviving
Corporation shall succeed to Merging Corporation in the
manner of and as more fully set forth in Section 1107 of
the CGCL.
6. Further Assurances. At any time after the
Effective Date, the last acting officers of Merging
Corporation or the corresponding officers of Surviving
Corporation may, in the name of such corporations,
execute and deliver all such proper deeds, assignments
and other instruments and take or cause to be taken all
such further or other actions as Surviving Corporation
may deem necessary or desirable in order to vest, perfect
or confirm in Surviving Corporation title to and
possession of all of Merging Corporation's property,
rights, privileges, powers, franchises, immunities and
interests and otherwise to carry out the purposes of this
Agreement.
7. Capital Stock of Merging Corporation. Upon the
Effective Date, by virtue of the Merger and without any
action on the part of the holder thereof, each share of
the capital stock of Merging Corporation outstanding
immediately prior thereto shall be changed into and
become one fully paid and nonassessable share of the
capital stock of Surviving Corporation.
8. Capital Stock of Surviving Corporation. Upon the
Effective Date, by virtue of the Merger and without any
action on the part of the holder thereof, the then
outstanding shares of Surviving Corporation will be
converted into the right to receive the aggregate number
of shares of Parent common stock.
9. Stock Certificates. On and after the Effective
Date, all of the outstanding certificates which prior to
that time represented shares of the capital stock of
Merging Corporation shall be deemed for all purposes to
evidence ownership of and to represent the shares of
Surviving Corporation into which the shares of Merging
Corporation represented by such certificates have been
changed as herein provided. The registered owner on the
books of Merging Corporation of such outstanding stock
certificate shall, until such certificate shall have been
surrendered for transfer or exchange or otherwise
accounted for to Surviving Corporation, have and be
entitled to exercise any voting and other rights with
respect to, and to receive any dividend and other
distributions upon the shares of, Surviving Corporation
evidenced by such outstanding certificates as above
provided.
11. Abandonment. This Agreement may be abandoned at
any time before the Effective Date by the mutual consent
of the parties hereto.
12. Counterparts. In order to facilitate the filing
of this Agreement, it may be executed in any number of
counterparts, each of which shall be deemed to be an
original.
13. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State
of California, without regard to principles of conflicts
of laws thereof.
Each of the parties has caused this Agreement
to be executed on its behalf by their respective officers
thereunto duly authorized, all as of the date first above
written.
COMPTON'S NEWMEDIA, INC.
By:______________________
Name:
Title:
CUBSCO I INC.
By:______________________
Name: Neal S. Winneg
Title: Vice President and
Secretary
SOFTKEY INTERNATIONAL INC.
By:______________________
Name: Neal S. Winneg
Title: Vice President and
Secretary
____________________________________________________________________________
Exhibit B
CERTIFICATE OF MERGER
OF
CUBSCO II INC.
INTO
COMPTON'S LEARNING COMPANY
Pursuant to Section 251(c) of the General
Corporation Law of the State of Delaware
Compton's Learning Company, a Delaware
corporation, does hereby certify to the following facts
relating to the merger of Cubsco II Inc. into Compton's
Learning Company (the "Merger"):
FIRST: The names and states of incorporation
of the constituent corporations to the Merger are as
follows:
Name State
Compton's Learning Company Delaware
Cubsco II Inc. Delaware
SECOND: An Agreement and Plan of
Merger dated November 30, 1995 has been approved,
adopted, certified, executed and acknowledged by each of
the constituent corporations in accordance with Section
251 of the General Corporation Law of the State of
Delaware.
THIRD: The name of the corporation surviving
the Merger is Compton's Learning Company (the "Surviving
Corporation").
FOURTH: The text of the Certificate of
Incorporation of the Surviving Corporation is set forth
as Exhibit A to this Certificate of Merger.
FIFTH: An executed copy of the Agreement and
Plan of Merger is on file at the principal place of
business of the Surviving Corporation, One Athenaeum
Street, Cambridge, MA 02142.
A copy of the Agreement and Plan of Merger will
be furnished upon request and without cost to any
stockholder of either constituent corporation.
IN WITNESS WHEREOF, Compton's Learning Company
has caused this Certificate of Merger to be executed in
its corporate name this ____ day of ___________, 1995.
COMPTON'S LEARNING COMPANY
By:
Name:
Title:
____________________________________________________________________________
Exhibit C
SECURITIES RESALE REGISTRATION RIGHTS AGREEMENT
DATED AS OF NOVEMBER 30, 1995
BY AND AMONG
TRIBUNE COMPANY
AND
SOFTKEY INTERNATIONAL INC.
SECURITIES RESALE REGISTRATION RIGHTS AGREEMENT
This SECURITIES RESALE REGISTRATION RIGHTS AGREEMENT
(this "Agreement") is made and entered into as of November 30,
1995 by and among SOFTKEY INTERNATIONAL INC., a Delaware
corporation (the "Company"), and TRIBUNE COMPANY, a Delaware
corporation (the "Purchaser"), which Purchaser (i) has agreed to
purchase from the Company $150,000,000 principal amount of 51/2%
Senior Convertible/ Exchangeable Notes due 2000 (the "Notes")
pursuant to the Purchase Agreement (as defined below) and (ii)
will acquire shares of Common Stock (as defined below) pursuant
to the Merger Agreement (as defined below).
This Agreement is made pursuant to (i) the Securities
Purchase Agreement dated as of November 30, 1995 (the "Purchase
Agreement") by and among the Company and the Purchaser and (ii)
the Agreement and Plan of Merger dated as of November 30, 1995
providing for two separate reverse subsidiary mergers of wholly
owned subsidiaries of the Company with and into wholly owned
subsidiaries of the Purchaser (the "Merger Agreement"). In order
to induce the Purchaser to purchase the Notes, the Company has
agreed to provide the registration rights set forth in this
Agreement. The execution and delivery of this Agreement is
provided for in the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized
terms shall have the following meanings:
Act: Securities Act of 1933, as amended.
Agreement: As defined in the preamble hereto.
Broker-Dealer: Any broker or dealer registered under
the Exchange Act (as hereinafter defined).
Certificate of Designation: The Certificate of
Designation for the Preferred Shares.
Closing Date: The earliest to occur of (a) the closing
of the transactions contemplated by the Merger Agreement and (b)
the purchase and sale of the Notes to the Purchaser.
Commission: Securities and Exchange Commission.
Common Stock: Common Stock of the Company, par value
$.01 per share.
Company: As defined in the preamble hereto.
Effectiveness Target Date: As defined in Section 3
hereof.
Exchange Act: Securities Exchange Act of 1934, as
amended.
Exempt Resales: Any transaction exempt from the
registration requirements of the Act in which the Purchaser sells
the Notes, including without limitation sales (i) to "qualified
institutional buyers," as such term is defined in Rule 144A under
the Act ("QIBs"), (ii) to institutional "accredited investors,"
as such term is defined in Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Act ("Accredited Institutions") and (iii)
outside the United States, to certain persons in offshore
transactions in reliance on Regulation S under the Act.
Holder: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 6(a) hereof.
Indenture: The Indenture by and among the Company and
State Street Bank and Trust Company, as trustee (the "Trustee"),
pursuant to which the Notes are to be issued, as such Indenture
as amended, modified or supplemented from time to time in
accordance with the terms thereof.
Interest Payment Date: As defined in the Indenture and
the Notes.
NASD: National Association of Securities Dealers, Inc.
Person: An individual, partnership, corporation,
trust, unincorporated organization or a government, agency or
political subdivision thereof.
Preferred Shares: The Company's 51/2% Series C
Convertible Preferred Stock into which the Notes are exchangeable
at the option of the Holders thereof.
Prospectus: The prospectus included in the
Registration Statement, as amended or supplemented including
without limitation by any post-effective amendments thereto, and
all material incorporated by reference into such prospectus.
Purchase Agreement: As defined in the preamble hereto.
Purchaser: As defined in the preamble hereto.
Registrable Securities: As defined in Section 3(a)(i)
hereto.
Registration Statement: The continuous registration
statement of the Company which is filed pursuant to Rule 415
under the Act, including the Prospectus included therein, all
amendments and supplements thereto (including any post-effective
amendments) and all exhibits and material incorporated by
reference therein.
Shelf Filing Deadline: As defined to Section 3 hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C.
Section 77aaa-77bbbb), as amended and in effect on the date of
the Indenture.
Transfer Restricted Securities: Each Note, each
Preferred Share and each share of Common Stock (i) issuable upon
conversion of the Notes or Preferred Shares and (ii) issuable to
Purchaser under the Merger Agreement held by the Purchaser or,
except in the case of shares of Common Stock issuable to
Purchaser under the Merger Agreement, its transferee until the
date on which such Note, Preferred Share or share of Common
Stock, as the case may be, has been registered under the Act and
disposed of in accordance with an effective Registration
Statement.
Underwritten Registration or Underwritten Offering: A
registration in which securities of the Company are sold to an
underwriter for reoffering to the public.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities: The securities
entitled to the benefits of this Agreement are the Transfer
Restricted Securities and, more particularly, the Registrable
Securities.
(b) Holders of Transfer Restricted Securities. A
Person is deemed to be a holder of Transfer Restricted Securities
(each, a "Holder") whenever such Person owns Transfer Restricted
Securities of record.
SECTION 3. REGISTRATION
(a) Shelf Registration. The Company hereby agrees to:
(i) use its best efforts to file or cause to be filed
the Registration Statement on or prior to the 90th day after
the Closing Date (the "Shelf Filing Deadline"), which
Registration Statement shall provide for resales of all
Transfer Restricted Securities except (A) Transfer
Restricted Securities held by transferees of any Holder who
or which becomes a Holder after the Registration Statement
is declared effective and (B) Transfer Restricted Securities
held by the transferee of any Holder who or which holds less
than $5,000,000 in principal amount of the Notes or the
equivalent (on an "as exchanged" or "as converted" basis) in
Preferred Shares or shares of Common Stock (such Transfer
Restricted Securities being hereinafter referred to as the
"Registrable Securities"), provided that the Holders thereof
shall have provided the information required pursuant to
Section 3(b) hereof; and
(ii) use all reasonable efforts to cause the
Registration Statement to be declared effective by the
Commission as promptly as practicable after the Closing Date
(the "Effectiveness Target Date").
Subject to any notice by the Company in accordance with Section
4(b) hereof of the existence of any fact or event of the kind
described in Section 4(b)(iii)(D) hereof, the Company shall use
all reasonable efforts to keep the Registration Statement
continuously effective, supplemented and amended as required by
the provisions of Sections 4(a) and (b) hereof to the extent
necessary to ensure that it is available for resales of Transfer
Restricted Securities by the Holders of Transfer Restricted
Securities entitled to the benefit of this Section 3(a) and to
ensure that the Registration Statement conforms to the
requirements of this Agreement, the Act and the policies, rules
and regulations of the Commission as announced from time to time
thereunder for a period of at least three years following the
Closing Date.
(b) Certificated Securities; Provision by Holders of
Certain Information in Connection with the Registration
Statement. No Holder of Registrable Securities may include any
of its Transfer Restricted Securities in the Registration
Statement pursuant to this Agreement unless (i) such Holder holds
such Transfer Restricted Securities in the form of physical
certificates and (ii) until such Holder furnishes to the Company
in writing, within 20 business days after receipt of a request
therefor, such information as the Company may reasonably request
for use in connection with the Registration Statement or any
Prospectus or preliminary Prospectus included therein. In
connection with all such requests for information from Holders of
Registrable Securities, the Company shall notify such Holders of
the requirements set forth in the preceding sentence. Each
Holder as to which the Registration Statement is being effected
agrees to furnish promptly to the Company all information
required to be disclosed in order to make the information
previously furnished to the Company by such Holder not materially
misleading.
SECTION 4. REGISTRATION PROCEDURES
(a) In connection with the Registration Statement, the
Company shall comply with all the provisions of Section 4(b)
below and shall use all reasonable efforts to effect such
registration to permit the resale of the Registrable Securities
being sold in accordance with the intended method or methods of
distribution thereof.
(b) In connection with the Registration Statement and
any Prospectus required by this Agreement, the Company shall:
(i) subject to Section 4(b)(xv) hereof, use all
reasonable efforts to keep the Registration Statement
continuously effective and provide all requisite financial
statements for the period specified in Section 3 of this
Agreement; upon the occurrence of any event that would cause
the Registration Statement or the Prospectus contained
therein (A) to contain a material misstatement or omission
or (B) not to be effective and usable for resales of
Registrable Securities during the period required by this
Agreement, the Company shall file promptly an appropriate
amendment to the Registration Statement correcting any such
misstatement or omission, and, in the case of either clause
(A) or (B), except as set forth in Section 4(b)(xv) below,
use all reasonable efforts to cause such amendment to be
declared effective and the Registration Statement and the
related Prospectus to become usable for their intended
purpose(s) as soon as practicable thereafter;
(ii) prepare and file with the Commission such
amendments and post-effective amendments to the Registration
Statement as may be necessary to keep the Registration
Statement effective for the applicable period set forth in
Section 3 hereof, or such shorter period as will terminate
when all Registrable Securities covered by the Registration
Statement have been sold; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as
so supplemented, cause the Prospectus to be filed pursuant
to Rule 424 under the Act and to comply fully with the
applicable provisions of Rules 424 and 430A under the Act in
a timely manner; and comply with the provisions of the Act
with respect to the disposition of all securities covered by
the Registration Statement during the applicable period in
accordance with the intended method or methods of
distribution by the sellers thereof set forth in the
Registration Statement or supplement to the Prospectus;
(iii) advise the underwriter(s), if any, and selling
Holders promptly and, if requested by such Persons, to
confirm such advice in writing, (A) when the Prospectus or
any Prospectus supplement or post-effective amendment to the
Registration Statement has been filed, and, with respect to
the Registration Statement or any post-effective amendment
thereto, when the same has become effective, (B) of any
request by the Commission for amendments to the Registration
Statement or amendments or supplements to the Prospectus or
for additional information relating thereto, (C) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Act or
of the suspension by any state securities commission of the
qualification of the Registrable Securities for offering or
sale in any jurisdiction or of the initiation of any
proceeding for any of the preceding purposes, (D) of the
existence of any fact or the happening of any event
(including without limitation pending negotiations relating
to, or the consummation of, a transaction or the occurrence
of any which would require additional disclosure of
material, nonpublic information by the Company in the
Registration Statement as to which the Company has a bona
fide business purpose for preserving confidentiality or
which renders the Company unable to comply with Commission
requirements) that makes untrue any statement of a material
fact made in the Registration Statement, the Prospectus, any
amendment or supplement thereto or any document incorporated
by reference therein, or that requires the making of any
additions to or changes in the Registration Statement or the
Prospectus in order to make the statements therein not
misleading. If at any time the Commission shall issue any
stop order suspending the effectiveness of the Registration
Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the
qualification or exemption from qualification of the
Registrable Securities under state securities or Blue Sky
laws, the Company shall use its best efforts to obtain the
withdrawal or lifting of such order at the earliest possible
time;
(iv) furnish to each of the selling Holders, upon
request, and to each of the underwriter(s), if any, before
filing with the Commission, copies of the Registration
Statement or any Prospectus included therein and any
amendments or supplements thereto (including all documents
incorporated by reference prior to the effectiveness of the
Registration Statement), which documents, other than
documents incorporated by reference, will be subject to the
review of such Holders and underwriter(s), if any, for a
period of at least five business days, and the Company shall
not file the Registration Statement or Prospectus or any
amendment or supplement to the Registration Statement or
Prospectus to which a selling Holder of Registrable
Securities covered by the Registration Statement or the
underwriter(s), if any, shall reasonably object within five
business days after the receipt thereof; a selling Holder or
underwriter(s), if any, shall be deemed to have reasonably
objected to such filing only if the Registration Statement,
amendment, Prospectus or supplement, as applicable, as
proposed to be filed, contains a material misstatement or
omission;
(v) if practicable, promptly prior to the filing of
any document that is to be incorporated by reference into
the Registration Statement or Prospectus subsequent to the
effectiveness thereof, and in any event no later than the
date such document is filed with the Commission, provide
copies of such document to the selling Holders, if
requested, and to the underwriter(s), if any, make
representatives of the Company available for discussion of
such document and other customary due diligence matters, and
include such information in such document prior to the
filing thereof as such selling Holders or underwriter(s), if
any, reasonably may request;
(vi) make available at reasonable times for inspection
by the selling Holders, any underwriter(s) participating in
any disposition pursuant to the Registration Statement and
any attorney or accountant retained by such selling Holders
or any of the underwriter(s), all financial and other
records, pertinent corporate documents and properties of the
Company and cause the officers, directors and employees of
the Company to supply all information reasonably requested
by any such Holder, underwriters, attorney or accountant in
connection with the Registration Statement subsequent to the
filing thereof and prior to its effectiveness;
(vii) if requested by any selling Holders or the
underwriters, if any, promptly incorporate in the
Registration Statement or any Prospectus, pursuant to a
supplement or post-effective amendment if necessary, such
information as such selling Holders and underwriters, if
any, may reasonably request to have included therein,
including, without limitation, information relating to the
"Plan of Distribution" of the Registrable Securities,
information with respect to the principal amount or number
of shares of Registrable Securities being sold to such
underwriter(s), the purchase price being paid therefor and
any other terms of the offering of the Registrable
Securities to be sold in such offering and make all required
filings of any such Prospectus supplement or post-effective
amendment as soon as practicable after the Company is
notified of the matters to be incorporated in such
Prospectus supplement or post-effective amendment;
(viii) cause the Notes or Preferred Shares covered by
the Registration Statement to be rated with the appropriate
rating agencies, if so requested by the Holders of a
majority in aggregate principal amount of Notes, in the case
of the Notes, or a majority of the Preferred Shares, in the
case of the Preferred Shares, or the underwriter(s) for any
Underwritten Offering of such Notes or Preferred Shares, if
any;
(ix) [Intentionally omitted]
(x) deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of
each Prospectus (including each preliminary prospectus
intended for public distribution) and any amendment or
supplement thereto as such Persons reasonably may request;
the Company hereby consents to the use of each Prospectus
and any amendment or supplement thereto by each of the
selling Holders and each of the underwriter(s), if any, in
connection with the offering and the sale of the Transfer
Restricted Securities covered by any Prospectus or any
amendment or supplement thereto;
(xi) enter into such customary agreements (including
an underwriting agreement), and make such customary
representations and warranties, and, subject to Section
4(b)(xv) hereof, take all such other customary actions in
connection therewith in order to expedite or facilitate the
disposition of the Registrable Securities pursuant to the
Registration Statement contemplated by this Agreement, all
to such extent as may be requested by the Purchaser or by
any Holder of Registrable Securities or underwriter in
connection with any sale or resale pursuant to the
Registration Statement contemplated by this Agreement; and
whether or not an underwriting agreement is entered into and
whether or not the registration is an Underwritten
Registration, the Company shall:
(A) furnish to the Purchaser, each selling Holder
and each underwriter, if any (including any Broker-
Dealer who may be deemed to be an underwriter),
officers' certificates, legal opinions and comfort
letters, in such substance and scope as they may
request and as are customarily made by issuers to
underwriters in primary underwritten offerings, upon
the date of the effectiveness of the Registration
Statement;
(B) set forth in full or incorporate by reference
in the underwriting agreement, if any, indemnification
provisions and procedures substantially in the form of
those set forth in Section 6 hereof with respect to all
parties required to be indemnified pursuant to said
Section 6; and
(C) deliver such other documents and certificates
as may be reasonably requested by such parties to
evidence compliance with clause (A) above and with any
customary conditions contained in the underwriting
agreement or other agreement entered into by the
Company pursuant to this clause (xi), if any.
(xii) prior to any public offering of Registrable
Securities, cooperate with the selling Holders, the
underwriter(s), if any, and their respective counsel in
connection with the registration and qualification of the
Registrable Securities under the securities or Blue Sky laws
of such jurisdictions as the selling Holders or
underwriter(s) may request; and do any and all other acts or
things necessary or advisable to enable the disposition in
such jurisdictions of the Registrable Securities covered by
the Registration Statement; provided, however, that the
Company shall not be required to register or qualify as a
foreign corporation where it is not now so qualified or to
take any action that would subject it to service of process
in suits or to taxation, other than as to matters and
transactions relating to the Registration Statement, in any
jurisdiction where it is not now so subject;
(xiii) cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely preparation
and delivery of certificates representing Transfer
Restricted Securities to be sold and not bearing any
restrictive legends; and enable such Registrable Securities
to be in such denominations and registered in such names as
the Holders or the underwriter(s), if any, may request at
least two business days prior to any sale of Registrable
Securities made by such underwriter(s);
(xiv) use all reasonable efforts to cause the Transfer
Restricted Securities covered by the Registration Statement
to be registered with or approved by such other governmental
agencies or authorities as may be necessary to enable the
seller or sellers thereof or the underwriter(s), if any, to
consummate the disposition of such Registrable Securities,
subject to the proviso contained in clause (xii) above;
(xv) as soon as reasonably practicable after the
occurrence of any fact or event of the kind described in
clause (b)(iii)(D) above, prepare a supplement or post-
effective amendment to the Registration Statement or related
Prospectus or any document incorporated therein by reference
or file any other required document so that, as thereafter
delivered to the purchasers of Transfer Restricted
Securities, the Prospectus will not contain an untrue
statement of a material fact or omit to state any material
fact necessary, in light of the circumstances in which it
was made, to make the statements therein not misleading,
provided, however, that notwithstanding anything to the
contrary herein, the Company shall not be required to
prepare and file such a supplement or post-effective
amendment or document if the fact no longer exists; and
provided further however, that, in the event of a material
business transaction (including without limitation pending
negotiations relating to such transaction) which based upon
the advice of outside counsel reasonably acceptable to the
Purchaser, would require disclosure by the Company in the
Registration Statement of material, nonpublic information
which the Company has a bona fide business purpose for not
disclosing, then for so long as such circumstances and such
business purpose continue to exist (provided that such
period may not exceed 120 days in any calendar year), the
Company shall not be required to prepare and file a
supplement or post-effective amendment hereunder;
(xvi) provide a CUSIP number for all Transfer
Restricted Securities not later than the effective date of
the Registration Statement and provide the Trustee under the
Indenture with printed certificates for the Transfer
Restricted Securities which are in a form eligible for
deposit with The Depositary Trust Company;
(xvii) cooperate in any filings required to be made
with the NASD and in the performance of any due diligence
investigation by any underwriter (including any "qualified
independent underwriter") that is required to be retained in
accordance with the rules and regulations of the NASD, and
use all reasonable efforts to cause the Registration
Statement to become effective and be approved by such
governmental agencies or authorities as may be necessary to
enable the Holders selling Registrable Securities to
consummate the disposition of such Transfer Restricted
Securities;
(xviii) otherwise use its reasonable efforts to comply
with all applicable rules and regulations of the Commission,
and make generally available to its security holders, as
soon as practicable, a consolidated earnings statement
meeting the requirements of Rule 158 (which need not be
audited) for the twelve-month period (A) commencing at the
end of any fiscal quarter in which Transfer Restricted
Securities are sold to underwriters in a firm commitment or
best efforts Underwritten Offering or (B) if not sold to
underwriters in such an offering, beginning with the first
month of the Company's first fiscal quarter, as applicable,
commencing after the effective date of the Registration
Statement;
(xix) cause the Indenture to be qualified under the
TIA not later than the effective date of the Registration
Statement, and, in connection therewith: cooperate with the
Trustee and the Holders of Notes to effect such changes to
the Indenture as may be required for such Indenture to be so
qualified in accordance with the terms of the TIA; and
execute and use all reasonable efforts to cause the Trustee
to execute, all documents that may be required to effect
such changes and all other forms and documents required to
be filed with the Commission to enable such Indenture to be
so qualified in a timely manner;
(xx) cause all Registrable Securities covered by the
Registration Statement to be listed on any securities
exchange on which similar securities issued by the Company
are then listed if requested by the Holders of a majority in
aggregate principal amount of Notes, the Holders of a
majority of shares of the Preferred Shares, or the managing
underwriter(s), if any; and
(xxi) provide promptly to each Holder upon request any
document filed with the Commission pursuant to the
requirements of Section 13 and Section 15 of the Exchange
Act.
Each Holder agrees by acquisition of a Transfer
Restricted Security that, upon receipt of any notice from the
Company of the existence of any fact or event of the kind
described in Section 4(b)(iii)(D) hereof, such Holder will
forthwith discontinue disposition of Registrable Securities
pursuant to the applicable Registration Statement until such
Holder's receipt of the copies of a supplemented or amended
Prospectus as contemplated by Section 4(b)(xv) hereof, or until
it is advised in writing (the "Advice) by the Company that the
use of the Prospectus may be resumed, and, has received copies of
any additional or supplemental filings that are incorporated by
reference in the Prospectus. If so directed by the Company, each
Holder will deliver to the Company (at the expense of the
Company) all copies, other than permanent file copies then in
such Holder's possession, of the Prospectus covering such
Registrable Securities that was current at the time of receipt of
such notice. In the event the Company shall give any such
notice, the time period regarding the effectiveness of the
Registration Statement set forth in Section 3 hereof shall be
extended by the number of days during the period from and
including the date of the giving of such notice pursuant to
Section 4(b)(iii)(D) hereof to and including the date when each
selling Holder covered by the Registration Statement shall have
received the copies of the supplemented or amended prospectus
contemplated by Section 4(b)(xv) hereof or shall have received
the Advice.
Each Holder, by acquisition of a Transfer Restricted
Security, agrees that, to the extent that (A) such Holder is
deemed to be an "affiliate" of the Company for purposes of the
Securities Act or Accounting Series 130 and 135 of the Commission
and (B) (i) the Company has entered into a business combination
transaction intended to be accounted for as a pooling of
interests and (ii) such accounting treatment requires affiliates
of the Company to not dispose of or otherwise reduce such
affiliate's risk with respect to any Common Stock of the Company
during the period beginning 30 days prior to the effective date
of the transaction and until after such time as results covering
at least 30 days of combined operations of the combined entity
have been published, such Holder shall deliver to the Company an
"affiliate letter" in reasonable and customary form and
reasonably satisfactory to the Company.
SECTION 5. REGISTRATION EXPENSES
(a) All expenses incident to the Company's performance of
or compliance with this Agreement will be borne by the Company
regardless of whether the Registration Statement becomes
effective, including without limitation: (i) all registration
and filing fees and expenses (including, if applicable, the fees
and expenses of any "qualified independent underwriter" and its
counsel that may be required by the rules and regulations of the
NASD); (ii) all fees and expenses associated with compliance with
federal securities and state Blue Sky or securities laws; (iii)
all expenses of printing (including printing of any certificates
evidencing the Notes and Preferred Shares and printing of
Prospectuses), messenger and delivery services and telephone
charges; (iv) all fees and disbursements of counsel for the
Company and, as provided for in Section 5(b) below, the Holders
of Registrable Securities; (v) all application and filing fees in
connection with listing any securities on a national securities
exchange or automated quotation system pursuant to the
requirements hereof; and (vi) all fees and disbursements of
independent certified public accountants of the Company
(including the expenses of any special audit and comfort letters
required by or incident to such performance).
The Company will, in any event, bear its own internal
expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or
accounting duties), the expenses of any annual audit and the fees
and expenses of any Person, including special experts, retained
by the Company.
(b) In connection with the Registration Statement
required by this Agreement, the Company agrees to reimburse the
Purchaser and the Holders of Transfer Restricted Securities
being registered pursuant to the Registration Statement for the
reasonable fees and disbursements of not more than one counsel,
who shall be Sidley & Austin or such other counsel as may be
chosen by the Holders of a majority in principal amount or a
majority of the shares of the Registrable Securities for whose
benefit the Registration Statement is being prepared.
SECTION 6. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless
(i)each Holder and (ii) each person, if any, who controls (within
the meaning of Section 15 of the Act or Section 20 of the
Exchange Act) any Holder (any of the persons referred to in this
clause (ii) being hereinafter referred to as a "controlling
person") and (iii) the respective officers, directors, partners,
employees, representatives and agents of any Holder or any
controlling person (any person referred to in clause (i), (ii) or
(iii) may hereinafter be referred to as an "Indemnified Holder"),
to the fullest extent lawful, from and against any and all
losses, claims, damages, liabilities, judgments, costs and
expenses ("Losses") (including, without limitation and as
incurred, reimbursement of all costs of investigating, preparing,
pursuing or defending any claim or action, or any investigation
or proceeding by any governmental agency or body, commenced or
threatened, including the reasonable fees and expenses of counsel
to any Indemnified Holder) directly or indirectly caused by,
related to, based upon, arising out of or in connection with any
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or any Prospectus (or any
amendment or supplement thereto) or any omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading,
except insofar as such Losses are caused by an untrue statement
or omission or alleged untrue statement or omission that is made
in reliance upon and in conformity with information relating to
any of the Holders furnished in writing to the Company by any of
the Holders for use therein. The Company shall notify the
Holders promptly of the institution, threat or assertion of any
claim, proceeding (including any governmental investigation) or
litigation in connection with the matters addressed by this
Agreement which involves the Company or any Indemnified Holder.
(b) In case any action or proceeding (including, without
limitation, any governmental or regulatory investigation or
proceeding) shall be brought or asserted against any of the
Indemnified Holders with respect to which indemnity may be sought
against the Company, such Indemnified Holder (or the Indemnified
Holder controlled by such controlling person) shall promptly
notify the Company in writing (provided that the failure to give
such notice shall not relieve the Company of its obligations
pursuant to this Agreement). Any Indemnified Holder shall have
the right to employ separate counsel in any such action and
participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Holder,
provided, however, that the fees and expenses of such counsel
shall be at the expense of the Company if (i) the Company has
failed to assume the defense and employ counsel reasonably
satisfactory to the Holders or (ii) the named parties to any such
action (including impleaded parties) include such Indemnified
Holder and the Company and such Indemnified Holder shall have
reasonably concluded that there may be one or more legal defenses
available to it that are different from or in addition to those
available to the Company; provided further that the Company shall
not in such event be responsible hereunder for the fees and
expenses of more than one firm of separate counsel, which firm
shall be designated by the Holders, in connection with any action
in the same jurisdiction, in addition to any local counsel. The
Company shall not be liable for any settlement of any such action
or proceeding effected with its prior written consent, which
consent shall not be unreasonably withheld or delayed, and the
Company agrees to indemnify and hold harmless any Indemnified
Holder from and against any Loss by reason of any settlement of
any action effected with its written consent. The Company shall
not, without the prior written consent of each Indemnified
Holder, settle or compromise or consent to the entry of a
judgment in or otherwise seek to terminate any pending or
threatened action, claim, litigation or proceeding in respect of
which indemnification or contribution may be sought hereunder
(whether or not any Indemnified Holder is a party thereto) unless
such settlement, compromise, consent or termination includes an
unconditional release of each Indemnified Holder from all
liability arising out of such action, claim, litigation or
proceeding.
(c) Each Holder of Transfer Restricted Securities
agrees, severally and not jointly, to indemnify and hold harmless
the Company, its directors, its officers, and any person
controlling (within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act) the Company, and the respective
officers, directors, partners, employees, representatives and
agents of each such person, to the same extent as the foregoing
indemnity from the Company to each of the Indemnified Holders,
but only with respect to claims and actions based on information
relating to such Holder furnished in writing by such Holder for
use in the Registration Statement or any Prospectus. In case any
action or proceeding shall be brought against any of the Company
or its directors or officers or any such controlling person in
respect of which indemnity may be sought against a Holder of
Transfer Restricted Securities, such Holder shall have the
rights and duties given the Company, and each of the Company or
its directors or officers of such controlling person shall have
the rights and duties given to each Holder by the proceeding
paragraph. In no event shall the liability of any selling Holder
hereunder be greater in amount than the dollar amount of the
proceeds received by such Holder upon the sale of the securities
registered pursuant to provisions hereof giving rise to such
indemnification obligation.
(d) If the indemnification provided for in this Section
6 is unavailable to a party entitled to indemnification in
respect of any Losses referred to herein, then each indemnifying
party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified
party as a result of such Losses (i) in such proportion as is
appropriate to reflect the relative benefits received by the
Company on the one hand and the Holders on the other hand from
their sale of Transfer Restricted Securities or (ii) if such
allocation is not permitted by applicable law, the relative fault
of the Company on the one hand and of the indemnified Holder on
the other in connection with the statements or omissions which
resulted in the Losses as well as any relevant equitable
considerations. The relative fault of the Company on the one
hand and of the Indemnified Holder on the other shall be
determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Indemnified Holder
and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement
or omission. The indemnity and contribution obligations of each
indemnifying party set forth herein shall be in addition to any
liability or obligation such indemnifying party may otherwise
have to any indemnified party.
The Company and each Holder of Transfer Restricted
Securities agree that it would not be just and equitable if
contribution pursuant to this Section 6(d) were determined by pro
rata allocation (even if Holders were treated as one entity for
such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by
an indemnified party as a result of the Losses referred to in the
immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 6, none of
the Holders (and their related Indemnified Holders) shall be
required to contribute, in the aggregate, any amount in excess of
the amount by which the total proceeds received by such Holder
with respect to the Notes exceeds the amount of any damages which
such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Holders' obligations to
contribute pursuant to this Section 6(d) are several in
proportion to the respective principal amount of Notes held by
each of the Holders hereunder and not joint.
SECTION 7. RULE 144A
The Company hereby agrees with each Holder, for so long
as any Transfer Restricted Securities remain outstanding, to make
available to any Holder or beneficial owner of Transfer
Restricted Securities in connection with any sale thereof and
any prospective purchase of such Transfer Restricted Securities
from such Holder or beneficial owner, any information required to
be supplied to a Holder by Rule 144A(d)(4) under the Act in order
to permit offers and sales of such Transfer Restricted Securities
pursuant to Rule 144A.
SECTION 8. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten
Registration hereunder unless such Holder (a) agrees to sell such
Holder's Transfer Restricted Securities on the basis provided in
any underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements and (b) completes and
executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other
documents required under the terms of such underwriting
arrangements.
SECTION 9. SELECTION OF UNDERWRITERS
The Holders of Registrable Securities covered by the
Registration Statement who desire to do so may sell such
Registrable Securities in an Underwritten Offering. In any such
Underwritten Offering, the investment banker or investment
bankers and manager or managers that will administer the offering
will be selected by the Holders of a majority in aggregate
principal amount or a majority of the shares of the Registrable
Securities included in such offering; provided that such
investment bankers and managers must be reasonably satisfactory
to the Company.
SECTION 10. MISCELLANEOUS
(a) Remedies. The Company agrees that monetary damages
would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Agreement and
hereby agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not,
on or after the date of this Agreement, enter into any agreement
with respect to its securities that is inconsistent with the
rights granted to the Holders in this Agreement or otherwise
conflicts with the provisions hereof. The rights granted to the
Holders hereunder are not inconsistent with the rights granted to
the holders of the Company's securities under any agreement in
effect on the date hereof.
(c) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and
waivers or consents to or departures from the provisions hereof
may not be given, unless the Company has obtained the written
consent of Holders of a majority of the outstanding principal
amount or a majority of the shares of Transfer Restricted
Securities.
(d) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by
hand-delivery, first-class mail (registered or certified, return
receipt requested), telex, telecopier or courier guaranteeing
overnight deliver;
(i) if to a Holder, at the address set forth on the
records of the Registrar under the Indenture, with a copy to
the Registrar under the Indenture; and
(ii) if to the Company:
SoftKey International Inc.
One Athenaeum Street
Cambridge, Massachusetts 02142
Attention: General Counsel
with a copy to:
Skadden, Arps, Slate, Meagher & Flom
One Beacon Street, 31st Floor
Boston, Massachusetts 02108
Attention: Louis A. Goodman
All such notices and communications shall be deemed to
have been duly given: at the time delivered by hand, if
personally delivered; five business days after being deposited in
the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt is acknowledged, if telecopied; and on the
next business day, if timely delivered to a courier guaranteeing
overnight delivery.
Copies of all such notices, demands or other
communications shall be concurrently delivered by the Person
giving the same to the Trustee at the address specified in the
Indenture.
(e) Successors and Assigns. This Agreement shall, to
the extent provided for herein, inure to the benefit of and be
binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted
Securities; provided, however, that this Agreement shall not
inure to the benefit of or be binding upon a successor or assign
of a Holder unless and to the extent such successor or assign
acquired Transfer Restricted Securities from such Holder.
(f) Counterparts. This Agreement may be executed in
any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute
one and the same agreement.
(g) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF.
(i) Severability. In the event that any one or more
of the provisions contained herein, or the application thereof in
any circumstance, is held invalid, illegal or unenforceable, the
validity, legality and enforceability of any such provision in
every other respect and the remaining provisions contained herein
shall not be affected or impaired thereby.
(j) Entire Agreement. This Agreement, together with
the other Transaction Documents (as defined in the Purchase
Agreement) and the Merger Agreement, is intended by the parties
as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject
matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or
referred to herein or therein with respect to the registration
rights granted by the Company with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect to
such subject matter.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
SOFTKEY INTERNATIONAL INC.
By:_______________________
Name:
Title:
TRIBUNE COMPANY
By:_______________________
Name:
Title:
____________________________________________________________________________
Exhibit D
STANDSTILL AGREEMENT
STANDSTILL AGREEMENT (this "Agreement") dated
as of November 30, 1995 by and between Tribune Company, a
Delaware corporation ("Stockholder"), and SoftKey
International Inc., a Delaware corporation ("Issuer").
On November 30, 1995, Stockholder and Issuer:
(a) executed and delivered a Securities Purchase
Agreement (the "Purchase Agreement") providing for the
issuance and sale by Issuer, and the purchase by
Stockholder, of $150,000,000 principal amount of 5-1/2%
Senior Convertible/Exchangeable Notes due 2000 (the
"Notes"), which may be (i) exchanged for Issuer's 5-1/2%
Series C Convertible Preferred Stock (the "Preferred
Stock") which may be converted into shares of common
stock, par value $.01 per share, of Issuer (the "Common
Stock"), or (ii) converted directly into shares of Common
Stock; and (b) together with certain wholly owned
subsidiaries, executed and delivered an Agreement and
Plan of Merger (the "Merger Agreement") providing for two
separate reverse subsidiary mergers of wholly owned
subsidiaries of Issuer with and into wholly owned
subsidiaries of Stockholder in which Issuer will issue to
Stockholder, and Stockholder will receive from Issuer,
shares of Common Stock.
This Agreement is the Standstill Agreement
referenced in the Merger Agreement and sets forth certain
terms and conditions upon which the Issuer will issue and
deliver to Stockholder, and Stockholder (a) will receive
and accept from Issuer, (b) owns and holds, and (c) will
own and hold, the shares of Common Stock acquired by
Stockholder, or any shares of Common Stock which
Stockholder has the right to acquire, pursuant to the
Purchase Agreement and the Merger Agreement (the
"Shares").
In consideration of the mutual agreements
contained in the Purchase Agreement, the Merger Agreement
and herein, and for other good and valuable
consideration, the sufficiency and receipt of which are
hereby acknowledged, the parties agree as follows:
1. Stockholder's Representations and
Warranties. Stockholder represents and warrants to
Issuer as follows:
(a) Stockholder is a corporation duly
organized, validly existing and in good standing under
the laws of the State of Delaware;
(b) Stockholder (i) has the full power
and authority to execute and deliver this Agreement,
perform its obligations hereunder and consummate the
transactions contemplated hereby and (ii) has taken all
necessary action to authorize the execution, delivery and
performance by Stockholder of this Agreement;
(c) this Agreement has been duly and
validly authorized, executed and delivered by Stockholder
and constitutes the valid and binding obligation of
Stockholder, enforceable in accordance with its terms;
(d) Stockholder (or any direct or
indirect subsidiary of Stockholder and all persons
controlling, controlled by or under common control with
Stockholder ("Affiliates"), as the case may be), is, or
upon issuance to it by Issuer will be, the sole
beneficial holder of all the Shares, and Stockholder and
Affiliates have not granted or permitted to exist any
liens, claims, options, proxies, voting agreements,
charges or encumbrances of whatever nature affecting the
Shares;
(e) the Notes and Shares owned and held
by Stockholder and Affiliates as of the date hereof
constitute all of the securities of Issuer owned by
Stockholder and Affiliates;
(f) Stockholder (or Affiliates, as the
case may be) is not acquiring the Notes and Shares owned
and held by Stockholder and is not acquiring the Shares
which may be acquired after the date hereof with the
intent or objective of obtaining control of the business,
operations or affairs of Issuer; and
(g) except as set forth in the Purchase
Agreement and the Merger Agreement, neither the
Stockholder nor any Affiliate has outstanding any option,
warrant or other right to acquire, directly or
indirectly, any securities of Issuer or any securities
which are convertible into or exchangeable or exercisable
for any securities of the Issuer, nor is the Stockholder
or any Affiliate subject to any agreement (whether
written or in the nature of an informal understanding or
arrangement) which allows or obligates the Stockholder or
any such Affiliate to vote or acquire any securities of
the Issuer.
2. Issuer's Representations and Warranties.
Issuer represents and warrants to Stockholder as follows:
(a) Issuer is a corporation duly
organized, validly existing and in good standing under
the laws of the State of Delaware;
(b) Issuer (i) has the full power and
authority to execute and deliver this Agreement, perform
its obligations hereunder and consummate the transactions
contemplated hereby and (ii) has taken all necessary
action to authorize the execution, delivery and
performance by Issuer of this Agreement; and
(c) this Agreement has been duly and
validly authorized, executed and delivered by Issuer and
constitutes the valid and binding obligation of Issuer,
enforceable in accordance with its terms.
3. Covenants of Stockholder. Stockholder
covenants with Issuer that, without the consent of
Issuer, for a period commencing on the date hereof and
continuing through the fifth anniversary of the date
hereof Stockholder and Affiliates, singly or as part of a
group, directly or indirectly, through one or more
intermediaries or otherwise, will not:
(a) purchase, acquire or own, or offer,
propose or agree to purchase, acquire or own, directly or
indirectly, any securities of Issuer which are entitled
to vote generally in the election of directors (other
than upon occurrence of a contingency) ("Voting
Securities"), any option, warrant or other right to
acquire, directly or indirectly, any Voting Securities or
any securities which are convertible into or exchangeable
or exercisable for Voting Securities, if, immediately
after such purchase or acquisition, Stockholder and
Affiliates would beneficially own, in the aggregate,
Voting Securities representing an amount (the "Threshold
Amount") which exceeds the greater of 20% of Issuer's
outstanding Voting Securities or such percentage of the
Issuer's outstanding Voting Securities which the sum of
the Shares issued in connection with the Merger Agreement
and the Shares issuable upon the conversion of the Notes
issued in connection with the Purchase Agreement (taking
into account any Voting Securities into which such Notes
(or any Preferred Stock for which such Notes are
exchanged) may from time to time be convertible as a
result of application of the anti-dilution provisions
applicable to the Notes or the Preferred Stock) would
constitute on a fully diluted basis on the date of the
later of the closings of the transactions contemplated by
the Merger Agreement and the Purchase Agreement;
provided, however, that notwithstanding anything to the
contrary contained herein, the foregoing restriction
shall not be deemed to be violated or applicable if
Stockholder is not otherwise in breach of this Agreement
and (i) the percentage of the outstanding Voting
Securities beneficially owned, in the aggregate, by
Stockholder and Affiliates is increased as a result of a
recapitalization of Issuer, a repurchase of securities by
Issuer or any other action taken solely by Issuer, (ii) a
benefit plan maintained for employees of Stockholder and
Affiliates acquires up to 1% (in the aggregate) of the
outstanding Common Stock solely for purposes of
investment, or (iii) Issuer breaches its obligation under
Section 4(b) hereof; and provided, further, that so long
as Stockholder is not otherwise in breach of this
Agreement, (i) if a third party (which term for purposes
of this Agreement shall include any group as defined in
Section 13(d)(3) of the Securities Exchange Act of 1934,
as amended) makes a tender or exchange offer which, if
consummated, would result in such third party owning at
least a majority of the Voting Securities and Issuer's
Board of Directors does not oppose such tender or
exchange offer at the time at which it is required by
applicable securities laws to make a recommendation
regarding such tender or exchange offer to Issuer's
stockholders, then Stockholder may make and consummate a
tender or exchange offer for a number of Voting
Securities equal to or greater than the number of Voting
Securities which such third party seeks to purchase
pursuant to such tender or exchange offer, (ii) if a
third party acquires beneficial ownership of at least 30%
of the outstanding Voting Securities, and Stockholder is
prohibited by the terms of this Agreement from acquiring
more than 30% of the outstanding Voting Securities, then
Stockholder may purchase up to the same number of Voting
Securities as such third party or may make and consummate
a tender or exchange offer for all outstanding Voting
Securities, and (iii) if Issuer's Board of Directors
approves a definitive written agreement with respect to a
business combination or other extraordinary transaction
involving Issuer as a result of which more than 50% of
the assets of Issuer would be transferred or a Change of
Control (as defined below) would occur, then Stockholder
may make and consummate a tender or exchange offer for
all outstanding Voting Securities, and if Stockholder is
permitted to make and consummate a tender or exchange
offer pursuant hereto, none of the restrictions contained
in this Section 3 (with the exception of Section 3(f) and
the application of Section 3(g) to Section 3(f)) shall
apply to Stockholder's activities with regard to any
stockholder vote or proposal in connection therewith or
in connection with any alternative transaction or action
proposed in response thereto; "Change of Control" shall
mean any transaction as a result of which (i) the owners
of a majority of the Voting Securities of Issuer
immediately prior to consummation of the transaction will
not continue to own upon completion of the transaction
(A) a majority of the Voting Securities of Issuer or (B)
a majority of the Voting Securities of any other person
into or for the securities of which the Voting Securities
of Issuer will be converted or exchanged as a result of
the transaction or (ii) as a result of which any third
party is entitled to elect a majority of the members of
the Board of Directors of Issuer;
(b) solicit, or encourage any other
person to solicit, "proxies" or become a "participant" or
otherwise engage in any "solicitation" (as such terms are
defined or used in Regulation 14A under the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) in
opposition to a recommendation of a majority of the
directors of Issuer with respect to any matter; seek to
advise or influence any person (within the meaning of
Section 13(d)(3) of the Exchange Act) with respect to the
voting of any securities of the Issuer; or execute any
written consent in lieu of a meeting of holders of
securities of Issuer or any class thereof; provided,
however, that if Stockholder is entitled to elect
directors of Issuer pursuant to Section 3.3 of the
Certificate of Designation of the Preferred Stock (the
"Certificate of Designation"), nothing in this Section
3(b) shall be construed to prohibit Stockholder from
soliciting proxies for the election of such directors
from the holders of Defaulted Parity Stock (as defined in
the Certificate of Designation);
(c) initiate, propose or otherwise
solicit stockholders for the approval of one or more
stockholder proposals with respect to Issuer, as
described in Rule 14a-8 under the Exchange Act;
(d) acquire control of Issuer or directly
or indirectly participate in or encourage the formation
of any "group" (within the meaning of Section 13(d)(3) of
the Exchange Act) owning or seeking to acquire beneficial
ownership of securities of the Issuer or affect control
of Issuer;
(e) otherwise act, directly or
indirectly, alone or in concert with others, to seek to
control or influence in any manner the management,
business, operations, board of directors, policies or
affairs of Issuer, or propose or seek to effect any form
of business combination transaction with Issuer or any
affiliate thereof or any restructuring, recapitalization
or other similar transaction with respect to Issuer;
(f) deposit any of the Shares into a
voting trust, or subject any of the Shares to any
agreement or arrangement with respect to the voting of
the Shares or any agreement having similar effect to any
of the foregoing in this Section 3(f); or
(g) (i) encourage any person, firm,
corporation, group or other entity to engage in any of
the actions covered by clauses (a) through (e) of this
Section 3 or make any public arrangement (or make other
communication with or to Issuer or otherwise which, in
the opinion of counsel to Issuer, would require public
announcement) with respect to any matter set forth in
clause (a) through (f) of this Section 3;
provided, however, that actions taken by any
representative of Stockholder on the Board of Directors
of Issuer, acting solely in his or her capacity as such a
director, shall not violate this Section 3. Stockholder
further covenants to cause the termination or resignation
of any director being removed from the Board of Directors
of Issuer in accordance with Section 4(b) hereof.
4. Covenants of Issuer. Issuer covenants with
Stockholder that:
(a) prior to (i) the closing of the
transactions contemplated by the Purchase Agreement and
the Merger Agreement, whichever occurs earlier (the
"First Closing"), or, if later, (ii) any other event or
transaction which would result in Stockholder
beneficially owning 15% or more of the outstanding Voting
Securities, the Board of Directors of Issuer shall
approve any and all agreements, events or transactions
for purposes of Section 203 of the Delaware General
Corporation Law ("Section 203") in order that the
restrictions contained in Section 203 shall not be
applicable to Stockholder and Affiliates;
(b) Immediately after the First Closing,
and so long as Stockholder shall not be in breach of any
of its obligations hereunder, the Board of Directors of
Issuer shall take all necessary actions to increase the
size of such Board by one and to fill the vacancy created
thereby with an individual designated in writing by
Stockholder and reasonably acceptable to Issuer, and, if
at any time Issuer's Board of Directors shall consist of
11 or more members and the transactions contemplated by
both the Purchase Agreement and the Merger Agreement
shall have been consummated, then Issuer's Board of
Directors shall take all necessary actions to increase
further the size of the Board by one and to fill the
additional vacancy created thereby with a second
individual designated in writing by Stockholder and
reasonably acceptable to Issuer, and Issuer shall
thereafter take such action as necessary or appropriate
to include such individuals among Issuer's nominees for
director, shall recommend to its stockholders a vote in
favor of such individuals at any annual or special
meeting of stockholders called to vote upon the election
or removal of any directors, and shall cause all shares
of capital stock of Issuer over which Issuer exercises
direct or indirect voting power to be voted in favor of
the election of the individuals designated in writing
hereunder by Stockholder; provided, however, that at such
time as Stockholder has the right to designate two
directors and Stockholder beneficially owns fewer than
5,000,000 but at least the lesser of (i) 2,800,000 shares
of Common Stock (including, for purposes of this
calculation, the number of shares of Common Stock into
which the Notes and Preferred Stock beneficially owned by
Stockholder are then convertible) and (ii) 75% of the sum
of any Shares issued in connection with the Merger
Agreement and the Shares issuable upon the conversion of
any Notes issued in connection with the Purchase
Agreement (taking into account any Voting Securities into
which such Notes (or any Preferred Stock for which such
Notes are exchanged) may from time to time be convertible
as a result of the application of the anti-dilution
provisions applicable to the Notes or the Preferred
Stock) (the lesser of the foregoing clauses (i) and (ii)
being referred to herein as the "Lesser Amount"), then
one of Stockholder's nominees shall be removed from
Issuer's Board of Directors and Issuer's obligations
under this Section 4(b) shall only apply in respect of
the election of one nominee of Stockholder, and at such
time as Stockholder owns fewer shares of Common Stock
than the Lesser Amount, Stockholder's remaining or, as
the case may be, sole nominee shall be removed from
Issuer's Board of Directors and Issuer shall be relieved
of its obligations under this Section 4(b); and
(c) Issuer will not, for so long as this
Agreement is effective, enter into or adopt any plans,
agreements, arrangements or understandings which have the
effect of materially impeding, preventing or prohibiting
Stockholder from beneficially owning, in the aggregate,
the Threshold Amount.
5. Specific Performance. Issuer and
Stockholder each acknowledge and agree that in the event
of any breach of this Agreement, the non-breaching party
would be irreparably harmed and could not be made whole
by monetary damages. It is accordingly agreed that
Issuer and Stockholder, in addition to any other remedy
to which they may be entitled at law or in equity, shall
be entitled to compel specific performance of this
Agreement in any action instituted in the federal courts
located in the State of Delaware, or, in the event said
courts would not have jurisdiction for such action, in
any court of the United States or any state having
subject matter jurisdiction. Issuer and Stockholder each
consent to personal jurisdiction in any such action
brought in the federal courts located in the State of
Delaware and to service of process upon it in the manner
set forth in Section 7(g) hereof and addressed to the
General Counsel of the recipient at the address set forth
in Section 7(g).
6. Expenses. All fees and expenses incurred
by Stockholder will be borne by Stockholder, and all fees
and expenses incurred by Issuer in connection with this
Agreement will be borne by Issuer.
7. Miscellaneous.
(a) This Agreement, together with the
Purchase Agreement, the Merger Agreement and the other
agreements contemplated hereby and thereby, constitute
the entire agreement, and supersede all prior agreements
and understandings, whether oral or written, among the
parties hereto, with respect to the subject matter
hereof. This Agreement may not be amended orally, but
only by an instrument in writing signed by each of the
parties to this Agreement.
(b) This Agreement shall inure to the
benefit of and be binding upon the parties hereto and
their heirs, legal representatives, successors and
assigns.
(c) Section headings contained in this
Agreement are for reference purposes only and shall not
affect the meaning or interpretation of this Agreement.
(d) All representations, warranties and
covenants shall survive the execution and delivery
hereof.
(e) This Agreement may be executed in any
number of counterparts, each of which shall, when
executed, be deemed to be an original and all of which
shall be deemed to be one and the same instrument.
(f) This Agreement shall be governed by
and construed and enforced in accordance with the laws of
the State of Delaware, without reference to the conflict
of laws principles thereof.
(g) All notices and other communications
under this Agreement shall be in writing and delivery
thereof shall be deemed to have been made either (i) if
mailed, when received, or (ii) when transmitted by hand
delivery, telegram, telex, FedEx or other overnight
courier service, telecopier or facsimile transmission (in
either case, if confirmed), to the party entitled to
receive the same at the address or facsimile number set
forth in the Merger Agreement (as the same may be amended
or modified in accordance with the terms thereof).
(h) Any waiver by any party of a breach
of any provision of this Agreement shall not operate as
or be construed to be a waiver of any other breach of
such provision or of any breach of any other provision of
this Agreement. The failure of a party to insist upon
strict adherence to any term of this Agreement on one or
more occasions shall not be considered a waiver or
deprive that party of the right thereafter to insist upon
strict adherence to that term or any other term of this
Agreement.
(i) This Agreement shall terminate and be
of no further effect if the Purchase Agreement and the
Merger Agreement shall have each been terminated in
accordance with their respective terms.
IN WITNESS WHEREOF, and intending to be legally
bound hereby, each of Stockholder and Issuer has executed
or caused this Agreement to be executed as of the date
first above written.
TRIBUNE COMPANY
By
Name:
Title:
SOFTKEY INTERNATIONAL INC.
By
Name:
Title:
____________________________________________________________________________
Exhibit E
PROMISSORY NOTE
$[ ] Boston, Massachusetts
Dated: [ ](1)
FOR VALUE RECEIVED, PIANO INTERNATIONAL INC., a Delaware
corporation ("Borrower"), HEREBY PROMISES TO PAY to the
order of TOWER COMPANY, a Delaware corporation
("Lender"), the principal sum of [ ] million dollars
($[ ]) by deposit to [BANK], account no. [ ], in
lawful money of the United States of America in
immediately available funds, or in such other manner as
is provided for herein or as Lender may designate in
writing, on or before [ ](2) (the "Maturity
Date"), with interest on the unpaid balance of such
principal amount at the rate of 6-1/2% per annum from the
date hereof until such principal amount is paid in full.
Subject to compliance with any applicable provisions of
the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended (the "HSR Act"), Buyer may pay amounts due
under this Note at maturity by delivering to Lender, on
the Maturity Date, the number of shares, rounded up to
the nearest whole share, of common stock, par value $.01
per share, of Borrower ("Common Stock") obtained by
dividing the unpaid principal balance plus accrued
interest thereon to the Maturity Date by the volume-
weighted average of the closing prices for Common Stock
as quoted over the Nasdaq National Market for the ten
full trading days preceding the Maturity Date.
Borrower may prepay this Note in whole or in part without
premium or penalty: (a) at any time in immediately
available funds in an amount equal to the principal
amount of the Note to be prepaid plus accrued interest on
such principal amount to the date on which such
prepayment is made or (b) subject to compliance with any
applicable provisions of the HSR Act, by delivering to
Lender, during the twenty-day period commencing on the
three-month, six-month or nine-month anniversary of the
date of issuance of this Note set forth above, the number
of shares, rounded up to the nearest whole share, of
Common Stock obtained by dividing the principal amount to
be prepaid plus accrued interest thereon to the date on
which the prepayment is made by the volume-weighted
average of the closing prices for Common Stock as quoted
___________________
1 Closing Date under the Merger Agreement.
2 The first anniversary of the Closing Date under the
Merger Agreement.
over the Nasdaq National Market for the ten full trading
days preceding any such date on which such prepayment is
made; provided, however, that Borrower must notify Lender
of any such prepayment at least eleven days prior to the
date on which such prepayment is to be made.
Borrower represents that, upon delivery of certificates
for shares of Common Stock in accordance with the terms
and provisions of this Note, such shares of Common Stock
will be validly issued, fully paid and nonassessable.
Lender represents that any shares of Common Stock which
may be issued and delivered to it hereunder will be
acquired for its own account, for investment for an
indefinite period of time, not as nominee or agent for
any other person, firm or corporation and not for
distribution or resale to others; provided, however, that
Borrower and Lender hereby acknowledge that Lender may
dispose of some or all of the shares of Common Stock so
acquired pursuant to an effective registration statement
under the Securities Act of 1933, as amended (the
"Securities Act"), or in a transaction exempt from
registration under the Securities Act. Lender agrees
that it will not sell or otherwise transfer any shares of
Common Stock so acquired unless such shares are
registered under the Securities Act or unless an
exemption from such registration is available.
Interest shall be computed hereunder based on actual days
elapsed.
In no event shall the amount of interest due or payable
hereunder exceed the maximum rate of interest allowed by
applicable law, and in the event any payment is made
which exceeds such maximum lawful rate, then the amount
of such excess sum shall be credited as a payment of
principal. It is the express intent hereof that the
Borrower shall not pay and the Lender shall not receive,
directly or indirectly, interest in excess of what may
lawfully be paid by Borrower under applicable law.
This Note may not be assigned without the prior written
consent of Lender.
This Note may not be changed, amended or modified except
by agreement in writing signed by Borrower and Lender.
Borrower hereby waives demand for payment, presentment
for payment, protest and notice of any kind whatsoever.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAWS OF THE STATE OF DELAWARE (WITHOUT
GIVING EFFECT TO THE PRINCIPLES THEREOF RELATING TO
CONFLICTS OF LAW).
PIANO INTERNATIONAL INC.
By:
Name:
Title:
TOWER COMPANY
By:
Name:
Title:
____________________________________________________________________________
Exhibit F
TAX SHARING AGREEMENT
by and among
SOFTKEY INTERNATIONAL INC.,
TRIBUNE COMPANY,
COMPTON'S NEWMEDIA, INC.,
and
COMPTON'S LEARNING COMPANY
dated [________]
Table of Contents
Section 1. Certain Defined Terms . . . . . . . . . . . . . . 1
a. "Affiliated Group" . . . . . . . . . . . . . . . . 2
b. "Audit" . . . . . . . . . . . . . . . . . . . . . . 2
c. "CLC Deconsolidation Date" . . . . . . . . . . . . 2
d. "CLC Post-Closing Period" . . . . . . . . . . . . . 2
e. "CLC Pre-Closing Period" . . . . . . . . . . . . . 2
f. "CLC Straddle Period" . . . . . . . . . . . . . . . 2
g. "CNI Deconsolidation Date" . . . . . . . . . . . . 2
h. "CNI Post-Closing Period" . . . . . . . . . . . . . 2
i. "CNI Pre-Closing Period" . . . . . . . . . . . . . 2
j. "CNI Straddle Period" . . . . . . . . . . . . . . . 2
k. "Combined Group" . . . . . . . . . . . . . . . . . 2
l. "Federal Income Taxes" . . . . . . . . . . . . . . 3
m. "Federal Taxes" . . . . . . . . . . . . . . . . . . 3
n. "Federal Income Tax Return" . . . . . . . . . . . . 3
o. "Federal Tax Return" . . . . . . . . . . . . . . . 3
p. "Non-Federal Combined Tax Return" . . . . . . . . . 3
q. "Non-Federal Combined Taxes" . . . . . . . . . . . 3
r. "Non-Federal Separate Tax Return" . . . . . . . . . 4
s. "Non-Federal Separate Taxes" . . . . . . . . . . . 4
t. "Non-Federal Taxes" . . . . . . . . . . . . . . . . 4
u. "Non-Federal Tax Return" . . . . . . . . . . . . . 4
v. "Post-Closing Periods" . . . . . . . . . . . . . . 4
w. "Pre-Closing Periods" . . . . . . . . . . . . . . . 4
x. "Straddle Periods" . . . . . . . . . . . . . . . . 4
y. "Subsidiary Combined Group" . . . . . . . . . . . . 5
z. "Subsidiary Matter" . . . . . . . . . . . . . . . . 5
aa. "Tax Authority" . . . . . . . . . . . . . . . . . . 5
ab. "Tax Returns" . . . . . . . . . . . . . . . . . . . 5
ac. "Taxes" . . . . . . . . . . . . . . . . . . . . . . 5
Section 2. Preparation and Filing of Tax Returns . . . . . . 5
2.1. Federal Income Tax Returns for Pre-Closing
Periods . . . . . . . . . . . . . . . . . . 5
2.2. Non-Federal Combined Tax Returns for Pre-
Closing Periods and Straddle Periods . . . . 5
2.3. Non-Federal Separate Tax Returns for Pre-
Closing Periods and Straddle Periods . . . . 6
2.4. Post-Closing Periods . . . . . . . . . . . . 6
2.5. Federal Tax Returns (Excluding Federal In-
come Tax Returns for Pre-Closing Periods) . 6
2.6. Consistent Preparation of Tax Returns . . . 6
Section 3. Payment of Taxes . . . . . . . . . . . . . . . . 6
3.1. Federal Income Taxes for Pre-Closing Peri-
ods . . . . . . . . . . . . . . . . . . . . 6
3.2. Non-Federal Combined Taxes for Pre-Closing
Periods and Straddle Periods . . . . . . . . 7
3.3. Non-Federal Separate Taxes for Pre-Closing
Periods and Straddle Periods . . . . . . . . 7
3.4. Federal Taxes (Excluding Federal Income
Taxes for Pre-Closing Periods) . . . . . . . 7
Section 4. Redetermination . . . . . . . . . . . . . . . . . 7
Section 5. Indemnification . . . . . . . . . . . . . . . . . 8
5.1. Indemnity . . . . . . . . . . . . . . . . . 8
5.2. Calculation of Indemnity . . . . . . . . . . 8
Section 6. Audits, Disputes, Etc. . . . . . . . . . . . . . 9
6.1. Federal Taxes and Non-Federal Combined Tax-
es for Pre-Closing Periods . . . . . . . . . 9
6.2. Non-Federal Separate Taxes for Pre-Closing
Periods and Straddle Periods . . . . . . . . 10
Section 7. Mutual Cooperation . . . . . . . . . . . . . . . 10
Section 8. Resolution of Certain Conflicts . . . . . . . . . 11
Section 9. Reorganization Status . . . . . . . . . . . . . . 11
Section 10. General Provisions . . . . . . . . . . . . . . . 11
a. Effectiveness . . . . . . . . . . . . . . . . . . . 11
b. Entire Agreement; Binding Effect . . . . . . . . . 12
c. Severability . . . . . . . . . . . . . . . . . . . 12
d. Time of Payment . . . . . . . . . . . . . . . . . . 12
e. Applicable Law . . . . . . . . . . . . . . . . . . 12
f. Notices . . . . . . . . . . . . . . . . . . . . . . 12
g. Amendment and Waiver . . . . . . . . . . . . . . . 13
h. Parties in Interest . . . . . . . . . . . . . . . . 14
i. No Third-Party Beneficiaries . . . . . . . . . . . 14
j. Alternative Minimum Tax . . . . . . . . . . . . . . 14
k. Federal Income Tax Return Closing Date . . . . . . 14
l. Ratable Allocation Election . . . . . . . . . . . . 14
m. Reattribution of Losses . . . . . . . . . . . . . . 15
n. Treatment of Tax Payments and Refunds . . . . . . . 15
o. Counterparts . . . . . . . . . . . . . . . . . . . 15
p. Headings; Pronouns and Conjunctions . . . . . . . . 15
This Tax Sharing Agreement (the "Agreement"), is made
and entered into this [__] day of [_________], by and among
SoftKey International Inc., a Delaware corporation ("Buyer"),
Tribune Company, a Delaware corporation ("Seller"), Compton's
NewMedia, Inc., a California corporation ("CNI"), and Compton's
Learning Company, a Delaware corporation ("CLC" and, together
with CNI, the "Companies").
WHEREAS, Seller is the owner of all of the issued and
outstanding capital stock of CNI and CLC;
WHEREAS, Buyer desires to acquire CNI and CLC upon the
terms and subject to conditions set forth in the Agreement and
Plan of Merger (the "Merger Agreement") made and entered into on
the 30th day of November, 1995, by and among Buyer, Cubsco I
Inc., a California corporation, Cubsco II Inc., a California
corporation, Seller, and the Companies;
WHEREAS, Seller and the Companies are members of an
affiliated group of corporations, as defined in section 1504(a)
of the Internal Revenue Code of 1986, as amended (the "Code"), of
which Seller is the common parent;
WHEREAS, CNI and its subsidiaries, if any, (the "CNI
Group") and CLC and its subsidiaries, if any, (the "CLC Group"
and, together with the CNI Group, the "Subsidiary Groups") will
cease to be members of the Affiliated Group (as defined herein)
upon the close of business on the CNI Deconsolidation Date (as
defined herein) and the CLC Deconsolidation Date (as defined
herein), respectively; and
WHEREAS, it is the intent and desire of the parties
hereto to provide for (i) sharing and allocation of, and indemni-
fications against, certain liabilities for Taxes (as defined
herein), (ii) the preparation and filing of Tax Returns (as
defined herein) and the payment of Taxes, and (iii) certain
related matters.
NOW, THEREFORE, in consideration of the foregoing and
the agreements, mutual covenants and promises hereinafter set
forth, and intending to be legally bound hereby, the parties
hereto agree as follows:
Section 1. Certain Defined Terms. For purposes of this
Agreement, the following terms shall have the following meanings:
a. "Affiliated Group" means the affiliated group of
corporations, as defined in section 1504(a) of the Code, of which
Seller is the common parent, and as the context may require, any
member of such group.
b. "Audit" includes any audit, assessment of Taxes,
other examination by any Tax Authority (as defined herein),
proceeding, or appeal of such proceeding relating to Taxes,
whether administrative or judicial.
c. "CLC Deconsolidation Date" means with respect to
CLC Group, the close of business on the day on which CLC Group
ceases to be a member of the Affiliated Group.
d. "CLC Post-Closing Period" means with respect to the
CLC Group, a taxable period beginning after the CLC
Deconsolidation Date.
e. "CLC Pre-Closing Period" means with respect to the
CLC Group, a taxable period ending on or prior to the CLC
Deconsolidation Date.
f. "CLC Straddle Period" means with respect to CLC
Group, a taxable period beginning on or prior to and ending after
the CLC Deconsolidation Date.
g. "CNI Deconsolidation Date" means with respect to
CNI Group, the close of business on the day on which CNI Group
ceases to be a member of the Affiliated Group.
h. "CNI Post-Closing Period" means with respect to the
CNI Group, a taxable period beginning after the CNI
Deconsolidation Date.
i. "CNI Pre-Closing Period" means with respect to the
CNI Group, a taxable period ending on or prior to the CNI
Deconsolidation Date.
j. "CNI Straddle Period" means with respect to CNI
Group, a taxable period beginning on or prior to and ending after
the CNI Deconsolidation Date.
k. "Combined Group" means a group of corporations that
includes Seller (or any of its subsidiaries) and files a Non-
Federal Combined Tax Return, and as the context may require, any
member of such group.
l. "Federal Income Taxes" includes all Federal income,
alternative minimum, and withholding (excluding taxes withheld
from wages pursuant to Sections 3401-3406 of the Code, or any
successor provisions thereto) taxes imposed under the Code,
including any interest, additions to tax, or penalties applicable
thereto.
m. "Federal Taxes" includes all Federal taxes (includ-
ing Federal Income Taxes), charges, fees, levies, imposts,
duties, or other assessments of a similar nature, including
without limitation, income, alternative or add-on minimum, gross
receipts, excise, employment, sales, use, transfer, license,
payroll, franchise, severance, stamp, occupation, windfall
profits, environmental, premium, capital stock, profits, with-
holding, Social Security, unemployment, disability, ad valorem,
estimated, highway use, commercial rent, capital stock, paid up
capital, recording, registration, property, real property gains,
value added, business license, custom duties, or other tax or
governmental fee of any kind whatsoever, imposed or required to
be withheld by a governmental agency of the United States of
America, including any interest, additions to tax, or penalties
applicable thereto.
n. "Federal Income Tax Return" means any return,
declaration, statement, report, schedule, certificate, form,
information return, or any other document (including any related
or supporting information), including an amended Tax Return,
required to be supplied to, or filed with, a Tax Authority with
respect to Federal Income Taxes;
o. "Federal Tax Return" means any return (including
Federal Income Tax Returns), declaration, statement, report,
schedule, certificate, form, information return, or any other
document (including any related or supporting information),
including an amended Tax Return, required to be supplied to, or
filed with, a Tax Authority with respect to Federal Taxes;
p. "Non-Federal Combined Tax Return" means any return,
declaration, statement, report, schedule, certificate, form,
information return, or any other document (including any related
or supporting information), including an amended Tax Return,
required to be supplied to, or filed with, a Tax Authority with
respect to Non-Federal Combined Taxes;
q. "Non-Federal Combined Taxes" means for any Pre-
Closing or Straddle Period any Non-Federal Tax that Seller and
(i) CNI and/or CLC or (ii) any of the subsidiaries of CNI and/or
CLC, have in past practice computed on a unitary or combined
basis with respect to California, Florida and/or Illinois;
r. "Non-Federal Separate Tax Return" means any return,
declaration, statement, report, schedule, certificate, form,
information return, or any other document (including any related
or supporting information), including an amended Tax Return,
required to be supplied to, or filed with, a Tax Authority with
respect to Non-Federal Separate Taxes;
s. "Non-Federal Separate Taxes" means any Non-Federal
Tax that is not a Non-Federal Combined Tax;
t. "Non-Federal Taxes" includes all state, local, and
foreign taxes, charges, fees, levies, imposts, duties, or other
assessments of a similar nature, including without limitation,
income, alternative or add-on minimum, gross receipts, excise,
employment, sales, use, transfer, license, payroll, franchise,
severance, stamp, occupation, windfall profits, environmental,
premium, capital stock, profits, withholding, Social Security,
unemployment, disability, ad valorem, estimated, highway use,
commercial rent, capital stock, paid up capital, recording,
registration, property, real property gains, value added, busi-
ness license, custom duties, or other tax or governmental fee of
any kind whatsoever, imposed or required to be withheld by any
Tax Authority (excluding any governmental agency of the United
States of America), including any interest, additions to tax, or
penalties applicable thereto.
u. "Non-Federal Tax Return" means any return, declara-
tion, statement, report, schedule, certificate, form, information
return, or any other document (including any related or support-
ing information), including an amended Tax Return, required to be
supplied to, or filed with, a Tax Authority with respect to Non-
Federal Taxes;
v. "Post-Closing Periods" means all CNI Post-Closing
Periods and CLC Post-Closing Periods.
w. "Pre-Closing Periods" means all CNI Pre-Closing
Periods and CLC Pre-Closing Periods.
x. "Straddle Periods" means all CNI Straddle Periods
and CLC Straddle Periods.
y. "Subsidiary Combined Group" means a group consist-
ing of one or more members of the CNI Group or CLC Group that is
a member of a Combined Group.
z. "Subsidiary Matter" shall have the meaning ascribed
thereto in Section 6.1 of this Agreement.
aa. "Tax Authority" includes the Internal Revenue
Service and any state, local, foreign or other governmental
authority responsible for the administration of any Taxes (domes-
tic or foreign).
ab. "Tax Returns" shall mean Federal Tax Returns and
Non-Federal Tax Returns, as the context requires.
ac. "Taxes" shall mean Federal Taxes and Non-Federal
Taxes, as the context requires.
Section 2. Preparation and Filing of Tax Returns.
2.1. Federal Income Tax Returns for Pre-Closing
Periods. Seller shall prepare, or cause to be prepared, and file
all Federal Income Tax Returns of the Subsidiary Groups for any
Pre-Closing Period. Seller shall provide Buyer, at least 30 days
prior to filing, with a copy of a pro forma Federal Income Tax
Return of each of the Subsidiary Groups for the final Pre-Closing
Period for Buyer's review and approval, which approval shall not
be unreasonably withheld. After receipt of Buyer's approval, but
in no event later than the due date for filing, Seller shall file
the Federal Income Tax Return of the Affiliated Group (including
the Subsidiary Groups) for such Pre-Closing Period.
2.2. Non-Federal Combined Tax Returns for Pre-
Closing Periods and Straddle Periods. Seller shall prepare, or
cause to be prepared, and file all Non-Federal Combined Tax
Returns, with respect to the assets, earnings, and operations of
the Subsidiary Groups, for all Pre-Closing Periods and Straddle
Periods. Seller shall provide Buyer, at least 30 days prior to
filing, with a copy of pro forma Non-Federal Combined Tax Returns
of the Subsidiary Groups for the final Pre-Closing Period or
Straddle Period for Buyer's review and approval, which approval
shall not be unreasonably withheld. After receipt of Buyer's
approval, but in no event later than the due date for filing,
Seller shall file the Non-Federal Combined Tax Returns with
respect to such Pre-Closing Period or Straddle Period with the
appropriate Tax Authority.
2.3. Non-Federal Separate Tax Returns for Pre-
Closing Periods and Straddle Periods. Buyer shall prepare, or
cause to be prepared, for Seller's review and approval, which
approval shall not be unreasonably withheld, all Non-Federal
Separate Tax Returns, with respect to the assets, earnings, and
operations of the Subsidiary Groups, for all Pre-Closing Periods
and Straddle Periods; provided, however, that Seller's review and
approval shall only be necessary with respect to those Non-
Federal Tax Returns for which Seller is obligated to make a
payment under Section 3.3, below. Upon receipt of Seller's
approval (if applicable), but in no event later than the due date
for filing, Buyer shall file all Non-Federal Separate Tax Returns
with the appropriate Tax Authorities and provide Seller with a
copy of such Non-Federal Separate Tax Returns that Buyer files,
or causes to be filed, with respect to a Pre-Closing Period or
Straddle Period.
2.4. Post-Closing Periods. Buyer shall pre-
pare, or cause to be prepared, and file all Tax Returns required
to be filed by, or on behalf of, the Subsidiary Groups for all
Post-Closing Periods.
2.5. Federal Tax Returns (Excluding Federal
Income Tax Returns for Pre-Closing Periods). The parties shall
each prepare, or cause to be prepared, and file all of their
respective Federal Tax Returns (excluding Federal Income Tax
Returns for Pre-Closing Periods, which are governed by Section
2.1 above) required by law to be filed by, or on behalf of, such
parties for all Pre-Closing Periods, Straddle Periods, and Post-
Closing Periods.
2.6. Consistent Preparation of Tax Returns.
The Tax Returns described in this Section 2, with respect to Pre-
Closing Periods and Straddle Periods, shall be prepared on a
basis that is consistent with industry practice and the manner in
which such Tax Returns were filed prior to the date hereof,
unless a contrary treatment is required by law.
Section 3. Payment of Taxes.
3.1. Federal Income Taxes for Pre-Closing
Periods. Seller shall pay to the Internal Revenue Service all
Federal Income Taxes, if any, of the Affiliated Group (including
the Subsidiary Groups) due and payable for all Pre-Closing
Periods.
3.2. Non-Federal Combined Taxes for Pre-Closing
Periods and Straddle Periods. Seller shall pay to the appropri-
ate Tax Authorities all Non-Federal Combined Taxes, if any, with
respect to the assets, earnings, and operations of the Subsidiary
Groups, due and payable for all Pre-Closing Periods and Straddle
Periods.
3.3. Non-Federal Separate Taxes for Pre-Closing
Periods and Straddle Periods. To the extent that a liability for
Non-Federal Separate Taxes arises other than as a result of a
Redetermination (as defined in Section 4, below) and such liabil-
ity for Non-Federal Separate Taxes (when aggregated with all
other such liabilities paid or payable after the CNI
Deconsolidation Date or CLC Deconsolidation Date on a cumulative
basis, excluding such liabilities that arise as a result of a
Redetermination) exceeds $50,000, Seller shall (as directed by
Buyer or the Companies) (i) pay to the appropriate Tax Authori-
ties or (ii) reimburse CNI and/or CLC for all of the Non-Federal
Separate Taxes, if any, with respect to the assets, earnings, and
operations of CNI Group and CLC Group, due and payable for all
Pre-Closing Periods and Straddle Periods.
3.4. Federal Taxes (Excluding Federal Income
Taxes for Pre-Closing Periods). As directed by Buyer or the
Companies, Seller shall (i) pay to the appropriate governmental
agency of the United States of America or (ii) reimburse CNI
and/or CLC for all of their respective Federal Taxes (excluding
Federal Income Taxes for Pre-Closing Periods, which are governed
by Section 3.1 above), if any, due and payable for all Pre-
Closing Periods and that portion of any Straddle Periods up to
and including the CNI Deconsolidation Date and CLC
Deconsolidation Date.
Section 4. Redetermination. In the event of any redetermi-
nation of any item of income, gain, loss, deduction or credit of
any member of the Affiliated Group or a Combined Group for any
Pre-Closing Period or Straddle Period as a result of a final
assessment, settlement, or compromise with any Tax Authority
(including any amended Tax return or claim for refund filed by
Seller pursuant to Section 6.1 or the relevant Subsidiary Group
pursuant to Section 6.2) or a judicial decision that has become
final (a "Redetermination"), Seller and Buyer shall recompute the
Tax due on the relevant Tax Return for such Pre-Closing Period or
Straddle Period (and any other Pre-Closing Periods which are
affected thereby) to take into account such Redetermination. If
a Redetermination results in an increase in the liability for
Taxes of the Affiliated Group or Combined Group for any Pre-
Closing Period or Straddle Period and such increase is attribut-
able to an item of income, gain, loss, deduction or credit of the
CNI Group or CLC Group for a Pre-Closing Period or Straddle
Period of the Affiliated Group during which the CNI Group or CLC
Group was a member of the Affiliated Group or Combined Group, as
directed by CNI and CLC, Seller shall (i) pay to the appropriate
Tax Authorities or (ii) reimburse CNI and/or CLC for the amount
of such increased liability for Taxes.
Section 5. Indemnification.
5.1. Indemnity. Seller shall indemnify, defend
and hold Buyer, CNI, CLC, and their affiliates harmless from and
against any loss, cost, expense (including reasonable attorneys
fees and costs) and any and all liabilities imposed on or in-
curred by Buyer, CNI, CLC, and/or any of their affiliates in
respect of any liability for any Taxes (including any liability
for Federal Taxes imposed pursuant to Treasury Regulation
SECTION 1.1502-6 or similar provision under state, local or foreign
law) for any Pre-Closing Period and that portion of any Straddle
Period up to and including the later of the CNI Deconsolidation
Date and the CLC Deconsolidation Date; provided, however, that
with respect to indemnification for any liability arising out of
Non-Federal Separate Taxes, Seller shall indemnify, defend and
hold Buyer, CNI, CLC, and their affiliates harmless from and
against any loss, cost, expense (including reasonable attorneys
fees and costs) and any and all liabilities imposed on or in-
curred by Buyer, CNI, CLC, and/or any of their affiliates in
respect of any liability for any Non-Federal Separate Taxes for
any Pre-Closing Period and that portion of any Straddle Period up
to and including the later of the CNI Deconsolidation Date and
the CLC Deconsolidation Date, only if (i) such liability for Non-
Federal Separate Taxes arises as a result of a Redetermination or
(ii) such liability for Non-Federal Separate Taxes exceeds (when
aggregated with all other such liabilities paid or payable after
the CNI Deconsolidation Date or CLC Deconsolidation Date on a
cumulative basis, excluding such liabilities that arise as a
result of a Redetermination) $50,000 and arises in any manner
other than as a result of a Redetermination.
5.2. Calculation of Indemnity. In the case of
any liability asserted against a party entitled to be indemnified
(an "Indemnitee") pursuant to Section 5.1. hereof, Seller (the
"Indemnitor"), shall pay to the Indemnitee an amount (the "Indem-
nity Amount") that, after subtraction of all Taxes payable by
such Indemnitee as a result of the receipt or accrual of such
amount, shall be equal to the amount by which the Taxes payable
by such Indemnitee, taking such liability into account, exceed in
the aggregate the Taxes that would have been required to be paid
by such Indemnitee had such liability never occurred.
Section 6. Audits, Disputes, Etc.
6.1. Federal Taxes and Non-Federal Combined
Taxes for Pre-Closing Periods and Straddle Periods. Seller shall
have the exclusive right to control and represent the interests
of all parties hereto in any Audit, to initiate any claim for
refund, to contest, resolve and defend against any assessment,
notice of deficiency, or other adjustment or proposed adjustment
of Federal Taxes or Non-Federal Combined Taxes (including the
right to agree to any assessment, deficiency, or settlement of
any of the foregoing items) relating to any Federal Tax Return or
Non-Federal Combined Tax Return of Seller, CNI, or CLC filed for
any Pre-Closing Period or Straddle Period during which CNI or CLC
was a member of the Affiliated Group or Combined Group, as the
case may be. In the event CNI or CLC wants to contest an item or
matter relating to CNI or CLC which item would adversely affect
the liability of CNI or CLC for Federal Taxes or Non-Federal
Combined Taxes for a Post-Closing Period or portion of a Straddle
Period ending after the CNI Deconsolidation Date or CLC
Deconsolidation Date (a "Subsidiary Matter"), CNI or CLC, as the
case may be, may request Seller's written consent, which consent
shall not be unreasonably withheld, that CNI or CLC be entitled
to contest, resolve and defend against any such Subsidiary
Matter, at CNI's or CLC's expense; provided, however, that
Seller's consent shall not be considered unreasonably withheld
if, among other reasons, Seller determines that (i) CNI or CLC
will assert a position with respect to such Subsidiary Matter
that is contrary to a position that has been asserted by a member
of the Affiliated Group with respect to a similar Federal Tax
matter or Non-Federal Combined Tax matter or (ii) provision of
such consent could result in an unreasonable delay in Seller's
resolution of any Audit that would result in a material cost to
Seller. Seller shall have the exclusive right to file any
amended Federal Tax Return or amended Non-Federal Combined Tax
Return relating to any Federal Tax Return or Non-Federal Combined
Tax Return, as the case may be, filed for any Pre-Closing Period
during which the CNI Group, CLC Group or a Subsidiary Combined
Group was a member of the Affiliated Group or Combined Group, as
the case may be; provided, however, that Seller shall not file
any such amended Federal Tax Return that contains a Subsidiary
Matter without the prior written consent of CNI or CLC, as the
case may be, which consent shall not be unreasonably withheld.
Upon request, Buyer, CNI, CLC, and Seller will execute and
deliver to Seller or Buyer, as the case may be, such powers of
attorney as may be reasonably necessary to authorize Seller,
Buyer, CNI, or CLC to extend statutes of limitations, receive
refunds, and take such other actions that Seller, Buyer, CNI, or
CLC may reasonably consider to be necessary to contest any Audit
pursuant to this Section 6.1.
6.2. Non-Federal Separate Taxes for Pre-Closing
Periods and Straddle Periods. CNI and CLC shall have the exclu-
sive right to control, conduct and to represent the interests of
all parties hereto in any Audit, to initiate any claim for
refund, to file any amended Non-Federal Separate Tax Return, to
contest, resolve and defend against any assessment, notice of
deficiency, or other adjustment or proposed adjustment of Taxes
(including the right to agree to any assessment, deficiency, or
settlement of any of the foregoing items) relating to any Non-
Federal Separate Tax Return filed with respect to any Pre-Closing
Period or Straddle Period; provided, however, that CNI or CLC, as
the case may be, shall not take any of the foregoing actions with
respect to any Non-Federal Separate Tax matter for which Seller
may have liability under this Agreement without the prior written
consent of Seller, which consent shall not be unreasonably
withheld. Seller and the Affiliated Group will execute and
deliver to CNI or CLC (or a subsidiary or affiliate thereof), as
the case may be, promptly upon request, such powers of attorney
as may be reasonably necessary to authorize CNI or CLC (or a
subsidiary or affiliate thereof), as the case may be, to extend
statutes of limitations and receive refunds that CNI or CLC, as
the case may be, may reasonably consider to be necessary to
contest any Audit pursuant to this Section 6.2.
Section 7. Mutual Cooperation. Seller, Buyer, CNI, and CLC
shall cooperate with each other in the filing of any Tax Return,
amendment thereto, or consent contemplated by this Agreement and
to take such action as such other party may reasonably request,
including (but not limited to):
a. providing data for the preparation of any original
or amended Tax Returns;
b. cooperating in any Audit, including the execution
of limited powers of attorney that do not permit the entry into
of any settlement agreement, unless otherwise mutually agreed to
by the parties;
c. filing protests or otherwise contesting any Audit,
including the filing of petitions for redetermination or prose-
cuting actions for refund in any court and pursuing the appeal of
any such actions;
d. retaining and providing on demand books, records,
documentation or other information relating to any Tax Return
until the expiration of the applicable statute of limitation
(giving effect to any extension, waiver, or mitigation thereof),
providing additional information and explanation of material
provided hereunder, and the use of the parties' commercially
reasonable efforts to obtain any documentation from a governmen-
tal authority or third party that may be necessary or helpful in
connection with the foregoing.
Section 8. Resolution of Certain Conflicts. In the event
that the parties cannot agree on the calculation of the amount of
any liability for Taxes covered by this Agreement and/or the
Indemnity Amount, the parties will engage an independent, certi-
fied public accounting firm of national reputation, reasonably
acceptable to each party, to make such calculation and the
decision of such firm will be conclusive. The cost of such
engagement will be borne solely by the party that does not
prevail in substantial part in the determination of the firm that
is engaged; provided, however, that if such firm determines that
neither party prevailed in substantial part, the cost of such
engagement shall be shared equally by Seller and Subsidiary.
Section 9. Reorganization Status. On or prior to the
second anniversary of the Closing Date (as defined in the Merger
Agreement), (i) Seller shall not dispose of the stock issued to
Seller in the Mergers (as defined in the Merger Agreement) and
(ii) Buyer and the Companies shall not (a) cease to conduct the
business of the Companies, (b) dispose, transfer or distribute a
significant portion of the assets of the Companies, (c) dispose
of the stock of the Companies, or (d) repurchase the stock issued
to Seller in the Mergers, which action such party actually
believes, after consultation with such party's tax counsel,
should, taken alone or together with other actions of such party,
cause either of the Mergers to fail to qualify as a reorganiza-
tion within the meaning of Section 368(a) of the Code.
Section 10. General Provisions.
a. Effectiveness. This Agreement will be effective
from and after the earlier of the CNI Deconsolidation Date and
the CLC Deconsolidation Date; provided, however, the obligations
of the parties under Sections 4 and 5 hereof shall continue in
effect after any termination of this Agreement for a period
ending 30 days after the later of the last day on which a Rede-
termination may be made against the Affiliated Group, a Combined
Group, Buyer, CNI, or CLC for (i) any Pre-Closing Period or (ii)
any Straddle Period, during which CNI Group and/or CLC Group was
a member of the Affiliated Group and/or a Combined Group.
b. Entire Agreement; Binding Effect. This Agreement
(a) constitutes the entire agreement and supersedes all other
agreements and understandings, both written and oral, between the
parties with respect to the subject matter hereof and (b) shall
not be assigned by either party (by operation of law or other-
wise) without the prior written consent of the other party.
c. Severability. In case any one or more of the
provisions contained in this Agreement should be invalid, illegal
or unenforceable, the enforceability of the remaining provisions
hereof will not in any way be effected or impaired thereby.
d. Time of Payment. Any payment required to be made
under this Agreement for which the terms of payment are not
specifically provided elsewhere in this Agreement shall be paid
within 30 days following the date on which the amount of the
underlying liability to which such payment relates is paid. Any
amount required to be paid under this Agreement, which is not
paid by the end of such 30-day period, will thereafter bear
interest at the large corporate underpayment rate specified in
Section 6621(c) of the Code (or any successor provision thereto)
from the date of such payment to the appropriate Tax Authority to
the date of full payment to the appropriate party hereunder.
e. Applicable Law. This Agreement shall be gov-
erned by and be construed in accordance with the laws of the
State of Delaware, without giving effect to the principles
thereof relating to conflicts of laws.
f. Notices. All notices, requests and other commu-
nications hereunder shall be in writing and shall be deemed given
if delivered personally, if telecopied (only if confirmed), if
sent by FedEx or other overnight courier or delivery service or
if mailed by registered or certified mail (postage prepaid,
return receipt requested) to the parties at the following ad-
dresses or facsimile numbers:
(a) If to Buyer:
c/o SoftKey International Inc.
One Athenaeum Street
Cambridge, Massachusetts 02142
Facsimile No.: (617) 494-5660
Attention: Neal S. Winneg, Esq.
With a copy to:
Skadden, Arps, Slate, Meagher & Flom
One Beacon Street
Boston, Massachusetts 02108
Facsimile No.: (617) 573-4822
Attention: Louis A. Goodman, Esq.
(b) If to Seller:
c/o Tribune New Media Company
Two Prudential Plaza
Suite 1200
Chicago, Illinois 60601
Facsimile No.: (312) 540-4677
Attention: President
With a copy to:
Tribune Company
435 North Michigan Avenue
Chicago, Illinois 60611
Facsimile No.: (312) 222-3790
Attention: Mr. Ted Novak, Director of Taxes
The address or facsimile number of a party, for the purposes of
this Section 9(f), may be changed by giving written notice to the
other party of such change in the manner provided herein for
giving notice. Unless and until such written notice is received,
the addresses and facsimile numbers provided herein shall be
deemed to continue in effect for all purposes hereunder.
g. Amendment and Waiver. No amendment of any provi-
sion of this Agreement shall in any event be effective, unless
the same shall be in writing and signed by the parties hereto.
Any failure of any party to comply with any obligation, agreement
or condition hereunder may only be waived in writing by the other
parties, but such waiver shall not operate as a waiver of, or
estoppel with respect to, any subsequent or other failure. No
failure by any party to take any action against any breach of
this Agreement or default by the other parties shall constitute a
waiver of such party's right to enforce any provision hereof or
to take any such action.
h. Parties in Interest. This Agreement shall be
binding upon and inure solely to the benefit of each party hereto
and, subject to Section 9(b) hereof, their respective successors
and assigns, and nothing in this Agreement, express or implied,
is intended to confer upon any other person any rights or reme-
dies of any nature whatsoever under or by reason of this Agree-
ment.
i. No Third-Party Beneficiaries. This Agreement is
solely for the benefit of the parties to this Agreement and the
other members of the Affiliated Group and should not be deemed to
confer upon third parties any remedy, claim, liability, reim-
bursement, claim of action or other right in excess of those
existing without this Agreement.
j. Alternative Minimum Tax. All Federal Income Tax
computations with respect to the federal alternative minimum tax
shall be made in a manner that is consistent with Proposed
Regulation SECTION 1.1502-55. Seller shall allocate alternative
minimum tax credits, if any, to CNI Group and CLC Group in
accordance with Proposed Regulation SECTION 1.1502-55. Thus, the
amount of any alternative minimum tax credits allocable to CNI
Group and/or CLC Group and not utilized with respect to Pre-
Closing Periods will be allocated to CNI Group and/or CLC Group
as of the Deconsolidation Date.
k. Federal Income Tax Return Closing Date. Unless
otherwise required by the Internal Revenue Service or a court of
competent jurisdiction, Seller and Buyer agree to file all
Federal Income Tax Returns, and to take all other actions relat-
ing to Federal Income Taxes, in a manner consistent with the
position that CLC Group and CNI Group are members of the Affili-
ated Group for all days from the date hereof through and includ-
ing the CNI Deconsolidation Date and the CLC Deconsolidation Date
respectively.
l. Ratable Allocation Election. The parties agree
that, to the extent permitted by applicable law and regulations,
they will make all Federal Income Tax computations with respect
to the Pre-Closing Period ending on the relevant Deconsolidation
Date and the immediately following taxable period of CNI Group
and/or CLC Group, as the case may, pursuant to the ratable
allocation method (as specified in Treas. Reg. SECTION 1.1502-
76(b)(2)(ii)) and the parties shall execute and file all Tax
forms and documents necessary thereto (including the statement(s)
specified in Treas. Reg. SECTION 1.1502-76(b)(2)(ii)(D)).
m. Reattribution of Losses. Seller shall not make any
election to reattribute losses with respect to the CNI Group or
CLC Group under Treas. Reg. SECTION 1.1502-20(g), without the prior
written consent of Buyer; provided, further, that no losses with
respect to the CNI Group or CLC Group that are attributable to a
Post-Closing Period shall be carried to any Pre-Closing Period.
n. Treatment of Tax Payments and Refunds. The parties
agree that, to the extent permitted by applicable law and regula-
tions, they will treat any payment or refund of Federal Taxes and
Non-Federal Taxes pursuant to this Agreement as payment of the
Federal Tax or Non-Federal Tax liability of the party making such
payment or as the refund of the Federal Tax or Non-Federal Tax
liability of the party entitled to such refund.
o. Counterparts. This Agreement may be executed in
any number of counterparts and by the different parties hereto on
separate counterparts, each of which when so executed and deliv-
ered shall be deemed an original, but all of which together shall
constitute one and the same instrument.
p. Headings; Pronouns and Conjunctions. The section
and other headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Unless otherwise indicated
herein or the context otherwise requires, the masculine pronoun
shall include the feminine and neuter, the singular shall include
the plural and the plural shall include the singular. The word
"or" shall not be deemed exclusive.
* * *
IN WITNESS WHEREOF, the parties hereto have signed this
Agreement under seal as of the date first written above.
SOFTKEY INTERNATIONAL INC.
By:
Name:
Title:
TRIBUNE COMPANY
By:
Name:
Title:
COMPTON'S NEWMEDIA, INC.
By:___________________________
Name:
Title:
COMPTON'S LEARNING COMPANY
By:___________________________
Name:
Title:
SOFTKEY/TLC AGREEMENT AND PLAN OF MERGER
AMONG
SOFTKEY INTERNATIONAL INC.,
KIDSCO INC.
AND
THE LEARNING COMPANY
DECEMBER 6, 1995
TABLE OF CONTENTS
Page
1. TENDER OFFER . . . . . . . . . . . . . . . . . . 1
1.1 The Amended Offer . . . . . . . . . . . . . 1
1.2 Compliance and Review . . . . . . . . . . . 2
1.3 Stockholder List . . . . . . . . . . . . . 3
1.4 Directors . . . . . . . . . . . . . . . . . 3
2. PLAN OF MERGER . . . . . . . . . . . . . . . . . 4
2.1 The Merger . . . . . . . . . . . . . . . . 4
2.2 TLC Options . . . . . . . . . . . . . . . . 6
2.3 Effects of the Merger . . . . . . . . . . . 9
2.4 Proxy Statement . . . . . . . . . . . . . . 10
3. REPRESENTATIONS AND WARRANTIES OF TLC . . . . . 10
3.1 Organization; Good Standing; Qualification
and Power . . . . . . . . . . . . . . . . . 11
3.2 Authorization . . . . . . . . . . . . . . . 11
3.3 Capital Structure . . . . . . . . . . . . . 11
3.4 SEC Filings . . . . . . . . . . . . . . . . 12
3.5 Consents and Approvals; Noncontravention . 13
3.6 Litigation . . . . . . . . . . . . . . . . 13
3.7 Broderbund Agreement . . . . . . . . . . . 14
3.8 Absence of Certain Changes . . . . . . . . 14
3.9 TLC Rights Agreement . . . . . . . . . . . 14
3.10 State Takeover Laws . . . . . . . . . . . . 15
4. REPRESENTATIONS AND WARRANTIES OF SOFTKEY . . . 15
4.1 Organization; Good Standing; Qualification
and Power . . . . . . . . . . . . . . . . . 15
4.2 Authorization . . . . . . . . . . . . . . . 15
4.3 Consents and Approvals; Noncontravention . 16
4.4 Litigation . . . . . . . . . . . . . . . . 16
4.5 Financing . . . . . . . . . . . . . . . . . 16
4.6 Interested Stockholders; Beneficial
Ownership . . . . . . . . . . . . . . . . . 16
5. TLC COVENANTS . . . . . . . . . . . . . . . . . 17
5.1 Advice of Changes . . . . . . . . . . . . . 17
5.2 Maintenance of Business . . . . . . . . . . 17
5.3 Conduct of Business . . . . . . . . . . . . 18
5.4 Stockholder Approval . . . . . . . . . . . 21
5.5 Regulatory Approvals . . . . . . . . . . . 21
5.6 Necessary Consents . . . . . . . . . . . . 21
5.7 Access to Information . . . . . . . . . . . 21
5.8 Satisfaction of Conditions Precedent . . . 22
5.9 Litigation . . . . . . . . . . . . . . . . 22
5.10 No Other Negotiations . . . . . . . . . . . 23
6. SOFTKEY COVENANTS . . . . . . . . . . . . . . . 25
6.1 Advice of Changes . . . . . . . . . . . . . 25
6.2 Regulatory Approvals. . . . . . . . . . . . 25
6.3 Necessary Consents. . . . . . . . . . . . . 25
6.4 Satisfaction of Conditions Precedent. . . . 25
6.5 Litigation . . . . . . . . . . . . . . . . 25
6.6 TLC Employee Plans and Benefit
Arrangements. . . . . . . . . . . . . . . . 26
6.7 Indemnification. . . . . . . . . . . . . . 27
6.8 Other Agreements . . . . . . . . . . . . . 29
7. CLOSING MATTERS . . . . . . . . . . . . . . . . 29
7.1 The Closing . . . . . . . . . . . . . . . . 29
7.2 Payment of Merger Consideration. . . . . . 29
7.3 Assumption of Options. . . . . . . . . . . 31
8. CONDITIONS PRECEDENT TO OBLIGATIONS OF TLC . . . 31
8.1 Accuracy of Representations and
Warranties. . . . . . . . . . . . . . . . . 31
8.2 Covenants. . . . . . . . . . . . . . . . . 31
8.3 No Order . . . . . . . . . . . . . . . . . 32
8.4 Other Approvals . . . . . . . . . . . . . . 32
8.5 Stockholder Approval . . . . . . . . . . . 32
8.6 Purchase of Shares . . . . . . . . . . . . 32
9. CONDITIONS PRECEDENT TO OBLIGATIONS OF
SOFTKEY AND KIDSCO . . . . . . . . . . . . . . . 32
9.1 Accuracy of Representations and
Warranties. . . . . . . . . . . . . . . . . 33
9.2 Covenants . . . . . . . . . . . . . . . . . 33
9.3 No Order . . . . . . . . . . . . . . . . . 33
9.4 Other Approvals . . . . . . . . . . . . . . 33
9.5 Stockholder Approval . . . . . . . . . . . 34
9.6 Nonsolicitation . . . . . . . . . . . . . . 34
9.7 Purchase of Shares . . . . . . . . . . . . 34
10. TERMINATION OF AGREEMENT . . . . . . . . . . . . 34
10.1 Termination . . . . . . . . . . . . . . . . 34
10.2 Notice of Termination . . . . . . . . . . . 35
10.3 Effect of Termination . . . . . . . . . . . 36
10.4 Breakup Fee . . . . . . . . . . . . . . . . 36
11. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND
COVENANTS . . . . . . . . . . . . . . . . . . . 36
12. MISCELLANEOUS . . . . . . . . . . . . . . . . . 37
12.1 Governing Law . . . . . . . . . . . . . . . 37
12.2 Assignment; Binding Upon Successors and
Assigns . . . . . . . . . . . . . . . . . . 37
12.3 Severability . . . . . . . . . . . . . . . 37
12.4 Counterparts . . . . . . . . . . . . . . . 37
12.5 Other Remedies . . . . . . . . . . . . . . 37
12.6 Amendment and Waivers . . . . . . . . . . . 37
12.7 Expenses . . . . . . . . . . . . . . . . . 38
12.8 Attorneys' Fees . . . . . . . . . . . . . . 38
12.9 Notices . . . . . . . . . . . . . . . . . . 38
12.10 Construction of Agreement . . . . . . 39
12.11 No Joint Venture . . . . . . . . . . . 39
12.12 Further Assurances . . . . . . . . . . 40
12.13 Absence of Third-Party Beneficiary
Rights . . . . . . . . . . . . . . . . . . 40
12.14 Public Announcement . . . . . . . . . 40
12.15 Entire Agreement . . . . . . . . . . . 40
Exhibit A: Form of Certificate of Merger
Exhibit B: Certain Conditions to Offer
Exhibit C: Form of Nonsolicitation Agreement
SOFTKEY/TLC AGREEMENT AND PLAN OF MERGER
THIS SOFTKEY/TLC AGREEMENT AND PLAN OF MERGER (this
"Agreement") is entered into this 6th day of December,
1995 among SoftKey International Inc., a Delaware
corporation ("SoftKey"), Kidsco Inc., a Delaware
corporation and a wholly owned subsidiary of SoftKey
("Kidsco"), and The Learning Company, a Delaware
corporation ("TLC").
RECITALS
The parties intend that, as soon as practicable
after consummation of the Offer (as hereinafter defined),
Kidsco will merge with and into TLC (the "Merger"), with
TLC to be the surviving corporation of the Merger, all
pursuant to the terms and conditions of this Agreement
and (a) a Certificate of Merger substantially in the form
of Exhibit A (the "Certificate of Merger") or (b) if
permitted, Section 253 of the General Corporation Law of
the State of Delaware (the "Delaware Law") and otherwise
in accordance with the applicable provisions of the
Delaware Law. Upon the effectiveness of the Merger, each
outstanding share of TLC Common Stock (as hereinafter
defined) will be converted into the right to receive
$67.50 per share in cash (the "Merger Consideration"),
and SoftKey will assume all outstanding options to
purchase shares of TLC Common Stock, as provided in this
Agreement.
NOW, THEREFORE, the parties hereto hereby agree as
follows:
1. TENDER OFFER
1.1 The Amended Offer. Provided that
this Agreement shall not have been terminated in
accordance with Section 10 hereof and none of the
events set forth in Exhibit B hereto shall have
occurred or be existing, as soon as practicable, and
in any event within five business days of the date
hereof, Kidsco will amend its tender offer for up to
8,590,608 of the outstanding shares of TLC's Common
Stock, par value $.001 per share (the "TLC Common
Stock"), or such lesser number of shares of TLC
Common Stock as may be outstanding upon the
expiration of the Offer (the "Shares"), together
with the Associated Rights (as hereinafter defined),
as set forth in its Offer to Purchase dated October
30, 1995, as amended and supplemented by the first
Supplement (the "First Supplement") to the Offer to
Purchase dated December 4, 1995 (the "Offer to
Purchase"), to (a) extend the Expiration Date (as
defined in the Offer to Purchase) until the date 10
business days from and including the date Kidsco
amends its Tender Offer Statement on Schedule 14D-1
to reflect this Agreement and (b) modify Section 14
of the Offer to Purchase, as amended and
supplemented by Section 10 of the First Supplement,
to read as set forth in Exhibit B (such tender
offer, as so amended, being referred to herein as
the "Offer"). Subject to the terms and conditions
of the Offer, SoftKey will promptly pay $67.50 per
Share, net to the seller in cash, for all Shares
duly tendered that it is obligated to purchase
thereunder with no reduction in the price per Share
to be paid thereunder as a result of the redemption
of the Associated Rights. Without the prior written
consent of TLC, Kidsco will not (i) decrease the
$67.50 per Share Offer price (ii) decrease the
number of Shares to be purchased in the Offer, (iii)
change the form of consideration payable in the
Offer, (iv) add to or change the conditions to the
Offer set forth in Exhibit B provided that, except
as provided in clause (v), any Conditions may be
waived by Kidsco, (v) change or waive the Minimum
Condition (as defined in Exhibit B) or (vi) make any
other change in the terms or conditions of the Offer
which is adverse to the holders of Shares. TLC's
Board of Directors shall recommend acceptance of the
Offer to its stockholders in an amendment to its
Solicitation/Recommendation Statement on Schedule
14D-9 (the "Schedule 14D-9") to be filed with the
Securities and Exchange Commission (the "SEC") as
soon as practicable following the date upon which
Kidsco files an amendment to its Tender Offer
Statement on Schedule 14D-1 (the "Schedule 14D-1")
reflecting this Agreement and containing (including
as exhibits) or incorporating by reference a further
supplement (the "Second Supplement") to the Offer to
Purchase (or portions thereof) and a related,
revised Letter of Transmittal. Subject to the terms
of the Offer and this Agreement and the satisfaction
of all the conditions of the Offer set forth in
Exhibit B, Kidsco will accept for payment and pay
for all Shares validly tendered and not withdrawn
pursuant to the Offer as soon as practicable after
the Expiration Date. Subject to Section 10 hereof,
if the conditions set forth in Exhibit B are not
satisfied or, to the extent permitted by this
Agreement, waived by Kidsco as of the date the Offer
would otherwise have expired, Kidsco will extend the
Offer from time to time until the earlier of the
consummation of the Offer or the Final Date (as
hereinafter defined).
1.2 Compliance and Review. Kidsco
agrees, as to the Schedule 14D-1 and the Second
Supplement and the related, revised Letter of
Transmittal (which together constitute the "Offer
Documents"), and TLC agrees, as to the Schedule 14D-
9, that such documents shall, in all material
respects, comply with the requirements of the
Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the rules and regulations
thereunder and other applicable laws. TLC and its
counsel, as to the Schedule 14D-1, and Kidsco and
its counsel, as to the Schedule 14D-9, shall be
given an opportunity to review such documents prior
to their being filed with the SEC.
1.3 Stockholder List. In connection with
the Offer, TLC will cause its Transfer Agent to
furnish promptly to Kidsco a list, as of a recent
date, of the record holders of shares of TLC Common
Stock and their addresses, as well as mailing labels
containing the names and addresses of all record
holders of shares of TLC Common Stock and lists of
security positions of shares of TLC Common Stock
held in stock depositories. TLC will furnish Kidsco
with such additional information (including, but not
limited to, updated lists of holders of shares of
TLC Common Stock and their addresses, mailing labels
and lists of security positions) and such other
assistance as SoftKey or Kidsco or their agents may
reasonably request in communicating the Offer to the
record and beneficial holders of shares of TLC
Common Stock. Subject to the requirements of
applicable law, and except for such steps as are
necessary or reasonably appropriate to disseminate
the Offer Documents, SoftKey and Kidsco will, and
will cause each of their subsidiaries to, hold in
confidence the information contained in any of such
labels, lists and other information, use such
information received pursuant to this Agreement only
in connection with the Offer and, if this Agreement
is terminated, deliver to TLC all copies of, and
extracts or summaries from, such information then in
their possession.
1.4 Directors. Promptly following
completion of the Offer and if requested by SoftKey,
subject to Section 14(f) of the Exchange Act and
Rule 14f-1 promulgated thereunder, TLC shall take
all actions necessary to cause a number of persons
(rounded up to the nearest whole number) designated
by SoftKey equal to the lesser of (a) the minimum
number necessary to constitute a majority of TLC's
directors or (b) the number which bears the same
ratio to the total number of directors of TLC as the
number of shares of TLC Common Stock purchased by
Kidsco pursuant to the Offer bears to the total
number of outstanding shares of TLC Common Stock, to
become and remain directors of TLC; and TLC shall,
at the request of SoftKey, increase the size of its
Board of Directors or use its best efforts to cause
the resignation of that number of directors which
SoftKey is entitled to designate under this Section
1.4, and with respect to each vacancy created by
such increase or resignations, shall take all action
necessary to effect the election of SoftKey's
designees to the TLC Board of Directors, including
mailing to its stockholders the information required
by Section 14(f) of the Exchange Act and Rule 14f-1
promulgated thereunder; provided, however, that in
no event shall SoftKey be entitled to designate a
majority of TLC's Board of Directors unless SoftKey
then owns Shares entitling it to exercise at least a
majority of the voting power of TLC and provided,
further, that TLC shall not be required to take such
actions necessary to cause the election of any
person as a director if such election would violate
applicable law. After the time that such designees
constitute a majority of the TLC Board of Directors,
any action on the part of TLC with respect to this
Agreement or any of the transactions contemplated
hereby shall require the vote of a majority of the
directors who are not designees of SoftKey.
2. PLAN OF MERGER
2.1 The Merger. Subject to the terms and
conditions of this Agreement, Kidsco will be merged
with and into TLC pursuant to this Agreement and the
Certificate of Merger and in accordance with
applicable provisions of the Delaware Law as
follows:
(a) Conversion of Shares. Each
share of TLC Common Stock and the associated
rights (the "Associated Rights") issued
pursuant to the Rights Agreement (the "TLC
Rights Agreement") between TLC and The First
National Bank of Boston, as Rights Agent, as
amended, that is issued and outstanding
immediately prior to the date and time of
filing of the Certificate of Merger with the
Secretary of State of the State of Delaware
(the "Effective Time"), other than shares and
Associated Rights held by SoftKey or Kidsco
(which shall be cancelled) and, other than
Dissenting Shares (as hereinafter defined),
will by virtue of the Merger and at the
Effective Time, and without any further action
on the part of any holder thereof, be converted
into the right to receive the Merger
Consideration. Shares of TLC stock held by TLC
in its treasury will not be deemed outstanding
for purposes of this Agreement and will not be
converted into cash or any other property.
(b) Stockholders' Meeting. If
approval by TLC's stockholders is required by
applicable law to consummate the Merger, TLC,
acting through its Board of Directors, shall in
accordance with applicable law as soon as
practicable following the consummation of the
Offer:
(i) duly call, give notice of,
convene and hold an annual or special
meeting of its stockholders (the "TLC
Stockholders Meeting") for the purpose of
considering and taking action upon this
Agreement;
(ii) subject to its fiduciary
duties under applicable law, include in
the Proxy Statement (as hereinafter
defined) the recommendation of TLC's Board
of Directors that stockholders of the
Company vote in favor of the approval and
adoption of this Agreement and the
transactions contemplated hereby; and
(iii) use its best efforts
(A) to obtain and furnish the information
required to be included by it in the Proxy
Statement and, after consultation with
SoftKey and Kidsco, respond promptly to
any comments made by the SEC with respect
to the Proxy Statement and any preliminary
version thereof and cause the Proxy
Statement to be mailed to its stockholders
at the earliest practicable time following
the consummation of the Offer and (B) to
obtain the necessary approvals by its
stockholders of this Agreement and the
transactions contemplated hereby.
At such meeting, SoftKey and Kidsco will
vote all TLC Common Stock owned by them in
favor of this Agreement and the transactions
contemplated hereby. In the event that Kidsco
owns at least 90% of the outstanding shares of
TLC Common Stock after consummation of the
Offer, Kidsco agrees to effect the Merger under
Section 253 of the Delaware Law as soon as
practicable after the consummation of the
Offer.
(c) Dissenting Shares.
Notwithstanding anything in this Agreement to
the contrary, shares of TLC Common Stock
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 of TLC Common Stock in accordance with
the Delaware Law ("Dissenting Shares") shall
not be converted into the right to receive the
Merger Consideration unless such holder fails
to perfect or withdraws or otherwise 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 of
TLC Common Stock shall be treated as if they
had been converted as of the Effective Time
into the right to receive the Merger
Consideration without interest thereon. TLC
shall give SoftKey prompt notice of any demands
received by TLC for appraisal of shares of TLC
Common Stock, and, prior to the Effective Time,
SoftKey and Kidsco shall have the right to
participate in all negotiations and proceedings
with respect to such demands. Prior to the
Effective Time, TLC shall not, except with the
prior written consent of SoftKey and Kidsco,
make any payment with respect to, or settle or
offer to settle, any such demands.
2.2 TLC Options.
(a) The date on which any Shares are
first accepted for payment under the Offer is
sometimes referred to herein as the "Tender
Closing Date" and the acceptance of any such
Shares for payment is sometimes referred to
herein as the "Tender Closing." Except for
those individuals who are subject to the profit
recovery provisions of Section 16 of the
Exchange Act (each a "Section 16b Holder"), TLC
shall provide holders of all stock options
("TLC Options") issued under each of the TLC
Plans (as defined in Section 3.3(c)) that are
vested and exercisable as of the Tender Closing
Date, with the opportunity to elect to receive
cash, on the Tender Closing Date, in an amount
determined as set forth below in exchange for
each such vested and exercisable TLC Option.
TLC shall take all actions necessary to provide
that, as to those holders who so elect to
receive cash, each such vested and exercisable
TLC Option shall be cancelled on the Tender
Closing Date, and in consideration of such
cancellation, and except to the extent that
SoftKey or Kidsco and the holder of any such
TLC Option otherwise agree, TLC shall pay to
each such holder of such vested and exercisable
TLC Options an amount in cash in respect
thereof equal to the product of (1) the excess
of $67.50 over the exercise price thereof and
(2) the number of shares of TLC Common Stock
subject thereto.
(b) TLC and SoftKey shall take such
action as is necessary so that each outstanding
TLC Option as to which an election to receive
cash is not made (or, under the terms of
Section 2.2(a) hereof, is not permitted to be
made) shall be assumed by SoftKey and shall
remain outstanding after the Closing Date (as
defined in Section 7.1 below). SoftKey shall
assume such TLC Options in such manner that
SoftKey (i) is a corporation "assuming a stock
option in a transaction to which Section 424(a)
applies" within the meaning of Section 424 of
the Internal Revenue Code of 1986, as amended
(the "Code"), or (ii) to the extent that
Section 424 of the Code does not apply to any
such TLC Options, would be such a corporation
were Section 424 applicable to such option.
Unless by its terms it vests earlier, each TLC
Option assumed or to be assumed by SoftKey
shall become fully vested and exercisable on
the 30th day after the Closing Date except that
(i) such option shall be exercisable for that
number of shares of SoftKey Common Stock equal
to the product of (x) the number of shares of
TLC Common Stock for which such option was
exercisable and (y) the Exchange Ratio (as
defined below) rounded down to the nearest
whole share, and (ii) the exercise price of
such option shall be equal to the exercise
price of such option divided by the Exchange
Ratio rounded up to the nearest whole cent.
For purposes of this Section 2.2, "Exchange
Ratio" shall mean an amount equal to the Merger
Consideration divided by the volume-weighted
average of the closing prices of SoftKey's
common stock, $0.01 par value ("SoftKey Common
Stock"), on the Nasdaq National Market for the
10 trading days ending on the Closing Date.
(c) Notwithstanding Section 2.2(a)
and Section 2.2(b), an option holder's TLC
Options shall vest and become exercisable
immediately prior to the earlier of (i) the
date on which such holder's employment
(including such holder's position as a director
of TLC) is terminated by reason of death,
disability or by SoftKey, Kidsco or their
affiliates (including for purposes of this
Section 2.2, TLC from and after the Tender
Closing) and (ii) the date on which the option
holder terminates his employment (including
such holder's position as a director of TLC)
for Good Reason (as hereafter defined).
(d) For purposes of this Section
2.2, termination of employment for "Good
Reason" shall mean the occurrence of any one of
the following after the Closing Date: (i) the
assignment to the option holder of any duties
inconsistent in any material respect with the
option holder's position (including offices,
titles and reporting levels) or authority as of
the date hereof, or any other action by SoftKey
or its affiliates which results in a diminution
in such position or authority; (ii) SoftKey or
its affiliates requiring the option holder to
be based at any office or location other than
the office or location at which the option
holder was based on the date hereof; (iii) any
change in the option holder's title, position,
offices, reporting levels from the same on the
date hereof; or (iv) any reduction in the
option holder's compensation or fringe
benefits; provided, however, it shall in no
event constitute "Good Reason" (other than
pursuant to clause (ii)) if the option holder
shall retain his or her office, title,
compensation and fringe benefits and shall have
no additional burdensome responsibilities.
(e) As soon as practicable after the
Tender Closing Date, SoftKey shall deliver to
the holders of the TLC Options with respect to
which such holders do not elect (or, under the
terms of Section 2.2(a) hereof, are not
permitted to elect) to receive cash,
appropriate notices setting forth such holders'
rights pursuant to the TLC Stock Option Plans,
and the agreements evidencing the grants of
such TLC Options shall continue in effect on
the same terms and conditions as in effect on
the date hereof (subject to the adjustments
required by this Section 2.2).
(f) SoftKey shall comply with the
terms of the TLC Stock Option Plans and shall
use its best efforts to ensure, to the extent
required by, and subject to the provisions of,
such TLC Stock Option Plans, that the TLC
Options which qualified as incentive stock
options prior to the Tender Closing Date
continue to qualify as incentive stock options
after the Tender Closing Date. SoftKey will
cause the SoftKey Common Stock issuable upon
exercise of the assumed TLC Options to be
registered on a Registration Statement on Form
S-8 as soon as practicable but not later than
10 days after the Effective Time and will use
its best efforts to maintain the effectiveness
of such registration statement or registration
statements for so long as such assumed TLC
Options shall remain outstanding. With respect
to those individuals who subsequent to the
Merger will be subject to the reporting
requirements under Section 16(a) of the
Exchange Act, SoftKey shall administer the TLC
Stock Option Plans assumed pursuant to this
Section 2.2 in a manner that complies with Rule
16b-3 promulgated under the Exchange Act.
SoftKey will reserve a sufficient number of
shares of SoftKey Common Stock for issuance
upon exercise of TLC Options assumed by SoftKey
pursuant to this Section.
(g) Section 16b Holders shall be
permitted (i) to exercise vested TLC Options by
paying the exercise price of such TLC Options
in the form of cash or check to the extent of
the par value of the shares issuable thereunder
and the remainder of such exercise price in the
form of a short-term promissory note payable to
TLC having terms reasonably acceptable to TLC
and (ii) to pay any required withholding taxes
with a short-term promissory note payable to
TLC having terms reasonably acceptable to TLC.
(h) Notwithstanding the foregoing,
each Section 16b Holder issuing a note shall
agree that such holder's stock certificates
representing the shares of TLC Common Stock
otherwise issuable upon exercise of such vested
TLC Options shall be delivered by TLC directly
to the Depositary for the Offer on behalf of
such holder and only on the condition that the
"Special Payment Instructions" box is properly
completed on the related Letter of Transmittal
to provide for payment of the balance under
such notes directly to TLC.
2.3 Effects of the Merger. At the
Effective Time: (a) the separate existence of
Kidsco will cease and Kidsco will be merged with and
into TLC and TLC will be the surviving corporation
of the Merger (the "Surviving Corporation") pursuant
to the terms of this Agreement and the Certificate
of Merger; (b) the certificate of incorporation of
TLC will be the certificate of incorporation of the
Surviving Corporation, except that such certificate
of incorporation will be amended to provide that the
authorized capital stock of the Surviving
Corporation will be 1,000 shares of Common Stock,
par value $.01 per share; (c) the bylaws of TLC
immediately prior to the Effective Time will be the
bylaws of the Surviving Corporation; (d) the
directors of Kidsco immediately prior to the
Effective Time will become the directors of the
Surviving Corporation; (e) the officers of Kidsco
immediately prior to the Effective Time will become
the officers of the Surviving Corporation; (f) each
share of SoftKey Common Stock outstanding
immediately prior to the Effective Time will
continue to be an identical outstanding share of
SoftKey Common Stock; (g) each share of Kidsco
Common Stock, par value $.01 per share, outstanding
immediately prior to the Merger will be converted
into one share of Common Stock of the Surviving
Corporation; (h) each share of TLC Common Stock and
each TLC Option outstanding immediately prior to the
Effective Time will be converted as provided in
Sections 2.1, 2.2 and 2.3; and (i) the Merger will,
from and after the Effective Time, have all of the
effects provided by applicable law, including, but
not limited to, the Delaware Law.
2.4 Proxy Statement. Any proxy materials
distributed to TLC's stockholders in connection with
the Merger, including any amendments or supplements
thereto (the "Proxy Statement"), will comply in all
material respects with applicable federal securities
laws, except that no representation is made by TLC
with respect to information supplied by SoftKey or
Kidsco in writing for inclusion in the Proxy
Statement. None of the information supplied by TLC
in writing for inclusion in the Proxy Statement and
any amendments thereto to be filed with the SEC by
TLC in connection with the transactions contemplated
by this Agreement will, at the respective time (a)
that the Proxy Statement or any amendments or
supplements thereto are filed with the SEC, (b) that
an amendment thereto is mailed to TLC's
stockholders, (c) of the TLC Stockholders Meeting or
(d) of the Effective Time, contain any untrue
statement of a material fact or omit to state any
material fact required to be stated therein or
necessary in order to make the statements therein,
in light of the circumstances under which they are
made, not misleading.
3. REPRESENTATIONS AND WARRANTIES OF TLC
TLC represents and warrants to SoftKey as set
forth below. In this Agreement, any reference to
any event, change or effect being "material" with
respect to any entity or group of entities means any
material event, change or effect related to the
condition (financial or otherwise), properties,
assets, liabilities, businesses, operations or
results of operations of such entity or group of
entities taken as a whole. In this Agreement, the
term "Material Adverse Effect" used in connection
with a party or any of such party's subsidiaries
means any event, change or effect that is materially
adverse to the condition (financial or otherwise),
properties, assets, liabilities, businesses,
operations or results of operations of such party
and its subsidiaries, taken as a whole; provided
that a Material Adverse Effect shall not include any
adverse effect resulting from general economic
conditions or conditions affecting the consumer
software market or the interactive entertainment,
educational or personal productivity sectors of such
market.
3.1 Organization; Good Standing;
Qualification and Power. TLC and each of its
subsidiaries (the "TLC Subsidiaries") is a
corporation duly organized, validly existing and in
good standing under the laws of the state of its
incorporation; has all requisite corporate power and
authority to own, lease and operate its properties
and to carry on its business as now being conducted;
and is duly qualified and in good standing to do
business in each jurisdiction in which the nature of
its business or the ownership or leasing of its
properties makes such qualification necessary, other
than in such jurisdictions where the failure so to
qualify would not have a Material Adverse Effect on
TLC.
3.2 Authorization. TLC has the requisite
corporate power and corporate authority to enter
into this Agreement and the other agreements,
documents and instruments to be executed and
delivered by TLC pursuant hereto (the "Additional
TLC Documents") and to carry out the transactions
contemplated hereby and thereby. The Board of
Directors of TLC has taken all actions required by
law, its certificate of incorporation, its bylaws or
otherwise to be taken by each of them to authorize
the execution, delivery and performance of this
Agreement and the Additional TLC Documents, and when
fully executed and delivered, this Agreement and
each of the Additional TLC Documents will constitute
the valid and binding agreement of TLC, enforceable
against TLC in accordance with its terms.
3.3 Capital Structure.
(a) The authorized capital stock of
TLC consists of 20,000,000 shares of TLC Common
Stock and 1,000,000 shares of Preferred Stock,
$.001 par value (the "TLC Preferred Stock").
At the close of business on December 6, 1995,
7,533,340 shares of TLC Common Stock were
issued and outstanding, no shares of TLC Common
Stock were held by TLC in its treasury,
1,826,212 shares of TLC Common Stock were
reserved for issuance upon the exercise of
outstanding TLC Options. No shares of TLC
Preferred Stock are issued or outstanding. Of
the 1,826,212 outstanding TLC Options, 743,211
TLC Options are presently exercisable. The
monthly vesting schedule of TLC Options which
are not presently exercisable is as set forth
on Schedule 3.3, previously delivered by TLC to
SoftKey. No shares of TLC Common Stock will be
issued except upon exercise of outstanding TLC
Options.
(b) Except for the TLC Options
disclosed in Section 3.3(a) above and the
Associated Rights, there are no options,
warrants, calls, rights, commitments,
conversion rights or agreements of any
character to which TLC or any of the TLC
Subsidiaries is a party or by which TLC or any
of the TLC Subsidiaries is bound obligating TLC
or any of the TLC Subsidiaries to issue,
deliver or sell, or cause to be issued,
delivered or sold, any shares of capital stock
of TLC or any of the TLC Subsidiaries or
securities convertible into or exchangeable for
shares of capital stock of TLC or any of the
TLC Subsidiaries, or obligating TLC or any of
the TLC Subsidiaries to grant, extend or enter
into any such option, warrant, call, right,
commitment, conversion right or agreement.
There are no voting trusts or other agreements
or understandings to which TLC is a party with
respect to the voting of the capital stock of
TLC or any of the TLC Subsidiaries.
(c) All outstanding shares of TLC
Common Stock are validly issued, fully paid and
nonassessable and not subject to preemptive
rights. All outstanding shares of capital
stock of each of the TLC Subsidiaries are
validly issued, fully paid and nonassessable
and are owned by TLC or one of the TLC
Subsidiaries free and clear of any liens,
security interests, pledges, agreements,
claims, charges or encumbrances. TLC has made
available to SoftKey true and correct copies of
its 1986 Stock Option Plan and its Incentive
Stock Option, Nonqualified Stock Option and the
Restricted Stock Purchase Plan-1990, as amended
(collectively, "TLC Plans"), and a correct and
complete list of each TLC Option outstanding as
of the date hereof, including the name of the
holder of such TLC Option, the TLC Plan
pursuant to which such TLC Option was issued,
the security and number of shares covered by
such TLC Option, the per share exercise price
of such TLC Option and the vesting schedule
applicable to each such TLC Option.
3.4 SEC Filings.
(a) TLC has filed all forms, reports
and documents (the "TLC SEC Reports") required
to be filed by it with the SEC since January 1,
1995. The TLC SEC Reports (i) were prepared in
accordance with the requirements of the
Securities Act or the Exchange Act, as the case
may be, and the rules and regulations
thereunder, and (ii) did not at the time they
were filed contain any untrue statement of a
material fact or omit to state a material fact
required to be stated therein or necessary in
order to make the statements made therein, in
the light of the circumstances under which they
were made, not misleading.
(b) Each of the consolidated
financial statements (including, in each case,
any notes thereto) contained in the TLC SEC
Reports was prepared in accordance with United
States generally accepted accounting principles
applied on a consistent basis throughout the
periods indicated (except as may be indicated
in the notes thereto), and each fairly
presented the consolidated financial position,
results of operations and changes in financial
position of TLC and its consolidated
subsidiaries as of the respective dates thereof
and for the respective periods indicated
therein, except as otherwise noted therein
(subject, in the case of unaudited statements,
to normal and recurring year-end adjustments
which were not and are not expected,
individually or in the aggregate, to have a
Material Adverse Effect on TLC).
3.5 Consents and Approvals;
Noncontravention. Neither the execution, delivery
or performance of this Agreement or any of the
Additional TLC Documents by TLC nor the consummation
by TLC of the transactions contemplated hereby or
thereby nor compliance by TLC with any of the
provisions hereof or thereof will (a) violate any
provision of the certificate of incorporation or
bylaws of TLC, (b) except as may be required under
the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended (the "HSR Act"), require any filing
with, or permit, authorization, consent or approval
of, any court, arbitral tribunal, administrative
agency or commission or other governmental or
regulatory authority or agency (a "Governmental
Entity"), (c) violate any order, writ, injunction,
decree, law, statute, ordinance, rule or regulation
applicable to TLC or any of its properties or assets
or (d) violate any contract to which TLC is a party
or by which it is bound, except in the case of
clauses (c) and (d), for such violations which would
not materially impair the ability of TLC to perform
its obligations hereunder or under any Additional
TLC Documents and which would not, individually or
in the aggregate, have a Material Adverse Effect on
TLC.
3.6 Litigation. Except as set forth in
the TLC SEC Reports or as set forth in Sections 5.9
and 6.5, there is no claim, action, suit, inquiry,
proceeding or investigation by or before any
Governmental Entity pending or, to TLC's knowledge,
threatened against or involving TLC which in any
manner seeks injunctive or other non-monetary relief
with respect to the transactions contemplated hereby
or otherwise seeks to prevent, enjoin, alter or
delay any transactions contemplated hereby. TLC is
not subject to any order, writ, injunction or decree
which, individually or in the aggregate, has or in
the future would have a material adverse effect on
the ability of TLC to consummate the transactions
contemplated hereby.
3.7 Broderbund Agreement. The Agreement
and Plan of Reorganization, dated as of July 31,
1995, by and between Broderbund Software, Inc. and
The Learning Company, as amended (the "Broderbund
Agreement"), has been terminated in accordance with
its terms and does not prevent, restrict or impair
in any respect the consummation of the transactions
contemplated hereby or compliance by TLC with any of
the provisions hereof. TLC has complied with
Section 4.11 of the Broderbund Agreement with
respect to the Offer, the Merger and this Agreement
and is entitled to change its recommendation
concerning the merger provided for in the Broderbund
Agreement and enter into this Agreement thereunder.
3.8 Absence of Certain Changes. From
September 30, 1995, through the date of this
Agreement, except as previously disclosed in the TLC
SEC Reports or to SoftKey and Kidsco in writing,
neither TLC nor any of the TLC Subsidiaries has
(a) taken actions set forth in Section 5.3 which, in
the aggregate, have caused a Material Adverse Effect
on TLC, (b) suffered any Material Adverse Effect or
(c) entered into any material transaction, or
conducted its business or operations, other than in
the ordinary course of business consistent with past
practice.
3.9 TLC Rights Agreement. TLC has
amended the TLC Rights Agreement to provide that the
execution, delivery and performance of this
Agreement and the transactions contemplated hereby
will not (a) cause SoftKey or any of its affiliates
to become an Acquiring Person (as defined in the TLC
Rights Agreement) or (b) otherwise affect the rights
of the holders of Rights (as defined in the TLC
Rights Agreement), including by causing such Rights
to separate from the underlying shares or by giving
such holders the right to acquire securities of any
party hereto. Pursuant to the amendment of the TLC
Rights Agreement in accordance with the foregoing
sentence, the Rights are inapplicable to the Offer
and the Merger and the other transactions
contemplated hereby. The Offer, when amended in
accordance with the terms hereof, shall constitute a
"Permitted Offer," as that term is defined in the
TLC Rights Agreement.
3.10 State Takeover Laws. The Board of
Directors of TLC has approved the transactions
contemplated by this Agreement such that the
provisions of Section 203 of the Delaware Law will
not apply to this Agreement or to any of the
transactions contemplated hereby.
4. REPRESENTATIONS AND WARRANTIES OF SOFTKEY
SoftKey hereby represents and warrants to
TLC that:
4.1 Organization; Good Standing;
Qualification and Power. SoftKey and each of its
subsidiaries which is required to be listed as an
Exhibit to SoftKey's Annual Report on Form 10-K (the
"SoftKey Subsidiaries") is a corporation duly
organized, validly existing and in good standing
under the laws of the state of its incorporation;
has all requisite corporate power and authority to
own, lease and operate its properties and to carry
on its business as now being conducted; and is duly
qualified and in good standing to do business in
each jurisdiction in which the nature of its
business or the ownership or leasing of its
properties makes such qualification necessary, other
than in such jurisdictions where the failure so to
qualify would not have a Material Adverse Effect on
SoftKey.
4.2 Authorization. Each of SoftKey and
Kidsco has the requisite corporate power and
corporate authority to enter into this Agreement and
the other agreements, documents and instruments to
be executed and delivered by each of them pursuant
hereto (the "Additional SoftKey Documents") and to
carry out the transactions contemplated hereby and
thereby. The Boards of Directors of SoftKey and
Kidsco and the sole stockholder of Kidsco have taken
all actions required by law, their respective
certificates of incorporation, their respective
Bylaws or otherwise to be taken by each of them to
authorize the execution, delivery and performance of
this Agreement and the Additional SoftKey Documents,
and when fully executed and delivered, this
Agreement and each of the Additional SoftKey
Documents will constitute the valid and binding
agreements of each of them, as the case may be,
enforceable against each of them, as the case may
be, in accordance with their respective terms.
4.3 Consents and Approvals;
Noncontravention. Neither the execution, delivery
or performance of this Agreement or any of the
Additional SoftKey Documents by SoftKey or Kidsco
nor the consummation by each of them of the
transactions contemplated hereby or thereby nor
compliance by each of them with any of the
provisions hereof or thereof will (a) violate any
provision of the certificates of incorporation or
bylaws of SoftKey or Kidsco, (b) except as may be
required under the HSR Act, require any filing with,
or permit, authorization, consent or approval of,
any Governmental Entity, (c) violate any order,
writ, injunction, decree, law, statute, ordinance,
rule or regulation applicable to SoftKey or any of
its properties or assets or (d) violate any contract
to which SoftKey is a party or by which it is bound,
except in the case of clauses (c) and (d), for such
violations which would not materially impair the
ability of SoftKey to perform its obligations
hereunder or under any Additional SoftKey Documents
and which would not, individually or in the
aggregate, have a Material Adverse Effect on
SoftKey. The waiting period under the HSR Act with
respect to the transactions contemplated by this
Agreement expired without a request for additional
information being issued.
4.4 Litigation. Except as set forth in
Sections 5.9 and 6.5, there is no claim, action,
suit, inquiry, proceeding or investigation by or
before any Governmental Entity pending or, to
SoftKey's knowledge, threatened against or involving
SoftKey or Kidsco which in any manner seeks
injunctive or other non-monetary relief with respect
to the transactions contemplated hereby or otherwise
seeks to prevent, enjoin, alter or delay any
transactions contemplated hereby. Neither SoftKey
nor Kidsco is subject to any order, writ, injunction
or decree which, individually or in the aggregate,
has or in the future would have a material adverse
effect on the ability of SoftKey or Kidsco to
consummate the transactions contemplated hereby.
4.5 Financing. SoftKey's available
funds, together with the proceeds from the sale to
Tribune Company of SoftKey's 51/2% Senior
Convertible/Exchangeable Notes due 2000 which,
absent an injunction, Tribune Company will be
obligated to make available at the Tender Closing,
are sufficient to acquire all outstanding Shares
(and Shares issuable upon exercise of vested and
exercisable TLC Options) in the Offer and the
Merger.
4.6 Interested Stockholders; Beneficial
Ownership. As of the date of this Agreement,
neither SoftKey nor Kidsco nor, to the best
knowledge of SoftKey, any of their respective
affiliates is an "Interested Stockholder" within the
meaning of Section 203 of the Delaware Law. Neither
SoftKey nor Kidsco nor to their knowledge together
with their respective affiliates and associates is
the "Beneficial Owner" (within the meaning of the
TLC Rights Agreement) of 15% or more of the shares
of TLC Common Stock outstanding as of the date
hereof.
5. TLC COVENANTS
5.1 Advice of Changes. During the period
from the date of this Agreement until the earlier of
the Effective Time or the termination of this
Agreement in accordance with its terms, TLC, upon
learning of any such event or occurrence, will
promptly advise SoftKey in writing (a) of any event
occurring subsequent to the date of this Agreement
that would render any representation or warranty of
TLC or SoftKey contained in this Agreement, if made
on or as of the date of such event or the Closing
Date, untrue or inaccurate in any material respect,
(b) of any Material Adverse Effect on TLC and (c) of
any breach by SoftKey of any covenant or agreement
contained in this Agreement. To ensure compliance
with this Section 5.1, TLC shall deliver to SoftKey
as soon as practicable after the end of each monthly
accounting period ending after the date of this
Agreement and before the earlier of the Closing Date
or the termination of this Agreement in accordance
with its terms, an unaudited consolidated balance
sheet, statement of operations and statement of cash
flows for TLC, which financial statements shall be
prepared in the ordinary course of business, in
accordance with TLC's books and records and
generally accepted accounting principles and shall
fairly present the consolidated financial position
of TLC as of their respective dates and the results
of TLC's operations for the periods then ended.
5.2 Maintenance of Business. During the
period from the date of this Agreement until the
earlier of the Effective Time or the termination of
this Agreement in accordance with its terms, TLC
will use its diligent commercial efforts to carry on
and preserve intact the present business
organization, keep available the services of its
present officers and key employees and preserve the
goodwill of its relationships with customers,
suppliers and others having business relationships
with it in substantially the same manner as it has
prior to the date hereof. If TLC becomes aware of
any material deterioration in the relationship with
any material customer, material supplier or key
employee, it will promptly bring such information to
the attention of SoftKey. TLC shall not hire any
person to any position within TLC or as a consultant
to TLC where the total annual compensation payable
to such person, whether in cash or otherwise, would
exceed $75,000.
5.3 Conduct of Business. Except as
provided in this Agreement, during the period from
the date of this Agreement until the earlier of the
Effective Time or the termination of this Agreement
in accordance with its terms, TLC shall conduct its
business and maintain its business relationships
only in the ordinary and usual course consistent
with past practice and shall not, without the prior
written consent of SoftKey:
(a) incur, assume or prepay any
indebtedness or any other liabilities other
than in the ordinary course of business and
consistent with past practice, except for
amounts that are not in the aggregate material
to the financial condition of TLC and the TLC
Subsidiaries, taken as a whole;
(b) enter into any material
contract, commitment or transaction not in the
ordinary course of its business and consistent
with past practice;
(c) encumber or permit to be
encumbered any of its assets except in the
ordinary course of its business and consistent
with past practice;
(d) release, transfer or otherwise
dispose of any of its assets except in the
ordinary course of business and consistent with
past practice;
(e) enter into any material lease or
contract for the purchase or sale or license of
any property, real or personal, except in the
ordinary course of business and consistent with
past practice;
(f) except as previously disclosed
to SoftKey and Kidsco in writing, pay (or make
any oral or written commitments or
representations to pay) any bonus, increased
salary or special remuneration to any officer,
employee or consultant (except for normal
salary increases consistent with past practices
not to exceed 10% per year pursuant to existing
arrangements previously disclosed to SoftKey)
or enter into or vary the terms of any
employment, consulting or severance agreement
with any such person, pay any severance or
termination pay (other than payments made in
accordance with plans or agreements existing on
the date hereof), grant any stock option
(except for normal grants to newly hired or
current employees consistent with past
practices) or issue any restricted stock, or
enter into or modify any agreement or plan or
increase any employee or other benefits;
provided that TLC shall be entitled to pay
annual year-end bonuses in the ordinary course
of business consistent with past practice;
(g) materially change accounting
policies or procedures (except to the extent
required by United States generally accepted
accounting principles);
(h) declare, set aside or pay any
cash or stock dividend or other distribution in
respect of capital stock payable in cash,
capital stock or property, or redeem or
otherwise acquire any of its capital stock or
its Associated Rights (other than pursuant to
arrangements with terminated employees or
consultants in the ordinary course of business
consistent with past practice);
(i) amend or terminate any contract,
agreement or license to which it is a party,
except those amended or terminated in the
ordinary course of its business consistent with
past practice and those which are not material
in amount or effect;
(j) lend any amount to any person or
entity, other than (i) advances for travel and
expenses which are incurred in the ordinary
course of business, consistent with past
practice, not material in amount and documented
by receipts for the claimed amounts, or (ii)
any loans pursuant to any TLC Section 401(a)
Plan;
(k) assume, endorse, guarantee, act
as a surety or otherwise become liable or
responsible (whether directly, contingently or
otherwise) for any obligation except for
obligations in amounts that are not material;
(l) authorize for issuance, issue,
sell or agree to sell any shares of its capital
stock of any class (except upon the exercise of
a bona fide option or warrant currently
outstanding or permitted to be granted under
Section 5.3(f)), rights, or securities of any
kind to acquire rights or securities
convertible into any shares of its capital
stock whether through the issuance or granting
of any warrants, obligations, rights to
purchase, subscriptions, options (except as
expressly permitted under Section 5.3(f)),
convertible securities or other commitments to
issue shares of capital stock, or accelerate or
otherwise modify the vesting of any outstanding
option or other security;
(m) split, combine or reclassify the
outstanding shares of its capital stock of any
class or enter into any recapitalization or
agreement affecting the number or rights of
outstanding shares of its capital stock of any
class or affecting any other of its securities;
(n) merge, consolidate or reorganize
with, or acquire any entity;
(o) amend its certificate of
incorporation or bylaws, or the Rights
Agreement;
(p) license or sublicense any
intellectual property rights owned or licensed
by TLC except in the ordinary course of
business;
(q) permit any material insurance
policy naming TLC as beneficiary or loss payee
to be cancelled or terminated other than in the
ordinary course of business;
(r) acquire or purchase an equity
interest in or a substantial portion of the
assets of another corporation, partnership or
other business organization or otherwise
acquire any assets outside the ordinary and
usual course of business and consistent with
past practice;
(s) authorize or make any capital
contributions in excess of the amounts
currently budgeted therefor;
(t) settle or compromise any tax
liability or file any income tax return prior
to the last day (including extensions)
prescribed by law, in the case of any of the
foregoing, material to the business, financial
condition or results of operations of TLC;
(u) propose, adopt, approve or
implement any plan which could have the effect
of restructuring, prohibiting, impeding or
otherwise affecting the consummation of the
transactions contemplated herein; or
(v) agree to do, or permit any TLC
Subsidiary to do or agree to do, or enter into
negotiations with respect to, any of the things
described in the preceding clauses in this
Section 5.3.
5.4 Stockholder Approval. If the
approval of stockholders of TLC is required, TLC
will promptly call the TLC Stockholders Meeting to
submit this Agreement, the Merger and related
matters for the consideration and approval of the
TLC stockholders. Such approval, if required, will
be recommended by TLC's Board of Directors and
management subject to the fiduciary obligations of
its directors and officers. Such meeting will be
called, held and conducted, and any proxies will be
solicited, in compliance with applicable securities
laws.
5.5 Regulatory Approvals. TLC will
promptly execute and file, or join in the execution
and filing, of any application or other document
that may be necessary in order to obtain the
authorization, approval or consent of any
Governmental Entity, which may be reasonably
required, or which SoftKey may reasonably request,
in connection with the consummation of the
transaction contemplated by this Agreement. TLC
will use its reasonable efforts to promptly obtain
all such authorizations, approvals and consents.
5.6 Necessary Consents. During the term
of this Agreement, TLC will use all reasonable
efforts to obtain such written consents and take
such other actions as may be necessary or
appropriate in addition to those set forth in
Section 5.5 to allow the consummation of the
transactions contemplated hereby and to allow TLC to
carry on its business after the Effective Time.
5.7 Access to Information. TLC will
allow SoftKey and its agents reasonable access
during normal business hours throughout the period
from the date of this Agreement until the earlier of
the Effective Time or the termination of this
Agreement in accordance with its terms, to the
files, books, records (other than privileged
documents and subject to any confidentiality
provisions applicable to communications between TLC
and its counsel), properties, plants and personnel
and, during such period, TLC shall furnish promptly
to SoftKey a copy of each report, schedule and other
document (other than privileged documents and
subject to any confidentiality provisions applicable
to communications between TLC and its counsel) filed
or received by it pursuant to the requirements of
the federal securities laws, provided that no
investigation pursuant to this Section 5.7 shall
affect any representations or warranties made herein
or the conditions to the obligations of SoftKey to
consummate the Merger. In addition, TLC has
delivered to SoftKey the TLC Disclosure Letter
referred to in Article 2 of the Broderbund
Agreement. Unless otherwise required by law,
SoftKey and its representatives shall hold in
confidence all nonpublic information acquired as set
forth in this Section 5.7.
5.8 Satisfaction of Conditions Precedent.
During the term of this Agreement, TLC will use all
reasonable efforts to satisfy or cause to be
satisfied all the conditions precedent that are set
forth in Section 9, and TLC will use all reasonable
efforts to cause the Merger and the other
transactions contemplated by this Agreement to be
consummated.
5.9 Litigation. TLC shall and shall use
all reasonable efforts to cause Tribune Company and
Broderbund Software, Inc. to immediately dismiss,
with prejudice, with each party bearing its own
costs, attorneys' fees and litigation expenses, and
without payment to any adverse party of any damages,
costs, expenses or attorneys fees, all proceedings
pending between them and their affiliates (including
their respective officers and directors) in: Kidsco
Inc. and SoftKey International Inc. v. William A.
Dinsmore III, Maurice J. Duca, John W. Glynn Jr.,
Nywood Wu, William R. Rauth III, The Learning
Company and Broderbund Software, Inc., Delaware
Chancery, C.A. No. 14649, Jacobs, V.C.; Kidsco Inc.
and SoftKey International Inc. v. The Learning
Company and Broderbund Software, Inc., District of
Delaware, C.A. No. 95-733 LON; Kidsco Inc. and
SoftKey International Inc. v. The Learning Company
and Broderbund Software, Inc., Northern District of
California, C.A. No. C-95-4330 SI; The Learning
Company v. SoftKey International Inc., Kidsco Inc.,
Michael J. Perik, Kevin O'Leary, Michael A. Bell,
Robert Gagnon, Robert Rubinoff and Scott M.
Sperling, Northern District of California, C.A. No.
C-95-4279 MMC; The Learning Company v. Tribune
Company, Northern District of California, C.A. No.
C-95-4315 CW; and Broderbund Software, Inc. v.
SoftKey International Inc., Kidsco Inc., Michael J.
Perik, Kevin O'Leary, Michael A. Bell, Robert
Gagnon, Robert Rubinoff, and Scott M. Sperling,
Northern District of California, C.A. No. C-95-4323
CW; and each shall execute and deliver such further
papers as may be necessary in connection with such
dismissals, including, but not limited to,
exchanging mutual releases with respect or relating
to the subject matter of such proceedings.
5.10 No Other Negotiations. Upon
execution of this Agreement, TLC does not have, or
shall immediately terminate any discussion with, any
third party concerning an Alternative Acquisition
(as defined below). From and after the date of this
Agreement until the earlier of the Effective Time or
the termination of this Agreement in accordance with
its terms, TLC shall not, directly or indirectly,
(a) solicit, engage in discussions or negotiate with
any person (whether such discussions or negotiations
are initiated by TLC or otherwise) or take any other
action intended or designed to facilitate the
efforts of any person, other than SoftKey, relating
to the possible acquisition of TLC or any of the TLC
Subsidiaries (whether by way of merger, purchase of
capital stock, purchase of assets or otherwise) or
any material position of its or their capital stock
or assets (with any such efforts by any such person,
including a firm proposal to make such an
acquisition, to be referred to as an "Alternative
Acquisition"), (b) provide information with respect
to TLC or any of the TLC Subsidiaries to any person,
other than SoftKey, relating to a possible
Alternative Acquisition by any person, other than
SoftKey, (c) enter into an agreement with any
person, other than SoftKey, providing for a possible
Alternative Acquisition or (d) make or authorize any
statement, recommendation or solicitation in support
of any possible Alternative Acquisition by any
person, other than by SoftKey.
Notwithstanding the foregoing, the
restrictions set forth in this Agreement shall not
prevent the Board of Directors of TLC (or its agents
pursuant to its instructions) from taking any of the
following actions: (a) furnishing information
concerning TLC and its business, properties and
assets to any third party or (b) negotiating with
such third party concerning an Alternative
Acquisition provided that all of the following
events shall have occurred: (1) such third party
has made a written proposal to the Board of
Directors of TLC (which proposal may be conditional)
to consummate an Alternative Acquisition which
proposal identifies a price or range of values to be
paid for the outstanding securities or substantially
all of the assets of TLC and if consummated, based
on the advice of TLC's investment bankers, the Board
of Directors of TLC has determined is financially
more favorable to the stockholders of TLC than the
terms of the Merger (a "Superior Proposal"); (2)
TLC's Board of Directors has determined, based on
the advice of its investment bankers, that such
third party is financially capable of consummating
such Superior Proposal; (3) the Board of Directors
of TLC shall have determined, after consultation
with its outside legal counsel, that the fiduciary
duties of the Board of Directors of TLC require TLC
to furnish information to and negotiate with such
third party; and (4) SoftKey shall have been
notified in writing of such Acquisition Proposal,
including all of its terms and conditions, and shall
have been given copies of such proposal.
Notwithstanding the foregoing, TLC shall not provide
any nonpublic information to such third party unless
(A) it has prior to the date thereof provided such
information to SoftKey or SoftKey's representatives;
(B) TLC has notified SoftKey in advance of any such
proposed disclosure of non-public information to any
such third party, with a description of the
information proposed to be disclosed; and (C) TLC
provides such non-public information pursuant to a
nondisclosure agreement with terms which are at
least as restrictive as the nondisclosure agreements
heretofore entered into by TLC.
In addition to the foregoing, TLC shall
not accept or enter into any agreement concerning an
Alternative Acquisition for a period of not less
than 48 hours after SoftKey's receipt of a copy of
such proposal of an Alternative Acquisition. Upon
compliance with the foregoing, TLC shall be entitled
to (i) change its recommendations concerning the
Offer and the Merger and (ii) enter into an
agreement with such third party concerning an
Alternative Acquisition provided that TLC shall
immediately make payment in full to SoftKey of the
Breakup Fee as defined in Section 10.4 below.
If TLC or any of the TLC Subsidiaries
receives any unsolicited offer, inquiry or proposal
to enter into discussions or negotiations relating
to an Alternative Acquisition, TLC shall immediately
notify SoftKey thereof, including information as to
the identity of the party making any such offer,
inquiry or proposal and the specific terms of such
offer, inquiry or proposal, as the case may be.
TLC shall be entitled to provide copies of
this Section 5.10 to third parties who on an
entirely unsolicited basis after the date hereof,
contact TLC concerning an Alternative Acquisition;
provided that SoftKey shall concurrently be notified
of such contact and the delivery of such copy.
6. SOFTKEY COVENANTS
6.1 Advice of Changes. During the period
from the date of this Agreement until the earlier of
the Effective Time or the termination of this
Agreement in accordance with its terms, SoftKey,
upon learning of any such event or occurrence, will
promptly advise TLC in writing (a) of any event
occurring subsequent to the date of this Agreement
that would render any representation or warranty of
SoftKey or TLC contained in this Agreement, if made
on or as of the date of such event or the Closing
Date, untrue or inaccurate in any material respect,
(b) of any Material Adverse Effect on SoftKey and
(c) of any breach by TLC of any covenant or
agreement contained in this Agreement.
6.2 Regulatory Approvals. SoftKey will
promptly execute and file, or join in the execution
and filing, of any application or other document
that may be necessary in order to obtain the
authorization, approval or consent of any
Governmental Entity, which may be reasonably
required, or which TLC may reasonably request, in
connection with the consummation of the transactions
contemplated by this Agreement. SoftKey will use
its reasonable efforts to promptly obtain all such
authorizations, approvals and consents.
6.3 Necessary Consents. During the term
of this Agreement, SoftKey will use all reasonable
efforts to obtain such written consents and take
such other actions as may be necessary or
appropriate in addition to those set forth in
Section 6.1 to allow the consummation of the
transactions contemplated hereby.
6.4 Satisfaction of Conditions Precedent.
During the term of this Agreement, SoftKey will use
all reasonable efforts to satisfy or cause to be
satisfied all the conditions precedent that are set
forth in Section 8, and SoftKey will use all
reasonable efforts to cause the Merger and the other
transactions contemplated by this Agreement to be
consummated.
6.5 Litigation. SoftKey and Kidsco shall
and shall use all reasonable efforts to cause
Tribune Company and Broderbund Software, Inc. to
immediately dismiss, with prejudice, with each party
bearing its own costs, attorneys' fees and
litigation expenses, and without payment to any
adverse party of any damages, costs, expenses or
attorneys' fees, all proceedings pending between
them and their affiliates (including their
respective officers and directors) in: Kidsco Inc.
and SoftKey International Inc. v. William A.
Dinsmore III, Maurice J. Duca, John W. Glynn Jr.,
Nywood Wu, William R. Rauth III, The Learning
Company and Broderbund Software, Inc., Delaware
Chancery, C.A. No. 14649, Jacobs, V.C.; Kidsco Inc.
and SoftKey International Inc. v. The Learning
Company and Broderbund Software, Inc., District of
Delaware, C.A. No. 95-733 LON; Kidsco Inc. and
SoftKey International Inc. v. The Learning Company
and Broderbund Software, Inc., Northern District of
California, C.A. No. C-95-4330 SI; The Learning
Company v. SoftKey International Inc., Kidsco Inc.,
Michael J. Perik, Kevin O'Leary, Michael A. Bell,
Robert Gagnon, Robert Rubinoff and Scott M.
Sperling, Northern District of California, C.A. No.
C-95-4279 MMC; The Learning Company v. Tribune
Company, Northern District of California, C.A. No.
C-95-4315 CW; and Broderbund Software, Inc. v.
SoftKey International Inc., Kidsco Inc., Michael J.
Perik, Kevin O'Leary, Michael A. Bell, Robert
Gagnon, Robert Rubinoff, and Scott M. Sperling,
Northern District of California, C.A. No. C-95-4323
CW; and each shall execute and deliver such further
papers as may be necessary in connection with such
dismissals, including, but not limited to,
exchanging mutual releases with respect or relating
to the subject matter of such proceedings.
6.6 TLC Employee Plans and Benefit
Arrangements. SoftKey and TLC agree that the TLC
employee plans and benefit arrangements that are in
effect at the date of this Agreement shall, to the
extent practicable, remain in effect, for 30 days
from and after the Effective Time. To the extent
such employee plans and benefit arrangements are
changed or terminated before such date, or SoftKey's
employee plans and benefit arrangements are
substituted after such date, such employee plans and
benefit arrangements shall be no less favorable, in
the aggregate, than the SoftKey employee plans and
benefit arrangements provided to similarly situated
employees of SoftKey. It is the agreement of the
parties that employees of TLC or the TLC
Subsidiaries shall receive credit for time served
with TLC or any of the TLC Subsidiaries, for
purposes of eligibility and vesting with respect to
employee benefit plans. In the case of TLC employee
plans and benefit arrangements under which the
employees' interests are based upon the TLC Common
Stock, such interests shall, from and after the
Effective Time, be based on SoftKey Common Stock in
an equitable manner. SoftKey agrees to pay
severance equal to at least one week's salary for
each full year of service to each employee of TLC or
the TLC subsidiaries whose employment is terminated
within one year of the Effective Time by SoftKey or
its affiliates (including TLC following the
consummation of the Offer).
6.7 Indemnification.
(a) The certificate of incorporation
of the Surviving Corporation shall contain the
provisions with respect to indemnification set
forth in the certificate of incorporation of
TLC on the date of this Agreement, which
provisions shall not be amended, repealed or
otherwise modified for a period of six years
from the Effective Time in any manner that
would adversely affect the rights thereunder of
individuals who at or prior to the Effective
Time were directors, officers, employees or
agents of TLC, unless such modification is
required by law.
(b) After the Effective Time and for
a period of six years after the date hereof,
SoftKey and the Surviving Corporation shall, to
the fullest extent permitted under applicable
law or under SoftKey's or the Surviving
Corporation's certificate of incorporation or
bylaws, indemnify and hold harmless, each
present and former director, officer, employee
or agent of TLC (collectively, the "Indemnified
Parties") against any costs or expenses
(including attorneys' fees), judgments, fines,
losses, claims, damages, liabilities and
amounts paid in settlement in connection with
any claim, action, suit, proceeding or
investigation, whether civil, criminal,
administrative or investigative, arising out of
or pertaining to any action or omission
occurring prior to or at the Effective Time, or
arising out of or pertaining to the
transactions contemplated by this Agreement.
Without limiting the generality of the
foregoing, in the event any such Indemnified
Party is or becomes involved in any capacity in
any action, proceeding or investigation in
connection with any matter, including, without
limitation, the transactions contemplated by
this Agreement, occurring prior to or at the
Effective Time, SoftKey or the Surviving
Corporation shall pay as incurred such
Indemnified Party's legal and other expenses
(including the cost of any investigation and
preparation) incurred in connection therewith.
In the event of any such claim, action, suit,
proceeding or investigation, (i) any counsel
retained by the Indemnified Parties to defend
them with respect to any such claim, action,
suit, proceeding or investigation for any
period after the Effective Time shall be
reasonably satisfactory to the Surviving
Corporation and SoftKey, (ii) after the
Effective Time, the Surviving Corporation and
SoftKey shall pay the reasonable fees and
expenses of such counsel, promptly after
statements therefor are received and (iii) the
Surviving Corporation and SoftKey will
cooperate in the defense of any such matter;
provided, however, that neither the Surviving
Corporation nor SoftKey shall be liable for any
settlement effected without its written consent
(which consent shall not be unreasonably
withheld); and provided further, that, in the
event that any claim or claims for
indemnification are asserted or made within
such six-year period, all rights to
indemnification in respect of any such claim or
claims shall continue until the disposition of
any and all such claims. The Indemnified
Parties as a group may retain only one law firm
to represent them with respect to any single
action unless there is, under applicable
standards of professional conduct, a conflict
on any significant issue between the positions
of any two or more Indemnified Parties.
(c) SoftKey agrees that, from and
after the Effective Time, the Surviving
Corporation shall cause to be maintained in
effect for not less than six years from the
Effective Time the current policies of the
directors' and officers' liability insurance
maintained by TLC; provided that the Surviving
Corporation may substitute therefor policies of
at least the same coverage containing terms and
conditions which are no less advantageous and
provided that such substitution shall not
result in any gaps or lapses in coverage with
respect to matters occurring prior to the
Effective Time; provided, further, that the
Surviving Corporation shall not be required to
pay an annual premium in excess of 150% of the
last annual premium paid by TLC prior to the
date hereof and if the Surviving Corporation is
unable to obtain the insurance required by this
Section 6.7(c) it shall obtain as much
comparable insurance as possible for an annual
premium equal to such maximum amount.
(d) After the Effective Time, the
Surviving Corporation and SoftKey will fulfill
and honor in all respects the obligations of
TLC pursuant to indemnification agreements with
TLC's officers, directors and key employees in
existence at the Effective Time. Such
indemnification agreements have been made
available to SoftKey.
6.8 Other Agreements. SoftKey and TLC
agree (i) to terminate their solicitation of proxies
("Removal Proxies") in connection with the special
meeting of stockholders of TLC that was scheduled to
be held on January 8, 1996 and called to consider,
among other things, removal of all of the current
directors of TLC (the "Removal Special Meeting"),
(ii) to cooperate and take all reasonable efforts to
cause cancellation of the Removal Special Meeting
and (iii) not to vote any Removal Proxies received
from TLC stockholders at the Removal Special
Meeting, if held.
7. CLOSING MATTERS
7.1 The Closing. Subject to the
termination of this Agreement as provided in
Section 10 below, the Closing of the transactions
contemplated by this Agreement (the "Closing") will
take place at the offices of Skadden, Arps, Slate,
Meagher & Flom, One Beacon Street, 31st Floor,
Boston, Massachusetts 02108 on a date (the "Closing
Date") and at a time to be mutually agreed upon by
the parties, which date shall be no later than the
third business day after all conditions to Closing
set forth herein shall have been satisfied or
waived, unless another place, time and date is
mutually selected by TLC and SoftKey. Concurrently
with the Closing, the Certificate of Merger will be
filed in the office of the Secretary of State of the
State of Delaware.
7.2 Payment of Merger Consideration.
(a) Paying Agent. Prior to the
Closing Date, SoftKey shall select a bank or
trust company reasonably acceptable to TLC to
act as paying agent (the "Paying Agent") in the
Merger. Promptly after the Effective Time,
SoftKey shall deposit with the Paying Agent,
for the benefit of the holders of shares of TLC
Common Stock, for payment in accordance with
this Agreement, all funds necessary for the
Paying Agent to make payments of the Merger
Consideration to holders of shares of TLC
Common Stock outstanding immediately prior to
the Effective Time pursuant to this Agreement
(hereinafter referred to as the "Payment
Fund").
(b) Payment Procedures. As soon as
practicable after the Effective Time, the
Paying Agent shall mail to each holder of
record of a certificate or certificates which
immediately prior to the Effective Time
represented issued and outstanding shares of
TLC Common Stock (collectively, the
"Certificates"), (i) a letter of transmittal
(which shall specify that delivery shall be
effected, and risk of loss, and title to the
Certificates shall pass, only upon delivery of
the Certificates to the Paying Agent and shall
be in such form and have such other provisions
as SoftKey and TLC may reasonably specify) and
(ii) instructions for use in effecting the
surrender of the Certificates in exchange for
the Merger Consideration. Upon surrender of a
Certificate for cancellation to the Paying
Agent, together with a duly executed letter of
transmittal and such other documents as may be
reasonably required by the Paying Agent, the
holder of such Certificate shall be entitled to
receive in exchange therefor an amount in cash
equal to the Merger Consideration multiplied by
the number of shares of TLC Common Stock held
by the holder immediately prior to the
Effective Time, and the Certificate so
surrendered shall forthwith be cancelled. In
the event of a transfer of ownership of shares
of TLC Common Stock which is not registered on
the transfer records of TLC, the appropriate
amount of cash provided for in this Section
7.2(b) may be paid to a transferee if the
Certificate representing such TLC Common Stock
is presented to the Paying Agent, accompanied
by all documents required to evidence and
effect such transfer and by evidence that any
applicable stock transfer taxes have been paid.
Until surrendered as contemplated by this
Section 7.2, each Certificate shall be deemed,
on and after the Effective Time, to represent
only the right to receive upon such surrender
the appropriate amount of cash provided for in
this Section 7.2(b).
(c) No Further Ownership Rights in
TLC Common Stock. All cash paid to holders of
shares of TLC Common Stock outstanding
immediately prior to the Effective Time shall
be deemed to have been paid in full
satisfaction of all rights pertaining to such
shares of TLC Common Stock, and after the
Effective Time there shall be no further
registration of transfers on the stock transfer
books of the Surviving Corporation of the
shares of TLC Common Stock which were
outstanding immediately prior to the Effective
Time. If, after the Effective Time,
Certificates are presented to the Surviving
Corporation for any reason, they shall be
cancelled and exchanged as provided in this
Section 7.2.
(d) Termination of Payment Fund.
Any portion of the Payment Fund which remains
undistributed to the stockholders of TLC for
six months after the Effective Time shall be
delivered to SoftKey, upon demand, and any
former stockholders of TLC who have not
theretofore complied with this Section 7.2
shall thereafter look only to SoftKey for
payment of their claim for the Merger
Consideration.
(e) No Liability. Neither the
Paying Agent nor TLC shall be liable to any
holder of shares of TLC Common Stock as a
result of the Payment Fund having been
delivered to a public official pursuant to any
applicable abandoned property, escheat or
similar law.
7.3 Assumption of Options. Promptly
after the Effective Time, SoftKey will notify in
writing each holder of a TLC Option of the
assumption of such TLC Option by SoftKey, the number
of shares of SoftKey Common Stock that are then
subject to such option and the exercise price of
such option, as determined pursuant to this
Agreement.
8. CONDITIONS PRECEDENT TO OBLIGATIONS OF TLC
The obligations of TLC hereunder are subject to
the fulfillment or satisfaction on or before the
Closing, of each of the following conditions (any
one or more of which may be waived by TLC, but only
in a writing signed by TLC):
8.1 Accuracy of Representations and
Warranties. The representations and warranties of
SoftKey set forth in Section 4 shall be true and
accurate in every material respect on and as of the
Closing Date with the same force and effect as if
they had been made at the Closing except to the
extent the failure of such representations and
warranties to be true and accurate in such respects
has not had and could not reasonably be expected to
have a Material Adverse Effect on SoftKey, and TLC
shall receive a certificate to such effect executed
by SoftKey's Chief Executive Officer and Chief
Financial Officer.
8.2 Covenants. SoftKey shall have
performed and complied in all material respects with
all of its covenants required to be performed by it
under this Agreement on or before the Closing, and
TLC shall receive a certificate to such effect
signed by SoftKey's Chief Executive Officer and
Chief Financial Officer.
8.3 No Order. No Governmental Entity or
federal or state court of competent jurisdiction
shall have enacted, issued, promulgated, enforced or
entered any statute, rule, regulation, executive
order, decree, injunction or other order (whether
temporary, preliminary or permanent) which is in
effect and which prevents, prohibits or materially
restricts consummation of the Merger or any other
transactions contemplated by this Agreement;
provided, however, that the parties shall use their
reasonable efforts to cause any such decree,
judgment, injunction or other order to be vacated or
lifted.
8.4 Other Approvals. Other than the
filing of merger documents in accordance with the
Delaware Law, all authorizations, consents, waivers,
orders or approvals required to be obtained, and all
filings, notices or declarations required to be
made, by any party hereto prior to the consummation
of the Merger and the other transactions
contemplated by this Agreement shall have been
obtained from, and made with, all required
Governmental Entities, except for such
authorizations, consents, waivers, orders,
approvals, filings, notices or declarations the
failure of which to obtain or make would not have a
Material Adverse Effect.
8.5 Stockholder Approval. If required,
the principal terms of this Agreement and the Merger
shall have been approved and adopted by the TLC
stockholders in accordance with applicable law and
TLC's certificate of incorporation and bylaws.
8.6 Purchase of Shares. Kidsco shall
have purchased Shares pursuant to the Offer.
9. CONDITIONS PRECEDENT TO OBLIGATIONS OF
SOFTKEY AND KIDSCO
The obligations of SoftKey and Kidsco hereunder
are subject to the fulfillment or satisfaction on or
before the Closing, of each of the following
conditions (any one or more of which may be waived
by SoftKey and Kidsco, but only in writing signed by
SoftKey and Kidsco) provided that Section 9.1,
Section 9.2 and Section 9.7 shall not apply from and
after the later to occur of (a) the purchase of
Shares pursuant to the Offer and (b) the date on
which TLC has taken all appropriate actions
theretofore requested by SoftKey and Kidsco to
appoint SoftKey's designees to the Board of
Directors of TLC pursuant to Section 1.4 (the later
of such dates being referred to herein as the "Board
Date"):
9.1 Accuracy of Representations and
Warranties. The representations and warranties of
TLC set forth in Section 3 shall be true and
accurate in every material respect on and as of the
Closing Date with the same force and effect as if
they had been made at the Closing except to the
extent the failure of such representations and
warranties to be true and accurate in such respects
has not had and could not reasonably be expected to
have a Material Adverse Effect on TLC, and SoftKey
shall receive a certificate to such effect executed
by TLC's Chief Executive Officer and Chief Financial
Officer.
9.2 Covenants. TLC shall have performed
and complied in all material respects with all of
its covenants required to be performed by it under
this Agreement or the Merger Agreement on or before
the Closing, and SoftKey shall receive a certificate
to such effect signed by TLC's Chief Executive
Officer and Chief Financial Officer.
9.3 No Order. No Governmental Entity or
federal or state court of competent jurisdiction
shall have enacted, issued, promulgated, enforced or
entered any statute, rule, regulation, executive
order, decree, injunction or other order (whether
temporary, preliminary or permanent) which is in
effect and which prevents, prohibits or materially
restricts consummation of the Merger or any other
transactions contemplated by this Agreement;
provided, however, that the parties shall use their
reasonable efforts to cause any such decree,
judgment, injunction or other order to be vacated or
lifted.
9.4 Other Approvals. Other than the
filing of merger documents in accordance with the
Delaware Law, all authorizations, consents, waivers,
orders or approvals required to be obtained, and all
filings, notices or declarations required to be
made, by any party hereto prior to the consummation
of the Merger and the other transactions
contemplated by this Agreement shall have been
obtained from, and made with, all required
Governmental Entities, except for such
authorizations, consents, waivers, orders,
approvals, filings, notices or declarations the
failure of which to obtain or make would not have a
Material Adverse Effect.
9.5 Stockholder Approval. If required,
the principal terms of this Agreement and the Merger
shall have been approved by the TLC stockholders in
accordance with applicable law and TLC'S certificate
of incorporation and bylaws.
9.6 Nonsolicitation. Messrs. Duca,
Dinsmore and Schmidt each shall have executed and
delivered to SoftKey a Nonsolicitation Agreement
substantially in the form of Exhibit C.
9.7 Purchase of Shares. Kidsco shall
have purchased Shares pursuant to the Offer.
10. TERMINATION OF AGREEMENT
10.1 Termination. This Agreement may be
terminated and the Merger may be abandoned at any
time prior to the Effective Time, whether before or
after approval of the Merger by the stockholders of
TLC, if required:
(a) by mutual written consent of TLC
and SoftKey, by action of their respective
Boards of Directors;
(b) by either party, if Kidsco or
SoftKey shall not have purchased any Shares
pursuant to the Offer on or before the Final
Date (as defined below); provided that no party
shall have the right to terminate this
Agreement under this clause (b) at any time
when it is in material breach of any provision
of this Agreement or the Offer;
(c) by either party, if a permanent
injunction or other order by any federal or
state court which would make illegal or
otherwise permanently restrain or prohibit the
consummation of the Merger shall have been
issued and shall have become final and
nonappealable;
(d) by either party if the Offer
expires or is terminated or withdrawn pursuant
to its terms without any Shares being purchased
thereunder; provided, however, that SoftKey may
not terminate this Agreement pursuant to this
Section 10.1(d) if SoftKey's or Kidsco's
termination of, or failure to accept for
payment or pay for any Shares tendered pursuant
to, the Offer does not follow the occurrence,
or failure to occur, as the case may be, of any
condition set forth in Exhibit B hereto;
(e) by TLC, upon a breach of any
representation, warranty, covenant or agreement
on the part of SoftKey or Kidsco set forth in
this Agreement, or if any representation or
warranty of SoftKey or Kidsco shall have become
untrue, in either case such that the conditions
set forth in Section 8.1 or Section 8.2, as the
case may be, would be incapable of being
satisfied by the Final Date;
(f) by TLC if the Offer has not been
amended as required herein prior to the fifth
business day after the date hereof;
(g) by either party, if the TLC
Board of Directors shall have accepted or
approved, or recommended to the stockholders of
TLC, a Superior Proposal (a "Superior Proposal
Termination"); or
(h) by SoftKey, if the TLC Board of
Directors shall have publicly (including by
amendment of the Schedule 14D-9) withdrawn or
modified, in a manner adverse to SoftKey or
Kidsco, its approval or recommendation of the
Offer, the Merger or this Agreement or shall
have resolved to do so; provided, however, that
SoftKey shall have no right to terminate this
Agreement if as a result of TLC's receipt of a
proposal for an Alternative Acquisition, TLC
withdraws, modifies or amends its approval or
recommendation of the Offer, the Merger or this
Agreement by reason of taking and disclosing to
TLC's stockholders a position contemplated by
Rule 14e-2(a)(2) or (3) promulgated under the
Exchange Act with respect to such proposal, the
Offer, the Merger or this Agreement and if
within five business days of taking and
disclosing to its stockholders the
aforementioned position, TLC publicly
reconfirms its recommendation of the Offer, the
Merger and this Agreement.
As used herein, the "Final Date" shall be March
1, 1996.
10.2 Notice of Termination. Any
termination of this Agreement under Section 10.1
above will be effective by the delivery of written
notice of the terminating party to the other party
hereto.
10.3 Effect of Termination. In the case
of any termination of this Agreement as provided in
this Article 10, this Agreement shall be of no
further force and effect (except as provided in
Section 10.4 and Article 12) and nothing herein
shall relieve any party from liability for any
breach of this Agreement.
10.4 Breakup Fee.
(a) Upon the occurrence of any of
the following events, TLC shall immediately
make payment to SoftKey (by wire transfer or
cashiers check) of a breakup fee in the amount
of $15,000,000 plus $3,000,000 to cover
expenses of SoftKey (collectively, the "Breakup
Fee"): (i) this Agreement is terminated
pursuant to a Superior Proposal Termination;
(ii) the Board of Directors of TLC shall have
refused to recommend or changed its
recommendations concerning the Offer or the
Merger or shall have disclosed, in any manner,
its intention to change such recommendation; or
(iii) TLC shall have terminated this Agreement
after the Final Date, if prior to the Final
Date a third party shall have proposed, or it
shall have been publicly disclosed that a third
party intends to propose an Alternative
Acquisition, and within three months following
the Final Date, TLC shall enter into an
agreement with such third party providing for
an Alternative Acquisition.
(b) Payment of the foregoing fees
shall not be in lieu of damages incurred in the
event of breach of this Agreement.
(c) SoftKey shall not be entitled to
receive the Breakup Fee hereunder if it shall
have committed a material breach of this
Agreement.
11. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND
COVENANTS
All representations, warranties and covenants
of the parties contained in this Agreement will
remain operative and in full force and effect,
regardless of any investigation made by or on behalf
of the parties to this Agreement, until the earlier
of the termination of this Agreement or the Closing
Date, whereupon such representations, warranties and
covenants will expire (except for covenants that by
their terms survive for a longer period).
12. MISCELLANEOUS
12.1 Governing Law. The internal laws of
the State of Delaware (irrespective of its choice of
law principles) will govern the validity of this
Agreement, the construction of its terms and the
interpretation and enforcement of the rights and
duties of the parties hereto.
12.2 Assignment; Binding Upon Successors
and Assigns. Neither party hereto may assign any of
its rights or obligations hereunder without the
prior written consent of the other party hereto.
This Agreement will be binding upon and inure to the
benefit of the parties hereto and their respective
successors and permitted assigns.
12.3 Severability. If any provision of
this Agreement, or the application thereof, will for
any reason and to any extent be invalid or
unenforceable, the remainder of this Agreement and
application of such provision to other persons or
circumstances will be interpreted so as reasonably
to effect the intent of the parties hereto. The
parties further agree to replace such void or
unenforceable provision of this Agreement with a
valid and enforceable provision that will achieve,
to the greatest extent possible, the economic,
business and other purposes of the void or
unenforceable provision.
12.4 Counterparts. This Agreement may be
executed in any number of counterparts, each of
which will be an original as regards any party whose
signature appears thereon and all of which together
will constitute one and the same instrument. This
Agreement will become binding when one or more
counterparts hereof, individually or taken together,
will bear the signatures of all the parties
reflected hereon as signatories.
12.5 Other Remedies. Except as otherwise
provided herein, any and all remedies herein
expressly conferred upon a party will be deemed
cumulative with and not exclusive of any other
remedy conferred hereby or by law on such party, and
the exercise of any one remedy will not preclude the
exercise of any other.
12.6 Amendment and Waivers. Any term or
provision of this Agreement may be amended, and the
observance of any term of this Agreement may be
waived (either generally or in a particular instance
and either retroactively or prospectively) only by a
writing signed by the party to be bound thereby.
The waiver by a party of any breach hereof or
default in the performance hereof will not be deemed
to constitute a waiver of any other default or any
succeeding breach or default. The Agreement may be
amended by the parties hereto at any time before or
after approval of the TLC stockholders, if required,
but after such approval, if required, no amendment
will be made which by applicable law requires the
further approval of the TLC stockholders without
obtaining such further approval.
12.7 Expenses. Each party will bear its
respective expenses and legal fees incurred with
respect to this Agreement and the transactions
contemplated hereby.
12.8 Attorneys' Fees. Should suit be
brought to enforce or interpret any part of this
Agreement, the prevailing party will be entitled to
recover, as an element of the costs of suit and not
as damages, reasonable attorneys' fees to be fixed
by the court (including, but not limited to, costs,
expenses and fees on any appeal).
12.9 Notices. All notices and other
communications pursuant to this Agreement shall be
in writing and deemed to be sufficient if contained
in a written instrument and shall be deemed given if
delivered personally, telecopied, sent by nationally
recognized overnight courier or mailed by registered
or certified mail (return receipt requested),
postage prepaid, to the parties at the following
address (or at such other address for a party as
shall be specified by like notice):
If to TLC to: The Learning Company
6493 Kaiser Drive
Fremont, California 94555
Attention: Chief Executive Officer
Telecopier: (510) 792-9627
With a copy to: Stradling, Yocca, Carlson & Rauth
660 Newport Center
Newport Beach, California 92660
Attention: William R. Rauth III, Esq.
Telecopier: (714) 725-4000
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019-6150
Attention: Barry A. Bryer, Esq.
Telecopier: (212) 403-2000
And if to SoftKey
or Kidsco to: c/o SoftKey International Inc.
One Athenaeum Street
Cambridge, Massachusetts 02142
Attention: Chief Executive Officer
Telecopier: (617) 229-0318
With a copy to: Skadden, Arps, Slate, Meagher & Flom
One Beacon Street, 31st Floor
Boston, Massachusetts 02108
Attention: Louis A. Goodman, Esq.
Telecopier: (617) 573-4822
All such notices and other communications shall be
deemed to have been received (a) in the case of
personal delivery, on the date of such delivery, (b)
in the case of a telecopy, when the party receiving
such copy shall have confirmed receipt of the
communication, (c) in the case of delivery by
nationally recognized overnight courier, on the
business day following dispatch, and (d) in the case
of mailing, on the third business day following such
mailing.
12.10 Construction of Agreement. This
Agreement has been negotiated by the respective
parties hereto and their attorneys and the language
hereof will not be construed for or against either
party. A reference to a Section or an Exhibit will
mean a Section in, or Exhibit to, this Agreement
unless otherwise explicitly set forth. The titles
and headings herein are for reference purposes only
and will not in any manner limit the construction of
this Agreement which will be considered as a whole.
12.11 No Joint Venture. Nothing contained
in this Agreement will be deemed or construed as
creating a joint venture or partnership between any
of the parties hereto. No party is by virtue of
this Agreement authorized as an agent, employee or
legal representative of any other party. No party
will have the power to control the activities and
operations of any other. The status of the parties
hereto is, and at all times, will continue to be,
that of independent contractors with respect to each
other. No party will have any power or authority to
bind or commit any other. No party will hold itself
out as having any authority or relationship in
contravention of this Section 12.11.
12.12 Further Assurances. Each party
agrees to cooperate fully with the other parties and
to execute such further instruments, documents and
agreements and to give such further written
assurances as may be reasonably requested by any
other party to evidence and reflect the transactions
described herein and contemplated hereby and to
carry into effect the intents and purposes of this
Agreement.
12.13 Absence of Third-Party Beneficiary
Rights. No provisions of this Agreement are
intended, nor will be interpreted, to provide or
create any third-party beneficiary rights or any
other rights of any kind in any client, customer,
affiliate, stockholder, partner or any party hereto
or any other person or entity unless specifically
provided otherwise herein, and, except as so
provided, all provisions hereof will be personal
solely between the parties to this Agreement.
Anything contained herein to the contrary
notwithstanding, (a) the holders of TLC Options are
intended beneficiaries of Section 2.2; (b) the
employees of TLC are intended beneficiaries of
Section 6.5; and (c) the officers and directors of
TLC and the other Indemnified Parties are intended
beneficiaries of Section 6.6.
12.14 Public Announcement. Upon execution
of this Agreement, SoftKey and TLC promptly will
issue a joint press release approved by both parties
announcing this Agreement. Thereafter, SoftKey or
TLC may issue such press releases, and make such
other disclosure regarding the Merger, as it
determines (after consultation with legal counsel)
are required under applicable securities laws or
rules of The Nasdaq Stock Market.
12.15 Entire Agreement. This Agreement and
the exhibits hereto constitute the entire
understanding and agreement of the parties hereto
with respect to the subject matter hereof and
supersede all prior and contemporaneous agreements
or understandings, inducements or conditions,
express or implied, written or oral, between the
parties with respect hereto. The express terms
hereof control and supersede any course of
performance or usage of trade inconsistent with any
of the terms hereof.
IN WITNESS WHEREOF, the parties hereto have executed
this SoftKey/TLC Agreement and Plan of Merger as of the
date first above written.
SOFTKEY INTERNATIONAL INC.
By: /s/ R. Scott Murray
Name: R. Scott Murray
Title: Chief Financial Officer
KIDSCO INC.
By: /s/ R. Scott Murray
Name: R. Scott Murray
Title:
THE LEARNING COMPANY
By: /s/ William A. Dinsmore III
Name: William A. Dinsmore III
Title: President and Chief
Executive Officer
EXHIBIT A
CERTIFICATE OF MERGER
OF
KIDSCO INC.
INTO
THE LEARNING COMPANY
Pursuant to Section 251(c) of the General
Corporation Law of the State of Delaware
The Learning Company, a Delaware corporation, does
hereby certify to the following facts relating to the
merger of Kidsco Inc. into The Learning Company (the
"Merger"):
FIRST: The names and states of incorporation of the
constituent corporations to the Merger are as follows:
Name State
The Learning Company Delaware
Kidsco Inc. Delaware
SECOND: A SoftKey/TLC Agreement and Plan of
Merger dated December 6, 1995 has been approved, adopted,
certified, executed and acknowledged by each of the
constituent corporations in accordance with Section 251
of the General Corporation Law of the State of Delaware.
THIRD: The name of the corporation surviving the
Merger is The Learning Company (the "Surviving
Corporation").
FOURTH: The text of the Certificate of
Incorporation of the Surviving Corporation should be
amended to read as set forth as Exhibit A to this
Certificate of Merger.
FIFTH: An executed copy of the SoftKey/TLC
Agreement and Plan of Merger is on file at the principal
place of business of the Surviving Corporation, One
Athenaeum Street, Cambridge, Massachusetts 02142.
A copy of the SoftKey/TLC Agreement and Plan of
Merger will be furnished upon request and without cost to
any stockholder of either constituent corporation.
IN WITNESS WHEREOF, The Learning Company has caused
this Certificate of Merger to be executed in its
corporate name this day of , 1995.
THE LEARNING COMPANY
By:
Name:
Title:
EXHIBIT B
CERTAIN CONDITIONS OF THE OFFER
Notwithstanding any other provisions of the
Offer, and in addition to (and not in limitation of)
Kidsco's rights to extend and amend the Offer at any time
in its sole discretion (but subject to the terms and
restrictions of the Merger Agreement) Kidsco shall not be
required to accept for payment or, subject to any
applicable rules and regulations of the Commission,
including Rule 14e-1(c) under the Exchange Act (relating
to Kidsco's obligation to pay for or return tendered
Shares promptly after termination or withdrawal of the
Offer), pay for, and may delay the acceptance for payment
of or, subject to the restriction referred to above, the
payment for, any tendered Shares, and may terminate the
Offer, if, in the reasonable judgment of SoftKey or
Kidsco (i) the number of Shares, including the Associated
Rights, that have been validly tendered and not withdrawn
prior to the expiration of the Offer, when added to the
number of Shares (and Associated Rights) beneficially
owned by SoftKey, Kidsco and their respective affiliates,
does not constitute a majority of the Shares (and
Associated Rights) outstanding on a fully diluted basis
(the "Minimum Condition") or (ii) at any time on or after
December 6, 1995 and before the time of payment for any
such Shares (whether or not any Shares have theretofore
been accepted for payment pursuant to the Offer) any of
the following events shall occur or shall have occurred:
(a) there shall be instituted or pending any
action or proceeding by any government or
governmental authority or agency, domestic or
foreign, or by any other person, domestic or
foreign, before any court or governmental authority
or agency, domestic or foreign, (i)(A) challenging
or seeking to make illegal, to delay materially or
otherwise directly or indirectly to restrain or
prohibit the making of the Offer, the acceptance for
payment of, or payment for, some or all the Shares
by SoftKey or Kidsco or the consummation by SoftKey
or Kidsco of the Merger, (B) seeking to obtain
material damages or (C) otherwise directly or
indirectly relating to the transactions contemplated
by the Offer or the Merger, (ii) seeking to prohibit
the ownership or operation by SoftKey or Kidsco or
any other affiliates of SoftKey or Kidsco of all or
any portion of the business or assets of TLC and its
subsidiaries, taken as a whole, or of SoftKey or
Kidsco, or to compel SoftKey, Kidsco or any other
affiliates of SoftKey or Kidsco to dispose of or
hold separately all or any material portion of the
business or assets of TLC and its subsidiaries,
taken as a whole, or seeking to impose any material
limitation on the ability of SoftKey, Kidsco or any
other affiliates of SoftKey or Kidsco to conduct
their respective businesses or own such assets,
(iii) seeking to impose limitations on the ability
of SoftKey or Kidsco or any other affiliates of
SoftKey or Kidsco effectively to exercise full
rights of ownership of the Shares or Associated
Rights, including, without limitation, the right to
vote any Shares acquired by any such person on all
matters properly presented to TLC's stockholders or
(iv) seeking to require divestiture by SoftKey,
Kidsco or any other affiliates of SoftKey or Kidsco
of any Shares;
(b) there shall be any action taken or any
statute, rule, regulation, judgment, order or
injunction proposed, enacted, enforced, promulgated,
amended, issued or deemed applicable to the Offer or
the Merger, by any court, government or
governmental, administrative or regulatory authority
or agency, domestic or foreign, which, is likely to
directly or indirectly result in any of the
consequences referred to in clauses (i) through (iv)
of paragraph (a) above;
(c) TLC shall have breached, or failed to
comply with, in any material respect any of its
obligations under the Agreement which has not been
cured, or any representation or warranty of TLC in
the Agreement shall have been incorrect in any
material respect when made or shall have since
ceased to be true and correct in any material
respect and, in each case, shall continue to be
untrue (except that the representations and
warranties contained in Section 3.3(a) and (b) of
the Agreement shall be true and correct without
regard to materiality, if such failure to be true
has an adverse effect on SoftKey, Kidsco or their
ability to consummate the Offer);
(d) the Agreement shall have been terminated
in accordance with its terms or SoftKey or Kidsco
shall have reached an agreement or understanding in
writing with TLC providing for termination or
amendment of the Offer;
which, in the reasonable judgment of SoftKey or Kidsco in
any such case, and regardless of the circumstances giving
rise to any such condition, makes it inadvisable to
proceed with the Offer and/or with such acceptance for
payment or payment.
The foregoing conditions are for the sole
benefit of either SoftKey and Kidsco and may be asserted
by either SoftKey or Kidsco in its sole discretion
regardless of the circumstances giving rise to any such
conditions or may be waived by SoftKey or Kidsco in its
sole discretion in whole or in part at any time and from
time to time, in each case, subject to the terms of the
Agreement. The failure by SoftKey or Kidsco at any time
to exercise any of the foregoing rights shall not be
deemed a waiver of any such right, and each such right
shall be deemed an ongoing right which may be asserted at
any time and from time to time. Any determination by
SoftKey or Kidsco concerning any event described in this
Exhibit B shall be final and binding on all parties other
than the Company.
EXHIBIT C
NONSOLICITATION AGREEMENT
This Nonsolicitation Agreement is made as of the
day of December, 1995, between
("Executive") and SoftKey International Inc. ("SoftKey").
For valuable consideration, receipt of which is
acknowledged, the parties hereto agree as follows:
1. Nonsolicitation. For a period of one year from
the date hereof, Executive (other than in Executive's
role as an employee or director of The Learning Company)
shall not: (i) hire, entice or in any other manner
persuade or attempt to persuade any then-current employee
of The Learning Company or any of its subsidiaries to
discontinue his or her relationship or violate any
agreement with any of such companies; provided, however,
that this Agreement shall not be violated if (i)
Executive is an employee, consultant, director, agent or
stockholder of an entity that engages in any of the
foregoing activities, so long as Executive was not
personally involved in such activities and such
activities were not done at Executive's initiation, or
(ii) the contact regarding such matters was initiated by
the employee.
2. Enforceability. In the event the restrictions
contained in Section 1 shall be determined by any court
of competent jurisdiction to be unenforceable by reason
of their extending for too great a period of time or over
too great a geographical area or by reason of their being
too extensive in any other respect, they shall be
interpreted to extend only for the maximum period of time
for which they may be enforceable, and over the maximum
geographical area as to which they may be enforceable,
and to the maximum extent in all other respects as to
which they may be enforceable, all as determined by such
court in such action.
3. Governing Law. This Agreement shall be
governed by the laws of the State of Delaware, without
regard to conflict of laws principles thereof.
IN WITNESS WHEREOF, the parties have duly executed
this Nonsolicitation Agreement as of the date first above
written.
___________________________
SOFTKEY INTERNATIONAL INC.
By:________________________
Name:
Title:
SECURITIES PURCHASE AGREEMENT
BETWEEN
TRIBUNE COMPANY, AS PURCHASER
AND
SOFTKEY INTERNATIONAL, INC., AS ISSUER
DATED AS OF NOVEMBER 30, 1995
51/2% SENIOR CONVERTIBLE/EXCHANGEABLE NOTES DUE 2000
$150,000,000 PRINCIPAL AMOUNT
TABLE OF CONTENTS
PAGE
ARTICLE I. AUTHORIZATION AND SALE OF NOTES . . . . . . . . 1
Section 1.1. Authorization . . . . . . . . . . . . . 1
Section 1.2. Issuance and Sale of Notes . . . . . . . 1
ARTICLE II. CLOSING . . . . . . . . . . . . . . . . . . . . 1
Section 2.1. Closing Date . . . . . . . . . . . . . . 1
Section 2.2. Further Assurances . . . . . . . . . . . 2
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF THE COMPANY 2
Section 3.1. SEC Reports . . . . . . . . . . . . . . 3
Section 3.2. Accountants . . . . . . . . . . . . . . 3
Section 3.3. Financial Statements . . . . . . . . . . 3
Section 3.4. Absence of Certain Changes . . . . . . . 4
Section 3.5. Authority . . . . . . . . . . . . . . . 4
Section 3.6. Non-Contravention . . . . . . . . . . . 4
Section 3.7. Capitalization . . . . . . . . . . . . . 5
Section 3.8. Subsidiaries . . . . . . . . . . . . . . 5
Section 3.9. Actions . . . . . . . . . . . . . . . . 6
Section 3.10. Investment Company Act . . . . . . . . . 7
Section 3.11. Rule 144A . . . . . . . . . . . . . . . 7
Section 3.12. Reporting . . . . . . . . . . . . . . . 7
Section 3.13. Registration and Qualification . . . . . 7
Section 3.14. No Liabilities . . . . . . . . . . . . . 7
Section 3.15. No Defaults . . . . . . . . . . . . . . 7
Section 3.16. Violations of Law . . . . . . . . . . . 8
Section 3.17. Enforceability of Agreement . . . . . . 8
Section 3.18. The Notes . . . . . . . . . . . . . . . 8
Section 3.19. The Indenture . . . . . . . . . . . . . 9
Section 3.20. The Registration Rights Agreement . . . 9
Section 3.21. The Capital Stock . . . . . . . . . . . 9
Section 3.22. Ranking of Notes . . . . . . . . . . . 10
Section 3.23. Properties and Assets . . . . . . . . 10
Section 3.24. Intellectual Property . . . . . . . . 10
Section 3.25. Taxes . . . . . . . . . . . . . . . . 11
Section 3.26. Insurance . . . . . . . . . . . . . . 11
Section 3.27. Certain Payments . . . . . . . . . . . 11
Section 3.28. No Prohibition . . . . . . . . . . . . 11
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER 12
Section 4.1. Investment . . . . . . . . . . . . . . 12
Section 4.2. Rule 144 . . . . . . . . . . . . . . . 12
Section 4.3. Organization of the Purchaser . . . . 13
Section 4.4. Authority of the Purchaser . . . . . . 13
ARTICLE V. CONDITIONS TO THE OBLIGATIONS OF THE PARTIES . 14
Section 5.1. Condition to Obligations
of the Purchaser . . . . . . . . . . 14
Section 5.2. Condition to Obligations
of Both Parties . . . . . . . . . . . 14
ARTICLE VI. [Intentionally Omitted] . . . . . . . . . . . 14
ARTICLE VII. ADDITIONAL COVENANTS . . . . . . . . . . . . 14
Section 7.1. PORTAL; DTC . . . . . . . . . . . . . 14
Section 7.2. Reporting . . . . . . . . . . . . . . 14
Section 7.3. Payment of Expenses . . . . . . . . . 15
Section 7.4. Inspection . . . . . . . . . . . . . . 15
Section 7.5. Indenture . . . . . . . . . . . . . . 15
Section 7.6. Availability of Preferred
Shares and Common Stock . . . . . . . 15
ARTICLE VIII. RESTRICTIONS ON TRANSFERABILITY OF SECURITIES 16
Section 8.1. Restrictions on Transferability . . . 16
Section 8.2. Restrictive Legend . . . . . . . . . . 16
Section 8.3. Notice of Proposed Transfers . . . . . 16
Section 8.4. Registration Rights Agreement . . . . 17
ARTICLE IX. TERMINATION . . . . . . . . . . . . . . . . . 17
ARTICLE X. MISCELLANEOUS . . . . . . . . . . . . . . . . 18
Section 10.1. Governing Law . . . . . . . . . . . . 18
Section 10.2. Survival . . . . . . . . . . . . . . 18
Section 10.3. Successors and Assigns . . . . . . . 18
Section 10.4. Entire Agreement; Amendment . . . . . 18
Section 10.5. Notices, Etc . . . . . . . . . . . . 19
Section 10.6. Delays or Omissions . . . . . . . . . 19
Section 10.7. Counterparts . . . . . . . . . . . . 19
Section 10.8. Severability . . . . . . . . . . . . 19
Section 10.9. Titles and Subtitles . . . . . . . . 20
Section 10.10. No Public Announcement . . . . . . . 20
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT (this "Agreement")
is made as of November 30, 1995 between SoftKey International,
Inc., a Delaware corporation (the "Company"), and Tribune
Company, a Delaware corporation (the "Purchaser").
In consideration of the mutual covenants, agreements,
representations and warranties herein set forth, it is hereby
agreed between the Company and the Purchaser as follows:
ARTICLE I
AUTHORIZATION AND SALE OF NOTES
SECTION 1.1. AUTHORIZATION. The Company has
heretofore authorized the issuance and sale to the Purchaser
pursuant to this Agreement of the Company's 51/2% Senior
Convertible/Exchangeable Notes due 2000 (the "Notes") in the
aggregate principal amount of $150,000,000, such Notes to be in
the form and to have terms and provisions substantially as set
forth in the indenture (the "Indenture") dated as of November 30,
1995 between the Company and State Street Bank and Trust Company,
as trustee (the "Trustee"), which Indenture is attached hereto as
Exhibit A. The Notes shall represent senior, unsecured
obligations of the Company and shall rank pari passu with the
Company's 51/2% Senior Convertible Notes due 2000 (the "Old
Notes"). The shares of the Company's 51/2% Series C Convertible
Preferred Stock into which the Notes are exchangeable are
hereinafter called the "Preferred Shares."
SECTION 1.2. ISSUANCE AND SALE OF NOTES. Upon the
terms and subject to the conditions set forth herein, on the
Closing Date (as defined below), the Company will issue and sell
to the Purchaser and, in reliance on the representations and
warranties of the Company contained herein, the Purchaser will
purchase from the Company, the Notes, at a purchase price equal
to $150,000,000, which amount equals 100% of the principal amount
thereof.
ARTICLE II
CLOSING
SECTION 2.1. CLOSING DATE. The closing (the
"Closing") of the purchase and sale of the Notes contemplated
hereby shall take place on such date and at such time as agreed
to by the Company and the Purchaser and upon which all of the
conditions set forth in Article V are satisfied or waived (the
date of the Closing is hereinafter referred to as the "Closing
Date"). The Closing shall be held at the offices of Sidley &
Austin, One First National Plaza, Chicago, Illinois 60603, or at
such other place as agreed to by the Company and the Purchaser.
Delivery of the Notes to be purchased by the Purchaser
pursuant to this Agreement shall be made at the Closing by the
Company delivering to the Purchaser, against payment of the
purchase price therefor, one Note for the total principal amount
of Notes to be purchased by the Purchaser (registered in the name
of the Purchaser or such other person which shall be an affiliate
of the Purchaser or a nominee of the Purchaser or such affiliate
as the Purchaser may have designated in writing to the Company at
least one business day prior to the Closing Date), unless at
least two business days prior to the Closing Date the Purchaser
shall have requested that the Company deliver more than one Note,
in which event the Company will deliver to the Purchaser the
number of Notes so requested, registered in such name or names
specified in such request (subject to the foregoing limitation)
and in such principal amounts as shall have been specified in the
request. Payment of the purchase price for the Notes to be
purchased hereunder shall be made by the Purchaser by Federal
funds check or bank check made payable to the Company in, or by
wire transfer of, immediately available funds.
SECTION 2.2. FURTHER ASSURANCES. From time to time
following the Closing, upon the request of the Purchaser, the
Company shall execute and deliver, or cause to be executed and
delivered, to the Purchaser such other instruments as may be
reasonably necessary to more effectively vest in the Purchaser
and put the Purchaser in possession of the Notes, the Preferred
Shares and the shares of common stock, par value $.01 per share,
of the Company (the "Common Stock") issuable upon conversion of
the Notes or the Preferred Shares. The Company shall cooperate
with the Purchaser in obtaining as soon as practicable all
necessary governmental consents and approvals, including
approvals under the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended (the "HSR Act").
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
As an inducement to the Purchaser to enter into this
Agreement and to consummate the transactions contemplated hereby,
except as set forth in a letter dated the date hereof from the
Company to the Purchaser, the Company represents and warrants to
the Purchaser as follows:
SECTION 3.1. SEC REPORTS. The Company has filed all
documents required to be filed since January 1, 1995 with the
Securities and Exchange Commission (the "Commission") (the "SEC
Reports"). As of their respective dates, the SEC Reports
complied in all material respects with the requirements of the
Securities Act of 1933, as amended (including the rules and
regulations promulgated thereunder, the "Securities Act"), and
the Securities Exchange Act of 1934, as amended (including the
rules and regulations promulgated thereunder, the "Exchange
Act"), as the case may be, and none of the SEC Reports contained
any untrue statement of a material fact or omitted to state a
material fact required to be stated therein, in order to make the
statements contained therein, in light of the circumstances under
which they were made, not misleading.
SECTION 3.2. ACCOUNTANTS. Coopers & Lybrand L.L.P.,
Arthur Andersen LLP, KPMG Peat Marwick LLP, Price Waterhouse LLP
and Deloitte & Touche LLP, who have expressed their respective
opinions with respect to the financial statements and schedules
included in the Offering Circular, dated October 17, 1995,
relating to the Old Notes (the "Offering Circular") are
independent accountants as required by the Securities Act.
SECTION 3.3. FINANCIAL STATEMENTS. (a) The annual
audited financial statements of the Company included in the
Offering Circular present fairly the financial position of the
Company, as of the respective dates of such financial statements,
and the results of operations and changes in cash flows of the
Company for the respective periods covered thereby. Such
statements and related notes have been prepared in accordance
with generally accepted accounting principles applied on a
consistent basis, in each case, as certified by one or more of
the independent accountants named in Section 3.2. The selected
financial data set forth in the Offering Circular under the
captions "Summary," "Capitalization," "Selected Historical
Consolidated Financial Data" and "Selected Pro Forma Consolidated
Financial Data" fairly present the information set forth therein
as of the respective dates thereof on the basis stated in the
Offering Circular.
(b) The unaudited interim financial statements of the
Company included in the Offering Circular and in the Company's
Quarterly Report on Form 10-Q for the period ended September 30,
1995 (the "Third Quarter 10-Q") present fairly the financial
position of the Company, as of the respective dates of such
financial statements, and the results of operations and changes
in cash flows of the Company for the respective periods covered
thereby. Such statements and related notes have been prepared in
accordance with generally accepted accounting principles applied
on a consistent basis except for normal year-end adjustments and
the omission of certain footnote disclosure.
(c) The pro forma consolidated condensed balance sheet
and consolidated condensed statements of income and the related
notes thereto included in the Offering Circular have been
prepared in accordance with the applicable requirements of Rule
11-02 of Regulation S-X promulgated under the Exchange Act, and
have been compiled on the pro forma basis described therein, and
the assumptions used in the preparation thereof were reasonable
at the time made and the adjustments used therein are based upon
good faith estimates and assumptions believed by the Company to
be reasonable at the time made.
SECTION 3.4. ABSENCE OF CERTAIN CHANGES. Except as
disclosed in the SEC Reports, subsequent to the dates as of which
information is given in the Offering Circular, except as set
forth therein, there has been no material adverse change or any
development involving a prospective material adverse change in
the business, properties, operations, condition (financial or
other) or results of operations of the Company and its
Subsidiaries (as defined herein) taken as a whole, whether or not
arising from transactions in the ordinary course of business, and
since the date of the latest balance sheet presented in the Third
Quarter 10-Q, neither the Company nor any of its Subsidiaries has
incurred or undertaken any liabilities or obligations, direct or
contingent, which are material to the Company and its
Subsidiaries taken as a whole, except for (i) the Old Notes, (ii)
liabilities or obligations which are reflected in the Third
Quarter 10-Q or the Offering Circular, (iii) liabilities or
obligations in connection with the Agreement and Plan of Merger,
dated as of October 30, 1995, by and among the Company, Schoolco,
Inc., a Minnesota corporation and a wholly owned subsidiary of
the Company, and Minnesota Educational Computing Corporation
("MECC"), a Minnesota corporation and (iv) the transactions
contemplated hereby and any other agreements entered into between
the Purchaser and the Company, either alone or together with
other parties thereto, as of the date of this Agreement.
SECTION 3.5. AUTHORITY. The Company has all necessary
corporate power and corporate authority to enter into this
Agreement and the other agreements, documents and instruments to
be executed by the Company in furtherance of the transactions
contemplated hereby, including without limitation, the Indenture,
the Notes and the Securities Resale Registration Rights Agreement
between the Company and the Purchaser, a form of which is
attached hereto as Exhibit B (the "Registration Rights
Agreement") (collectively, the "Transaction Documents"), and to
consummate the transactions contemplated hereby and thereby.
SECTION 3.6. NON-CONTRAVENTION. The execution,
delivery, and performance of this Agreement by the Company and
the consummation of the transactions contemplated hereby do not
and will not, (i) except as disclosed in the Offering Circular,
(ii) except for the consent of Fleet Bank of Massachusetts, N.A.
(the "Bank") in connection with the Credit Agreement dated
September 30, 1994 by and between SoftKey Inc. and the Bank, as
amended to date, which consent has been obtained and (iii) except
as to defaults which individually or in the aggregate would not
be material to the Company, (A) conflict with or result in a
breach of any of the terms and provisions of, or constitute a
default (or an event which with notice or lapse of time, or both,
would constitute a default) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any of its Subsidiaries pursuant to
any agreement, instrument, franchise, license or permit to which
the Company or any of its Subsidiaries is a party or by which any
of such corporations or their respective properties or assets may
be bound or (B) violate or conflict with any judgment, decree,
order, statute, rule or regulation of any court or any public,
governmental or regulatory agency or body applicable to the
Company or any of its Subsidiaries or any of their respective
properties or assets. The execution, delivery and performance of
this Agreement by the Company and the consummation of the
transactions contemplated hereby do not and will not violate or
conflict with any provision of the certificate of incorporation
or by-laws of the Company or any of its Subsidiaries, as
currently in effect. No consent, approval, authorization, order,
registration, filing, qualification, license or permit of or with
any court or any governmental agency or body applicable to the
Company or any of its Subsidiaries or any of their respective
properties or assets is required for the execution, delivery and
performance of this Agreement or the consummation of the
transactions contemplated hereby, including the issuance, sale
and delivery of the Notes to be issued, sold and delivered by the
Company hereunder, except such consents, approvals,
authorizations, orders, registrations, filings, qualifications,
licenses and permits as may be required under state securities or
Blue Sky laws in connection with the purchase of the Notes by the
Purchaser.
SECTION 3.7. CAPITALIZATION. The Company had, as of
September 30, 1995, an authorized and outstanding capitalization
as set forth in the Third Quarter 10-Q, and the capital stock of
the Company conforms in all material respects to the description
thereof contained in the Offering Circular and the Company's
Tender Offer Statement on Schedule 14D-1 filed on October 30,
1995 relating to the Company's offer to purchase outstanding
shares of common stock of The Learning Company, a Delaware
corporation ("TLC"), (including all amendments and supplements
thereto, the "Schedule 14D-1").
SECTION 3.8. SUBSIDIARIES. The Company does not own
or control, directly or indirectly, any corporation, association
or other entity other than (x) the subsidiaries listed in Exhibit
21 to the Annual Report on Form 10-K for the Company's most
recent fiscal year ("Exhibit 21"), (y) tewi Verlag GmbH, Future
Vision Holding, Inc., Future Vision Multimedia, Inc., Multimedia
Products Corporation, FVH Asia Pte Ltd. and SuperStudio Ltd. and
(z) subsidiaries not required to be listed on Exhibit 21. The
subsidiaries described in clauses (x) and (y) of the foregoing
sentence, with the exception of (i) SoftKey Software Products of
Florida, Inc., (ii) SS Publish International Inc., (iii) Power Up
UK limited and (iv) Spinnaker Software International Limited, are
hereinafter referred to as the "Subsidiaries." The subsidiaries
identified in clauses (i) through (iv) in the preceding sentence
would not in the aggregate constitute a "significant subsidiary"
within the meaning of Rule 1-02(w) under Regulation S-X
promulgated by the Commission. Each of the Company and its
Subsidiaries has been duly organized and is validly existing as a
corporation in good standing under the laws of its jurisdiction
of incorporation. Each of the Company and its Subsidiaries is
duly qualified to do business and in good standing as a foreign
corporation in each jurisdiction in which the character or
location of its properties (owned, leased or licensed) or the
nature or conduct of its business makes such qualification
necessary, except for those failures to be so qualified or in
good standing which will not in the aggregate have a material
adverse effect on the Company and its Subsidiaries taken as a
whole or result in any material adverse change or any development
involving a material adverse change in the business, properties,
operations, conditions (financial or other) or results of
operations of the Company and its Subsidiaries taken as a whole.
The Company owns all of the outstanding capital stock of each of
its Subsidiaries, other than the non-voting exchangeable shares
of SoftKey Software Products Inc. and qualifying shares of
certain Subsidiaries organized outside the United States, free
and clear of all claims, liens, charges and encumbrances. Each
of the Company and its Subsidiaries has all requisite power and
authority, and all necessary consents, approvals, authorizations,
orders, registrations, qualifications, licenses and permits of
and from all public, regulatory or governmental agencies and
bodies, to own, lease and operate its properties and conduct its
business as now being conducted as described in the Offering
Circular, except where the failure to possess such requisite
power and authority would not have a material adverse effect on
the business, properties, operations, condition (financial or
other), or results of operations of the Company and its
Subsidiaries taken as a whole, and no such consent, approval,
authorization, order, registration, qualification, license or
permit contains a materially burdensome restriction not
adequately disclosed in the Offering Circular.
SECTION 3.9. ACTIONS. Except as described in the SEC
Reports, there is no litigation or governmental proceeding to
which the Company or any of its Subsidiaries is a party or to
which any property of the Company or any of its Subsidiaries is
subject or which is pending or, to the knowledge of the Company,
contemplated against the Company or any of its Subsidiaries which
might reasonably be expected to result in any material adverse
change or any development involving a material adverse change in
the business, properties, operations, condition (financial or
other) or results of operations of the Company and its
Subsidiaries taken as a whole.
SECTION 3.10. INVESTMENT COMPANY ACT. Neither the
Company nor any of its Subsidiaries is (i) an "investment
company" or a company "controlled" by an investment company
within the meaning of the Investment Company Act of 1940, as
amended, (ii) a "holding company" or a "subsidiary company" of a
holding company or an "affiliate" thereof within the meaning of
the Public Utility Holding Company Act of 1935, as amended, or
(iii) subject to regulation under the Federal Power Act, the
Interstate Commerce Act or any federal or state statute or
regulation limiting its ability to incur indebtedness for
borrowed money.
SECTION 3.11. RULE 144A. The Notes and Preferred
Shares are eligible for resale pursuant to Rule 144A and, when
issued, will not be of the same class as securities listed on a
national securities exchange registered under Section 6 of the
Exchange Act or quoted in a U.S. automated inter-dealer quotation
system.
SECTION 3.12. REPORTING. The Company is subject to
Section 13 of the Exchange Act and is in compliance in all
material respects with the provisions of such section.
SECTION 3.13. REGISTRATION AND QUALIFICATION.
Assuming the accuracy of the representations and warranties made
by the Purchaser and set forth in Article IV hereof, it is not
necessary in connection with the offer, sale and delivery of the
Notes to the Purchaser in the manner contemplated by this
Agreement to register the Notes under the Securities Act or to
qualify the Indenture under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act").
SECTION 3.14. NO LIABILITIES. Neither the Company nor
its Subsidiaries has any material liabilities or obligations
(direct or indirect, contingent or absolute, known or unknown,
matured or unmatured) of any nature whatsoever, whether arising
out of contract, tort, statute or otherwise ("Liabilities"),
except (i) as reflected or reserved against in the balance sheet
of the Company included in its annual financial statements for
the year ended December 31, 1994 and not heretofore discharged,
(ii) as specifically disclosed in the SEC Reports or (iii)
Liabilities incurred in the ordinary course of business since
September 30, 1995.
SECTION 3.15. NO DEFAULTS. Except as disclosed in the
SEC Reports, and except as to defaults which individually or in
the aggregate would not be material to the Company, neither the
Company nor any of its Subsidiaries is in violation or default
under any provision of its certificate of incorporation, by-laws
or other organizational documents, or is in breach of or default
with respect to any provision of any agreement, judgment, decree,
order, mortgage, deed of trust, lease, franchise, license,
indenture, permit or other instrument to which it is a party or
by which it or any of its properties are bound; and there does
not exist any state of facts which constitutes an event of
default on the part of the Company or any such Subsidiary as
defined in such documents or which, with notice or lapse of time
or both, would constitute such an event of default.
SECTION 3.16. VIOLATIONS OF LAW. The Company and its
Subsidiaries are in compliance, and have complied in all material
respects, at all times during the past three years, and all
transactions involving the issuance, offer, placement and sale,
pursuant to the terms of the Transaction Documents, of the Notes
comply, in all material respects, with all applicable federal,
state and local statutes, codes, ordinances, rules and
regulations of the United States and all other countries and
subdivisions thereof (the "Laws") to the extent applicable, other
than violations which would not have a material adverse effect on
the Company and its Subsidiaries taken as a whole. Neither the
Company nor any of its Subsidiaries has received notice within
the past three years of any violations of any Laws, which
violations would be material to the Company and its Subsidiaries
taken as a whole. The Company and each of its Subsidiaries have
all material licenses, franchises, permits, certificates and
other approvals or authorizations from all regulatory officials
and bodies that are necessary to the conduct of their respective
businesses and to the ownership or lease of their respective
properties as described or contemplated in the Offering Circular.
SECTION 3.17. ENFORCEABILITY OF AGREEMENT. This
Agreement has been duly and validly authorized, executed and
delivered by the Company and is a valid and binding obligation of
the Company, enforceable against the Company in accordance with
its terms.
SECTION 3.18. THE NOTES. The Notes have been duly and
validly authorized by the Company, and the Notes, when
authenticated by the Trustee and issued, sold and delivered in
accordance with this Agreement and the Indenture, will have been
duly and validly executed, authenticated, issued and delivered
and will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms
and entitled to the benefits provided by the Indenture except as
such enforcement may be subject to or limited by (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now
or hereafter in effect relating to creditors' rights and remedies
generally and (ii) general principles of equity (regardless of
whether such enforcement may be sought in a proceeding in equity
or at law).
SECTION 3.19. THE INDENTURE. The Indenture has been
duly and validly authorized by the Company, and the Indenture
when executed and delivered by the Company and the Trustee, will
constitute a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms,
except as such enforcement may be subject to or limited by (i)
bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors'
rights and remedies generally and (ii) general principles of
equity (regardless of whether such enforcement may be sought in a
proceeding in equity or at law).
SECTION 3.20. THE REGISTRATION RIGHTS AGREEMENT. The
Registration Rights Agreement has been duly and validly
authorized, executed and delivered by the Company. The
Registration Rights Agreement, when executed and delivered by the
Company and the Purchaser, will constitute a valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms, except as such enforcement may be
subject to or limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter
in effect relating to creditors' rights and remedies generally
and (ii) general principles of equity (regardless of whether such
enforcement may be sought in a proceeding in equity or at law).
SECTION 3.21. THE CAPITAL STOCK. (a) All of the
outstanding shares of Common Stock are duly and validly
authorized and issued, fully paid and nonassessable, have been
issued in compliance with all federal and state securities laws,
and were not issued and are not now in violation of or subject to
any preemptive rights. All issued and outstanding shares of
capital stock of each Subsidiary of the Company have been duly
authorized and validly issued and are fully paid and
nonassessable. Except as disclosed in or contemplated by the SEC
Reports or the Offering Circular, neither the Company nor any
Subsidiary has outstanding any options to purchase, or any
preemptive rights or other rights to subscribe for or to
purchase, any securities or obligations convertible into, or any
contracts or commitments to issue or sell, shares of its capital
stock or any such options, rights, convertible securities or
obligations. There are currently no shares of the Company's
preferred stock outstanding.
(b) (i) The Preferred Shares issuable upon exchange of
the Notes have been duly authorized and, when issued in
accordance with the terms of the Notes, will be validly issued,
fully paid and nonassessable. The shares of Common Stock
issuable upon conversion of the Notes or the Preferred Shares
have been duly authorized and, when issued in accordance with the
terms of the Notes and/or Preferred Shares, will be validly
issued, fully paid and nonassessable. No preemptive rights or
other rights to subscribe for or purchase securities exist with
respect to the issuance and sale of the Notes by the Company
pursuant to this Agreement, the issuance of the Preferred Shares
upon exchange of the Notes or the issuance of Common Stock on
conversion of the Notes and/or the Preferred Shares.
(ii) No security holder of the Company has any right
which has not been satisfied or waived to require the Company to
register the sale of any securities owned by such security holder
under the Securities Act in the Shelf Registration Statement (as
defined in the Registration Rights Agreement), except as
contemplated by the Registration Rights Agreement.
(iii) The Preferred Shares issuable upon exchange of
the Notes have been reserved for issuance and no further approval
or authority of the stockholders or the Board of Directors of the
Company under the Delaware General Corporation Law will be
required for such issuance of Preferred Shares upon exchange for
the Notes. The shares of Common Stock issuable on conversion of
the Notes and/or the Preferred Shares at the initial conversion
price have been reserved for issuance, and no further approval or
authority of the stockholders or the Board of Directors of the
Company under the Delaware General Corporation Law will be
required for such issuance of Common Stock.
SECTION 3.22. RANKING OF NOTES. When issued, the
Notes will rank pari passu in order of preference with (i) all of
the Company's other unsecured and unsubordinated indebtedness for
borrowed money and (ii) the Old Notes.
SECTION 3.23. PROPERTIES AND ASSETS. The Company or
the applicable Subsidiary has good and marketable title to all
the properties and assets reflected as owned in the financial
statements hereinabove described (or elsewhere in the Offering
Circular), subject to no lien, mortgage, pledge, charge or
encumbrance of any kind except (i) those, if any, reflected in
such financial statements (or elsewhere in the Offering Circular)
or (ii) those which are not material in amount and do not
adversely affect the use made and proposed to be made of such
property by the Company and its Subsidiaries. The Company or the
applicable Subsidiary holds its leased properties under valid and
binding leases, with such exceptions as are not materially
significant in relation to the business of the Company. Except
as disclosed in the Offering Circular, the Company owns or leases
all such properties as are necessary to its operations as now
conducted.
SECTION 3.24. INTELLECTUAL PROPERTY. Except as
disclosed in or specifically contemplated by the SEC Reports, the
Company and its Subsidiaries have sufficient trademarks, trade
names, patent rights, copyrights, licenses, approvals and
governmental authorizations to conduct their businesses as now
conducted; the expiration of any trademarks, trade names, patent
rights, copyrights, licenses, approvals or governmental
authorizations would not have a material adverse effect on the
condition (financial or otherwise), business or results of
operations of the Company and its Subsidiaries taken as a whole;
and the Company has no knowledge of any material infringement by
it or its Subsidiaries of trademark, trade name, patent,
copyright, licenses, trade secret or other similar rights of
others, and there is no claim being made against the Company or
its Subsidiaries regarding trademark, trade name, patent,
copyright, license, trade secret or other infringement which
would have a material adverse effect on the condition (financial
or otherwise), business or results of operations of the Company
and its Subsidiaries taken as a whole.
SECTION 3.25. TAXES. The Company and its Subsidiaries
have filed all necessary federal, state and foreign income and
franchise tax returns and have paid all taxes shown as due
thereon; and the Company has no knowledge of any tax deficiency
which has been asserted or threatened against the Company or its
Subsidiaries which could materially and adversely affect the
business, operations or properties of the Company and its
Subsidiaries taken as a whole.
SECTION 3.26. INSURANCE. The Company or its
Subsidiaries maintain insurance of the types and in the amounts
generally deemed adequate for its business and that of its
Subsidiaries against theft, damage, destruction, acts of
vandalism and all other risks customarily insured against, all of
which insurance is in full force and effect.
SECTION 3.27. CERTAIN PAYMENTS. To the knowledge of
the Company, neither the Company nor any of its Subsidiaries has
at any time since February 4, 1994 (i) made any unlawful
contribution to any candidate for foreign office, or failed to
disclose fully any contribution in violation of law or (ii) made
any payment to any federal or state governmental officer or
official, or other person charged with similar public or quasi-
public duties, other than payments required or permitted by the
laws of the United States or any jurisdiction thereof.
SECTION 3.28. NO PROHIBITION. No action has been
taken and no law, statute, rule or regulation or order has been
enacted, adopted or issued by any governmental agency or body
which prevents the issuance of the Notes or the Preferred Shares,
and no injunction, restraining order or other order or relief of
any nature by a federal or state court or other tribunal of
competent jurisdiction has been issued with respect to the
Company or any of its Subsidiaries that would prevent the
issuance of the Notes or the Preferred Shares. No action, suit
or proceeding is pending or threatened against or affecting the
Company or any of its Subsidiaries before any court or arbitrator
or any governmental body, agency or official, domestic or
foreign, which, if adversely determined, would materially
interfere with or adversely affect the issuance of the Notes or
the Preferred Shares or in any manner draw into question the
validity of the Transaction Documents, the Notes or the Preferred
Shares; and every request of any securities authority or agency
of any jurisdiction for additional information has been complied
with.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
As an inducement to the Company to enter into this
Agreement and to consummate the transactions contemplated hereby,
the Purchaser hereby represents and warrants to the Company as
follows:
SECTION 4.1. INVESTMENT. The Purchaser is acquiring
the Notes, the Preferred Shares and the shares of Common Stock
issuable upon conversion of the Notes and/or Preferred Shares for
investment for its own account, and not with a view to any
distribution thereof. The Purchaser understands that the Notes,
the Preferred Shares and the shares of Common Stock issuable upon
conversion of the Notes and/or Preferred Shares have not been
registered under the Securities Act by reason of specific
exemptions therefrom which depend upon, among other things, the
bona fide nature of the investment intent and the accuracy of the
Purchaser's representations as expressed herein.
The Purchaser's financial condition and investments are
such that it is in a position to hold the Notes, the Preferred
Shares and the shares of Common Stock issuable upon conversion of
the Notes and/or Preferred Shares for an indefinite period, bear
the economic risks of the investment and to withstand the
complete loss of the investment. The Purchaser has extensive
knowledge and experience in financial and business matters and
has the capability to evaluate the merits and risks of any
investment in the Notes, the Preferred Shares and the shares of
Common Stock issuable upon conversion of the Notes and/or
Preferred Shares. The Purchaser qualifies as an "accredited
investor" as such term is defined in Section 4(6) of the
Securities Act and Regulation D promulgated thereunder.
SECTION 4.2. RULE 144. The Purchaser acknowledges
that the Notes, the Preferred Shares and the shares of Common
Stock issuable upon conversion of the Notes and/or Preferred
Shares must be held indefinitely unless subsequently registered
under the Securities Act or any applicable state securities laws
or unless exemptions from such registrations are available. The
Purchaser is aware of the provisions of Rule 144 promulgated
under the Securities Act which permit limited resale of
securities purchased in a private placement subject to the
satisfaction of certain conditions.
SECTION 4.3. ORGANIZATION OF THE PURCHASER. The
Purchaser is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware.
SECTION 4.4. AUTHORITY OF THE PURCHASER. The
Purchaser has the corporate power and corporate authority to
execute and deliver this Agreement, to consummate the
transactions contemplated hereby and to comply with the terms,
conditions and provisions hereof.
The execution, delivery and performance of this
Agreement by the Purchaser has been duly authorized and approved
by the Purchaser's Board of Directors and does not require any
further authorization or consent of the Purchaser or its
stockholders. This Agreement is the legal, valid and binding
agreement of the Purchaser, enforceable against the Purchaser in
accordance with its terms.
Neither the execution and delivery by the Purchaser of
this Agreement or the consummation by the Purchaser of any of the
transactions contemplated hereby nor compliance by the Purchaser
with or fulfillment by the Purchaser of the terms, conditions and
provisions hereof will:
(a) conflict with, result in a breach of the terms,
conditions or provisions of, or constitute a default, an event of
default or an event creating rights of acceleration, termination
or cancellation or a loss of rights under, the Certificate of
Incorporation or By-laws of the Purchaser or any material
indenture, note, instrument or other agreement or any judgment,
order, award or decree to which the Purchaser is a party or any
of its properties is subject or by which the Purchaser is bound,
or
(b) require the approval, consent, authorization or
act of, or the making by the Purchaser of any declaration, filing
or registration with, any third party or any governmental
authority, except for filings under the Securities Act, the
Exchange Act and the HSR Act.
ARTICLE V
CONDITIONS TO THE OBLIGATIONS OF THE PARTIES
SECTION 5.1. CONDITION TO OBLIGATIONS OF THE
PURCHASER. The obligations of the Purchaser to purchase and pay
for the Notes as provided herein shall be subject to the
condition that the Company shall, concurrently with the Closing,
pay for, or accept for payment, a majority of the outstanding
shares of common stock of TLC.
SECTION 5.2. CONDITION TO OBLIGATIONS OF BOTH PARTIES.
The obligations of each of the Company and the Purchaser to
consummate the transactions contemplated by this Agreement are
subject to the condition that no temporary restraining order,
preliminary or permanent injunction or other order issued by any
court of competent jurisdiction prohibiting or preventing
consummation of the transactions contemplated by this Agreement
shall be in effect.
ARTICLE VI
[INTENTIONALLY OMITTED]
ARTICLE VII
ADDITIONAL COVENANTS
SECTION 7.1. PORTAL; DTC. The Company will use its
reasonable best efforts to cause the Notes and/or the Preferred
Shares to be designated Private Offerings, Resales and Trading
through Automated Linkages ("PORTAL") market securities in
accordance with the rules and regulations adopted by the National
Association of Securities Dealers, Inc., relating to trading in
the PORTAL market. The Company will, if requested by the
Purchaser, use its reasonable efforts in cooperation with the
Purchaser to permit the Notes and/or the Preferred Shares to be
eligible for clearance and settlement through The Depository
Trust Company ("DTC").
SECTION 7.2. REPORTING. The Company will, so long as
the Notes and/or Preferred Shares are outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3)
under the Securities Act, either (i) file reports and other
information with the Commission under Section 13 or 15(d) of the
Exchange Act, or (ii) in the event it is not subject to Section
13 or 15(d) of the Exchange Act, make available to holders of the
Notes and/or Preferred Shares and prospective purchasers of the
Notes and/or Preferred Shares designated by such holders, upon
request of such prospective purchasers, the information required
to be delivered pursuant to Rule 144A(d)(4) under the Securities
Act to permit compliance with Rule 144A in connection with
resales of the Notes and/or Preferred Shares.
SECTION 7.3. PAYMENT OF EXPENSES. Whether or not the
transactions contemplated in this Agreement are consummated or
this Agreement is terminated, the Company hereby agrees to pay
all costs and expenses incident to the performance of the
obligations of the Company hereunder, including those in
connection with (i) the issuance, transfer and delivery of the
Notes and/or Preferred Shares to the Purchaser, including any
transfer or similar taxes payable thereon, (ii) the qualification
of the Notes and/or Preferred Shares under state or foreign
securities or Blue Sky laws, (iii) the cost of printing the Notes
and/or Preferred Shares, (iv) the cost and charges of any
transfer agent, registrar, trustee or fiscal paying agent and (v)
the cost and charges of DTC, Euroclear and CEDEL.
SECTION 7.4. INSPECTION. Prior to the Closing, the
Company will permit the Purchaser and its representatives to
visit and inspect any of the Company's properties, to examine its
books and records and to make copies and to take extracts
therefrom, and to discuss its business affairs and finances with
its officers and key employees, all at such reasonable times as
the Purchaser may request. The Company also agrees to provide
answers to reasonable questions from each subsequent prospective
purchaser of the Notes and/or Preferred Shares concerning the
Company and its Subsidiaries (to the extent that such information
is not available to subsequent prospective purchasers without
unreasonable effort or expense and to the extent the provision
thereof is not prohibited by applicable law).
SECTION 7.5. INDENTURE. The Company covenants and
agrees that it will use its reasonable efforts to cause the
Indenture to be qualified under the Trust Indenture Act at or
prior to the effectiveness of the Shelf Registration Statement
(as defined in the Registration Rights Agreement).
SECTION 7.6. AVAILABILITY OF PREFERRED SHARES AND
COMMON STOCK. The Company shall at all times reserve and keep
available out of its authorized but unissued shares of preferred
stock, for the purpose of effecting the exchange of Notes, the
full number of Preferred Shares then issuable upon exchange of
the Notes. The Company shall at all times reserve and keep
available out of its authorized but unissued Common Stock, for
the purpose of effecting the conversion of the Notes and/or
Preferred Shares, the full number of shares of Common Stock then
issuable upon the conversion of the Notes and/or Preferred
Shares. The Company will, from time to time, in accordance with
the laws of the State of Delaware, increase the authorized amount
of Common Stock and preferred stock if at any time the number of
shares of Common Stock or preferred stock remaining unissued and
available for issuance shall be insufficient to permit conversion
of the Notes and/or Preferred Shares and the exchange of the
Notes.
ARTICLE VIII
RESTRICTIONS ON TRANSFERABILITY OF SECURITIES
SECTION 8.1. RESTRICTIONS ON TRANSFERABILITY. The
Notes, the Preferred Shares and any shares of Common Stock
issuable upon conversion of the Notes and/or Preferred Shares
shall not be transferable except upon the conditions specified in
Section 8.3 or pursuant to the Registration Rights Agreement.
SECTION 8.2. RESTRICTIVE LEGEND. Each certificate
representing (a) the Notes, (b) the Preferred Shares, (c) shares
of the Common Stock issued upon conversion of any Note and/or
Preferred Share, and (d) any other securities issued in respect
of the Notes, the Preferred Shares or Common Stock issued upon
conversion of any Note and/or Preferred Share upon any stock
split, stock dividend, recapitalization, merger, consolidation or
similar event (each of the foregoing securities in (a) through
(d) being referred to herein as "Restricted Securities"), shall
(unless otherwise permitted by the provisions of Section 8.3
below) be stamped or otherwise imprinted with a legend
substantially in the following form (in addition to the legend
required under any applicable state securities laws):
THE [SHARES] [NOTE] REPRESENTED BY THIS
CERTIFICATE [HAVE] [HAS] BEEN ACQUIRED FOR INVESTMENT
AND [HAVE] [HAS] NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR ANY APPLICABLE STATE
SECURITIES LAWS. SUCH [SHARES] [NOTE] MAY NOT BE SOLD
OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATIONS OR
EXEMPTIONS THEREFROM UNDER SAID ACT OR LAWS. COPIES OF
THE AGREEMENT COVERING THE PURCHASE OF [THESE SHARES]
[THIS NOTE] AND RESTRICTING [THEIR] [ITS] TRANSFER MAY
BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE
HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY
OF THE COMPANY.
SECTION 8.3. NOTICE OF PROPOSED TRANSFERS. Prior to
any proposed transfer of any Restricted Securities, unless there
is in effect a registration statement under the Securities Act
covering the proposed transfer, the Purchaser shall give written
notice to the Company of its intention to effect such transfer.
Each such notice shall describe the manner and circumstances of
the proposed transfer in sufficient detail, and shall be
accompanied by either (a) a written opinion of legal counsel (who
shall be reasonably satisfactory to the Company) addressed to the
Company to the effect that the proposed transfer of the
Restricted Securities may be effected without registration under
the Securities Act or (b) a "no action" letter from the
Commission to the effect that the transfer of such securities
without registration will not result in a recommendation by the
staff of the Commission that action be taken with respect
thereto, whereupon, in each case, the Purchaser shall be entitled
to transfer such Restricted Securities in accordance with the
terms of the notice delivered by the Purchaser to the Company.
Unless there is in effect a registration statement under the
Securities Act covering the proposed transfer, each certificate
evidencing the Restricted Securities transferred as herein
provided shall bear the appropriate restrictive legend set forth
in Section 8.2 above, except that such certificate shall not bear
such restrictive legend if, (i) in the opinion of counsel for the
Purchaser, such legend is not required in order to establish
compliance with any provisions of the Securities Act, (ii) a
period of at least three years has elapsed since the later of the
date the Restricted Securities were acquired from the Company or
from an affiliate of the Company, and the Purchaser represents to
the Company that it is not an affiliate of the Company and has
not been an affiliate during the preceding three months and shall
not become an affiliate of the Company without resubmitting the
Restricted Securities for reimposition of the legend, or (iii)
the Restricted Securities have been sold pursuant to Rule 144(k)
and the certificate is accompanied by a representation by the
Purchaser that it is not an affiliate of the Company, has not
been an affiliate during the three-month period prior to the sale
and has held the Restricted Securities for more than three years.
SECTION 8.4. REGISTRATION RIGHTS AGREEMENT.
Concurrently with the execution and delivery of this Agreement,
the Company and the Purchaser are entering into a Registration
Rights Agreement which provides, among other things, for the
registration, on the terms and conditions set forth therein, of
the Restricted Securities.
ARTICLE IX
TERMINATION
Notwithstanding anything contained herein to the
contrary, this Agreement may be terminated at any time prior to
the Closing Date:
(a) By the mutual written consent of the Purchaser and
the Company;
(b) By the Purchaser or the Company if the Closing has
not occurred on or before December 31, 1996 and this Agreement
has not previously been terminated; provided, however, that the
right to terminate the Agreement under this Section 9(b) shall
not be available to any party whose failure to fulfill any
obligation under this Agreement has been the cause of, or
resulted in, the failure of the Closing to occur on or before
such date.
In the event that this Agreement shall be terminated
pursuant to this Article IX, all further obligations of the
parties under this Agreement shall be terminated without further
liability of any party to any other party, provided that nothing
herein shall relieve any party from liability for its willful
breach of this Agreement.
ARTICLE X
MISCELLANEOUS
SECTION 10.1. GOVERNING LAW. This Agreement shall be
governed by and construed in accordance with the laws of the
State of New York, without regard to the conflict of rules
thereof.
SECTION 10.2. SURVIVAL. The representations and
warranties of the Company set forth in Section 3.5, Section 3.18,
Section 3.19, the first sentence of Section 3.20, the first two
sentences of Section 3.21(b)(i), and Section 3.21(b)(iii) shall
survive the Closing for two years, but thereafter shall be of no
further force or effect. All other representations and
warranties contained in this Agreement shall not survive the
Closing.
SECTION 10.3. SUCCESSORS AND ASSIGNS. Except as
otherwise provided herein, the provisions hereof shall inure to
the benefit of, and be binding upon, the successors and permitted
assigns of the parties hereto. No assignment of this Agreement
may be made by either party at any time, whether or not by
operation of law, without the other party's prior written
consent, except that the Purchaser may assign any of its rights
hereunder to an affiliate of the Purchaser without the Company's
consent provided that such affiliate expressly assumes in writing
all of the Purchaser's obligations hereunder.
SECTION 10.4. ENTIRE AGREEMENT; AMENDMENT. This
Agreement and the Transaction Documents constitute the full and
entire understanding and agreement between the parties with
regard to the subjects hereof and thereof. Except as expressly
provided herein, neither this Agreement nor any term hereof may
be amended, waived, discharged or terminated other than by a
written instrument signed by the party against whom enforcement
of any such amendment, waiver, discharge or termination is
sought.
SECTION 10.5. NOTICES, ETC. All notices and other
communications required or permitted hereunder shall be in
writing and shall be mailed by registered or certified mail,
postage prepaid, or otherwise delivered by hand or by messenger,
addressed (a) if to the Purchaser, at 435 North Michigan Avenue,
Chicago, Illinois 60611, Attention: Mr. David D. Hiller, or at
such other address as the Purchaser shall have furnished to the
Company in writing and (b) if to the Company, at One Athenaeum
Street, Cambridge, Massachusetts 02142, Attention: Mr. Neal S.
Winneg, or at such other address as the Company shall have
furnished to the Purchaser in writing. Each such notice or other
communication shall for all purposes of this Agreement be treated
as effective or having been given when delivered if delivered
personally, or, if sent by mail, at the earlier of its receipt or
72 hours after the same has been deposited in a regularly
maintained receptacle for the deposit of the United States mail,
addressed and postage prepaid as aforesaid.
SECTION 10.6. DELAYS OR OMISSIONS. Except as
expressly provided herein, no delay or omission to exercise any
right, power or remedy accruing to the Company or the Purchaser
upon any breach or default of any party under this Agreement,
shall impair any such right, power or remedy of the Company or
the Purchaser nor shall it be construed to be a waiver of any
such breach or default, or an acquiescence therein, or of or in
any similar breach or default thereafter occurring; nor shall any
waiver of any single breach or default be deemed a waiver of any
other breach or default theretofore or thereafter occurring. Any
waiver, permit, consent or approval of any kind or character on
the part of the Company or the Purchaser of any breach or default
under this Agreement, or any waiver on the part of any such party
of any provisions or conditions of this Agreement, must be in
writing and shall be effective only to the extent specifically
set forth in such writing. All remedies, either under this
Agreement or by law or otherwise afforded to the Company or the
Purchaser, shall be cumulative and not alternative.
SECTION 10.7. COUNTERPARTS. This Agreement may be
executed in any number of counterparts, each of which may be
executed by only one of the parties hereto, each of which shall
be enforceable against the party actually executing such
counterpart, and all of which together shall constitute one
instrument.
SECTION 10.8. SEVERABILITY. In the event that any
provision of this Agreement becomes or is declared by a court of
competent jurisdiction to be illegal, unenforceable or void, this
Agreement shall continue in full force and effect without said
provisions; provided that no such severability shall be effective
if it materially changes the economic benefit of this Agreement
to any party.
SECTION 10.9. TITLES AND SUBTITLES. The titles and
subtitles used in this Agreement are used for convenience only
and are not to be considered in construing or interpreting this
Agreement.
SECTION 10.10. NO PUBLIC ANNOUNCEMENT. Neither the
Company nor the Purchaser shall, to the extent practicable,
without consultation of the other, make any press release or
other public announcement concerning the transactions
contemplated by this Agreement except as and to the extent that
any such party shall be obligated to make any such disclosure by
law or by the rules, regulations or policies of any national
securities exchange or association.
IN WITNESS WHEREOF, each of the undersigned has caused
the foregoing Agreement to be executed by one of its duly
authorized officers as of the date first above written.
TRIBUNE COMPANY
By: /s/ David D. Hiller
Name: David D. Hiller
Title: Senior Vice President
SOFTKEY INTERNATIONAL, INC.
By: /s/ Michael J. Perik
Name: Michael J. Perik
Title: Chairman and Chief Executive
Officer
____________________________________________________________________________
INDENTURE dated as of _________________________ between
SOFTKEY INTERNATIONAL INC., a Delaware corporation (hereinafter
sometimes called the "Company", as more fully set forth in Section
1.1), and STATE STREET BANK AND TRUST COMPANY, a Massachusetts
banking corporation (hereinafter sometimes called the "Trustee",
as more fully set forth in Section 1.1).
W I T N E S S E T H
WHEREAS, for its lawful corporate purposes, the Company
has duly authorized the issuance of its 5 1/2% Senior
Convertible/Exchangeable Notes Due 2000 (hereinafter sometimes
called the "Notes"), in an aggregate principal amount not to
exceed $150,000,000 and, to provide the terms and conditions upon
which the Notes are to be authenticated, issued and delivered, the
Company has duly authorized the execution and delivery of this
Indenture; and
WHEREAS, the Notes, the certificate of authentication to
be borne by the Notes, a form of assignment, a form of option to
require repurchase by the Company upon a Change of Control (as
hereinafter defined), a form of conversion notice, a form of
exchange notice, a form of certificate of designation of 5 1/2%
Series C Convertible Preferred Stock for which the Notes are
exchangeable, and a form of certificate of transfer to be borne by
the Notes are to be substantially in the forms hereinafter
provided for; and
WHEREAS, all acts and things necessary to make the
Notes, when executed by the Company and authenticated and
delivered by the Trustee or a duly authorized authenticating
agent, as in this Indenture provided, the valid, binding and legal
obligations of the Company, and to constitute these presents a
valid agreement according to its terms, have been done and
performed, and the execution of this Indenture and the issuance
hereunder of the Notes have in all respects been duly authorized.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon
which the Notes are, and are to be, authenticated, issued and
delivered, and in consideration of the premises and of the
purchase and acceptance of the Notes by the holders thereof, the
Company covenants and agrees with the Trustee for the equal and
proportionate benefit of the respective holders from time to time
of the Notes (except as otherwise provided below), as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. The terms defined in this
Section 1.1 (except as herein otherwise expressly provided or
unless the context otherwise requires) for all purposes of this
Indenture and of any indenture supplemental hereto shall have the
respective meanings specified in this Section 1.1. All other
terms used in this Indenture which are defined in the Trust
Indenture Act (as hereinafter defined) or which are by reference
defined in the Securities Act (as herein defined), except as
herein otherwise expressly provided or unless the context
otherwise requires, shall have the meanings assigned to such terms
in said Trust Indenture Act and in said Securities Act as in force
at the date of the execution of this Indenture. The words
"herein," "hereof," "hereunder" and words of similar import refer
to this Indenture as a whole and not to any particular Article,
Section or other Subdivision. The terms defined in this Article
include the plural as well as the singular.
Accredited Investor: The term "Accredited Investor"
shall have the meaning given it in Rule 501(a) under the
Securities Act.
Acquisition Price: The term "Acquisition Price" means
the volume weighted average of the per share prices paid by a
specified person or group in acquiring Voting Stock.
Affiliate: The term "Affiliate" of any specified person
shall mean an "affiliate" as defined in Rule 144(a) as promulgated
under the Securities Act.
Board of Directors: The term "Board of Directors" shall
mean the Board of Directors of the Company or a committee of such
Board duly authorized to act for it hereunder.
Board Resolution: The term "Board Resolution" means a
copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of
Directors, or a duly authorized committee thereof (to the extent
permitted by applicable law), and to be in full force and effect
on the date of such certification, and delivered to the Trustee.
Business Day: The term "Business Day" shall mean a day,
other than a Saturday, a Sunday or other day on which the banking
institutions in the State of New York, the State of California or
the Commonwealth of Massachusetts are authorized or obligated by
law or executive order to close or a day which is declared a
national or New York, California or Massachusetts state holiday.
Change of Control: The term "Change of Control" means
an event or series of events pursuant to which (i) any "person" or
"group" (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act) acquires beneficial ownership (as determined in
accordance with Rule 13d-3 under the Exchange Act), directly or
indirectly, of more than 50% of the total voting Stock of the
Company at an Acquisition Price less than the conversion price
then in effect with respect to the Notes and (ii) holders of
Common Stock receive consideration which is not all or
substantially all common stock that is (or upon consummation of
or immediately following such event or events will be) listed on a
United States national securities exchange or approved for
quotation on the Nasdaq National Market or any similar United
States system of automated dissemination of quotations of
securities prices; provided, however, that any such person or
group shall not be deemed to be the beneficial owner of, or to
beneficially own, any Voting Stock tendered into a tender offer
until such tendered voting Stock is accepted for purchase under
the tender offer.
Commission: The term "Commission" shall mean the
Securities and Exchange Commission.
Common Stock: The term "Common Stock" shall mean any
stock of any class of the Company which has no preference in
respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of
the Company and which is not subject to redemption by the Company.
Subject to the provisions of Section 15.6, however, shares
issuable on conversion of Notes shall include only shares of the
class designated as common stock of the Company at the date of
this Indenture or shares of any class or classes resulting from
any reclassification or reclassifications thereof and which have
no preference in respect of dividends or of amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company and which are not subject to redemption
by the Company; provided that if at any time there shall be more
than one such resulting class, the shares of each such class then
so issuable shall be substantially in the proportion which the
total number of shares of such class resulting from all such
reclassifications bears to the total number of shares of all such
classes resulting from all such reclassifications.
Company: The term "Company" shall mean SoftKey
International Inc., a Delaware corporation, and subject to the
provisions of Article XII, shall include its successors and
assigns.
Conversion Price: The term "Conversion Price" shall
have the meaning specified in Section 15.4.
Corporate Trust Office of the Trustee: The term
"Corporate Trust office of the Trustee," or other similar term,
shall mean the office of the Trustee at which at any particular
time its corporate trust business shall be principally
administered, which office is, at the date as of which this
Indenture is dated, located at 225 Franklin Street, Boston,
Massachusetts 02110 (Attention: Corporate Trust Department).
Custodian: The term "Custodian" means State Street Bank
and Trust Company, as custodian with respect to the Notes in
global form, or any successor entity thereto.
Default: The term "default" shall mean any event that
is, or after notice or passage of time, or both, would be, an
Event of Default.
Depositary: The term "Depositary" means, with respect
to the Notes issuable or issued in whole or in part in global
form, the person specified in Section 2.5(d) as the Depositary
with respect to the Notes, until a successor shall have been
appointed and become such pursuant to the applicable provisions of
this Indenture, and thereafter, "Depositary" shall mean or include
such successor.
Exchange Act: The term "Exchange Act" means the
Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
Exchange Price: The term "Exchange Price" shall have
the meaning specified in Section 17.4.
Event of Default: The term "Event of Default" shall
mean any event specified in Section 7.1(a), (b), (c), (d) or (e).
Indenture: The term "Indenture" shall mean this
instrument as originally executed or, if amended or supplemented
as herein provided, as so amended or supplemented.
Note or Notes: The terms "Note" or "Notes" shall mean
any Note or Notes, as the case may be, authenticated and delivered
under this Indenture.
Noteholder; holder: The terms "Noteholder" or "holder"
as applied to any Note, or other similar terms (but excluding the
term "beneficial holder"), shall mean any person in whose name at
the time a particular Note is registered on the Note registrar's
books.
Note register: The term "Note register" shall have the
meaning specified in Section 2.5.
Officers' Certificate: The term "Officers'
Certificate," when used with respect to the Company, shall mean a
certificate signed by the President, the Chief Executive officer,
the Chief Financial officer or any Vice President or the Secretary
or any Assistant Secretary of the Company, which is delivered to
the Trustee. Each such certificate shall include the statements
provided for in Section 16.5 if and to the extent required by the
provisions of such Section.
Opinion of Counsel: The term "Opinion of Counsel" shall
mean an opinion in writing signed by legal counsel, who may be an
employee of or counsel to the Company or other counsel acceptable
to the Trustee, which is delivered to the Trustee. Each such
opinion shall include the statements provided for in Section 16.5
if and to the extent required by the provisions of such Section.
Outstanding: The term "outstanding," when used with
reference to Notes, shall, subject to the provisions of Section
9.4, mean, as of any particular time, all Notes authenticated and
delivered by the Trustee under this Indenture, except
(a) Notes theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Notes, or portions thereof, for which monies in the
necessary amount shall have been deposited in trust with the
Trustee for payment or redemption; provided that if such Notes are
to be redeemed prior to the maturity thereof, notice of such
redemption shall have been given as in Article III provided, or
provision satisfactory to the Trustee shall have been made for
giving such notice;
(c) Notes in lieu of or in substitution for which other
Notes shall have been authenticated and delivered pursuant to the
terms of Section 2.6 unless proof satisfactory to the Trustee is
presented that any such Notes are held by bona fide holders in due
course; and
(d) Notes converted into Common Stock pursuant to
Article XV or exchanged for Preferred Stock pursuant to
Article XVII and Notes not deemed outstanding pursuant to Section
3.2.
Person: The term "person" shall mean a corporation, an
association, a partnership, an individual, a joint venture, a
joint stock company, a trust, an unincorporated organization or a
government or an agency or a political subdivision thereof.
PORTAL Market: The term "PORTAL Market" shall mean the
Private Offerings, Resales and Trading through Automated Linkages
market operated by the National Association of Securities Dealers,
Inc. or any successor thereto.
Predecessor Note: The term "Predecessor Note" of any
particular Note shall mean every previous Note evidencing all or a
portion of the same debt as that evidenced by such particular
Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 2.6 in lieu of a lost,
destroyed or stolen Note shall be deemed to evidence the same debt
as the lost, destroyed or stolen Note.
Preferred Stock: The term "Preferred Stock" shall mean
the 5 1/2% Series C Convertible Preferred Stock whose terms are
initially set forth in the form of the Certificate of Designation
attached hereto as Exhibit C, for which the Notes are exchangeable
in accordance with Article XVII.
QIB: The term "QIB" shall mean a "qualified
institutional buyer" as defined in Rule 144A (as hereinafter
defined).
Responsible Officer: The term "Responsible Officer,"
when used with respect to the Trustee, shall mean an officer of
the Trustee assigned and duly authorized by the Trustee to
administer its corporate trust matters.
Restricted Securities: The term "Restricted Securities"
has the meaning specified in Section 2.5(d).
Rule 144A: The term "Rule 144A" shall mean Rule 144A as
promulgated under the Securities Act.
Securities Act: The term "Securities Act" means the
Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
Subsidiary: The term "subsidiary" of any specified
person shall mean (i) a corporation a majority of whose capital
stock with voting power under ordinary circumstances, to elect
directors is at the time directly or indirectly owned by such
person or (ii) any other person (other than a corporation) in
which such person or such person and a subsidiary or subsidiaries
of such person or a subsidiary or subsidiaries of such person
directly or indirectly, at the date of determination thereof, has
at least majority ownership.
Successor Company: The term "Successor Company" shall
have the meaning specified in Section 12.1.
Trust Indenture Act: The term "Trust Indenture Act"
shall mean the Trust Indenture Act of 1939, as amended, as it was
in force at the date of execution of this Indenture, except as
provided in Sections 11.3, 15.6 and 17.6; provided, however, that
in the event said Trust Indenture Act of 1939 is amended after the
date hereof, the term "Trust Indenture Act" shall mean, to the
extent required by such amendment, said Trust Indenture Act of
1939 as so amended.
Trustee: The term "Trustee" shall mean State Street
Bank and Trust Company, its successors and any corporation
resulting from or surviving any consolidation or merger to which
it or its successors may be a party and any successor trustee at
the time serving as successor trustee hereunder.
U.S. Government Obligations: The term "U.S. Government
Obligations" means securities that are (i) direct obligations of
the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person
controlled or supervised by, and acting as an agency or
instrumentality of, the United States of America the timely
payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in
either case, are not callable or redeemable at the option of the
issuer hereof, and shall also include a Depositary receipt issued
by a bank (as defined in Section 3(a)(2) of the Securities Act of
1933, as amended) as custodian with respect to any such U.S.
Government Obligation or a specific payment of principal or
interest on any such U.S. Government Obligation held by such
custodian for the account of the holder of such Depositary
receipt; provided that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to
the holder of such Depositary receipt from any amount received by
such custodian in respect of the U.S. Government Obligation or the
specific payment of principal of or interest on the U.S.
Government Obligation evidenced by such Depositary receipt.
Voting Stock: The term "Voting Stock" means stock of
the class or classes pursuant to which the holders thereof have
the general voting power under ordinary circumstances to elect at
least a majority of the board of directors, managers or trustees
of a corporation (irrespective of whether or not at the time stock
of any other class or classes shall have or might have voting
power by reason of the happening of any contingency).
The definitions of certain other terms are as specified
in Section 3.5 and Articles XV and XVII.
ARTICLE II
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION
AND EXCHANGE OF NOTES
Section 2.1 Designation, Amount and Issue of Notes. The
Notes shall be designated as "5 1/2% Senior Convertible/Exchange-
able Notes Due 2000." Notes not to exceed the aggregate principal
amount of $150,000,000 upon the execution of this Indenture, or
from time to time thereafter, may be executed by the Company and
delivered to the Trustee for authentication, and the Trustee shall
thereupon authenticate and deliver said Notes upon the written
order of the Company, signed by its (a) Chief Executive Officer or
President, and (b) Chief Financial Officer or Secretary or any
Assistant Secretary, without any further action by the Company
hereunder.
Section 2.2 Form of Notes. The Notes in definitive form
and the Trustee's certificate of authentication to be borne by
such Notes shall be substantially in the form set forth in Exhibit
A, which is incorporated in and made a part of this Indenture.
The Notes may be issued in global form, substantially in the form
of Exhibit B, which is incorporated in and made a part of this
Indenture.
Any of the Notes may have such letters, numbers or other
marks of identification and such notations, legends and
endorsements as the officers executing the same may approve
(execution thereof to be conclusive evidence of such approval) and
as are not inconsistent with the provisions of this Indenture, or
as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of
any stock exchange on which the Notes may be listed, or to conform
to usage. Any Note in global form shall represent such of the
outstanding Notes as shall be specified therein and shall provide
that it shall represent the aggregate amount of outstanding Notes
from time to time endorsed thereon and that the aggregate amount
of outstanding Notes represented thereby may from time to time be
increased or reduced to reflect transfers or exchanges permitted
hereby. Any endorsement of a Note in global form to reflect the
amount of any increase or decrease in the amount of outstanding
Notes represented thereby shall be made by the Trustee or the
Custodian, at the direction of the Trustee, in such manner and
upon instructions given by the holder of such Notes in accordance
with the Indenture. Payment of principal of and interest and
premium, if any, on any Note in global form shall be made to the
holder of such Note.
The terms and provisions contained in the forms of Notes
attached as Exhibits A and B hereto shall constitute, and are
hereby expressly made, a part of this Indenture and to the extent
applicable, the Company and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.
Section 2.3 Date and Denomination of Notes; Payments of
Interest. The Notes shall be issuable in registered form without
coupons in denominations of $1,000 principal amount and integral
multiples thereof. Every Note shall be dated the date of its
authentication, shall bear interest from the applicable date and
shall be payable semiannually on each May 1 and November 1,
commencing May 1, 1996, as specified on the faces of the forms of
Notes, attached as Exhibits A and B hereto.
The person in whose name any Note (or its Predecessor
Note) is registered at the close of business on any record date
with respect to any interest payment date (including any Note that
is converted after the record date and on or before the interest
payment date) shall be entitled to receive the interest payable on
such interest payment date notwithstanding the cancellation of
such Note upon any transfer, exchange or conversion subsequent to
the record date and prior to such interest payment date. Interest
may, at the option of the Company, be paid by check mailed to the
address of such person on the registry kept for such purposes;
provided that, with respect to any holder of Notes with an
aggregate principal amount equal to or in excess of $5,000,000, at
the request of such holder in writing to the Trustee on or before
the record date preceding any interest payment date, interest on
such holder's Notes shall be paid by wire transfer in immediately
available funds. The term "record date" with respect to any
interest payment date shall mean the April 15 or October 15
preceding said May 1 or November 1.
Interest on the Notes shall be computed on the basis of
a year of twelve 30-day months.
Any interest on any Note which is payable, but is not
punctually paid or duly provided for, on any said May 1 or
November 1 (herein called "Defaulted Interest") shall forthwith
cease to be payable to the Noteholder on the relevant record date
by virtue of his having been such Noteholder; and such Defaulted
Interest shall be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Notes (or
their respective Predecessor Notes) are registered at the close of
business on a special record date for the payment of such
Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest to be paid on each Note and the date of the
payment (which shall be not less than 25 days after the receipt by
the Trustee of such notice, unless the Trustee shall consent to an
earlier date), and at the same time, the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount
to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to
the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon, the
Trustee shall fix a special record date for the payment of such
Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the payment and not less
than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company
of such special record date and, in the name and at the expense of
the Company, shall cause notice of the payment of such Defaulted
Interest and the special record date therefor to be mailed, first-
class postage prepaid, to each Noteholder at his address as it
appears in the Note register, not less than 10 days prior to such
special record date. Notice of the proposed payment of such
Defaulted Interest and the special record date therefor having
been so mailed, such Defaulted Interest shall be paid to the
Persons in whose names the Notes (or their respective Predecessor
Notes) were registered at the close of business on such special
record date and shall no longer be payable pursuant to the
following clause (2).
(2) The Company may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Notes may be
listed, and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
Section 2.4 Execution of Notes. The Notes shall be
signed in the name and on behalf of the Company by the facsimile
signature of its Chief Executive Officer, President or its Chief
Financial Officer and attested by the facsimile signature of its
Secretary or any of its Assistant Secretaries (which may be
printed, engraved or otherwise reproduced thereon, by facsimile or
otherwise). Only such Notes as shall bear thereon a certificate
of authentication substantially in the form set forth on the forms
of Notes attached as Exhibits A and B hereto, manually executed by
the Trustee (or an authenticating agent appointed by the Trustee
as provided by Section 16.11), shall be entitled to the benefits
of this Indenture or be valid or obligatory for any purpose. Such
certificate by the Trustee (or such an authenticating agent) upon
any Note executed by the Company shall be conclusive evidence that
the Note so authenticated has been duly authenticated and
delivered hereunder and that the holder is entitled to the
benefits of this Indenture.
In case any officer of the Company who shall have signed
any of the Notes shall cease to be such officer before the Notes
so signed shall have been authenticated and delivered by the
Trustee, or disposed of by the Company, such Notes nevertheless
may be authenticated and delivered or disposed of as though the
person who signed such Notes had not ceased to be such officer of
the Company; and any Note may be signed on behalf of the Company
by such persons as, at the actual date of the execution of such
Note, shall be the proper officers of the Company, although at the
date of the execution of this Indenture any such person was not
such an officer.
Section 2.5 Exchange and Registration of Transfer of
Notes; Restrictions on Transfer; Depositary.
(a) The Company shall cause to be kept at the Corporate
Trust Office of the Trustee a register (the register maintained in
such office and in any other office or agency of the Company
designated pursuant to Section 5.2 being herein sometimes
collectively referred to as the "Note register") in which, subject
to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Notes and of transfers of
Notes. Such register shall be in written form or in any form
capable of being converted into written form within a reasonable
period of time. The Trustee is hereby appointed "Note registrar"
for the purpose of registering Notes and transfers of Notes as
herein provided. The Company may appoint one or more co-
registrars.
Upon surrender for registration of transfer of any Note
to the Note registrar or any co-registrar and satisfaction of the
requirements for such transfer set forth in this Section 2.5, the
Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees,
one or more new Notes of any authorized denominations and of a
like aggregate principal amount and bearing such restrictive
legends as may be required by Section 2.5(d).
Notes may be exchanged for other Notes of any authorized
denominations and of a like aggregate principal amount, upon
surrender of the Notes to be exchanged at any such office or
agency. Whenever any Notes are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and
deliver, the Notes which the Noteholder making the exchange is
entitled to receive.
All Notes presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the
Trustee, the Note registrar or any co-registrar) be duly endorsed,
or be accompanied by a written instrument of transfer in form
satisfactory to the Company, and the Note shall be duly executed
by the Noteholder thereof or his attorney duly authorized in
writing.
No service charge shall be charged to the Noteholder for
any exchange or registration of transfer of Notes, but the Company
may require payment of a sum sufficient to cover any tax,
assessments or other governmental charges that may be imposed in
connection therewith.
None of the Company, the Trustee, the Note registrar or
any co-registrar shall be required to exchange or register a
transfer of (a) any Notes for a period of 15 days next preceding
any selection of Notes to be redeemed or (b) any Notes called for
redemption or, if a portion of any Note is selected or called for
redemption, such portion thereof selected or called for redemption
or (c) any Notes surrendered for conversion or exchange in
accordance with Articles XV or XVII or, if a portion of any Note
is surrendered for conversion or such exchange, such portion
thereof surrendered for conversion or exchange or (d) any Notes
surrendered for redemption pursuant to Section 3.5 or, if a
portion of any Note is surrendered for redemption pursuant to
Section 3.5, such portion thereof surrendered for redemption
pursuant to Section 3.5.
All Notes issued upon any transfer or exchange of Notes
shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture as
the Notes surrendered upon such registration of transfer or
exchange.
(b) So long as the Notes are eligible for book-entry
settlement with the Depositary, or unless otherwise required by
law, all Notes to be traded on the PORTAL Market shall be
represented by a Note in global form registered in the name of the
Depositary or the nominee of the Depositary. The transfer and
exchange of beneficial interests in such Note in global form,
which does not involve the issuance of a definitive Note, shall be
effected through the Depositary (but not the Trustee or the
Custodian) in accordance with this Indenture (including the
restrictions on transfer set forth herein) and the procedures of
the Depositary therefor. Neither the Trustee nor the Custodian
(in such respective capacities) will have any responsibility for
the transfer and exchange of beneficial interests in such Note in
global form that does not involve the issuance of a definitive
Note.
At any time at the request of the beneficial holder of
an interest in a Note in global form, such beneficial holder shall
be entitled to obtain a definitive Note upon written request to
the Trustee and the Custodian in accordance with the standing
instructions and procedures existing between the Depositary and
the Custodian for the issuance thereof. Upon receipt of any such
request, the Trustee or the Custodian, at the direction of the
Trustee, will cause, in accordance with the standing instructions
and procedures existing between the Depositary and the Custodian,
the aggregate principal amount of the Note in global form to be
reduced and, following such reduction, the Company will execute
and the Trustee will authenticate and deliver to such beneficial
holder (or its nominee) a Note or Notes in the appropriate
aggregate principal amount in the name of such beneficial holder
(or its nominee) and bearing such restrictive legends as may be
required by this Indenture.
Any transfer of a beneficial interest in a Note in
global form which cannot be effected through book-entry settlement
must be effected by the delivery to the transferee (or its
nominee) of a definitive Note or Notes registered in the name of
the transferee (or its nominee) on the books maintained by the
Trustee. With respect to any such transfer, the Trustee or the
Custodian, at the direction of the Trustee, will cause, in
accordance with the standing instructions and procedures existing
between the Depositary and the Custodian, the aggregate principal
amount of the Note in global form to be reduced and, following
such reduction, the Company will execute and the Trustee will
authenticate and deliver to the transferee (or such transferee's
nominee, as the case may be), a Note or Notes in the appropriate
aggregate principal amount in the name of such transferee (or its
nominee) and bearing such restrictive legends as may be required
by this Indenture. In connection with any such transfer, the
Trustee or the Custodian, at the direction of the Trustee, may
request such representations and agreements relating to the
restrictions on transfer of such Note or Notes from such
transferee (or such transferee's nominee) as the Trustee (or the
Custodian) may reasonably require.
(c) So long as the Notes are eligible for book-entry
settlement, or unless otherwise required by law, upon any transfer
of a definitive Note to a QIB in accordance with Rule 144A, unless
otherwise requested by the transferor, and upon receipt of the
definitive Note or Notes being so transferred, together with a
certification from the transferor that the transferee is a QIB (or
other evidence satisfactory to the Trustee), the Trustee shall
make or direct the Custodian to make, an endorsement on the Note
in global form to reflect an increase in the aggregate principal
amount of the Notes represented by the Note in global form, the
Trustee shall cancel such definitive Note or Notes and cause, or
direct the Custodian to cause, in accordance with the standing
instructions and procedures existing between the Depositary and
the Custodian, the aggregate principal amount of Notes represented
by the Note in global form to be increased accordingly.
Any Note in global form may be endorsed with or have
incorporated in the text thereof such legends or recitals or
changes not inconsistent with the provisions of this Indenture as
may be required by the Custodian, the Depositary or by the
National Association of Securities Dealers, Inc. in order for the
Notes to be tradeable on the PORTAL Market or as may be required
for the Notes to be tradeable on any other market developed for
trading of securities pursuant to Rule 144A or required to comply
with any applicable law or any regulation thereunder or with the
rules and regulations of any securities exchange upon which the
Notes may be listed or traded or to conform with any usage with
respect thereto, or to indicate any special limitations or
restrictions to which any particular Notes are subject.
(d) Every Note that bears or is required under this
Section 2.5(d) to bear the legend set forth in this Section 2.5(d)
(together with Preferred Stock issued upon exchange for all or a
portion of such Note or any Common Stock issued upon conversion of
the Notes and required to bear the legend set forth in Section
2.5(e), collectively, the "Restricted Securities") shall be
subject to the restrictions on transfer set forth in this Section
2.5(d), unless such restrictions on transfer shall have been
waived by the written consent of the Company or removed in
accordance with the provisions of Section 2.5(f), and the holder
of each such Restricted Security, by such holder's acceptance
thereof, agrees to be bound by such restrictions on transfer. As
used in this Section 2.5(d), the term "transfer" encompasses any
sale, pledge, transfer or other disposition of any Restricted
Security.
Until three years after the later of the original
issuance date of any Note and the last date on which the Company
or an Affiliate of the Company was the owner of such Note, any
certificate evidencing such Note (and all securities issued in
exchange therefor or substitution thereof, other than Preferred
Stock, if any, issued in exchange therefor or Common Stock, if
any, issued upon conversion thereof, which shall bear the legend
set forth in Section 2.5(e), if applicable) shall bear a legend in
substantially the following form, unless otherwise agreed by the
Company (with notice thereof to the Trustee):
THE NOTE EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAWS, AND MAY
NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO,
OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS
SET FORTH IN THE FOLLOWING SENTENCE. BY ACQUISITION
HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1),
(2), (3) OR (7) UNDER THE SECURITIES ACT)
("INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A
U.S. PERSON AND IS ACQUIRING THE NOTE EVIDENCED HEREBY
IN AN OFFSHORE TRANSACTION; (2) AGREES THAT IT WILL NOT
PRIOR TO THE DATE THAT IS THREE YEARS AFTER THE LATER OF
THE ORIGINAL ISSUANCE OF THE NOTE EVIDENCED HEREBY AND
THE LAST DATE ON WHICH SOFTKEY INTERNATIONAL INC. (THE
"COMPANY") OR ANY "AFFILIATE" (AS DEFINED IN RULE 144
UNDER THE SECURITIES ACT) OF THE COMPANY WAS THE OWNER
OF THE NOTE (THE "RESTRICTION TERMINATION DATE") RESELL
OR OTHERWISE TRANSFER THE NOTE EVIDENCED HEREBY OR THE
PREFERRED STOCK ISSUED UPON EXCHANGE OF SUCH NOTE OR THE
COMMON STOCK ISSUABLE UPON CONVERSION OF SUCH NOTE
EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B)
TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (C) TO AN
INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH
TRANSFER, FURNISHES TO STATE STREET BANK AND TRUST
COMPANY, AS TRUSTEE, A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THE NOTE EVIDENCED HEREBY
(THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH
TRUSTEE), (D) OUTSIDE THE UNITED STATES IN COMPLIANCE
WITH RULE 904 UNDER THE SECURITIES ACT OR (E) PURSUANT
TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144
UNDER THE SECURITIES ACT (IF AVAILABLE); AND (3) AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE NOTE
EVIDENCED HEREBY IS TRANSFERRED A NOTICE SUBSTANTIALLY
TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY
TRANSFER OF THE NOTE EVIDENCED HEREBY BEFORE THE
RESTRICTION TERMINATION DATE, THE HOLDER MUST CHECK THE
APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING
TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS
CERTIFICATE TO STATE STREET BANK AND TRUST COMPANY, AS
TRUSTEE. IF THE PROPOSED TRANSFER IS PURSUANT TO CLAUSE
(C), (D) OR (E) ABOVE, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO STATE STREET BANK AND TRUST
COMPANY, AS TRUSTEE, SUCH CERTIFICATIONS, LEGAL OPINIONS
OR OTHER INFORMATION AS THE COMPANY MAY REASONABLY
REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE
RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S.
PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S
UNDER THE SECURITIES ACT.
Any Note (or security issued in exchange or substitution
therefor) as to which such restrictions on transfer shall have
expired in accordance with their terms may, upon satisfaction of
the requirements of Section 2.5(f) and surrender of such Note for
exchange to the Note registrar in accordance with the provisions
of this Section 2.5, be exchanged for a new Note or Notes, of like
tenor and aggregate principal amount, which shall not bear the
restrictive legend required by this Section 2.5(d).
Notwithstanding any other provisions of this Indenture
(other than the provisions set forth in this Section 2.5(d)), a
Note in global form may not be transferred as a whole except by
the Depositary to a nominee of the Depositary or by a nominee of
the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary.
The Depositary shall be a clearing agency registered
under the Exchange Act. The Company initially appoints The
Depositary Trust Company to act as Depositary with respect to the
Notes in global form. Initially, the global Note shall be issued
to the Depositary, registered in the name of Cede & Co., as the
nominee of the Depositary, and deposited with the Trustee as
Custodian for Cede & Co.
If at any time the Depositary for the Note in global
form notifies the Company that it is unwilling or unable to
continue as Depositary for such Note, the Company may appoint a
successor Depositary with respect to such Note. If a successor
Depositary for the Note is not appointed by the Company within 90
days after the Company receives such notice, the Company will
execute, and the Trustee, upon receipt of an Officers' Certificate
for the authentication and delivery of Notes, will authenticate
and deliver, Notes in definitive form, in an aggregate principal
amount equal to the principal amount of the Note in global form,
in exchange for such Note in global form.
Definitive Notes issued in exchange for all or a part of
a Note in global form pursuant to this Section 2.5(d) shall be
registered in such names and in such authorized denominations as
the Depositary, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee.
Upon execution and authentication, the Trustee shall deliver such
definitive Notes to the persons in whose names such definitive
Notes are so registered.
At such time as all interests in a Note in global form
have been redeemed, converted, repurchased or canceled, such Note
in global form shall be, upon receipt thereof, canceled by the
Trustee in accordance with standing procedures and instructions
existing between the Depositary and the Custodian. At any time
prior to such cancellation, if any interest in a global Note is
exchanged for definitive Notes, redeemed, converted, canceled or
transferred to a transferee who receives definitive Notes therefor
or any definitive Note is exchanged or transferred for part of a
Note in global form, the principal amount of such Note in global
form shall, in accordance with the standing procedures and
instructions existing between the Depositary and the Custodian, be
reduced or increased, as the case may be, and an endorsement shall
be made on such Note in global form by the Trustee or the
Custodian, at the direction of the Trustee, to reflect such
reduction or increase.
(e) Until three years after the later of the original
issuance date of any Note and the last date on which the Company
or an Affiliate of the Company was the owner of such Note, any
stock certificate representing Preferred Stock issued upon
exchange of such Note or Common Stock issued upon conversion of
such Note shall bear a legend in substantially the following form,
including the bracketed material as appropriate, unless otherwise
agreed by the Company (with written notice thereof to the Trustee
and any transfer agent for the Common Stock):
THE [COMMON][PREFERRED] STOCK EVIDENCED HEREBY HAS NOT
BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD WITHIN
THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. THE HOLDER HEREOF AGREES THAT PRIOR TO THE
DATE THAT IS THREE YEARS AFTER THE LATER OF THE ORIGINAL
ISSUANCE OF THE NOTE UPON THE [CONVERSION OF WHICH THE
COMMON STOCK] [EXCHANGE FOR WHICH THE PREFERRED STOCK]
EVIDENCED HEREBY WAS ISSUED AND THE LAST DATE ON WHICH
SOFTKEY INTERNATIONAL INC. (THE "COMPANY") OR ANY
"AFFILIATE" (AS DEFINED IN RULE 144 OF THE SECURITIES
ACT) OF THE COMPANY WAS THE OWNER OF THE NOTE UPON THE
[CONVERSION OF] [EXCHANGE FOR] WHICH THE [COMMON
STOCK][PREFERRED STOCK] EVIDENCED HEREBY WAS ISSUED (THE
"RESTRICTION TERMINATION DATE"), (1) IT WILL NOT RESELL
OR OTHERWISE TRANSFER THE [COMMON STOCK] [PREFERRED
STOCK] EVIDENCED HEREBY EXCEPT (A) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, (B) TO A "QUALIFIED INSTITUTIONAL
BUYER" IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (C) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT) THAT PRIOR TO SUCH TRANSFER, FURNISHES
TO THE FIRST NATIONAL BANK OF BOSTON, AS TRANSFER AGENT,
A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF
THE [COMMON STOCK] [PREFERRED STOCK] EVIDENCED HEREBY
(THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH
TRANSFER AGENT), (D) OUTSIDE THE UNITED STATES IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (E)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR (F)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT; (2) PRIOR
TO ANY SUCH TRANSFER PURSUANT TO CLAUSE (C), (D) OR (E)
ABOVE, IT WILL FURNISH TO THE FIRST NATIONAL BANK OF
BOSTON, AS TRANSFER AGENT, SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS THE COMPANY MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS
BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT; AND (3) IT WILL
DELIVER TO EACH PERSON TO WHOM THE [COMMON
STOCK][PREFERRED STOCK] EVIDENCED HEREBY IS TRANSFERRED
A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
THIS LEGEND WILL BE REMOVED UPON THE RESTRICTION
TERMINATION DATE. AS USED HEREIN, THE TERMS "UNITED
STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO
THEM BY REGULATION S UNDER THE SECURITIES ACT.
Any such Preferred Stock or Common Stock as to which
such restrictions on transfer shall have expired in accordance
with their terms may, upon satisfaction of the requirements of
Section 2.5(f) and surrender of the certificates representing such
shares of Preferred Stock or Common Stock for exchange in
accordance with the procedures of the transfer agent for the
Common Stock or the Preferred Stock, as the case may be, be
exchanged for a new certificate or certificates for a like
aggregate number of shares of Preferred Stock or Common Stock, as
the case may be, which shall not bear the restrictive legend
required by this Section 2.5(e).
(f) Upon any sale or transfer of any Restricted
Security (including any interest in a Note in global form) (i)
that is effected pursuant to an effective registration statement
under the Securities Act, (ii) in the case of the Common Stock and
Preferred Stock only, that is effected pursuant to Rule 144 as
promulgated under the Securities Act or (iii) in connection with
which the Trustee (or transfer agent for the Common Stock, in the
case of shares of Common Stock of the Company or any transfer
agent for the Preferred Stock in the case of shares of Preferred
Stock) receives certificates and other information (including an
Opinion of Counsel, if requested) reasonably acceptable to the
Company and the Trustee (or such transfer agent, as the case may
be) to the effect that such security will no longer be subject to
the resale restrictions under federal and state securities laws,
then (A) in the case of a Restricted Security in definitive form,
the Note registrar or co-registrar (or transfer agent, in the case
of Common stock of the Company or any transfer agent for the
Preferred Stock in the case of shares of Preferred Stock) shall
permit the holder thereof to exchange such Restricted Security for
a security that does not bear the legends set forth in Section
2.5(d) or 2.5(e), as applicable, and shall rescind any such
restrictions on transfer and (B) in the case of Restricted
Securities represented by a Note in global form, such Note shall
no longer be subject to the restrictions contained in the legend
set forth in Section 2.5(d) (but still subject to the other
provisions hereof). In addition, any Note (or security issued in
exchange or substitution therefor) or shares of Preferred Stock
issued upon exchange of any Note or shares of Common Stock issued
upon conversion of any Note, in any case, as to which the
restrictions on transfer described in the legends set forth in
Section 2.5(d) and 2.5(e), respectively, have expired by their
terms, may, upon surrender thereof (in accordance with the terms
of this Indenture in the case of Notes) together with such
certifications and other information (including an Opinion of
Counsel having substantial experience in practice under the
Securities Act and otherwise reasonably acceptable to the Company,
addressed to the Company and the Trustee and in a form acceptable
to the Company, to the effect that the transfer of such Restricted
Security has been made in compliance with Rule 144 or such
successor provision) acceptable to the Company and the Trustee (or
any transfer agent, as the case may be) as either of them may
reasonably require, be exchanged for a new Note or Notes of like
tenor and aggregate principal amount (in the case of Notes), or a
new certificate or certificates for a like aggregate number of
shares of Preferred Stock (in the case of Preferred Stock) or
Common Stock (in the case of Common Stock), or a new certificate
or other instrument of like tenor and amount (in the case of
securities issued in exchange or substitution for Notes), which
shall not bear the restrictive legends set forth in Sections
2.5(d) and 2.5(e).
Section 2.6 Mutilated, Destroyed, Lost or Stolen
Notes. In case any Note shall become mutilated or be destroyed,
lost or stolen, the Company in its discretion may execute, and
upon its request, the Trustee or an authenticating agent appointed
by the Trustee shall authenticate and deliver, a new Note, bearing
a number not contemporaneously outstanding, in exchange and
substitution for the mutilated Note, or in lieu of and in
substitution for the Note so destroyed, lost or stolen. The
Company may charge such applicant for the expenses of the Company
in replacing a Note. In every case the applicant for a
substituted Note shall furnish to the Company, to the Trustee and,
if applicable, to such authenticating agent such security or
indemnity as may be required by them to save each of them harmless
from any loss, liability, cost or expense caused by or connected
with such substitution, and in every case of destruction, loss or
theft, the applicant shall also furnish to the Company, to the
Trustee and, if applicable, to such authenticating agent evidence
to their satisfaction of the destruction, loss or theft of such
Note and of the ownership thereof.
The Trustee or such authenticating agent may
authenticate any such substituted Note and deliver the same upon
the receipt of such security or indemnity as the Trustee, the
Company and, if applicable, such authenticating agent may require.
Upon the issuance of any substituted Note, the Company may require
the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and
any other expenses connected therewith. In case any Note which
has matured or is about to mature or has been called for
redemption or is about to be converted into Common Stock shall
become mutilated or be destroyed, lost or stolen, the Company may,
instead of issuing a substitute Note, pay or authorize the payment
of or convert or authorize the conversion of the same (without
surrender thereof, except in the case of a mutilated Note), as the
case may be, if the applicant for such payment or conversion shall
furnish to the Company, to the Trustee and, if applicable, to such
authenticating agent such security or indemnity as may be required
by them to save each of them harmless from any loss, liability,
cost or expense caused by or connected with such substitution, and
in case of destruction, loss or theft, evidence satisfactory to
the Company, the Trustee and, if applicable, any paying agent or
conversion agent of the destruction, loss or theft of such Note
and of the ownership thereof.
Every substitute Note issued pursuant to the provisions
of this Section 2.6 in lieu of any Note which is destroyed, lost
or stolen shall constitute an additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Note
shall be enforceable by anyone, and shall be entitled to all the
benefits (but shall be subject to all the limitations set forth
in) this Indenture equally and proportionately with any and all
other Notes duly issued hereunder. To the extent permitted by
law, all Notes shall be held and owned upon the express condition
that the foregoing provisions are exclusive with respect to the
replacement or payment or conversion of mutilated, destroyed, lost
or stolen Notes and shall preclude any and all other rights or
remedies notwithstanding any law or statute existing or hereafter
enacted to the contrary with respect to the replacement or payment
or conversion of negotiable instruments or other securities
without their surrender.
Section 2.7 Temporary Notes. Pending the preparation
of definitive Notes, the Company may execute and the Trustee or an
authenticating agent appointed by the Trustee shall, upon written
request of the Company, authenticate and deliver temporary Notes
(printed or lithographed). Temporary Notes shall be issuable in
any authorized denomination and shall be substantially in the form
of the definitive Notes but with such omissions, insertions and
variations as may be appropriate for temporary Notes, all as may
be determined by the Company. Every such temporary Note shall be
executed by the Company and authenticated by the Trustee or such
authenticating agent upon the same conditions and in substantially
the same manner, and with the same effect, as the definitive
Notes. Without unreasonable delay the Company will execute and
deliver to the Trustee or such authenticating agent definitive
Notes (other than in the case of Notes in global form) and
thereupon any or all temporary Notes (other than any such Note in
global form) may be surrendered in exchange therefor, at each
office or agency maintained by the Company pursuant to Section 5.2
and the Trustee or such authenticating agent shall authenticate
and deliver in exchange for such temporary Notes an equal
aggregate principal amount of definitive Notes. Such exchange
shall be made by the Company at its own expense and without any
charge therefor. Until so exchanged, the temporary Notes shall in
all respects be entitled to the same benefits and subject to the
same limitations under this Indenture as definitive Notes
authenticated and delivered hereunder.
Section 2.8 Cancellation of Notes Paid, Etc. All Notes
surrendered for the purpose of payment, redemption, conversion,
exchange or registration of transfer shall, if surrendered to the
Company or any paying agent or any Note registrar or any
conversion agent, be surrendered to the Trustee and promptly
canceled by it or, if surrendered to the Trustee, shall be
promptly canceled by it and no Notes shall be issued in lieu
thereof except as expressly permitted by any of the provisions of
this Indenture. Upon written instructions of the Company, the
Trustee shall destroy canceled Notes, in accordance with the usual
destruction procedures of the Trustee. If the Company shall
acquire any of the Notes, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such
Notes unless and until the same are delivered to the Trustee for
cancellation.
Section 2.9 Ranking. The Notes will represent general,
unsecured obligations of the Company senior or pari passu in right
of payment to all other unsecured obligations of the Company and
will rank pari passu in order of preference with the Company's 5
1/2% Senior Convertible Notes due 2000 issued October 23, 1995.
ARTICLE III
REDEMPTION OF NOTES
Section 3.1 Redemption Prices. The Company may, at its
option, redeem all or from time to time any part of the Notes on
any date prior to maturity, upon notice as set forth in Section
3.2, and at the optional redemption prices set forth in the forms
of Note attached as Exhibits A and B hereto, together with accrued
interest to the date fixed for redemption, provided, however, that
no such redemption shall be effected before November 2, 1998.
Section 3.2 Notice of Redemption, Selection of Notes.
In case the Company shall desire to exercise the right to redeem
all or, as the case may be, any part of the Notes pursuant to
Section 3.1, it shall fix a date for redemption and, in the case
of any redemption pursuant to Section 3.1, it or, at its request
accompanied by the proposed form of notice of redemption (which
must be received by the Trustee at least ten Business Days prior
to the date the Trustee is requested to give notice as described
below, unless a shorter period is agreed to by the Trustee), the
Trustee in the name of and at the expense of the Company, shall
mail or cause to be mailed a notice of such redemption at least 30
and not more than 60 days prior to the date fixed for redemption
to the holders of Notes so to be redeemed as whole or in part at
their last addresses as the same appear on the registry books of
the Company, provided that if the Company shall give such notice,
it shall also give such notice, and notice of the Notes to be
redeemed, to the Trustee. Such mailing shall be by first class
mail. The notice, if mailed in the manner herein provided, shall
be conclusively presumed to have been duly given, whether or not
the holder receives such notice. In any case, failure to give
such notice by mail or any defect in the notice to the holder of
any Note designated for redemption as a whole or in part shall not
affect the validity of the proceedings for the redemption of any
other Note.
Each such notice of redemption shall specify the
aggregate principal amount of Notes to be redeemed, the date fixed
for redemption, the redemption price at which Notes are to be
redeemed, the place or places of payment, that payment will be
made upon presentation and surrender of such Notes, that interest
accrued to the date fixed for redemption will be paid as specified
in said notice and that on and after said date, interest thereon
or on the portion thereof to be redeemed will cease to accrue.
Such notice shall also state the current Exchange Price and
Conversion Price and the date on which the right to exchange and
to convert such Notes or portions thereof into Preferred Stock or
Common Stock, as the case may be, will expire. If fewer than all
the Notes are to be redeemed, the notice of redemption shall
identify the Notes to be redeemed. In case any Note is to be
redeemed in part only, the notice of redemption shall state the
portion of the principal amount thereof to be redeemed and shall
state that on and after the date fixed for redemption, upon
surrender of such Note, a new Note or Notes in principal amount
equal to the unredeemed portion thereof will be issued.
On or prior to the Business Day prior to the redemption
date specified in the notice of redemption given as provided in
this Section, the Company will deposit with the Trustee or with
one or more paying agents (or, if the Company is acting as its own
paying agent, set aside, segregate and hold in trust as provided
in Section 5.4) an amount of money sufficient to redeem on the
redemption date all the Notes so called for redemption (other than
those theretofore surrendered for exchange for Preferred Stock or
conversion into Common Stock) at the appropriate redemption price,
together with accrued interest to the date fixed for redemption.
If any Note called for redemption is exchanged or converted
pursuant hereto, any money deposited with the Trustee or any
paying agent or so segregated and held in trust for the redemption
of such Note shall be paid to the Company upon its request or, if
then held by the Company, shall be discharged from such trust. If
fewer than all the Notes are to be redeemed, the Company will give
the Trustee written notice in the form of an Officers' Certificate
not fewer than 45 days (or such shorter period of time as may be
acceptable to the Trustee) prior to the redemption date as to the
aggregate principal amount of Notes to be redeemed.
If fewer than all the Notes are to be redeemed, the
Trustee shall select the Notes or portions thereof to be redeemed
(in principal amounts of $1,000 or integral multiples thereof), by
lot or, in its sole discretion, on a pro rata basis. If any Note
selected for partial redemption is exchanged or converted in part
after such selection, the converted or exchanged portion of such
Note shall be deemed (so far as may be) to be the portion to be
selected for redemption. The Notes (or portions thereof) so
selected shall be deemed duly selected for redemption for all
purposes hereof, notwithstanding that any such Note is exchanged
or converted as a whole or in part before the mailing of the
notice of redemption.
Upon any redemption of less than all Notes, the Company
and the Trustee may treat as outstanding any Notes surrendered for
exchange or conversion during the period of 15 days next preceding
the mailing of a notice of redemption and need not treat as
outstanding any Note authenticated and delivered during such
period in exchange for the unexchanged or unconverted portion of
any Note exchanged or converted in part during such period.
Section 3.3 Payment of Notes Called for Redemption. If
notice of redemption has been given as above provided, the Notes
or portion of Notes with respect to which such notice has been
given shall, unless exchanged for Preferred Stock or converted
into Common Stock pursuant to the terms hereof, become due and
payable on the date and at the place or places stated in such
notice at the applicable redemption price, together with interest
thereon accrued to the date fixed for redemption, and on and after
said date (unless the Company shall default in the payment of such
Notes at the redemption price, together with interest thereon
accrued to said date), interest on the Notes or portion of Notes
so called for redemption shall cease to accrue, and such Notes
shall cease after the close of business on the Business Day next
preceding the date fixed for redemption to be exchangeable for
Preferred Stock or convertible into Common Stock and, except as
provided in Sections 8.5 and 13.4, to be entitled to any benefit
or security under this Indenture, and the holders thereof shall
have no right in respect of such Notes except the right to receive
the redemption price thereof and unpaid interest thereon to the
date fixed for redemption. On presentation and surrender of such
Notes at a place of payment in said notice specified, the said
Notes or the specified portions thereof shall be paid and redeemed
by the Company at the applicable redemption price, together with
interest accrued thereon to the date fixed for redemption;
provided that any semi-annual payment of interest becoming due on
the date fixed for redemption shall be payable to the holders of
such Notes registered as such on the relevant record date subject
to the terms and provisions of Section 2.3 hereof.
Upon presentation of any Note redeemed in part only, the
Company shall execute and the Trustee shall authenticate and
deliver to the holder thereof, at the expense of the Company, a
new Note or Notes, of authorized denominations, in principal
amount equal to the unredeemed portion of the Notes so presented.
Notwithstanding the foregoing, the Trustee shall not
redeem any Notes or mail any notice of optional redemption during
the continuance of a default in payment of interest or premium on
the Notes or of any Event of Default of which, in the case of any
Event of Default other than under Section 7.1(a) or (b), a
Responsible Officer of the Trustee has knowledge. If any Note
called for redemption shall not be so paid upon surrender thereof
for redemption, the principal and premium, if any, shall, until
paid or duly provided for, bear interest from the date fixed for
redemption at the rate borne by the Note and such Note shall
remain exchangeable for Preferred Stock and convertible into
Common Stock until the principal and premium, if any, shall have
been paid or duly provided for.
Section 3.4 Conversion/Exchange Arrangement on Call for
Redemption. In connection with any redemption of Notes, the
Company may arrange for the purchase and conversion or exchange of
any Notes by an agreement with one or more investment bankers or
other purchasers to purchase such Notes by paying to the Trustee
in trust for the Noteholders, on or before the date fixed for
redemption, an amount not less than the applicable redemption
price, together with interest accrued to the date fixed for
redemption, of such Notes. Notwithstanding anything to the
contrary contained in this Article III, the obligation of the
Company to pay the redemption price of such Notes, together with
interest accrued to the date fixed for redemption, shall be deemed
to be satisfied and discharged to the extent such amount is so
paid by such purchasers. If such an agreement is entered into, a
copy of which will be filed with the Trustee prior to the date
fixed for redemption, any Notes not duly surrendered for
conversion or exchange by the holders thereof may, at the option
of the Company, be deemed, to the fullest extent permitted by law,
acquired by such purchasers from such holders and (notwithstanding
anything to the contrary contained in Articles XV or XVII)
surrendered by such purchasers for conversion or exchange, all as
of immediately prior to the close of business on the date fixed
for redemption (and the right to exchange or convert any such
Notes shall be deemed to have been extended through such time),
subject to payment of the above amount as aforesaid. At the
direction of the Company, the Trustee shall hold and dispose of
any such amount paid to it in the same manner as it would monies
deposited with it by the Company for the redemption of Notes.
Without the Trustee's prior written consent, no arrangement
between the Company and such purchasers for the purchase and
conversion or exchange of any Notes shall increase or otherwise
affect any of the powers, duties, responsibilities or obligations
of the Trustee as set forth in this Indenture, and the Company
agrees to indemnify the Trustee from, and hold it harmless
against, any loss, liability or expense arising out of or in
connection with any such arrangement for the purchase and
conversion or exchange of any Notes between the Company and such
purchasers including the costs and expenses incurred by the
Trustee in the defense of any claim or liability arising out of or
in connection with the exercise or performance of any of its
powers, duties, responsibilities or obligations under this
Indenture.
Section 3.5 Purchase of Notes Upon a Change of Control.
(a) If a Change of Control shall occur at any time,
then each holder of Notes shall have the right to require that the
Company purchase such holder's Notes in whole or in part in
integral multiples of $1,000 at a purchase price (the "Change of
Control Purchase Price") in cash in an amount equal to 101% of the
principal amount of such Notes, plus accrued and unpaid interest
thereon, if any, to the repurchase date (the "Change of Control
Purchase Date") pursuant to the offer described below (the "Change
of Control Offer") and in accordance with the other procedures set
forth in this Indenture.
(b) Within 30 days following any Change of Control, the
Company shall notify the Trustee thereof and give written notice
of such Change of Control to each holder of Notes, by first-class
mail, postage prepaid, at his address appearing in the Note
register, stating, among other things: that a Change of Control
has occurred; the Change of Control Purchase Price and the Change
of Control Purchase Date (which shall be a business day no earlier
than 30 days nor later than 60 days from the date such notice is
mailed, or such later date as is necessary to comply with
requirements under the Exchange Act); that any Note not tendered
will continue to accrue interest and to have all of the benefits
of this Indenture; that, unless the Company defaults in the
payment of the Change of Control Purchase Price, any Notes
accepted for payment pursuant to the Change of Control Offer shall
cease to accrue interest after the Change of Control Purchase
Date; and certain other procedures that a holder of Notes must
follow to accept a Change of Control Offer or to withdraw such
acceptance.
(c) The Company will comply with the applicable tender
offer rules, including Rule 13e-4 under the Exchange Act, and any
other applicable securities laws or regulations in connection with
a Change of Control Offer.
(d) The Company will not, and will not permit any
subsidiary to, create or permit to exist or become effective any
restriction that would materially impair the ability of the
Company to make a Change of Control offer to purchase the Notes
or, if such Change of Control offer is made, to pay for the Notes
tendered for purchase.
ARTICLE IV
[RESERVED]
ARTICLE V
PARTICULAR COVENANTS OF THE COMPANY
Section 5.1 Payment of Principal, Premium and Interest.
The Company covenants and agrees that it will duly and punctually
pay or cause to be paid the principal of and premium, if any, and
interest on each of the Notes at the places, at the respective
times and in the manner provided herein and in the Notes. Each
installment of interest on the Notes due on any semi-annual
interest payment date may be paid by mailing checks for the
interest payable to or upon the written order of the holders of
Notes entitled thereto as they shall appear on the Note register;
provided that, with respect to any holder of Notes with an
aggregate principal amount equal to or in excess of $5,000,000, at
the request of such holder in writing to the Trustee, interest on
such holder's Notes shall be paid by wire transfer in immediately
available funds. An installment of principal or interest shall be
considered paid on the date due if the Trustee or Paying Agent
(other than the Company, a Subsidiary of the Company or any
Affiliate of any of them) holds on that date money designated for
and sufficient to pay the installment of principal or interest and
is not prohibited from paying such money to the holders of the
Notes pursuant to the terms of this Indenture.
Section 5.2 Maintenance of Office or Agency. The
Company will maintain in the Borough of Manhattan, The City of New
York, an office or agency where the Notes may be surrendered for
registration of transfer or exchange or for presentation for
payment or for exchange or conversion or redemption and where
notices and demands to or upon the Company in respect of the Notes
and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in
the location, of such office or agency not designated by the
Trustee. If at any time the Company shall fail to maintain any
such office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust office of the
Trustee.
The Company may also from time to time designate one or
more other offices or agencies where the Notes may be presented or
surrendered for any or all such purposes and may from time to time
rescind such designations; provided that no such designation or
rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York, for such purposes. The Company
will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any
such other office or agency.
The Company hereby initially designates the Trustee as
paying agent, Note registrar and conversion and exchange agent and
each of the Corporate Trust Office of the Trustee and the office
of State Street Bank and Trust Company, N.A. in the Borough of
Manhattan, The City of New York, as one such office or agency of
the Company for the purposes set forth in the first paragraph of
this Section 5.2.
So long as the Trustee is the Note registrar, the
Trustee agrees to mail, or cause to be mailed, the notices set
forth in Section 8.10(a) and the third paragraph of Section 8.11.
Section 5.3 Appointments to Fill Vacancies in Trustee's
office. The Company, whenever necessary to avoid or fill a
vacancy in the office of Trustee, will appoint, in the manner
provided in Section 8.10, a Trustee, so that there shall at all
times be a Trustee hereunder.
Section 5.4 Provisions as to Paying Agent.
(a) If the Company shall appoint a paying agent other
than the Trustee, or if the Trustee shall appoint such a paying
agent, it will cause such paying agent to execute and deliver to
the Trustee an instrument in which such agent shall agree with the
Trustee, subject to the provisions of this Section 5.4:
(1) that it will hold all sums held by it as such
agent for the payment of the principal of, premium, if
any, or interest on the Notes (whether such sums have
been paid to it by the Company or by any other obligor
on the Notes) in trust for the benefit of the holders of
the Notes;
(2) that it will give the Trustee notice of any
failure by the Company (or by any other obligor on the
Notes) to make any payment of the principal of, premium,
if any, or interest on the Notes when the same shall be
due and payable; and
(3) that at any time during the continuance of an
Event of Default, upon request of the Trustee, it will
forthwith pay to the Trustee all sums so held in trust.
The Company shall, before each due date of the principal
of, premium, if any, or interest on the Notes, deposit with the
paying agent a sum sufficient to pay such principal, premium, if
any, or interest, and (unless such paying agent is the Trustee)
the Company will promptly notify the Trustee of any failure to
take such action.
(b) If the Company shall act as its own paying agent,
it will, on or before each due date of the principal of, premium,
if any, or interest on the Notes, set aside, segregate and hold in
trust for the benefit of the holders of the Notes a sum sufficient
to pay such principal, premium, if any, or interest so becoming
due and will notify the Trustee of any failure to take such action
and of any failure by the Company (or any other obligor under the
Notes) to make any payment of the principal of, premium, if any,
or interest on the Notes when the same shall become due and
payable.
(c) Anything in this Section 5.4 to the contrary
notwithstanding, the Company may, at any time, for the purpose of
obtaining a satisfaction and discharge of this Indenture, or for
any other reason, pay or cause to be paid to the Trustee all sums
held in trust by the Company or any paying agent hereunder as
required by this Section 5.4, such sums to be held by the Trustee
upon the trusts herein contained and upon such payment by the
company or any paying agent to the Trustee, the Company or such
paying agent shall be released from all further liability with
respect to such sums.
(d) Anything in this section 5.4 to the contrary
notwithstanding, the agreement to hold sums in trust as provided
in this Section 5.4 is subject to Sections 13.3 and 13.4.
Section 5.5 Corporate Existence. Subject to Article
XII, the Company will do or cause to be done all things necessary
to preserve and keep in full force and effect its corporate
existence.
Section 5.6 Rule 144A Information Requirement. During
the three-year period following the original issuance date of any
Note and during the three-year period following the last date on
which the Company or an Affiliate of the Company was the owner of
any Note (or shares of Common Stock issued upon conversion of any
Note or Preferred Stock issued upon exchange of Notes), if the
Company is subject neither to Section 13 nor Section 15(d) of the
Exchange Act, the Company shall at the written request of any
holder or beneficial holder of such Note (or shares of Preferred
Stock issued upon exchange of Notes or Common Stock issued upon
conversion of Notes) provide to such holder or beneficial holder
of such Note (or shares of Common Stock issued upon conversion of
Notes or Preferred Stock issued upon exchange of Notes) and any
prospective transferee designated by such holder or beneficial
holder of such Note (or shares of Preferred Stock issued upon
exchange of Notes or Common Stock issued upon conversion of Notes)
such information, if any, required by Rule 144A(d)(4) under the
Securities Act (so long as such information is required to permit
such transfer under Rule 144A).
Section 5.7 Stay, Extension and Usury Laws. The
Company covenants (to the extent that it may lawfully do so) that
it shall not at any time insist upon, plead or in any manner
whatsoever claim or take the benefit or advantage of, any stay,
extension or usury law or other law which would prohibit or
forgive the Company from paying all or any portion of the
principal of or interest on the Notes as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which
may affect the covenants or the performance of this Indenture; and
the Company (to the extent it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law, and covenants
that it will not, by resort to any such law, hinder, delay or
impede the execution of any power herein granted to the Trustee,
but will suffer and permit the execution of every such power as
though no such law has been enacted.
Section 5.8 Amendments to Series C Preferred Stock.
Without the consent (evidenced as provided in Article IX) of the
holders of not less than a majority in aggregate principal amount
of the Notes at the time outstanding, the Company will not take
any action with respect to its capital stock or adopt any change
to the Certificate of Designation of the Series C Preferred Stock
which in either such case would require the affirmative vote of
the holders of at least 66-2/3% of the outstanding shares of
Series C Preferred Stock under Section 3.2 of the Certificate of
Designation (whether or not any such Series C Preferred Stock is
at the time outstanding).
ARTICLE VI
NOTEHOLDERS' LISTS AND REPORTS BY
THE COMPANY
Section 6.1 Noteholders' Lists. The Company covenants
and agrees that it will furnish or cause to be furnished to the
Trustee, semi-annually, not more than 15 days after April 15 and
October 15 in each year beginning with April 15, 1996, and at such
other times as the Trustee may request in writing, within 30 days
after receipt by the Company of any such request (or such lesser
time as the Trustee may reasonably request in order to enable it
to timely provide any notice to be provided by it hereunder), a
list in such form as the Trustee may reasonably require of the
names and addresses of the holders of Notes as of a date not more
than 15 days (or such other date as the Trustee may reasonably
request in order to so provide any such notices) prior to the time
such information is furnished, except that no such list need be
furnished so long as the Trustee is acting as Note registrar or
co-registrar.
Section 6.2 Reports by Company. The Company will
deliver to the Trustee (a) as soon as available and in any event
within 90 days after the end of each fiscal year of the Company
(i) a consolidated balance sheet of the Company and its
subsidiaries as of the end of such fiscal year and the related
consolidated statements of operations, stockholders, equity and
cash flows for such fiscal year, all reported on by an independent
public accountant of nationally recognized standing and (ii) a
report containing a management's discussion and analysis of the
financial condition and results of operations and a description of
the business and properties of the Company and (b) as soon as
available and in any event within 45 days after the end of each of
the first three quarters of each fiscal year of the Company (i) an
unaudited consolidated financial report for such quarter and (ii)
a report containing a management's discussion and analysis of the
financial condition and results of operations of the Company;
provided that the foregoing shall not be required for any fiscal
year or quarter, as the case may be, with respect to which the
Company files or expects to file with the Trustee an annual report
or quarterly report, as the case may be, pursuant to the next
paragraph of this Section 6.2.
The Company shall file with the Trustee, within 15 days
after it files such annual and quarterly reports with the
Commission such annual and quarterly reports as are required to be
filed by the Company with the Commission pursuant to Section 13 or
15(d) of the Exchange Act.
ARTICLE VII
DEFAULTS AND REMEDIES
Section 7.1 Events of Default. In case one or more of
the following Events of Default (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary
or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of
any administrative or governmental body) shall have occurred and
be continuing:
(a) default in the payment of any installment of
interest upon any of the Notes as and when the same shall become
due and payable, and continuance of such default for a period of
30 days; or
(b) default in the payment of the principal of and
premium, if any, on any of the Notes as and when the same shall
become due and payable either at maturity or in connection with
any redemption, by declaration or otherwise; or
(c) a failure on the part of the Company duly to
observe or perform any other covenants or agreements on the part
of the Company in the Notes or in this Indenture (other than a
default in the performance or breach of a covenant or agreement
which is specifically dealt with) elsewhere in this Section 7.1,
which continues for a period of 90 days after the date on which
written notice of such failure, requiring the Company to remedy
the same, shall have been given to the Company by the Trustee, or
to the Company and a Responsible Officer of the Trustee, by the
holders of at least 25 percent in aggregate principal amount of
the Notes at the time outstanding determined in accordance with
Section 9.4; or
(d) the Company shall commence a voluntary case or
other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect, or
seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part
of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an
involuntary case or other proceeding commenced against it or shall
make a general assignment for the benefit of creditors or shall
fail generally to pay its debts as they become due; or
(e) an involuntary case or other proceeding shall be
commenced against the Company seeking liquidation, reorganization
or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or
other proceeding shall remain undismissed and unstayed for a
period of 90 consecutive days;
then, and in each and every such case (other than an Event of
Default specified in Section 7.1(d) or (e)), unless the principal
of all of the Notes shall have already become due and payable,
either the Trustee or the holders of not less than 25% in
aggregate principal amount of the Notes then outstanding hereunder
determined in accordance with Section 9.4, by notice in writing to
the Company (and to the Trustee if given by Noteholders), may
declare the principal of, premium, if any, on all the Notes and
the interest accrued thereon to be due and payable immediately,
and upon any such declaration the same shall become and shall be
immediately due and payable, anything in this Indenture or in the
Notes contained to the contrary notwithstanding. If an Event of
Default specified in Section 7.1(d) or (e) occurs and is
continuing, the principal of all the Notes and the interest
accrued thereon shall be immediately due and payable. This
provision, however, is subject to the conditions that if, at any
time after the principal of the Notes shall have been so declared
due and payable, and before any judgment or decree for the payment
of the monies due shall have been obtained or entered as
hereinafter provided, the Company shall pay or shall deposit with
the Trustee a sum sufficient to pay all matured installments of
interest upon all Notes and the principal of and premium, if any,
on any and all Notes which shall have become due otherwise than by
acceleration (with interest on overdue installments of interest
(to the extent that payment of such interest is enforceable under
applicable law) and on such principal and premium, if any, at the
rate borne by the Notes, to the date of such payment or deposit)
and amounts due to the Trustee pursuant to Section 8.6, and if any
and all defaults under this Indenture, other than the nonpayment
of principal of, premium, if any, and accrued interest on Notes
which shall have become due by acceleration, shall have been cured
or waived pursuant to Section 7.7, then and in every such case the
holders of a majority in aggregate principal amount of the Notes
then outstanding, by written notice to the Company and to the
Trustee, may waive all defaults or Events of Default and rescind
and annul such declaration and its consequences; but no such
waiver or rescission and annulment shall extend to or shall affect
any subsequent default or Event of Default, or shall impair any
right consequent thereto. The Company shall notify a Responsible
Officer of the Trustee, promptly upon becoming aware thereof, of
any Event of Default.
In case the Trustee shall have proceeded to enforce any
right under this Indenture and such proceedings shall have been
discontinued or abandoned because of such waiver or rescission and
annulment or for any other reason or shall have been determined
adversely to the Trustee, then and in every such case the Company,
the holders of Notes and the Trustee shall be restored
respectively to their several positions and rights hereunder, and
all rights, remedies and powers of the Company, the holders of
Notes and the Trustee shall continue as though no such proceeding
had been taken.
Section 7.2 Payments of Notes on Default; Suit
Therefor. The Company covenants that (a) in case default shall be
made in the payment of any installment of interest upon any of the
Notes as and when the same shall become due and payable, and such
default shall have continued for a period of 30 days, or (b) in
case default shall be made in the payment of the principal of or
premium, if any, on any of the Notes as and when the same shall
have become due and payable, whether at maturity of the Notes or
in connection with any redemption, by declaration or otherwise,
then, upon demand of the Trustee, the Company will pay to the
Trustee, for the benefit of the holders of the Notes, the whole
amount that then shall have become due and payable on all such
Notes for principal, premium, if any, or interest, or both, as the
case may be, with interest upon the overdue principal, premium, if
any, and (to the extent that payment of such interest is
enforceable under applicable law) upon the overdue installments of
interest at the rate borne by the Notes; and, in addition thereto,
such further amount as shall be sufficient to cover the costs and
expenses of collection, including reasonable compensation to the
Trustee, its agents, attorneys and counsel, and any expenses or
liabilities incurred by the Trustee hereunder other than through
its negligence or bad faith. Until such demand by the Trustee,
the Company may pay the principal of and premium, if any, and
interest on the Notes to the registered holders, whether or not
the Notes are overdue.
In case the Company shall fail forthwith to pay such
amounts upon such demand, the Trustee, in its own name and as
trustee of an express trust, shall be entitled and empowered to
institute any actions or proceedings at law or in equity for the
collection of the sums so due and unpaid and may prosecute any
such action or proceeding to judgment or final decree, and may
enforce any such judgment or final decree against the Company or
any other obligor on the Notes and collect in the manner provided
by law out of the property of the Company or any other obligor on
the Notes wherever situated the monies adjudged or decreed to be
payable.
In the case there shall be pending proceedings for the
bankruptcy or for the reorganization of the Company or any other
obligor on the Notes under Title 11 of the United States Code or
any other applicable law, or in case a receiver, assignee or
trustee in bankruptcy or reorganization, liquidator, sequestrator
or similar official shall have been appointed for or taken
possession of the Company or such other obligor, the property of
the Company or such other obligor, or in the case of any other
judicial proceedings relative to the Company or such other obligor
upon the Notes, or to the creditors or property of the Company or
such other obligor, the Trustee, irrespective of whether the
principal of the Notes shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand pursuant to the
provisions of this Section 7.2, shall be entitled and empowered,
by intervention in such proceedings or otherwise, to file and
prove a claim or claims for the whole amount of principal,
premium, if any, and interest owing and unpaid in respect of the
Notes and, in case of any judicial proceedings, to file such
proofs of claim and other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee and of the
Noteholders allowed in such judicial proceedings relative to the
Company or any other obligor on the Notes, its or their creditors,
or its or their property and to collect and receive any monies or
other property payable or deliverable on any such claims and to
distribute the same after the deduction of any amounts due the
Trustee under Section 8.6; and any receiver, assignee or trustee
in bankruptcy or reorganization, liquidator, custodian or similar
official is hereby authorized by each of the Noteholders to make
such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the
Noteholders, to pay to the Trustee any amount due it for
reasonable compensation, expenses, advances and disbursements,
including counsel fees incurred by it up to the date of such
distribution. To the extent that such payment of reasonable
compensation, expenses, advances and disbursements out of the
estate in any such proceedings shall be denied for any reason,
payment of the same shall be secured by a lien on, and shall be
paid out of, any and all distributions, dividends, monies,
securities and other property which the holders of the Notes may
be entitled to receive in such proceedings, whether in liquidation
or under any plan of reorganization or arrangement or otherwise.
Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or adopt on behalf of any
Noteholder any plan of reorganization or arrangement affecting the
Notes or the rights of any Noteholder, or to authorize the Trustee
to vote in respect of the claim of any Noteholder in any such
proceeding.
All rights of action and of asserting claims under this
Indenture, or under any of the Notes, may be enforced by the
Trustee without the possession of any of the Notes or the
production thereof on any trial or other proceeding relative
thereto, and any such suit or proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the holders of the Notes.
In any proceedings brought by the Trustee (and in any
proceedings involving the interpretation of any provision of this
Indenture to which the Trustee shall be a party), the Trustee
shall be held to represent all the holders of the Notes, and it
shall not be necessary to make any holders of the Notes parties to
any such proceedings.
Section 7.3 Application of Monies Collected by Trustee.
Any monies collected by the Trustee pursuant to this Article VII
shall be applied in the order following, at the date or dates
fixed by the Trustee for the distribution of such monies, upon
presentation of the several Notes and stamping thereon the
payment, if only partially paid, and upon surrender thereof, if
fully paid:
First: To the payment of all amounts due the Trustee
under Section 8.6;
Second: Subject to the provisions of Article V, in
case the principal of the outstanding Notes shall not have
become due and be unpaid, to the payment of interest on the
Notes in default in the order of the maturity of the
installments of such interest, with interest (to the extent
that such interest has been collected by the Trustee) upon
the overdue installments of interest at the rate borne by the
Notes, such payments to be made ratably to the persons
entitled thereto; and
Third: Subject to the Provisions of Article V, in
case the principal of the outstanding Notes shall have become
due, by declaration or otherwise, and be unpaid, to the
payment of the whole amount then owing and unpaid upon the
Notes for principal, premium, if any, and interest, with
interest on the overdue principal and premium, if any, and
(to the extent that such interest has been collected by the
Trustee) upon overdue installments of interest at the rate
borne by the Notes; and in case such monies shall be
insufficient to pay in full the whole amounts so due and
unpaid upon the Notes, then to the payment of such principal,
premium, if any, and interest without preference or priority
of principal and premium, if any, over interest, or of
interest over principal and premium, if any, or of any
installment of interest over any other installment of
interest, or of any Note over any other Note, ratably to the
aggregate of such principal and premium, if any, and accrued
and unpaid interest.
Section 7.4 Proceedings by Noteholder. No holder of
any Note shall have any right by virtue of or by availing of any
provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to
this Indenture, or for the appointment of a receiver, trustee,
liquidator, custodian or other similar official, or for any other
remedy hereunder, unless such holder previously shall have given
to the Trustee written notice of an Event of Default and of the
continuance thereof, as hereinbefore provided, and unless also the
holders of not less than 25 percent in aggregate principal amount
of the Notes then outstanding shall have made written request upon
the Trustee to institute such action, suit or proceeding in its
own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby,
and the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding, and no direction
inconsistent with such written request shall have been given to
the Trustee pursuant to Section 7.7; it being understood and
intended, and being expressly covenanted by the taker and holder
of every Note with every other taker and holder and the Trustee,
that no one or more holders of Notes shall have any right in any
manner whatever by virtue of or by availing of any provision of
this Indenture to affect, disturb or prejudice the rights of any
other holder of Notes, to obtain or seek to obtain priority over
or preference to any other such holder or to enforce any right
under this Indenture, except in the manner herein provided and for
the equal, ratable and common benefit of all holders of Notes
(except as otherwise provided herein). For the protection and
enforcement of this Section 7.4, each and every Noteholder and the
Trustee shall be entitled to such relief as can be given either at
law or in equity.
Notwithstanding any other provision of this Indenture
and any provision of any Note, the right of any holder of any Note
to receive payment of the principal of, premium, if any, and
interest on such Note, on or after the respective due dates
expressed in such Note, or to institute suit for the enforcement
of any such payment on or after such respective dates against the
Company shall not be impaired or affected without the consent of
such holder.
Anything in this Indenture or the Notes to the contrary
notwithstanding, the holder of any Note, without the consent of
either the Trustee or the holder of any other Note, in his own
behalf and for his own benefit, may enforce, and may institute and
maintain any proceeding suitable to enforce, his rights of
conversion as provided herein.
Section 7.5 Proceedings by Trustee. In case of an
Event of Default, the Trustee may in its discretion proceed to
protect and enforce the rights vested in it by this Indenture by
such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either
by suit in equity or by action at law or by proceeding in
bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of
the exercise of any power granted in this Indenture or to enforce
any other legal or equitable right vested in the Trustee by this
Indenture or by law.
Section 7.6 Remedies Cumulative and Continuing. Except
as provided in Section 2.6, all powers and remedies given by this
Article VII to the Trustee or to the Noteholders shall, to the
extent permitted by law, be deemed cumulative and not exclusive of
such powers and remedies or of any other powers and remedies
available to the Trustee or the holders of the Notes, by judicial
proceedings or otherwise, to enforce the performance or observance
of the covenants and agreements contained in this Indenture, and
no delay or omission of the Trustee or of any holder of any of the
Notes to exercise any right or power accruing upon any default or
Event of Default occurring and continuing as aforesaid shall
impair any such right or power or shall be construed to be a
waiver of any such default or any acquiescence therein; and,
subject to the provisions of Section 7.4, every power and remedy
given by this Article VII or by law to the Trustee or to the
Noteholders may be exercised from time to time, and as often as
shall be deemed expedient, by the Trustee or by the Noteholders.
Section 7.7 Direction of Proceedings and Waiver of
Defaults by Majority of Noteholders. The holders of a majority in
aggregate principal amount of the Notes at the time outstanding
(determined in accordance with Section 9.4) shall have the right
to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee; provided, however, that (a) such
direction shall not be in conflict with any rule of law or with
this Indenture and (b) the Trustee may take any other action
deemed proper by the Trustee which is not inconsistent with such
direction. The holders of a majority in aggregate principal
amount of the Notes at the time outstanding (determined in
accordance with Section 9.4) may on behalf of the holders of all
of the Notes waive any past default or Event of Default hereunder
and its consequences except (i) a default in the payment of
interest or premium, if any, on, or the principal of, the Notes,
(ii) a failure by the Company to exchange any Notes for Preferred
Stock or to convert any Notes into Common Stock or (iii) a default
in respect of a covenant or provisions hereof which under Article
XI cannot be modified or amended without the consent of the
holders of all Notes then outstanding. Upon any such waiver, the
Company, the Trustee and the holders of the Notes shall be
restored to their former positions and rights hereunder; but no
such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon. Whenever
any default or Event of Default hereunder shall have been waived
as permitted by this Section 7.7, said default or Event of Default
shall for all purposes of the Notes and this Indenture be deemed
to have been cured and to be not continuing; but no such waiver
shall extend to any subsequent or other default or Event of
Default or impair any right consequent thereon.
Section 7.8 Notice of Defaults. The Trustee shall,
within 90 days after the occurrence of a default, mail to all
Noteholders, as the names and addresses of such holders appear
upon the registry books of the Company, notice of all defaults
known to a Responsible Officer, unless such defaults shall have
been cured or waived before the giving of such notice; and
provided that, except in the case of default in the payment of the
principal of, premium, if any, or interest on any of the Notes,
the Trustee shall be protected in withholding such notice if and
so long as a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the
withholding of such notice is in the interests of the Noteholders.
Section 7.9 Undertaking to Pay Costs. All parties to
this Indenture agree, and each holder of any Note by his
acceptance thereof shall be deemed to have agreed, that any court
may, in its discretion, require, in any suit for the enforcement
of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as
Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit and that such court may
in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses
made by such party litigant; provided that the provisions of this
Section 7.9 shall not apply to any suit instituted by the Trustee,
to any suit instituted by any Noteholder or group of Noteholders
holding in the aggregate more than ten percent in principal amount
of the Notes at the time outstanding determined in accordance with
Section 9.4 or to any suit instituted by any Noteholder for the
enforcement of the payment of the principal of, premium, if any,
or interest on any Note on or after the due date expressed in such
Note or to any suit for the enforcement of the right to convert
any Note in accordance with the provisions of Article XV or of the
right to exchange any Note in accordance with the provisions of
Article XVII.
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.1 Duties and Responsibilities of Trustee. (a)
if an Event of Default has occurred and is continuing, the Trustee
shall exercise the rights and powers vested in it by this
Indenture and use the same degree of care and skill in its
exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of
Default:
(1) the Trustee need perform only those duties
that are specifically set forth in this Indenture and no
others; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this
Indenture; provided that the Trustee shall examine such
certificates and opinions to determine whether or not
they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act or its
own willful misconduct, except that:
(1) this paragraph (c) does not limit the effect
of paragraph (b) of this section 8.1;
(2) the Trustee shall not be liable for any error
of judgment made in good faith by an officer of the
Trustee unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect
to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to
Section 7.7.
(d) Every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (a), (b), (c) and
(e) of this Section 8.1.
(e) The Trustee may refuse to perform any duty or
exercise any right or power or extend or risk its own funds or
otherwise incur any financial liability unless it receives
indemnity satisfactory to it against any loss, liability or
expense.
Section 8.2 Reliance on Documents, Opinions, Etc.
Except as otherwise provided in Section 8.1:
(a) The Trustee may rely and shall be protected in
acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, bond, debenture,
coupon or other paper or document believed by it in good faith to
be genuine and to have been signed or presented by the proper
party or parties;
(b) Any request, direction, order or demand of the
Company mentioned herein shall be sufficiently evidenced by an
Officers' Certificate (unless other evidence in respect thereof be
herein specifically prescribed); and any resolution of the Board
of Directors may be evidenced to the Trustee by a copy thereof
certified by the Secretary or an Assistant Secretary of the
Company;
(c) The Trustee may consult with counsel and any advice
or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or omitted by it
hereunder in good faith and in accordance with such advice or
Opinion of Counsel;
(d) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys, and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed by it with due care hereunder; no
Depositary, Custodian or paying agent who is not the Trustee shall
be deemed an agent of the Trustee, and the Trustee (in its
capacity as Trustee) shall not be responsible for any act or
omission by any such Depositary, Custodian or paying agent;
(e) The Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by the Indenture
at the request or direction of any of the holders pursuant to this
Indenture unless such holders have offered the Trustee reasonable
security or indemnity against the costs, expenses and liabilities
which would be incurred by it in compliance with such request or
direction.
(f) Subject to the provisions of Section 8.1(c), the
Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within
its rights or powers;
(g) In connection with any request to transfer or
exchange any Note, the Trustee may request a direction (in the
form of an Officers' Certificate) from the Company and
an Opinion of Counsel with respect to compliance with any
restrictions on transfer or exchange imposed by this Indenture,
the Securities Act, other applicable law or the rules and
regulations of any exchange on which the Notes or the capital
stock may be traded, and the Trustee may rely and shall be
protected in acting upon such direction and in accordance with
such Officers' Certificate and Opinion of Counsel;
(h) The Trustee may rely and shall be fully protected
in acting upon the determination and notice by the Company of the
Conversion Price, including any adjustment to the Conversion Price
pursuant to Section 15.5(j); and
(i) The Trustee shall not be deemed to have knowledge
of any Event of Default or other fact or event upon the occurrence
of which it may be required to take action hereunder unless one of
its Responsible Officers has actual knowledge thereof.
Section 8.3 No Responsibility for Recitals, Etc. The
recitals contained herein and in the Notes (except in the
Trustee's certificate of authentication) shall be taken as the
statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes
no representations as to the validity or sufficiency of this
Indenture or of the Notes. The Trustee shall not be accountable
for the use or application by the Company of any Notes or the
proceeds of any Notes authenticated and delivered by the Trustee
in conformity with the provisions of this Indenture.
Section 8.4 Trustee, Paying Agents, Exchange Agents,
Conversion Agents or Registrar May own Notes. The Trustee, any
paying agent, any exchange agent, any conversion agent or any Note
registrar, in its individual or any other capacity, may become the
owner or pledgee of Notes with the same rights it would have if it
were not Trustee, paying agent, exchange agent, conversion agent
or Note registrar.
Section 8.5 Monies to Be Held in Trust. Subject to the
provisions of Section 13.4, all monies received by the Trustee
shall, until used or applied as herein provided, be held in trust
for the purposes for which they were received. Money held by the
Trustee in trust hereunder need not be segregated from other funds
except to the extent required by law. The Trustee shall be under
no liability for interest on any money received by it hereunder
except as may be agreed in writing from time to time by the
Company and the Trustee.
Section 8.6 Compensation and Expenses of Trustee. The
Company covenants and agrees to pay to the Trustee from time to
time, and the Trustee shall be entitled to, reasonable
compensation for all services rendered by it hereunder in any
capacity (which shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust), and
the Company will pay or reimburse the Trustee upon its request for
all reasonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with any of the provisions of
this Indenture (including the reasonable compensation and the
expenses and disbursements of its counsel and of all persons not
regularly in its employ) except any such expense, disbursement or
advance as may arise from its negligence or bad faith. The
Company also covenants to indemnify the Trustee in any capacity
under this Indenture and its agents and any authenticating agent
for, and to hold them harmless against, any loss, liability or
expense incurred without negligence or bad faith on the part of
the Trustee or such agent or authenticating agent, as the case may
be, and arising out of or in connection with the acceptance or
administration of this trust or in any other capacity hereunder,
including the costs and expenses of defending themselves against
any claim of liability in the premises. The obligations of the
Company under this Section 8.6 to compensate or indemnify the
Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall be secured by a lien prior to
that of the Notes upon all property and funds held or collected by
the Trustee as such, except funds held in trust for the benefit of
the holders of particular Notes. The obligation of the Company
under this Section shall survive the satisfaction and discharge of
this Indenture.
Section 8.7 Officers' Certificate as Evidence. Except
as otherwise provided in Section 8.1, whenever in the
administration of the provisions of this Indenture the Trustee
shall deem it necessary or desirable that a matter be proved or
established prior to taking or omitting any action hereunder, such
matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad
faith on the part of the Trustee, be deemed to be conclusively
proved and established by an Officers' Certificate delivered to
the Trustee, and such Officers' Certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken or omitted by it under
the provisions of this Indenture upon the faith thereof.
Section 8.8 Conflicting Interests of Trustee. In the
event that the Trust Indenture Act is applicable hereto, the
Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act and there exists an Event of
Default hereunder (exclusive of any period of grace or requirement
of notice), the Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, and subject
to the provisions of, the Trust Indenture Act and this Indenture.
Section 8.9 Eligibility of Trustee. There shall at all
times be a Trustee hereunder which shall be a person that is
eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000. If
such person publishes reports of condition at least annually,
pursuant to law or to the requirements of any supervising or
examining authority, then for the purposes of this Section, the
combined capital and surplus of such person shall be deemed to be
its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article VIII.
Section 8.10 Resignation or Removal of Trustee. (a) The
Trustee may at any time resign by giving written notice of such
resignation to the Company; and the Company shall mail, or cause
to be mailed, notice thereof to the holders of Notes at their
addresses as they shall appear on the registry books of the
Company. Upon receiving such notice of resignation, the Company
shall promptly appoint a successor trustee by written instrument,
in duplicate, executed by order of the Board of Directors, one
copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee. If no successor
trustee have been so appointed and have accepted appointment 60
days after the mailing of such notice of resignation to the
Noteholders, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee,
or any Noteholder who has been a bona fide holder of a Note or
Notes for at least six months may, subject to the provisions of
Section 7.9, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a
successor trustee. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, appoint a successor
trustee.
(b) In case at any time any of the following shall
occur:
(1) the Trustee shall fail to comply with Section
8.8 after written request therefor by the Company or by any
Noteholder who has been a bona fide holder of a Note or Notes
for at least six months; or
(2) the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.9 and shall fail
to resign after written request therefor by the Company or by
any such Noteholder; or
(3) the Trustee shall become incapable of acting,
or shall be adjudged a bankrupt or insolvent, or a receiver
of the Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, the Company may remove the Trustee and
appoint a successor trustee by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which
instrument shall be delivered to the Trustee so removed and one
copy to the successor trustee or, subject to the provisions of
Section 7.9, any Noteholder who has been a bona fide holder of a
Note or Notes for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of
a successor trustee. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, remove the Trustee
and appoint a successor trustee.
(c) The holders of a majority in aggregate principal
amount of the Notes at the time outstanding may at any time remove
the Trustee and nominate a successor trustee which shall be deemed
appointed as successor trustee unless within ten days after notice
to the Company of such nomination the Company objects thereto, in
which case the Trustee so removed or any Noteholder, upon the
terms and conditions and otherwise as in Section 8.10(a) provided,
may petition any court of competent jurisdiction for an
appointment of a successor trustee.
(d) Any resignation or removal of the Trustee and
appointment of a successor trustee pursuant to any of the
provisions of this Section 8.10 shall become effective upon
acceptance of appointment by the successor trustee as provided in
Section 8.11.
Section 8.11 Acceptance by Successor Trustee. Any
successor trustee appointed as provided in Section 8.10 shall
execute, acknowledge and deliver to the Company and to its
predecessor trustee an instrument accepting such appointment
hereunder, and thereupon, the resignation or removal of the
predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with like effect as if originally named as
trustee herein; but, nevertheless, on the written request of the
Company or of the successor trustee, the Trustee ceasing to act
shall, upon payment of any amounts then due it pursuant to the
provisions of Section 8.6, execute and deliver an instrument
transferring to such successor trustee all the rights and powers
of the Trustee so ceasing to act. Upon request of any such
successor trustee, the Company shall execute any and all
instruments in writing for more fully and certainly vesting in and
confirming to such successor trustee all such rights and powers.
Any Trustee ceasing to act shall, nevertheless, retain a lien upon
all property and funds held or collected by such trustee as such,
except for funds held in trust for the benefit of holders of
particular Notes, to secure any amounts then due it pursuant to
the provisions of Section 8.6.
No successor trustee shall accept appointment as
provided in this Section 8.11 unless at the time of such
acceptance such successor trustee shall be qualified under the
provisions of Section 8.8 and eligible under the provisions of
Section 8.9.
Upon acceptance of appointment by a successor trustee as
provided in this Section 8.11, the Company shall mail or cause to
be mailed notice of the succession of such Trustee hereunder to
the holders of Notes at their addresses as they shall appear on
the registry books of the Company. If the Company fails to mail
such notice within ten days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice
to be mailed at the expense of the Company.
Section 8.12 Successor, by Merger, Etc. Any
corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of the Trustee,
shall be the successor to the Trustee hereunder, provided such
corporation shall be qualified under the provisions of Section 8.8
and eligible under the provisions of Section 8.9 without the
execution or filing of any paper or any further act on the part of
any of the parties hereto.
Section 8.13 Limitation on Rights of Trustee as
Creditor. If and when the Trustee shall be or become a creditor
of the Company (or any other obligor upon the Notes) and the Trust
Indenture Act is applicable hereto, the Trustee shall be subject
to the provisions of the Trust Indenture Act regarding the
collection of the claims against the Company (or any such other
obligor).
ARTICLE IX
CONCERNING THE NOTEHOLDERS
Section 9.1 Action by Noteholders. Whenever in this
Indenture it is provided that the holders of a specified
percentage in aggregate principal amount of the Notes may take any
action (including the making of any demand or request, the giving
of any notice, consent or waiver or the taking of any other
action), the fact that at the time of taking any such action, the
holders of such specified percentage have joined therein may be
evidenced (a) by any instrument or any number of instruments of
similar tenor executed by Noteholders in person or by agent or
proxy appointed in writing (b) by the record of the holders of
Notes voting in favor thereof at any meeting of Noteholders duly
called and held in accordance with the provisions of Article X or
(c) by a combination of such instrument or instruments and any
such record of such a meeting of Noteholders. Whenever the
Company or the Trustee solicits the taking of any action by the
holders of the Notes, the Company or the Trustee may fix in
advance of such solicitation, a date as the record date for
determining holders entitled to take such action. The record date
shall be not more than 15 days prior to the date of commencement
of solicitation of such action.
Section 9.2 Proof of Execution by Noteholders. Subject
to the provisions of Sections 8.1, 8.2 and 11.5, proof of the
execution of any instrument by a Noteholder or his agent or proxy
shall be sufficient if made in accordance with such reasonable
rules and regulations as may be prescribed by the Trustee or in
such manner as shall be satisfactory to the Trustee. The holding
of Notes shall be proved by the Note register or by a certificate
of the Note registrar.
The record of any Noteholders' meeting shall be proved
in the manner provided in Section 9.1.
Section 9.3 Who Are Deemed Absolute Owners. The
Company, the Trustee, any paying agent, any conversion or exchange
agent and any Note registrar may deem the person in whose name
such Note shall be registered upon the books of the Company to be,
and may treat him as, the absolute owner of such Note (whether or
not such Note shall be overdue and notwithstanding any notation of
ownership or other writing thereon) for the purpose of receiving
payment of or on account of the principal of, premium, if any, and
interest on such Note, for conversion or exchange of such Note and
for all other purposes; and neither the Company nor the Trustee
nor any paying agent nor any conversion or exchange agent nor any
Note registrar shall be affected by any notice to the contrary.
All such payments so made to any holder for the time being, or
upon his order, shall be valid and, to the extent of the sum or
sums so paid, effectual to satisfy and discharge the liability for
monies payable upon any such Note.
The Depositary shall be deemed to be the owner of any
Note in global form for all purposes, including receipt of notices
to Noteholders and payment of principal of, premium, if any, and
interest on the Notes. None of the Company, the Trustee (in its
capacity as Trustee), any paying agent or the Note registrar (or
co-registrar) will have any responsibility for any aspect of the
records relating to or payments made on account of beneficial
interests of a Note in global form or for maintaining, supervising
or reviewing any records relating to such beneficial ownership
interests; provided, however, that the foregoing shall not apply
to the Trustee or any other person acting in its capacity as
Custodian.
Section 9.4 Company-Owned Notes Disregarded. In
determining whether the holders of the requisite aggregate
principal amount of Notes have concurred in any direction,
consent, waiver or other action under this Indenture, Notes which
are owned by the Company or any other obligor on the Notes or by
any person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company or any
other obligor on the Notes shall be disregarded and deemed not to
be outstanding for the purpose of any such determination; provided
that for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, consent, waiver or
other action, only Notes which a Responsible Officer knows are so
owned shall be so disregarded. Notes so owned which have been
pledged in good faith may be regarded as outstanding for the
purposes of this Section 9.4 if the pledgee shall establish to the
satisfaction of the Trustee the pledger's right to vote such Notes
and that the pledgee is not the Company, any other obligor on the
Notes or a person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Company or
any such other obligor. In the case of a dispute as to such
right, any decision by the Trustee taken upon the advice of
counsel shall be full protection to the Trustee. Upon request of
the Trustee, the Company shall furnish to the Trustee promptly an
Officers' Certificate listing and identifying all Notes, if any,
known by the Company to be owned or held by or for the account of
any of the above described persons; and subject to Section 8.1,
the Trustee shall be entitled to accept such Officers' Certificate
as conclusive evidence of the facts therein set forth and of the
fact that all Notes not listed therein are outstanding for the
purpose of any such determination.
Section 9.5 Revocation of Consents, Future Holders
Bound. At any time prior to (but not after) the evidencing to the
Trustee, as provided in Section 9.1, of the taking of any action
by the holders of the percentage in aggregate principal amount of
the Notes specified in this Indenture in connection with such
action, any holder of a Note which is shown by the evidence to be
included in the Notes the holders of which have consented to such
action may, by filing written notice with the Trustee at its
Corporate Trust Office and upon proof of holding as provided in
Section 9.2, revoke such action so far as concerns such Note.
Except as aforesaid, any such action taken by the holder of any
Note shall be conclusive and binding upon such holder and upon all
future holders and owners of such Note and of any Notes issued in
exchange or substitution therefor, irrespective of whether any
notation in regard thereto is made upon such Note or any Note
issued in exchange or substitution therefor.
ARTICLE X
NOTEHOLDERS MEETINGS
Section 10.1 Purposes for Which Meetings May be Called.
A meeting of Noteholders may be called at any time and from time
to time pursuant to the provisions of this Article X for any of
the following purposes:
(i) to give any notice to the Company or to the
Trustee, or to give any directions to the Trustee, or to consent
to the waiving of any default hereunder and its consequences, or
to take any other action authorized to be taken by Noteholders
pursuant to any of the provisions of Article VII;
(ii) to remove the Trustee and appoint a successor
trustee pursuant to the provisions of Article VIII;
(iii) consent to the execution of an indenture or
indentures supplemental hereto pursuant to the provisions of
Section 11.2; or
(iv) to take any other action authorized to be taken by
or on behalf of the holders of any specified aggregate principal
amount of the Notes under any other provisions of this Indenture
or under applicable law.
Section 10.2 Manner of Calling Meetings; Record Date.
The Trustee may at any time call a meeting of Noteholders to take
any action specified in Section 10.1, to be held at such time and
at such place in the City of Boston, Commonwealth of
Massachusetts, as the Trustee shall determine. Notice of every
meeting of the Noteholders, setting forth the time and the place
of such meeting and in general terms the action proposed to be
taken at such meeting, shall be mailed not less than 30 nor more
than 60 days prior to the date fixed for the meeting to such
Noteholders at their addresses as such addresses appear in the
Note Register. For the purpose of determining Noteholders
entitled to notice of any meeting of Noteholders, the Trustee
shall fix in advance a date as the record date for such
determination, such date to be a business day not more than ten
days prior to the date of the mailing of such notice as
hereinabove provided. Only persons in whose name any Note shall
be registered in the Note Register at the close of business on a
record date fixed by the Trustee as aforesaid, or by the Company
or the Noteholders as in Section 10.3 provided, shall be entitled
to notice of the meeting of Noteholders with respect to which such
record date was so fixed.
Section 10.3 Call of Meeting by Company or Noteholders.
In case at any time the Company, pursuant to a resolution of its
Board of Directors or the holders of at least ten percent in
aggregate principal amount of the Notes then outstanding, shall
have requested the Trustee to call a meeting of Noteholders to
take any action authorized in Section 10.1 by written request
setting forth in reasonable detail the action proposed to be taken
at the meeting, and the Trustee shall not have mailed notice of
such meeting within 20 days after receipt of such request, then
the Company or the holders of Notes in the amount above specified,
as the case may be, may fix the record date with respect to, and
determine the time and the place in said City of Boston for, such
meeting and may call such meeting to take any action authorized in
Section 10.1, by mailing notice thereof as provided in Section
10.2. The record date fixed as provided in the preceding sentence
shall be set forth in a written notice to the Trustee and shall be
a business day not less than 15 nor more than 20 days after the
date on which such notice is sent to the Trustee.
Section 10.4 Who may Attend and Vote at Meetings. Only
persons entitled to receive notice of a meeting of Noteholders and
their respective proxies duly appointed by an instrument in
writing shall be entitled to vote at such meeting. The only
persons who shall be entitled to be present or to speak at any
meeting of Noteholders shall be the persons entitled to vote at
such meeting and their counsel and any representatives of the
Trustee and its counsel and any representatives of the Company and
its counsel. When a determination of Noteholders entitled to vote
at any meeting of Noteholders has been made as provided in this
Section, such determination shall apply to any adjournments
thereof.
Section 10.5 Manner of Voting at Meetings and Record to
be Kept. The vote upon any resolution submitted to any meeting of
Noteholders shall be by written ballots on each of which shall be
subscribed the signature of the Noteholder or proxy casting such
ballot and the identifying number or numbers of the Notes held or
represented in respect of which such ballot is cast. The
permanent chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of
the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record in duplicate of the
proceedings of each meeting of Noteholders shall be prepared by
the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote
by ballot taken thereat and affidavits by one or more persons
having knowledge of the facts setting forth a copy of the notice
of the meeting and showing that said notice was mailed as provided
in Section 10.2. The record shall show the identifying numbers of
the Notes voting in favor of or against any resolution. Each
counterpart of such record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting
and one of the counterparts shall be delivered to the Company and
the other to the Trustee to be preserved by the Trustee.
Any counterpart record so signed and verified shall be
conclusive evidence of the matters therein stated and shall be the
record referred to in clause (b) of Section 9.1.
Section 10.6 Exercise of Rights of Trustee and
Noteholders not to be Hindered or delayed. Nothing in this
Article X contained shall be deemed or construed to authorize or
permit, by reason of any call of a meeting of Noteholders or any
rights expressly or impliedly conferred hereunder to make such
call, any hindrance or delay in the exercise of any right or
rights conferred upon or reserved to the Trustee or to the
Noteholders under any of the provisions of this Indenture or of
the Notes.
ARTICLE XI
SUPPLEMENTAL INDENTURES
Section 11.1 Supplemental Indentures Without Consent of
Noteholders. The Company, when authorized by a Board Resolution,
and the Trustee may from time to time and at any time enter into
an indenture or indentures supplemental hereto for one or more of
the following purposes:
(a) to make provision with respect to the conversion
rights of the holders of Notes pursuant to the requirements of
Section 15.6;
(b) subject to Article IV, to convey, transfer, assign,
mortgage or pledge to the Trustee as security for the Notes, any
property or assets;
(c) to evidence the succession of another person to the
Company, or successive successions, and the assumption by the
Successor Company of the covenants, agreements and obligations of
the Company pursuant to Article XII;
(d) to add to the covenants of the Company such further
covenants, restrictions or conditions as the Board of Directors
and the Trustee shall consider to be for the benefit of the
holders of Notes and to make the occurrence, or the occurrence and
continuance, of a default in any such additional covenants,
restrictions or conditions a default or an Event of Default
permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; provided, however,
that in respect of any such additional covenant, restriction or
condition, such supplemental indenture may provide for a
particular period of grace after default (which period may be
shorter or longer than that allowed in the case of other defaults)
or may provide for an immediate enforcement upon such default or
may limit the remedies available to the Trustee upon such default;
(e) to provide for the issuance under this Indenture of
Notes in coupon form (including Notes registrable as to principal
only) and to provide for exchangeability of such Notes with the
Notes issued hereunder in fully registered form and to make all
appropriate changes for such purpose;
(f) to cure any ambiguity or to correct or supplement
any provision contained herein or in any supplemental indenture
which may be defective or inconsistent with any other provision
contained herein or in any supplemental indenture, or to make such
other provisions in regard to matters or questions arising under
this Indenture which shall not materially adversely affect the
interests of the holders of the Notes;
(g) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Notes;
(h) to modify, eliminate or add to the provisions of
this Indenture to such extent as shall be necessary to effect the
qualifications of this Indenture under the Trust Indenture Act (if
applicable), or under any similar federal statute hereafter
enacted (if applicable); or
(i) to modify, eliminate or add to the provisions of
this Indenture to allow for the issuance of one or more Notes in
global form, in addition to the global Note provided for herein,
representing beneficial interests in Notes issued outside the
United States in reliance on Regulation S under the Securities
Act, with such transfer restrictions and legends as are consistent
with such Regulation, and to add provisions relating to the
exchange and transfer of beneficial interests in any Note or Notes
represented by any such global Note or Notes, any definitive Note
and any global Note referred to in Section 2.5(b) hereof.
The Trustee is hereby authorized to join with the
Company in the execution of any such supplemental indenture, to
make any further appropriate agreements and stipulations which may
be therein contained and to accept the conveyance, transfer and
assignment of any property thereunder, but the Trustee shall not
be obligated to, but may in its discretion, enter into any
supplemental indenture which affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions
of this Section 11.1 may be executed by the Company and the
Trustee without the consent of the holders of any of the Notes at
the time outstanding, notwithstanding any of the provisions of
Section 11.2.
Section 11.2 Supplemental Indentures with Consent of
Noteholders. With the consent (evidenced as provided in Article
IX) of the holders of not less than a majority in aggregate
principal amount of the Notes at the time outstanding, the
Company, when authorized by a Board Resolution and the Trustee may
from time to time and at any time enter into an indenture or
indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or any supplemental indenture or of
modifying in any manner the rights of the holders of the Notes;
provided, however, that no such supplemental indenture shall (i)
extend the fixed maturity of any Note, or reduce the rate or
extend the time of payment of interest thereon, or reduce the
principal amount thereof or premium, if any, thereon or reduce any
amount payable on redemption thereof, alter the obligation of the
Company to redeem the Notes at the option of the holder upon the
occurrence of a Change of Control or impair or affect the right of
any Noteholder to institute suit for the payment thereof or make
the principal thereof or interest or premium, if any, thereon
payable in any coin or currency other than that provided in the
Notes or impair the right to exchange the Notes for Preferred
Stock or the right to convert the Notes into Common Stock subject
to the terms set forth herein, including Sections 15.6 and 17.6,
without the consent of the holder of each Note so affected or (ii)
reduce the aforesaid percentage of Notes, the holders of which are
required to consent to any such supplemental indenture, without
the consent of the holders of all Notes then outstanding.
Upon the request of the Company, accompanied by a copy
of a Board Resolution certified by its Secretary or Assistant
Secretary authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of the
consent of Noteholders as aforesaid, the Trustee shall join with
the Company in the execution of such supplemental indenture unless
such supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated
to, enter into such supplemental indenture.
It shall not be necessary for the consent of the
Noteholders under this Section 11.2 to approve the particular form
of any proposed supplemental indenture, but it shall be sufficient
if such consent shall approve the substance thereof.
Section 11.3 Effect of Supplemental Indentures. Any
supplemental indenture executed pursuant to the provisions of this
Article XI shall comply with the Trust Indenture Act, as then in
effect, if such supplemental indenture is then required to so
comply. Upon the execution of any supplemental indenture pursuant
to the provisions of this Article XI, this Indenture shall be and
be deemed to be modified and amended in accordance therewith and
the respective rights, limitation of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company
and the holders of Notes shall thereafter be determined, exercised
and enforced hereunder subject in all respects to such
modifications and amendments and all the terms and conditions of
any such supplemental indenture shall be and be deemed to be part
of the terms and conditions of this Indenture for any and all
purposes.
Section 11.4 Notation on Notes. Notes authenticated
and delivered after the execution of any supplemental indenture
pursuant to the provisions of this Article XI may bear a notation
in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company or the Trustee shall
so determine, new Notes so modified as to conform, in the opinion
Of the Trustee and the Board of Directors, to any modification of
this Indenture contained in any such supplemental indenture may,
at the Company's expense, be prepared and executed by the Company,
authenticated by the Trustee (or an authenticating agent duly
appointed by the Trustee pursuant to Section 16.12) and delivered
in exchange for the Notes then outstanding, upon surrender of such
Notes then outstanding.
Section 11.5 Evidence of Compliance of Supplemental
Indenture to be Furnished Trustee. The Trustee shall be furnished
with and, subject to the provisions of Sections 8.1 and 8.2, may
rely upon an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed
pursuant hereto complies with the requirements of this Article XI.
ARTICLE XII
CONSOLIDATION, MERGER, SALE, CONVEYANCE,
TRANSFER AND LEASE
Section 12.1 Company May Consolidate, Etc. on Certain
Terms. The Company shall not consolidate with or merge with or
into, or convey, transfer or lease all or substantially all of its
assets to any Person unless: (i) either the Company is the
resulting, surviving or transferee person (the "Successor
Company") or the Successor Company is a person organized and
existing under the laws of the United States or any State thereof
or the District of Columbia, and the Successor Company (if not the
Company) expressly assumes by a supplemental indenture, executed
and delivered to the Trustee, in form satisfactory to the Trustee,
all the obligations of the Company under this Indenture and the
Notes, including the rights pursuant to Article XV hereof; (ii)
immediately after giving effect to such transaction, no Event of
Default has happened and is continuing; and (iii) the Company
delivers to the Trustee an Officer's Certificate and an Opinion of
Counsel, each stating that such consolidation, merger or transfer
and such supplemental indenture (if any) comply with this
Indenture.
Section 12.2 Successor Company to Be Substituted. In
case of any such consolidation, merger, sale, conveyance, transfer
or lease and upon the assumption by the Successor Company, by
supplemental indenture, executed and delivered to the Trustee and
satisfactory in form to the Trustee, of the due and punctual
payment of the principal of, premium, if any, and interest on all
of the Notes and the due and punctual performance of all of the
covenants and conditions of this Indenture to be performed by the-
Company, such Successor Company shall succeed to and be
substituted for the Company, with the same effect as if it had
been named herein as the party of the first part. Such Successor
Company thereupon may cause to be signed, and may issue either in
its own name or in the name of SoftKey International Inc. any or
all of the Notes issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Trustee; and,
upon the order of such Successor Company instead of the Company
and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall
deliver, or cause to be authenticated and delivered, any Notes
which previously shall have been signed and delivered by the
officers of the Company to the Trustee for authentication, and any
Notes which such Successor Company thereafter shall cause to be
signed and delivered to the Trustee for that purpose. All the
Notes so issued shall in all respects have the same legal rank and
benefit under this Indenture as the Notes theretofore or
thereafter issued in accordance with the terms of this Indenture
as though all of such Notes had been issued at the date of the
execution hereof. In the event of any such consolidation, merger,
sale, conveyance, transfer or lease, the person named as the
"Company" in the first paragraph of this Indenture or any
successor which shall thereafter have become such in the manner
prescribed in this Article XII may be dissolved, wound up and
liquidated at any time thereafter and such person shall be
released from its liabilities as obligor and maker of the Notes
and from its obligations under this Indenture.
In case of any such consolidation, merger, sale,
conveyance, transfer or lease, such changes in phraseology and
form (but not in substance) may be made in the Notes thereafter to
be issued as may be appropriate.
Section 12.3 Opinion of Counsel to Be Given Trustee.
The Trustee subject to Sections 8.1 and 8.2, shall receive an
Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale, conveyance,
transfer or lease and any such assumption complies with the
provisions of this Article XII.
ARTICLE XIII
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
Section 13.1 Legal Defeasance and Covenant Defeasance
of the Notes.
(a) The Company may, at its option by Board Resolution,
at any time, with respect to the Notes, elect to have either
paragraph (b) or paragraph (c) below be applied to the outstanding
Notes upon compliance with the conditions set forth in paragraph
(d).
(b) Upon the Company's exercise under paragraph (a) of
the option applicable to this paragraph (b), the Company shall be
deemed to have been released and discharged from its obligations
with respect to the outstanding Notes on the date the conditions
set forth below are satisfied (hereinafter, "legal defeasance").
For this purpose, such legal defeasance means that the Company
shall be deemed to have paid and discharged the entire
indebtedness represented by the outstanding Notes, which shall
thereafter be deemed to be "outstanding" only for the purposes of
the Sections of and matters under this Indenture referred to in
(i) and (ii) below and to have satisfied all its other obligations
under such Notes and this Indenture insofar as such Notes are
concerned, except for the following which shall survive until
otherwise terminated or discharged hereunder: (i) the rights of
holders of outstanding Notes to receive solely from the trust fund
described in paragraph (d) below and as more fully set forth in
such paragraph, payments in respect of the principal of, premium,
if any, and interest on such Notes when such payments are due,
(ii) obligations listed in Section 13.3 and (iii) the obligations
of the Company pursuant to Section 5.6.
(c) Upon the Company's exercise under paragraph (a) of
the option applicable to this paragraph (c), the Company shall be
released and discharged from its obligations under any covenant
contained in Article XII and in Sections 3.5, 5.3, 5.4, 5.5 and
5.7 with respect to the outstanding Notes on and after the date
the conditions set forth in paragraph (d) are satisfied
(hereinafter, "covenant defeasance"), and the Notes shall
thereafter be deemed to be not "outstanding" for the purpose of
any direction, waiver, consent or declaration or act of Holders
(and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed "outstanding" for all
other purposes hereunder. For this purpose, such covenant
defeasance means that, with respect to the outstanding Notes, the
Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of
any reference in any such covenant to any other provision herein
or in any other document, and such omission to comply shall not
constitute a Default or an Event of default under Section 7.1(c),
but, except as specified above, the remainder of this Indenture
and such Notes shall be unaffected thereby.
(d) The following shall be the conditions to
application of either paragraph (b) or paragraph (c) above to the
outstanding Notes:
(i) The Company shall have irrevocably deposited
in trust with the Trustee, pursuant to an irrevocable trust
and security agreement in form and substance satisfactory to
the Trustee, cash or U.S. Government Obligations maturing as
to principal and interest at such times, or a combination
thereof, in such amounts as are sufficient, without
consideration of the reinvestment of such interest and after
payment of all federal, state and local taxes or other
charges or assessments in respect thereof payable by the
Trustee, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written
certification thereof (in form and substance reasonably
satisfactory to the Trustee) delivered to the Trustee, to pay
the principal of, premium, if any, and interest on the
outstanding Notes on the dates on which any such payments are
due and payable in accordance with the terms of this
Indenture and of the Notes;
(ii) (A) No Event of Default shall have occurred or be
continuing on the date of such deposit, and (B) no Default or
Event of Default under Section 7.1(d) or 7.1(e) shall occur
on or before the 123rd day after the date of such deposit;
(iii) Such deposit will not result in a Default under
this Indenture or a breach or violation of, or constitute a
default under, any other instrument or agreement to which the
Company is a party or by which it or its property is bound;
(iv) In the case of a legal defeasance under paragraph
(b) above, the Company has delivered to the Trustee an
Opinion of Counsel stating that (A) the Company has received
from, or there has been published by, the Internal Revenue
Service a ruling or (B) since the date of this Indenture,
there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon
such opinion shall confirm that, the holders of the Notes
will not recognize income, gain or loss for federal income
tax purposes as a result of such deposit, defeasance and
discharge and will be subject to federal income tax on the
same amounts and in the same manner and at the same times as
would have been the case if such deposit, defeasance and
discharge had not occurred; and, in the case of a covenant
defeasance under paragraph (c) above, the Company shall
deliver to the Trustee an Officers' Certificate and an
Opinion of Counsel, in form and substance reasonably
satisfactory to the Trustee, to the effect that holders of
the Notes will not recognize income, gain or loss for federal
income tax purposes as a result of such deposit and
defeasance and will be subject to federal income tax on the
same amounts, in the same manner and at the same times as
would have been the case if such deposit and defeasance had
not occurred;
(v) The holders shall have a perfected security
interest under applicable law in the cash or U.S. Government
Obligations deposited pursuant to Section 13(d)(i) above;
(vi) The Company shall have delivered to the Trustee an
Opinion of Counsel, in form and substance reasonably
satisfactory to the Trustee, to the effect that, after the
passage of 123 days following the deposit, the trust funds
will not be subject to any applicable bankruptcy, insolvency,
reorganization or similar law affecting creditors' rights
generally;
(vii) Such defeasance shall not cause the Trustee to
have a conflicting interest with respect to any securities of
the Company; and
(viii) The Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent specified herein relating to
the defeasance contemplated by this Section 13.1 have been
complied with;
provided, however, that no deposit under clause (d)(i) above shall
be effective to terminate the obligations of the Company under the
Notes or this Indenture prior to 123 days following any such
deposit.
Section 13.2 Termination of Obligations upon
Cancellation of the Notes. In addition to the Company's rights
under Section 13.1, the Company may terminate all of its
obligations under this Indenture (subject to Section 13.3 and any
obligations of the Company under Section 5.6 with respect to any
Common Stock issued upon conversion of the Notes or any Preferred
Stock issued upon exchange of the Notes) when:
(a) (i) all Notes theretofore authenticated and
delivered (other than Notes which have been destroyed, lost
or stolen and which have been replaced or paid as provided in
Section 2.6) have been delivered to the Trustee for
cancellation;
(ii) the Company has paid or caused to be paid all other
sums payable hereunder and under the Notes by the Company;
and
(iii) the Company has delivered to the Trustee an
Officers' Certificate, stating that all conditions precedent
specified herein relating to the satisfaction and discharge
of this Indenture have been complied with; or
(b) (i) the Notes not previously delivered to the
Trustee for cancellation will have become due and payable or
are by their terms to become due and payable within one year
or are to be called for redemption under arrangements
satisfactory to the Trustee upon delivery of notice; (ii) the
Company will have irrevocably deposited with the Trustee, as
trust funds, cash, in an amount sufficient to pay principal
of and interest on the outstanding Notes, to maturity or
redemption, as the case may be; (iii) such deposit will not
result in a breach or violation of, or constitute a default
under, any agreement or instrument pursuant to which the
Company is a party or by which it or its property is bound;
and (iv) and the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions related to such defeasance have been
complied with.
Section 13.3 Survival of Certain Obligations.
Notwithstanding the satisfaction and discharge of this Indenture
and of the Notes referred to in Section 13.1 or 13.2, the
respective obligations of the Company and the Trustee under
Sections 2.3, 2.4, 2.5, 2.6, 2.8, 2.9, 5.2, 6.1, 7.4, 7.9, 8.6,
8.10, 13.5, 13.6 and 13.7 shall survive until the Notes are no
longer outstanding, and thereafter, the obligations of the Company
and the Trustee under Sections 7.9, 8.6, 13.5, 13.6 and 13.7 shall
survive. Nothing contained in this Article XIII shall abrogate
any of the rights, obligations or duties of the Trustee under this
Indenture.
Section 13.4 Acknowledgment of Discharge by Trustee.
Subject to Section 13.7, after (i) the conditions of Section 13.1
or 13.2 have been satisfied, (ii) the Company has paid or caused
to be paid all other sums payable hereunder by the Company and
(iii) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent referred to in clause (i) above relating to
the satisfaction and discharge of this Indenture have been
complied with, the Trustee upon written request shall acknowledge
in writing the discharge of the Company's obligations under this
Indenture except for those surviving obligations specified in
Section 13.3.
Section 13.5 Application of Trust Assets. The Trustee
shall hold any cash or U.S. Government Obligations deposited with
it in the irrevocable trust established pursuant to Section 13.1
or 13.2, as the case may be. The Trustee shall apply the
deposited cash or the U.S. Government Obligations, together with
earnings thereon in accordance with this Indenture and the terms
of the irrevocable trust agreement established pursuant to Section
13.1 or 13.2, as the case may be, to the payment of principal of,
premium, if any, and interest on the Notes. The cash or U.S.
Government Obligations so held in trust and deposited with the
Trustee in compliance with Section 13.1 or 13.2, as the case may
be, shall not be part of the trust estate under this Indenture,
but shall constitute a separate trust fund for the benefit of all
holders entitled thereto. Except as specifically provided herein,
the Trustee shall not be requested to invest any amounts held by
it for the benefit of the holders or pay interest on uninvested
amounts to any holder.
Section 13.6 Repayment to the Company; Unclaimed Money.
Upon termination of the trust established pursuant to Section 13.1
or 13.2, as the case may be, the Trustee shall promptly pay to the
Company upon request any excess cash or U.S. Government
Obligations held by them. Additionally, if amounts for the
payment of principal, premium, if any, or interest remains
unclaimed for six years, the Trustee will pay such amounts back to
the Company forthwith. Thereafter, all liability of the Trustee
with respect to such amounts shall cease.
Subject to applicable laws governing escheat of such
property, the Trustee shall pay to the Company upon request, and,
if applicable, in accordance with the irrevocable trust
established pursuant to Section 13.1 or 13.2, any cash or U.S.
Government Obligations held by them for the payment of principal
of, premium, if any, or interest on the Notes that remain
unclaimed for six years after the date on which such payment shall
have become due. After payment to the Company, Holders entitled
to such payment must look to the Company for such payment as
general creditors unless an applicable abandoned property law
designates another person.
Section 13.7 Reinstatement. If the Trustee is unable
to apply any cash or U.S. Government Obligations in accordance
with Section 13.1 or 13.2 by reason of any legal proceeding or by
reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and
the Notes shall be revived and reinstated as though no deposit had
occurred pursuant to Section 13.1 or 13.2 until such time as the
Trustee is permitted to apply all such cash or U.S. Government
Obligations in accordance with Section 13.1 or 13.2, as the case
may be; provided that if the Company makes any payment of
principal of, premium, if any, or interest on any Notes following
the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Notes to receive
such payment from the amounts held by the Trustee.
ARTICLE XIV
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 14.1 Indenture and Notes Solely Corporate
Obligations. No recourse for the payment of the principal of, or
premium, if any, or interest on any Note, or for any claim based
thereon or otherwise in respect thereof, and no recourse under or
upon any obligation, covenant or agreement of the Company in this
Indenture or in any supplemental indenture or in any Note, or
because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or of
any successor entity, either directly or through the Company or
any successor entity, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly understood that all such
liability is hereby expressly waived and released as a condition
of, and as a consideration for, the execution of this Indenture
and the issue of the Notes.
ARTICLE XV
CONVERSION OF NOTES
Section 15.1 Right to Convert. Subject to and upon
compliance with the provisions of this Indenture, the holder of
any Note shall have the right, at his option, at any time prior to
the close of business on November 1, 2000 (except that, with
respect to any Note or portion of a Note which shall be called for
redemption or delivered for repurchase, such right shall
terminate, except as provided in the fourth paragraph of Section
15.2, at the close of business on the last Trading Day prior to
the date fixed for redemption of such Note or portion of a Note
unless the Company shall default in payment due upon redemption
thereof) to convert the principal amount of any such Note, or any
portion of such principal amount which is $1,000 or an integral
multiple thereof, into that number of fully paid and nonassessable
shares of Common Stock (as such shares shall then be constituted)
obtained by dividing the principal amount of the Note or portion
thereof surrendered for conversion by the Conversion Price in
effect at such time, by surrender of the Note so to be converted
in whole or in part in the manner provided in Section 15.2. A
holder of Notes is not entitled to any rights of a holder of
Common Stock until such holder has converted his Notes to Common
Stock, and only to the extent such Notes are deemed to have been
converted to Common Stock under this Article XV.
Section 15.2 Exercise of Conversion Privilege; Issuance
of Common Stock on Conversion; No Adjustment for Interest or
Dividends. In order to exercise the conversion privilege with
respect to any Note in definitive form, the holder of any such
Note to be converted in whole or in part shall surrender such
Note, duly endorsed, at an office or agency maintained by the
Company pursuant to Section 5.2, accompanied by the funds, if any,
required by the penultimate paragraph of this Section 15.2, and
shall give written notice of conversion in the form provided on
the Notes (or such other notice which is acceptable to the
Company) to the office or agency that the holder elects to convert
such Note or the portion thereof specified in said notice. Such
notice shall also state the name or names (with address) in which
the certificate or certificates for shares of Common Stock which
shall be issuable on such conversion shall be issued and shall be
accompanied by transfer taxes, if required pursuant to Section
15.7. Each such Note surrendered for conversion shall, unless the
shares issuable on conversion are to be issued in the same name as
the registration of such Note, be duly endorsed by, or be
accompanied by instruments of transfer in form satisfactory to the
Company duly executed by, the holder or his duly authorized
attorney.
In order to exercise the conversion privilege with
respect to any interest in a Note in global form, the beneficial
holder must complete the appropriate instruction form for
conversion pursuant to the Depositary's book-entry conversion
program and follow the other procedures set forth in such program.
As promptly as practicable after satisfaction of the
requirements for conversion set forth above, subject to compliance
with any restrictions on transfer if shares issuable on conversion
are to be issued in a name other than that of the Noteholder (as
if such transfer were a transfer of the Note or Notes (or portion
thereof) so converted), the Company shall issue and shall deliver
to such holder at the office or agency maintained by the Company
for such purpose pursuant to Section 5.2, a certificate or
certificates for the number of full shares issuable upon the
conversion of such Note or portion thereof in accordance with the
provisions of this Article XV and a check or cash in respect of
any fractional interest in respect of a share of Common Stock
arising upon such conversion, as provided in Section 15 1. In case
any Note of a denomination greater than $1,000 shall be
surrendered for partial conversion, and subject to Section 2.3,
the Company shall execute and the Trustee shall authenticate and
deliver to the holder of the Note so surrendered, without charge
to him, a new Note or Notes in authorized denominations in an
aggregate principal amount equal to the unconverted portion of the
surrendered Note.
Each conversion shall be deemed to have been effected as
to any such Note (or portion thereof) on the date on which the
requirements set forth above in this Section 15.2 have been
satisfied as to such Note (or portion thereof), and the person in
whose name any certificate or certificates for shares of Common
Stock shall be issuable upon such conversion shall be deemed to
have become on said date the holder of record of the shares
represented thereby; provided, however, that any such surrender on
any date when the stock transfer books of the Company shall be
closed shall constitute the person in whose name the certificates
are to be issued as the record holder thereof for all purposes on
the next succeeding day on which such stock transfer books are
open, but such conversion shall be at the Conversion Price in
effect on the date upon which such Note shall have been
surrendered.
Any Note or portion thereof surrendered for conversion
during the period from the close of business on the record date
for any interest payment date through the close of business on the
Trading Day next preceding such interest payment date shall
(unless such Note or portion thereof being converted shall have
been called for redemption on a date in such period) be
accompanied by payment, in funds acceptable to the Company, of an
amount equal to the interest otherwise payable on such interest
payment date on the principal amount being converted; provided,
however, that no such payment need be made if there shall exist at
the time of conversion a default in the payment of interest on the
Notes. An amount equal to such payment shall be paid by the
Company on such interest payment date to the holder of such Note
at the close of business on such record date; provided, however,
that if the Company shall default in the payment of interest on
such interest payment date, such amount shall be paid to the
person who made such required payment. Except as provided above
in this Section 15.2, no adjustment shall be made for interest
accrued on any Note converted or for dividends on any shares
issued upon the conversion of such Note as provided in this
Article.
Upon the conversion of an interest in a Note in global
form, the Trustee, or the Custodian at the direction of the
Trustee, shall make a notation on such Note in global form as to
the reduction in the principal amount represented thereby.
Section 15.3 Cash Payments in Lieu of Fractional
Shares. No fractional shares of Common Stock or scrip
representing fractional shares shall be issued upon conversion of
Notes. If more than one Note shall be surrendered for conversion
at one time by the same holder, the number of full shares which
shall be issuable upon conversion shall be computed on the basis
of the aggregate principal amount of the Notes (or specified
portions thereof to the extent permitted hereby) so surrendered.
If any fractional share of stock would be issuable upon the
conversion of any Note or Notes, the Company shall make an
adjustment therefor in cash at the current market value thereof.
The current market value of a share of Common Stock shall be the
Closing Price on the first Trading Day immediately preceding the
day on which the Notes (or specified portions thereof) are deemed
to have been converted and such Closing Price shall be determined
as provided in Section 15.5(g).
Section 15.4 Conversion Price. The conversion price
shall be as specified in the forms of Notes (herein called the
"Conversion Price") attached as Exhibits A and B hereto, subject
to adjustment as provided in this Article XV.
Section 15.5 Adjustment of Conversion Price. The
Conversion Price shall be adjusted from time to time by the
Company as follows:
(a) In case the Company shall hereafter pay a dividend
or make a distribution to all holders of the outstanding Common
Stock in shares of Common Stock, the Conversion Price in effect at
the opening of business on the date following the date fixed for
the determination of stockholders entitled to receive such
dividend or other distribution shall be reduced by multiplying
such Conversion Price by a fraction the numerator of which shall
be the number of shares of Common Stock outstanding at the close
of business on the Record Date (as defined in Section 15.5(g))
fixed for such determination and the denominator of which shall be
the sum of such number of shares and the total number of shares
constituting such dividend or other distribution, such reduction
to become effective immediately after the opening of business on
the day following the Record Date. The Company will not pay any
dividend or make any distribution on shares of Common Stock held
in the treasury of the Company.
(b) In case the Company shall issue rights or warrants
to all holders of its outstanding shares of Common Stock entitling
them (for a period expiring within 45 days after the date fixed
for determination of stockholders entitled to receive such rights
or warrants) to subscribe for or purchase shares of Common Stock
at a price per share less than the Current Market Price (as
defined in Section 15.5(g)) on the Record Date fixed for
determination of stockholders entitled to receive such rights or
warrants, the Conversion Price shall be adjusted so that the same
shall equal the price determined by multiplying the Conversion
Price in effect at the opening of business on the date after the
Record Date by a fraction the numerator of which shall be the
number of shares of Common Stock outstanding at the close of
business on the Record Date plus the number of shares which the
aggregate offering price of the total number of shares so offered
would purchase at such Current Market Price, and the denominator
of which shall be the number of shares of Common Stock outstanding
on the close of business on the Record Date plus the total number
of additional shares of Common Stock so offered for subscription
or purchase. Such adjustment shall become effective immediately
after the opening of business on the day following the Record Date
fixed for determination of stockholders entitled to receive such
rights or warrants. To the extent that shares of Common Stock are
not delivered after the expiration or termination of such rights
or warrants, the Conversion Price shall be readjusted to the
Conversion Price which would then be in effect had the adjustments
made upon the issuance of such rights or warrants been made on the
basis of delivery of only the number of shares of Common Stock
actually delivered. In the event that such rights or warrants are
not so issued, the Conversion Price shall again be adjusted to be
the Conversion Price which would then be in effect if such date
fixed for the determination of stockholders entitled to receive
such rights or warrants had not been fixed. In determining
whether any rights or warrants entitle the holders to subscribe
for or purchase shares of Common Stock at less than such Current
Market Price, and in determining the aggregate offering price of
such shares of Common Stock, there shall be taken into account any
consideration received for such rights or warrants, the value of
such consideration, if other than cash, to be determined by the
Board of Directors.
(c) In case outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the
Conversion Price in effect at the opening of business on the day
following the day upon which such subdivision becomes effective
shall be proportionately reduced, and conversely, in case
outstanding shares of Common Stock shall be combined into a
smaller number of shares of Common Stock, the Conversion Price in
effect at the opening of business on the day following the day
upon which such combination becomes effective shall be
proportionately increased, such reduction or increase, as the case
may be, to become effective immediately after the opening of
business on the day following the day upon which such subdivision
or combination becomes effective.
(d) In case the Company shall, by dividend or
otherwise, distribute to all holders of its Common Stock shares of
any class of capital stock of the Company (other than any
dividends or distributions to which Section 15.5(a) applies) or
evidences of its indebtedness or assets (including securities, but
excluding any rights or warrants referred to in Section 15.5(b),
and excluding any dividend or distribution (x) in connection with
the liquidation, dissolution or winding-up of the Company, whether
voluntary or involuntary, (y) exclusively in cash or (z) referred
to in Section 15.5(a) (any of the foregoing hereinafter in this
Section 15.5(d) called the "Securities"), then, in each such case,
the Conversion Price shall be reduced so that the same shall be
equal to the price determined by multiplying the Conversion Price
in effect immediately prior to the close of business on the Record
Date (as defined in Section 15.5(g)) with respect to such
distribution by a fraction of which the numerator shall be the
Current Market Price (determined as provided in Section 15.5(g))
on such date less the fair market value (as determined by the
Board of Directors, whose determination shall be conclusive and
described in a Board Resolution) on such date of the portion of
the Securities so distributed applicable to one share of Common
Stock and the denominator shall be such Current Market Price, such
redaction to become effective immediately prior to the opening of
business on the day following the Record Date; provided, however,
that in the event the then fair market value (as so determined) of
the portion of the Securities so distributed applicable to one
share of Common Stock is equal to or greater than the Current
Market Price on the Record Date, in lieu of the foregoing
adjustment, adequate provision shall be made so that each
Noteholder shall have the right to receive upon conversion the
amount of Securities such holder would have received had such
holder converted each Note on such date. In the event that such
dividend or distribution is not so paid or made, the Conversion
Price shall again be adjusted to be the Conversion Price which
would then be in effect if such dividend or distribution had not
been declared. If the Board of Directors determines the fair
market value of any distribution for purposes of this Section
15.5(d) by reference to the actual or when issued trading market
for any securities comprising all or part of such distribution, it
must in doing so consider the prices in such market over the same
period used in computing the Current Market Price pursuant to
Section 15.5(g) to the extent possible.
Notwithstanding the foregoing provisions of this Section
15.5(d), no adjustment shall be made hereunder for any
distribution of Securities if the Company makes proper provision
so that each Noteholder who converts such Note (or any portion
thereof) after the date fixed for determination of stockholders
entitled to receive such distribution shall be entitled to receive
upon such conversion, in addition to the shares of Common Stock
issuable upon such conversion, the amount and kind of Securities
that such holder would have been entitled to receive if such
holder had, immediately prior to such determination date,
converted such Note into Common Stock; provided that, with respect
to any Securities that are convertible, exchangeable or
exercisable, the foregoing provision shall only apply to the
extent (and so long as) the Securities receivable upon conversion
of such Note would be convertible, exchangeable or exercisable, as
applicable, without any loss of rights or privileges for a period
of at least 60 days following conversion of such Note.
Rights or warrants distributed by the Company to all
holders of Common Stock entitling the holders thereof to subscribe
for or purchase shares of the Company's capital stock (either
initially or under certain circumstances), which rights or
warrants, until the occurrence of a specified event or events
("Trigger Event"): (i) are deemed to be transferred with such
shares of Common Stock, (ii) are not exercisable and (iii) are
also issued in respect of future issuances of Common Stock, shall
not be deemed distributed for purposes of this Section 15.5(d)
(and no adjustment to the Conversion Price under Section 15.5(d)
will be required) until the occurrence of the earliest Trigger
Event. In addition, in the event of any distribution of rights or
warrants, or any Trigger Event with respect thereto, that shall
have resulted in an adjustment to the Conversion Price under this
Section 15.5(d), (1) in the case of any such rights or warrants
which shall all have been redeemed or repurchased without exercise
by any holders thereof, the Conversion Price shall be readjusted
upon such final redemption or repurchase to give effect to such
distribution or Trigger Event, as the case may be, as though it
were a cash distribution, equal to the per share redemption or
repurchase price received by a holder of Common Stock with respect
to such rights or warrants (assuming such holder had retained such
rights or warrants), made to all holders of Common Stock as of the
date of such redemption or repurchase, and (2) in the case of such
rights or warrants all of which shall have expired or been
terminated without exercise by any holder thereof, the Conversion
Price shall be readjusted as if such issuance had not occurred.
For purposes of this Section 15.5(d) and Sections
15.5(a) and (b), any dividend or distribution to which this
Section 15.5(d) is applicable that also includes shares of Common
Stock, or rights or warrants to subscribe for or purchase shares
of Common Stock (or both), shall be deemed instead to be (1) a
dividend or distribution of the evidences of indebtedness, assets
or shares of capital stock other than such shares of Common Stock
or rights or warrants (and any Conversion Price reduction required
by this Section 15.5(d) with respect to such dividend or
distribution shall then be made) immediately followed by (2) a
dividend or distribution of such shares of Common Stock or such
rights or warrants (and any further Conversion Price reduction
required by Sections 15.5(a) and (b) with respect to such dividend
or distribution shall then be made, except (A) the Record Date of
such dividend or distribution shall be substituted as "the date
fixed for the determination of stockholders entitled to receive
such dividend or other distribution" and "the date fixed for such
determination" within the meaning of Sections 15.5(a) and (b) and
(B) any shares of Common Stock included in such dividend or
distribution shall not be deemed "outstanding at the close of
business on the date fixed for such determination" within the
meaning of Section 15.5(a).
(e) In case the Company shall, by dividend or
otherwise, distribute to all holders of its Common Stock cash
(excluding any cash that is distributed upon a merger or
consolidation to which Section 15.6 applies or as part of a
distribution referred to in Section 15.5(d)) in an aggregate
amount that, combined together with (1) the aggregate amount of
any other such distributions to all holders of its Common Stock
made exclusively in cash within the twelve (12) months preceding
the date of payment of such distribution, and in respect of which
no adjustment pursuant to this Section 15.5(e) has been made, and
(2) the aggregate of any cash plus the fair market value (as
determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution) of consideration
payable in respect of any tender offer, by the Company or any of
its subsidiaries for all or any portion of the Common Stock
concluded within the twelve (12) months preceding the date of
payment of such distribution, and in respect of which no
adjustment pursuant to Section 15.5(f) has been made, exceeds
20.0% of the product of the Current Market Price (determined as
provided in Section 15.5(g)) on the Record Date with respect to
such distribution times the number of shares of Common Stock
outstanding on such date, then, and in each such case, immediately
after the close of business on such date, unless the Company
elects to reserve such cash for distribution to the holders of the
Notes upon the conversion of the Notes so that any such holder
converting Notes will receive upon such conversion, in addition to
the shares of Common Stock to which such holder is entitled, the
amount of cash which such holder would have received if such
holder had, immediately prior to the Record Date for such
distribution of cash, converted its Notes into Common Stock, the
Conversion Price shall be reduced so that the same shall equal the
price determined by multiplying the Conversion Price in effect
immediately prior to the close of business on such date by a
fraction (i) the numerator of which shall be equal to the Current
Market Price on the Record Date less an amount equal to the
quotient of (x) the excess of such combined amount over such 20.0%
and (y) the number of shares of Common Stock outstanding on the
Record Date and (ii) the denominator of which shall be equal to
the Current Market Price on such date; provided, however, that in
the event the portion of the cash so distributed applicable to one
share of Common Stock is equal to or greater than the Current
Market Price of the Common Stock on the Record Date, in lieu of
the foregoing adjustment, adequate provision shall be made so that
each Noteholder shall have the right to receive upon conversion
the amount of cash such holder would have received had such holder
converted each Note on the Record Date. In the event that such
dividend or distribution is not so paid or made, the Conversion
Price shall again be adjusted to be the Conversion Price which
would then be in effect if such dividend or distribution had not
been declared.
(f) In case a tender offer made by the Company or any
of its subsidiaries for all or any portion of the Common Stock
shall expire and such tender offer (as amended upon the expiration
thereof) shall require the payment to stockholders (based on the
acceptance (up to any maximum specified in the terms of the tender
offer) of Purchased Shares (as defined below)) of an aggregate
consideration having a fair market value (as determined by the
Board of Directors, whose determination shall be conclusive and
described in a Board Resolution) that combined together with (1)
the aggregate of the cash plus the fair market value (as
determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution), as of the
expiration of such tender offer, of consideration payable in
respect of any other tender offer, by the Company or any of its
subsidiaries for all or any portion of the Common Stock expiring
within the twelve (12) months preceding the expiration of such
tender offer, and in respect of which no adjustment pursuant to
this paragraph (f) has been made, and (2) the aggregate amount of
any distributions to all holders of the Company's Common Stock
made exclusively in cash within twelve (12) months preceding the
expiration of such tender offer, and in respect of which no
adjustment pursuant to paragraph (e) of this Section has been
made, exceeds 20.0% of the product of the Current Market Price
(determined as provided in paragraph (g) of this Section) as of
the last time (the "Expiration Time") tenders could have been made
pursuant to such tender offer (as it may be amended) times the
number of shares of Common Stock outstanding (including any
tendered shares) on the Expiration Time, then, and in each such
case, immediately prior to the opening of business on the day
after the date of the Expiration Time, the Conversion Price shall
be adjusted so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to
close of business on the date of the Expiration Time by a fraction
of which the numerator shall be the number of shares of Common
Stock outstanding (including any tendered shares) on the
Expiration Time multiplied by the Current Market Price of the
Common Stock on the Trading Day next succeeding the Expiration
Time and the denominator shall be the sum of (x) the fair market
value (determined as aforesaid) of the aggregate consideration
payable to stockholders based on the acceptance (up to any maximum
specified in the terms of the tender offer) of all shares validly
tendered and not withdrawn as of the Expiration Time (the shares
deemed so accepted, up to any such maximum, being referred to as
the "Purchased Shares") and (y) the product of the number of
shares of Common Stock outstanding (less any Purchased Shares) on
the Expiration Time and the Current Market Price of the Common
Stock on the Trading Day next succeeding the Expiration Time, such
reduction to become effective immediately prior to the opening of
business on the day following the Expiration Time. In the event
that the Company is obligated to purchase shares pursuant to any
such tender offer, but the Company is permanently prevented by
applicable law from effecting any such purchases or all such
purchases are rescinded, the Conversion Price shall again be
adjusted to be the Conversion Price which would then be in effect
if such tender offer had not been made.
(g) For purposes of this section 15.5, the following
terms shall have the meaning indicated:
(1) "Closing Price" with respect to any securities on
any day shall mean the closing sale price regular way on such
day or, in case no such sale takes place on such day, the
average of the reported closing bid and asked prices, regular
way, in each case on the New York Stock Exchange, or, if such
security is not listed or admitted to trading on such
Exchange, on the principal national security exchange or
quotation system on which such security is quoted or listed
or admitted to trading, or, if not quoted or listed or
admitted to trading on any national securities exchange or
quotation system, the average of the closing bid and asked
prices of such security on the over-the-counter market on the
day in question as reported by the National Quotation Bureau
Incorporated, or a similar generally accepted reporting
service, or if not so available, in such manner as furnished
by any New York Stock Exchange member firm selected from time
to time by the Board of Directors for that purpose, or a
price determined in good faith by the Board of Directors
whose determination shall be conclusive and described in a
Board Resolution.
(2) "Current Market Price" shall mean the average of
the daily Closing Prices per share of Common Stock for the
ten consecutive Trading Days immediately prior to the date in
question; provided, however, that (1) if the "ex" date (as
hereinafter defined) for any event (other than the issuance
or distribution or Change of Control requiring such
computation) that requires an adjustment to the Conversion
Price pursuant to Section 15.5(a), (b), (c), (d), (e) or (f)
occurs during such ten consecutive Trading Days, the Closing
Price for each Trading Day prior to the "ex" date for such
other event shall be adjusted by multiplying such Closing
Price by the same fraction by which the Conversion Price is
so required to be adjusted as a result of such other event,
(2) if the "ex" date for any event (other than the issuance,
distribution or Change of Control requiring such computation)
that requires an adjustment to the Conversion Price pursuant
to Section 15.5(a), (b), (c), (d), (e) or (f) occurs on or
after the "ex" date for the issuance or distribution
requiring such computation and prior to the day in question,
the Closing Price for each Trading Day on and after the "ex"
date for such other event shall be adjusted by multiplying
such Closing Price by the reciprocal of the fraction by which
the Conversion Price is so required to be adjusted as a
result of such other event and (3) if the "ex" date for the
issuance, distribution or Change of Control requiring such
computation is prior to the day in question, after taking
into account any adjustment required pursuant to clause (1)
or (2) of this proviso, the Closing Price for each Trading
Day on or after such "ex" date shall be adjusted by adding
thereto the amount of any cash and the fair market value (as
determined by the Board of Directors in a manner consistent
with any determination of such value for purposes of Section
15.5(d) or (f), whose determination shall be conclusive and
described in a Board Resolution) of the evidences of
indebtedness, shares of capital stock or assets being
distributed applicable to one share of Common Stock as of the
close of business on the day before such "ex" date. For
purposes of any computation under Section 15.5(f), the
Current Market Price of the Common Stock on any date shall be
deemed to be the average of the daily Closing Prices per
share of Common Stock for such day and the next two
succeeding Trading Days; provided, however, that if the "ex"
date for any event (other than the tender or exchange offer
requiring such computation) that requires an adjustment to
the conversion Price pursuant to Section 15.5(a), (b), (c),
(d), (e) or (f) occurs on or after the Expiration Time for
the tender or exchange offer requiring such computation and
prior to the day in question, the Closing Price for each
Trading Day on and after the "ex" date for such other event
shall be adjusted by multiplying such Closing Price by the
reciprocal of the fraction by which the Conversion Price is
so required to be adjusted as a result of such other event.
For purposes of this paragraph, the term "ex" date, (1) when
used with respect to any issuance or distribution, means the
first date on which the Common Stock trades regular way on
the relevant exchange or in the relevant market from which
the Closing Price was obtained without the right to receive
such issuance or distribution, (2) when used with respect to
any subdivision or combination of shares of Common Stock,
means the first date on which the common Stock trades regular
way on such exchange or in such market after the time at
which such subdivision or combination becomes effective and
(3) when used with respect to any tender or exchange offer
means the first date on which the Common Stock trades regular
way on such exchange or in such market after the expiration
of such offer. Notwithstanding the foregoing, whenever
successive adjustments to the Conversion Price are called for
pursuant to this Section 15.5, such adjustments shall be made
to the Current Market Price as may be necessary or
appropriate to effectuate the intent of this Section 15.5 and
to avoid unjust or inequitable results as determined in good
faith by the Board of Directors.
(3) "fair market value" shall mean the amount which a
willing buyer would pay a willing seller in an arm's-length
transaction.
(4) "Record Date" shall mean, with respect to any
dividend, distribution or other transaction or event in which
the holders of Common Stock have the right to receive any
cash, securities or other property or in which the Common
Stock (or other applicable security) is exchanged for or
converted into any combination of cash, securities or other
property, the date fixed for determination of stockholders
entitled to receive such cash, securities or other property
(whether such date is fixed by the Board of Directors or by
statute, contract or otherwise).
(5) "Trading Day" shall mean (x) if the applicable
security is listed or admitted for trading on the New York
Stock Exchange or another national security exchange, a day
on which the New York Stock Exchange or that other national
security exchange is open for business or (y) if the
applicable security is quoted on the Nasdaq National Market,
a day on which trades may be made thereon or (z) if the
applicable security is not so listed, admitted for trading or
quoted, any day other than a Saturday or Sunday or a day on
which banking institutions in the State of New York are
authorized or obligated by law or executive order to close.
(h) The Company may make such reductions in the
Conversion Price, in addition to those required by Sections
15.5(a), (b), (c), (d), (e) and (f), as the Board of Directors
considers to be advisable to avoid or diminish any income tax to
holders of Common Stock or rights to purchase Common Stock
resulting from any dividend or distribution of stock (or rights to
acquire stock) or from any event treated as such for income tax
purposes. To the extent permitted by applicable law, the Company
from time to time may reduce the Conversion Price by any amount
for any period of time if the period is at least 20 days, the
reduction is irrevocable during the period and the Board of
Directors shall have made a determination that such reduction
would be in the best interests of the Company, which determination
shall be conclusive and described in a Board Resolution. Whenever
the Conversion Price is reduced pursuant to the preceding
sentence, the Company shall mail to all holders of record of the
Notes a notice of the reduction at least 15 days prior to the date
the reduced Conversion Price takes effect, and such notice shall
state the reduced Conversion Price and the period it will be in
effect.
(i) No adjustment in the Conversion Price shall be
required unless such adjustment would require an increase or
decrease of at least 1% in such price; provided, however, that any
adjustments which by reason of this Section 15.5(i) are not
required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under this
Article XV shall be made by the Company and shall be made to the
nearest cent or to the nearest one-hundredth of a share, as the
case may be.
No adjustment need be made for rights to purchase Common
Stock pursuant to a Company plan for reinvestment of dividends or
interest.
No adjustment need be made for a change in the par
value, or to or from no par value, of the Common Stock.
To the extent the Notes become convertible into cash,
assets, property or securities (other than Common Stock of the
Company), no adjustment need be made thereafter as to the cash,
assets, property or such securities (except as such securities may
otherwise by their terms provide), and interest shall not accrue
on such cash.
(j) Whenever the Conversion Price is adjusted as herein
provided, the Company shall promptly file with the Trustee and any
conversion agent other than the Trustee an Officers' Certificate
setting forth the Conversion Price after such adjustment and
setting forth a brief statement of the facts requiring such
adjustment. Promptly after delivery of such certificate, the
Company shall prepare a notice of such adjustment of the
Conversion Price setting forth the adjusted Conversion Price and
the date on which each adjustment becomes effective and shall mail
such notice of such adjustment of the Conversion Price to the
holder of each Note at his last address appearing on the Note
register provided for in Section 2.5 of this Indenture, within 20
days after execution thereof. Failure to deliver such notice
shall not effect the legality or validity of any such supplemental
indenture.
(k) In any case in which this Section 15.5 provides
that an adjustment shall become effective immediately after a
Record Date for an event, the Company may defer until the
occurrence of such event (i) issuing to the holder of any Note
converted after such Record Date and before the occurrence of such
event the additional shares of Common Stock issuable upon such
conversion by reason of the adjustment required by such event over
and above the Common Stock issuable upon such conversion before
giving effect to such adjustment and (ii) paying to such holder
any amount in cash in lieu of any fraction pursuant to Section
15.3.
Section 15.6 Effect of Reclassification, Consolidation,
Merger or Sale. If any of the following events occur, namely (i)
any reclassification or change of outstanding shares of Common
Stock (other than a change in par value, or to or from no par
value, as a result of a subdivision or combination), (ii) any
consolidation, merger or combination of the Company with another
corporation as a result of which holders of Common Stock shall be
entitled to receive stock, securities or other property or assets
(including cash) with respect to or in exchange for such Common
Stock or (iii) any sale or conveyance of the properties and assets
of the Company as, or substantially as, an entirety to any other
corporation as a result of which holders of Common Stock shall be
entitled to receive stock, securities or other property or assets
(including cash) with respect to or in exchange for such Common
Stock, then the Company or the successor or purchasing
corporation, as the case may be, shall execute with the Trustee a
supplemental indenture (which shall comply with the Trust
Indenture Act as in force at the date of execution of such
supplemental indenture if such supplemental indenture is then
required to so comply) providing that such Note shall be
convertible into the kind and amount of shares of stock and other
securities or property or assets (including cash) receivable upon
such reclassification, change, consolidation, merger, combination,
sale or conveyance by a holder of a number of shares of Common
Stock issuable upon conversion of such Notes (assuming, for such
purposes, a sufficient number of authorized shares of Common Stock
available to convert all such Notes) immediately prior to such
reclassification, change, consolidation, merger, combination, sale
or conveyance, assuming such holder of Common Stock did not
exercise his rights of election, if any, as to the kind or amount
of securities, cash or other property receivable upon such
reclassification, change, consolidation, merger, combination, sale
or conveyance (provided that, if the kind or amount of securities,
cash or other property receivable upon such reclassification,
change, consolidation, merger, combination, sale or conveyance is
not the same for each share of Common Stock in respect of which
such rights of election shall not have been exercised ("non-
electing share"), then for the purposes of this Section 15.6 the
kind and amount of securities, cash or other property receivable
upon such reclassification, change, consolidation, merger,
combination, sale or conveyance for each non-electing share shall
be deemed to be the kind and amount so receivable per share by a
plurality of the non-electing shares). Such supplemental
indenture shall provide for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for
in this Article XV.
The Company shall cause notice of the execution of such
supplemental indenture to be mailed to each holder of Notes, at
his address appearing on the Note register provided for in Section
2.5 of this Indenture, within 20 days after execution thereof.
Failure to deliver such notice shall not affect the legality or
validity of such supplemental indenture.
The above provisions of this Section shall similarly
apply to successive reclassifications, changes, consolidations,
mergers, combinations, sales and conveyances.
If this Section 15.6 applies to any event or occurrence,
Section 15.5 shall not apply.
Section 15.7 Transfer or Similar Taxes on Shares
Issued. The issue of stock certificates on conversions of Notes
shall be made without charge to the converting Noteholder for any
transfer or similar tax in respect of the issue thereof. The
Company shall not, however, be required to pay any such tax which
may be payable in respect of any transfer involved in the issue
and delivery of stock in any name other than that of the holder of
any Note converted, and the Company shall not be required to issue
or deliver any such stock certificate unless and until the person
or persons requesting the issue thereof shall have paid to the
Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.
Section 15.8 Reservation of Shares; Shares to Be Fully
Paid; Listing of Common Stock. The Company shall provide, free
from preemptive rights, out of its authorized but unissued shares
or shares held in treasury, sufficient shares to provide for the
conversion of the Notes from time to time as such Notes are
presented for conversion.
Before taking any action which would cause an adjustment
reducing the Conversion Price below the then par value, if any, of
the shares of Common Stock issuable upon conversion of the Notes,
the Company will take all corporate action which may, in the
opinion of its counsel, be necessary in order that the Company may
validly and legally issue shares of such Common Stock at such
adjusted Conversion Price.
The Company covenants that all shares of Common Stock
which may be issued upon conversion of Notes will, upon issue, be
fully paid and nonassessable by the Company and free from all
transfer or similar taxes as described in Section 15.7, liens and
charges with respect to the issue thereof.
The Company further covenants that, if at any time the
Common Stock shall be listed on the New York Stock Exchange or any
other national securities exchange, the Company will, if permitted
by the rules of such exchange, list and keep listed, so long as
the Common Stock shall be so listed on such exchange, all Common
Stock issuable upon conversion of the Notes.
Section 15.9 Responsibility of Trustee. The Trustee
and any other conversion agent shall not at any time be under any
duty or responsibility to any holder of Notes to determine whether
any facts exist which may require any adjustment of the Conversion
Price, or with respect to the nature or extent or calculation of
any such adjustment when made, or with respect to the method
employed, or herein or in any supplemental indenture provided to
be employed, in making the same. The Trustee and any other
conversion agent shall not be accountable with respect to the
validity or value (or the kind or amount) of any shares of Common
Stock, or of any securities or property, which may at any time be
issued or delivered upon the conversion of any Note; and the
Trustee and any other conversion agent make no representations
with respect thereto. Subject to the provisions of Section 8.1,
neither the Trustee nor any conversion agent shall be responsible
for any failure of the Company to issue, transfer or deliver any
shares of Common Stock or stock certificates or other securities
or property or cash upon the surrender of any debenture for the
purpose of conversion or to comply with any of the duties,
responsibilities or covenants of the Company contained in this
Article XV. Without limiting the generality of the foregoing,
neither the Trustee nor any conversion agent shall be under any
responsibility to determine the correctness of any provisions
contained in any supplemental indenture entered into pursuant to
Section 15.6 relating either to the kind or amount of shares of
stock or securities or property (including cash) receivable by
Noteholders upon the conversion of their Notes after any event
referred to in such Section 15.6 or to any adjustment to be made
with respect thereto, but, subject to the provisions of Section
8.1, may accept as conclusive evidence of the correctness of any
such provisions, and shall be protected in relying upon, the
Officers' Certificate (which the Company shall be obligated to
file with the Trustee prior to the execution of any such
supplemental indenture) with respect thereto.
Section 15.10 Notice to Holders Prior to Certain
Actions. In case:
(a) the Company makes any distribution or dividend that
would require an adjustment in the Conversion Price pursuant
to Section 15.5; or
(b) the Company takes any action that would require a
supplemental indenture pursuant to Section 15.6; or
(c) of the voluntary or involuntary dissolution,
liquidation or winding-up of the Company, the Company shall
cause to be filed with the Trustee and to be mailed to each
holder of Notes at his address appearing on the Note register
provided for in Section 2.5 of this Indenture, as promptly as
possible but in any event at least 15 days prior to the
applicable date hereinafter specified, a notice stating (x)
the date on which a record date is to be taken for the
purpose of such dividend, distribution, rights or warrants,
or, if a record is not to be taken, the date as of which the
holders of Common Stock of record to be entitled to such
dividend, distribution, rights or warrants are to be
determined or (y) the date on which such reclassification,
change, consolidation, merger, sale, conveyance, transfer,
dissolution, liquidation or winding-up is expected to become
effective or occur and the date as of which it is expected
that holders of record of Common Stock shall be entitled to
exchange their Common Stock for securities or other property
deliverable upon such reclassification, change consolidation,
merger, sale, conveyance, transfer, dissolution, liquidation
or winding-up. Failure to give such notice, or any defect
therein, shall not affect the legality or validity of such
dividend, distribution, reclassification, change,
consolidation, merger, sale, conveyance, transfer,
dissolution, liquidation or winding-up. Neither the failure
to give such notice nor any defect therein shall affect the
legality or validity of the proceedings referenced in clauses
(a) through (c) of this Section 15.10.
ARTICLE XVI
MISCELLANEOUS PROVISIONS
Section 16.1 Provisions Binding on Company's
Successors. All the covenants, stipulations, promises and
agreements in this Indenture made by the Company shall bind its
successors and assigns whether so expressed or not.
Section 16.2 Official Acts by Successor Company. Any
act or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board (including the Board
of Directors), committee or officer of the Company shall and may
be done and performed with like force and effect by the like
board, committee or officer of any corporation that shall at the
time be the lawful sole successor of the Company.
Section 16.3 Addresses for Notices, Etc. Any notice or
demand which by any provision of this Indenture is required or
permitted to be given or served by the Trustee or by the holders
of Notes on the Company shall be deemed to have been sufficiently
given or made, for all purposes if given or served by being
deposited postage prepaid by registered or certified mail in a
post office letter box addressed (until another address is filed
by the Company with the Trustee) to SoftKey International Inc.,
One Athenaeum Street, Cambridge, MA 02142, Attention: Chief
Financial Officer. Any notice, direction, request or demand
hereunder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or served
by being deposited postage prepaid by registered or certified mail
in a post office letter box addressed to the Corporate Trust
Office of the Trustee, which office is, at the date as of which
this Indenture is dated, located at 225 Franklin Street, Boston,
MA 02110.
The Trustee, by notice to the Company, may designate
additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Noteholder shall
be mailed to him by first class mail, postage prepaid, at his
address as it appears on the Note register and shall be
sufficiently given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a
Noteholder or any defect in it shall not affect its sufficiency
with respect to other Noteholders. If a notice or communication
is mailed in the manner provided above, it is duly given, whether
or not the addressee receives it.
Section 16.4 Governing Law. This Indenture and each
Note shall be deemed to be a contract made under the substantive
laws of New York and for all purposes shall be construed in
accordance with the substantive laws of New York.
Section 16.5 Evidence of Compliance with Conditions
Precedent; Certificates to Trustee. Upon any application or
demand by the Company to the Trustee to take any action under any
of the provisions of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with, and an Opinion of Counsel
stating that, in the Opinion of such counsel, all such conditions
precedent have been complied with.
Each certificate or opinion provided for in this
Indenture and delivered to the Trustee with respect to compliance
with a condition or covenant provided for in this Indenture shall
include: (1) a statement that the person making such certificate
or opinion has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or
investigation upon which the statement or opinion contained in
such certificate or opinion is based; (3) a statement that, in the
opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an informed
opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the
opinion of such person, such condition or covenant has been
complied with.
Section 16.6 Legal Holidays. In any case where the
date of maturity of interest on or principal of the Notes or the
date fixed for redemption of any Note will not be a Business Day,
then payment of such interest on or principal of the Notes need
not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the date
of maturity or the date fixed for redemption, and no interest
shall accrue for the period from and after such date.
Section 16.7 No Security Interest Created. Nothing in
this Indenture or in the Notes, expressed or implied, shall be
construed to constitute a security interest under the Uniform
Commercial Code or similar legislation, as now or hereafter
enacted and in effect, in any jurisdiction where property of the
Company or its subsidiaries is located.
Section 16.8 Trust Indenture Act. This Indenture is
hereby made subject to, and shall be governed by, the provisions
of the Trust Indenture Act required to be part of and to govern
indentures qualified under the Trust Indenture Act; provided,
however, that, notwithstanding the foregoing, this Indenture and
the Notes issued hereunder shall not be subject to the provisions
of subsections (a)(1), (a)(2) and (a)(3) of Section 314 of the
Trust Indenture Act as now in effect or as hereafter amended or
modified.
Section 16.9 Benefits of Indenture. Nothing in this
Indenture or in the Notes, expressed or implied, shall give to any
person, other than the parties hereto, any paying agent, any
authenticating agent, any Note registrar and their successors
hereunder and the holders of Notes, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 16.10 Table of Contents, Headings Etc. The
table of contents and the titles and headings of the articles and
sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall
in no way modify or restrict any of the terms or provisions
hereof.
Section 16.11 Authenticating Agent. The Trustee may
appoint an authenticating agent which shall be authorized to act
on its behalf and subject to its direction in the authentication
and delivery of Notes in connection with the original issuance
thereof and transfers and exchanges of Notes hereunder, including
under Sections 2.4, 2.5, 2.6, 2.7 and 3.3, as fully to all intents
and purposes as though the authenticating agent had been expressly
authorized by this Indenture and those Sections to authenticate
and deliver Notes. For all purposes of this Indenture, the
authentication and delivery of Notes by the authenticating agent
shall be deemed to be authentication and delivery of such Notes
"by the Trustee" and a certificate of authentication executed on
behalf of the Trustee by an authenticating agent shall be deemed
to satisfy any requirement hereunder or in the Notes for the
Trustee's certificate of authentication. Such authenticating
agent shall at all times be a person eligible to serve as Trustee
hereunder pursuant to Section 8.9.
Any corporation into which any authenticating agent may
be merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, consolidation or
conversion to which any authenticating agent shall be a party, or
any corporation succeeding to the corporate trust business of any
authenticating agent, shall be the successor of the authenticating
agent hereunder, if such Successor Company is otherwise eligible
under this Section, without the execution or filing of any paper
or any further act on the part of the parties hereto or the
authenticating agent or such Successor Company.
Any authenticating agent may at any time resign by
giving written notice of resignation to the Trustee and to the
Company. The Trustee may at any time terminate the agency of any
authenticating agent by giving written notice of termination to
such authenticating agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at
any time any authenticating agent shall cease to be eligible under
this Section, the Trustee shall promptly appoint a successor
authenticating agent (which may be the Trustee), shall give
written notice of such appointment to the Company and shall mail
notice of such appointment to all holders of Notes as the names
and addresses of such holders appear on the Note register.
The Trustee agrees to pay to the authenticating agent
from time to time reasonable compensation for its services, and
the Trustee shall be entitled to be reimbursed for such payments,
subject to Section 8.6.
The provisions of Sections 8.2, 8.3, 8.4, 9.3 and this
Section 16.11 shall be applicable to any authenticating agent.
Section 16.12 Execution in Counterparts. This
Indenture may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together
constitute but one and the same instrument.
Section 16.13 Pooling of Interests. The Company
desires to preserve its ability to account for acquisition and
other business combination transactions using the pooling of
interests method where appropriate, and the provisions of this
Indenture shall be interpreted accordingly.
ARTICLE XVII
EXCHANGE OF NOTES
Section 17.1 Right to Exchange. Subject to and upon
compliance with the provisions of this Indenture, the holder of
any Note shall have the right, at his option, at any time prior to
the close of business on November 1, 2000 (except that, with
respect to any Note or portion of a Note which shall be called for
redemption or delivered for repurchase, such right shall
terminate, except as provided in the fourth paragraph of Section
17.2, at the close of business on the last Trading Day prior to
the date fixed for redemption of such Note or portion of a Note
unless the Company shall default in payment due upon redemption
thereof) to exchange the principal amount of any such Note, or any
portion of such principal amount which is $1,000 or an integral
multiple thereof, into that number of fully paid and nonassessable
shares of Preferred Stock (as such shares shall then be
constituted) obtained by dividing the principal amount of the Note
or portion thereof surrendered for exchange by the Exchange Price
in effect at such time, by surrender of the Note so to be
converted in whole or in part in the manner provided in Section
17.2. A holder of Notes is not entitled to any rights of a holder
of Preferred Stock until such holder has converted his Notes to
Preferred Stock, and only to the extent such Notes are deemed to
have been exchanged for Preferred Stock under this Article XVII.
Section 17.2 Exercise of Exchange Privilege; Issuance
of Preferred Stock on Exchange; Adjustment for Interest or
Dividends. In order to exercise the exchange privilege with
respect to any Note in definitive form, the holder of any such
Note to be converted in whole or in part shall surrender such
Note, duly endorsed, at an office or agency maintained by the
Company pursuant to Section 5.2, accompanied by the funds, if any,
required by the penultimate paragraph of this Section 17.2, and
shall give written notice of exchange in the form provided on the
Notes (or such other notice which is acceptable to the Company) to
the office or agency that the holder elects to exchange such Note
or the portion thereof specified in said notice. Such notice
shall also state the name or names (with address) in which the
certificate or certificates for shares of Preferred Stock which
shall be issuable on such conversion shall be issued and shall be
accompanied by transfer taxes, if required pursuant to Section
17.7. Each such Note surrendered for exchange shall, unless the
shares issuable on exchange are to be issued in the same name as
the registration of such Note, be duly endorsed by, or be
accompanied by instruments of transfer in form satisfactory to the
Company duly executed by, the holder or his duly authorized
attorney.
In order to exercise the exchange privilege with respect
to any interest in a Note in global form, the beneficial holder
must complete the appropriate instruction form for exchange
pursuant to the Depositary's book-entry exchange program and
follow the other procedures set forth in such program.
As promptly as practicable after satisfaction of the
requirements for exchange set forth above, subject to compliance
with any restrictions on transfer if shares issuable on exchange
are to be issued in a name other than that of the Noteholder (as
if such transfer were a transfer of the Note or Notes (or portion
thereof) so exchanged), the Company shall issue and shall deliver
to such holder at the office or agency maintained by the Company
for such purpose pursuant to Section 5.2, a certificate or
certificates for the number of full shares issuable upon the
exchange of such Note or portion thereof in accordance with the
provisions of this Article XVII. In case any Note of a
denomination greater than $1,000 shall be surrendered for partial
exchange, and subject to Section 2.3, the Company shall execute
and the Trustee shall authenticate and deliver to the holder of
the Note so surrendered, without charge to him, a new Note or
Notes in authorized denominations in an aggregate principal amount
equal to the exchanged portion of the surrendered Note.
Each exchange shall be deemed to have been effected as
to any such Note (or portion thereof) on the date on which the
requirements set forth above in this Section 17.2 have been
satisfied as to such Note (or portion thereof), and the person in
whose name any certificate or certificates for shares of Preferred
Stock shall be issuable upon such exchange shall be deemed to have
become on said date the holder of record of the shares represented
thereby; provided, however, that any such surrender on any date
when the stock transfer books of the Company shall be closed shall
constitute the person in whose name the certificates are to be
issued as the record holder thereof for all purposes on the next
succeeding day on which such stock transfer books are open, but
such exchange shall be at the Exchange Price in effect on the date
upon which such Note shall have been surrendered.
Any Note or portion thereof surrendered for exchange
during the period from the close of business on the record date
for any interest payment date through the close of business on the
Trading Day next preceding such interest payment date shall
(unless such Note or portion thereof being converted shall have
been called for redemption on a date in such period) be
accompanied by payment, in funds acceptable to the Company, of an
amount equal to the interest otherwise payable on such interest
payment date on the principal amount being converted; provided,
however, that no such payment need be made if there shall exist at
the time of exchange a default in the payment of interest on the
Notes. An amount equal to such payment shall be paid by the
Company on such interest payment date to the holder of such Note
at the close of business on such record date; provided, however,
that if the Company shall default in the payment of interest on
such interest payment date, such amount shall be paid to the
person who made such required payment. In the case of any
exchange, dividends on the Preferred Stock issuable upon such
exchange will commence to accrue as of the most recent date as of
which interest has been paid, or duly provided for, on the Notes
unless no interest has been paid or duly provided for on the
Notes, in which case from ____________, 1995. Except as provided
above in this Section 17.2, no adjustment shall be made for
interest accrued on any Note converted or for dividends on any
shares issued upon the exchange of such Note as provided in this
Article.
Upon the exchange of an interest in a Note in global
form, the Trustee, or the Custodian at the direction of the
Trustee, shall make a notation on such Note in global form as to
the reduction in the principal amount represented thereby.
Section 17.3 Cash Payments in Lieu of Fractional
Shares. No fractional shares of Preferred Stock or scrip
representing fractional shares shall be issued upon exchange of
Notes. If more than one Note shall be surrendered for exchange at
one time by the same holder, the number of full shares which shall
be issuable upon exchange shall be computed on the basis of the
aggregate principal amount of the Notes (or specified portions
thereof to the extent permitted hereby) so surrendered. If any
fractional share of stock would be issuable upon the exchange of
any Note or Notes, the Company shall make an adjustment therefor
in cash at the current market value thereof. The Current Market
Value of a share of Preferred Stock shall be the greater of (i)
the Liquidation Preference thereof or (ii) the current market
value of that number of shares of Common Stock (including any
fraction of a share) into which one share of Preferred Stock may
then be converted. The current market value of a share of Common
Stock shall be the Closing Price on the first Trading Day
immediately preceding the day on which the Notes (or specified
portions thereof) are deemed to have been converted and such
Closing Price shall be determined as provided in Section 15.5(g).
Section 17.4 Exchange Price. The exchange price shall
be $1000.00 (herein called the "Exchange Price").
Section 17.5 Adjustment of Exchange Price. The
Exchange Price shall be adjusted from time to time by the Company
as follows:
(a) In the event that the provisions of the Series C
Preferred Stock as set forth in the Certificate of Designation
attached as Exhibit C hereto shall at any time be amended in
accordance with the provisions of the Certificate of Designation
and this Indenture, to reduce the Liquidation Preference of, or
the amount of dividends or other distributions payable with
respect to, the Series C Preferred Stock, or to change the
Conversion Price at which such Series C Preferred Stock is
convertible into Common Stock pursuant to the provisions of the
Certificate of Designation (or the manner in which such Conversion
Price is adjusted as set forth in Section 8 thereof), the Exchange
Price shall be adjusted in such manner as the Board of Directors
of the Company shall determine is fair and equitable, which
determination shall be conclusive and shall be set forth in a
Board Resolution.
(b) The Company may make such reductions in the
Conversion Price, in addition to those required by Section
17.5(a), as the Board of Directors considers to be advisable to
avoid or diminish any income tax to holders of Preferred Stock or
rights to purchase Preferred Stock resulting from any dividend or
distribution of stock (or rights to acquire stock) or from any
event treated as such for income tax purposes. To the extent
permitted by applicable law, the Company from time to time may
reduce the Exchange Price by any amount for any period of time if
the period is at least 20 days, the reduction is irrevocable
during the period and the Board of Directors shall have made a
determination that such reduction would be in the best interests
of the Company, which determination shall be conclusive and
described in a Board Resolution. Whenever the Exchange Price is
reduced pursuant to the preceding sentence, the Company shall mail
to all holders of record of the Notes a notice of the reduction at
least 15 days prior to the date the reduced Exchange Price takes
effect, and such notice shall state the reduced conversion Price
and the period it will be in effect.
(c) No adjustment in the Exchange Price shall be
required unless such adjustment would require an increase or
decrease of at least 1% in such price; provided, however, that any
adjustments which by reason of this Section 17.5(c) are not
required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under this
Article XVII shall be made by the Company and shall be made to the
nearest cent or to the nearest one-hundredth of a share, as the
case may be.
No adjustment need be made for a change in the par
value, or to or from no par value, of the Preferred Stock.
To the extent the Notes become convertible into cash,
assets, property or securities (other than Preferred Stock or
Common Stock of the Company), no adjustment need be made
thereafter as to the cash, assets, property or such securities
(except as such securities may otherwise by their terms provide),
and interest shall not accrue on such cash.
(d) whenever the Exchange Price is adjusted as herein
provided, the Company shall promptly file with the Trustee and any
exchange agent other than the Trustee an Officers' Certificate
setting forth the Exchange Price after such adjustment and setting
forth a brief statement of the facts requiring such adjustment.
Promptly after delivery of such certificate, the Company shall
prepare a notice of such adjustment of the Exchange Price setting
forth the adjusted Exchange Price and the date on which each
adjustment becomes effective and shall mail such notice of such
adjustment of the Exchange Price to the holder of each Note at his
last address appearing on the Note register provided for in
Section 2.5 of this Indenture, within 20 days after execution
thereof. Failure to deliver such notice shall not effect the
legality or validity of any such supplemental indenture.
(e) In any case in which this Section 17.5 provides
that an adjustment shall become effective immediately after a
Record Date for an event, the Company may defer until the
occurrence of such event (i) issuing to the holder of any Note
converted after such Record Date and before the occurrence of such
event the additional shares of Preferred Stock issuable upon such
conversion by reason of the adjustment required by such event over
and above the Preferred Stock issuable upon such conversion before
giving effect to such adjustment and (ii) paying to such holder
any amount in cash in lieu of any fraction pursuant to Section
17.3.
Section 17.6 Effect of Reclassification, Consolidation,
Merger or Sale. If any of the following events occur, namely (i)
any reclassification or change of outstanding shares of Preferred
Stock (other than a change in par value, or to or from no par
value, as a result of a subdivision or combination), (ii) any
consolidation, merger or combination of the Company with another
corporation as a result of which holders of Preferred Stock shall
be entitled to receive stock, securities or other property or
assets (including cash) with respect to or in exchange for such
Preferred Stock or (iii) any sale or conveyance of the properties
and assets of the Company as, or substantially as, an entirety to
any other corporation as a result of which holders of Preferred
Stock shall be entitled to receive stock, securities or other
property or assets (including cash) with respect to or in exchange
for such Preferred Stock, then the Company or the successor or
purchasing corporation, as the case may be, shall execute with the
Trustee a supplemental indenture (which shall comply with the
Trust Indenture Act as in force at the date of execution of such
supplemental indenture if such supplemental indenture is then
required to so comply) providing that such Note shall be
exchangeable into the kind and amount of shares of stock and other
securities or property or assets (including cash) receivable upon
such reclassification, change, consolidation, merger, combination,
sale or conveyance by a holder of a number of shares of Preferred
Stock issuable upon exchange of such Notes (assuming, for such
purposes, a sufficient number of authorized shares of Preferred
Stock available to exchange all such Notes) immediately prior to
such reclassification, change, consolidation, merger, combination,
sale or conveyance, assuming such holder of Preferred Stock did
not exercise his rights of election, if any, as to the kind or
amount of securities, cash or other property receivable upon such
reclassification, change, consolidation, merger, combination, sale
or conveyance (provided that, if the kind or amount of securities,
cash or other property receivable upon such reclassification,
change, consolidation, merger, combination, sale or conveyance is
not the same for each share of Preferred Stock in respect of which
such rights of election shall not have been exercised ("non-
electing share"), then for the purposes of this Section 17.6 the
kind and amount of securities, cash or other property receivable
upon such reclassification, change, consolidation, merger,
combination, sale or conveyance for each non-electing share shall
be deemed to be the kind and amount so receivable per share by a
plurality of the non-electing shares). Such supplemental
indenture shall provide for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for
in this Article XVII.
The Company shall cause notice of the execution of such
supplemental indenture to be mailed to each holder of Notes, at
his address appearing on the Note register provided for in Section
2.5 of this Indenture, within 20 days after execution thereof.
Failure to deliver such notice shall not affect the legality or
validity of such supplemental indenture.
The above provisions of this Section shall similarly
apply to successive reclassifications, changes, consolidations,
mergers, combinations, sales and conveyances.
Section 17.7 Transfer or Similar Taxes on Shares
Issued. The issue of stock certificates on exchanges of Notes
shall be made without charge to the exchanging Noteholder for any
transfer or similar tax in respect of the issue thereof. The
Company shall not, however, be required to pay any such tax which
may be payable in respect of any transfer involved in the issue
and delivery of stock in any name other than that of the holder of
any Note converted, and the Company shall not be required to issue
or deliver any such stock certificate unless and until the person
or persons requesting the issue thereof shall have paid to the
Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.
Section 17.8 Reservation of Stock; Shares to Be Fully
Paid; Listing of Preferred Stock. The Company shall provide, free
from preemptive rights, out of its authorized but unissued shares
or shares held in treasury, sufficient shares to provide for the
exchange of the Notes from time to time as such Notes are
presented for exchange.
Before taking any action which would cause an adjustment
reducing the Exchange Price below the then par value, if any, of
the shares of Preferred Stock issuable upon exchange of the Notes,
the Company will take all corporate action which may, in the
opinion of its counsel, be necessary in order that the Company may
validly and legally issue shares of such Preferred Stock at such
adjusted Exchange Price.
The Company covenants that all shares of Preferred Stock
which may be issued upon exchange of Notes will, upon issue, be
fully paid and nonassessable by the Company and free from all
transfer or similar taxes as described in Section 17.7, liens and
charges with respect to the issue thereof.
The Company further covenants that, if at any time the
Preferred Stock shall be listed on the New York Stock Exchange or
any other national securities exchange, the Company will, if
permitted by the rules of such exchange, list and keep listed, so
long as the Preferred Stock shall be so listed on such exchange,
all Preferred Stock issuable upon exchange of the Notes.
Section 17.9 Responsibility of Trustee. The Trustee
and any other exchange agent shall not at any time be under any
duty or responsibility to any holder of Notes to determine whether
any facts exist which may require any adjustment of the Exchange
Price, or with respect to the nature or extent or calculation of
any such adjustment when made, or with respect to the method
employed, or herein or in any supplemental indenture provided to
be employed, in making the same. The Trustee and any other
conversion agent shall not be accountable with respect to the
validity or value (or the kind or amount) of any shares of
Preferred Stock, or of any securities or property, which may at
any time be issued or delivered upon the exchange of any Note; and
the Trustee and any other exchange agent make no representations
with respect thereto. Subject to the provisions of Section 8.1,
neither the Trustee nor any exchange agent shall be responsible
for any failure of the Company to issue, transfer or deliver any
shares of Preferred Stock or stock certificates or other
securities or property or cash upon the surrender of any debenture
for the purpose of exchange or to comply with any of the duties,
responsibilities or covenants of the Company contained in this
Article XVII, without limiting the generality of the foregoing,
neither the Trustee nor any exchange agent shall be under any
responsibility to determine the correctness of any provisions
contained in any supplemental indenture entered into pursuant to
Section 17.6 relating either to the kind or amount of shares of
stock or securities or property (including cash) receivable by
Noteholders upon the exchange of their Notes after any event
referred to in such Section 17.6 or to any adjustment to be made
with respect thereto, but, subject to the provisions of Section
8.1, may accept as conclusive evidence of the correctness of any
such provisions, and shall be protected in relying upon, the
Officers' Certificate (which the Company shall be obligated to
file with the Trustee prior to the execution of any such
supplemental indenture) with respect thereto.
Section 17.10 Notice to Holders Prior to Certain
Actions. In case:
(a) the Company takes any action that would require a
supplemental indenture pursuant to Section 17.6; or
(b) of the voluntary or involuntary dissolution,
liquidation or winding-up of the Company, the Company shall cause
to be filed with the Trustee and to be mailed to each holder of
Notes at his address appearing on the Note register provided for
in Section 2.5 of this Indenture, as promptly as possible but in
any event at least 15 days prior to the applicable date
hereinafter specified, a notice stating (x) the date on which a
record date is to be taken for the purpose of such dividend,
distribution, rights or warrants, or, if a record is not to be
taken, the date as of which the holders of Preferred Stock of
record to be entitled to such dividend, distribution, rights or
warrants are to be determined or (y) the date on which such
reclassification, change, consolidation, merger, sale, conveyance,
transfer, dissolution, liquidation or winding-up is expected to
become effective or occur and the date as of which it is expected
that holders of record of Preferred Stock shall be entitled to
exchange their Preferred Stock for securities or other property
deliverable upon such reclassification, change consolidation,
merger, sale, conveyance, transfer, dissolution, liquidation or
winding-up. Failure to give such notice, or any defect therein,
shall not affect the legality or validity of such dividend,
distribution, reclassification, change, consolidation, merger,
sale, conveyance, transfer, dissolution, liquidation or winding-
up. Neither the failure to give such notice nor any defect
therein shall affect the legality or validity of the proceedings
referenced in clauses (a) through (b) of this Section 17.10.
State Street Bank and Trust Company hereby accepts the
trusts in this Indenture declared and provided, upon the terms and
conditions hereinabove set forth.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly signed, and their respective corporate seals
to be hereunto affixed and attested, all as of the date first
written above.
SOFTKEY INTERNATIONAL INC.
By:
Name:
Title:
Attest:
________________________
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By: ___________________
Name: _________________
Title:
Attest:
_______________________
EXHIBIT A - FORM OF DEFINITIVE NOTE
[FORM OF FACE OF NOTE]
No. B-1 $_______________
CUSIP
SOFTKEY INTERNATIONAL INC.
5 1/2% Senior Convertible/Exchangeable Note Due 2000
THE NOTE EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED
OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT)
("INSTITUTIONAL ACCREDITED INVESTOR",) OR (C) IT IS NOT A
U.S. PERSON AND IS ACQUIRING THE NOTE EVIDENCED HEREBY IN AN
OFFSHORE TRANSACTION; (2) AGREES THAT IT WILL NOT PRIOR TO
THE DATE THAT IS THREE YEARS AFTER THE LATER OF THE ORIGINAL
ISSUANCE OF THE NOTE EVIDENCED HEREBY AND THE LAST DATE ON
WHICH SOFTKEY INTERNATIONAL INC. (THE "COMPANY") OR ANY
"AFFILIATE" (AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT)
OF THE COMPANY WAS THE OWNER OF THE NOTE (THE "RESTRICTION
TERMINATION DATE") RESELL OR OTHERWISE TRANSFER THE NOTE
EVIDENCED HEREBY OR THE PREFERRED STOCK ISSUABLE UPON
EXCHANGE OF SUCH NOTE OR THE COMMON STOCK ISSUABLE UPON
CONVERSION OF SUCH NOTE EXCEPT (A) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) TO AN
INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH
TRANSFER, FURNISHES TO STATE STREET BANK AND TRUST COMPANY,
AS TRUSTEE, A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS
ON TRANSFER OF THE NOTE EVIDENCED HEREBY (THE FORM OF WHICH
LETTER CAN BE OBTAINED FROM SUCH TRUSTEE), (D) OUTSIDE THE
UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT OR (E) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
(IF AVAILABLE); AND (3) AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THE NOTE EVIDENCED HEREBY IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THE NOTE EVIDENCED HEREBY
BEFORE THE RESTRICTION TERMINATION DATE, THE HOLDER MUST
CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF
RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS
CERTIFICATE TO STATE STREET BANK AND TRUST COMPANY, AS
TRUSTEE. IF THE PROPOSED TRANSFER IS PURSUANT TO CLAUSE (C),
(D) OR (E) ABOVE, THE HOLDER MUST, PRIOR TO SUCH TRANSFER,
FURNISH TO STATE STREET BANK AND TRUST COMPANY, AS TRUSTEE,
SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS
THE COMPANY MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE
RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION, "UNITED STATES", "U.S. PERSON" HAVE
THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.
SOFTKEY INTERNATIONAL INC., a corporation duly organized
and validly existing under the laws of the State of Delaware
(herein) called the "Company"), which term includes any Successor
Company under the Indenture referred to on the reverse hereof,
for value received hereby promises to pay to
__________________________ or registered assigns, the principal
sum of _________ Dollars on November 1, 2000, at the office or
agency of the Company maintained for that purpose in the Borough
of Manhattan, The City of New York, or, at the option of the
holder of this Note, at the Corporate Trust Office of the Trustee,
in such coin or currency of the United States of America as at the
time of payment shall be legal tender for the payment of public
and private debts, and to pay interest, semi-annually on May 1 and
November 1 of each year, commencing May 1, 1996, on said principal
sum at said office or agency, in like coin or currency, at the
rate per annum specified in the title of this Note, from the May 1
or November 1, as the case may be, next preceding the date of this
Note to which interest has been paid or duly provided for, unless
the date hereof is a date to which interest has been paid or duly
provided for, in which case from the date of this Note, or unless
no interest has been paid or duly provided for on the Notes, in
which case from _____________, 1995, until payment of said
principal sum has been made or duly provided for. Notwithstanding
the foregoing, if the date hereof is after any April 15 or October
15, as the case may be, and before the following May 1 or November
1 other than October 15, 1995, this Note shall bear interest from
such May 1 or November 1, respectively; provided, however, that if
the Company shall default in the payment of interest due on such
May 1 or November 1, then this Note shall bear interest from the
next preceding May 1 or November 1 to which interest has been paid
or duly provided for or, if no interest has been paid or duly
provided for on such Note, from ____________, 1995. The interest
so payable on any May 1 or November 1 will be paid to the person
in whose name this Note (or one or more Predecessor Notes) is
registered at the close of business on the record date, which
shall be the April 15 or October 15 (whether or not a Business
Day) next preceding such May 1 or November 1, respectively;
provided that any such interest not punctually paid or duly
provided for shall be payable as provided in the Indenture.
Interest may, at the option of the Company, be paid by check
mailed to the registered address of such person.
Reference is made to the further provisions of this Note
set forth an the reverse hereof, including, without limitation,
provisions giving the holder of this Note the right to convert
this Note into Common Stock and to exchange this Note for
Preferred Stock of the Company on the terms and subject to the
limitations referred to on the reverse hereof and as more fully
specified in the Indenture. Such further provisions shall for all
purposes have the same effect as though set forth at this place.
This Note shall be deemed to be a contract made under
the laws of the State of New York, and for all purposes shall be
construed in accordance with and governed by the laws of said
State.
This Note shall not be valid or become obligatory for
any purpose until the certificate of authentication hereon shall
have been manually signed by the Trustee or a duly authorized
authenticating agent under the Indenture.
IN WITNESS WHEREOF, the Company has caused this Note to
be duly executed under its corporate seal.
SOFTKEY INTERNATIONAL INC.
By:
Name:
Title:
Dated:
Attest:
_____________________
Secretary
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-named
Indenture.
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By:
Authorized officer
As Authenticating Agent
(if different from
Trustee)
By:
Authorized Officer
[FORM OF REVERSE OF NOTE]
SOFTKEY INTERNATIONAL INC.
5 1/2% Senior Convertible/Exchangeable Note Due 2000
This Note is one of a duly authorized issue of Notes in
the Company, designated as its 5 1/2% Senior Convertible/Ex-
changeable Notes due 2000 (herein called the "Notes"), limited to
the aggregate principal amount of $150,000,000 all issued or to be
issued under and pursuant to an indenture dated as of
_____________ (herein called the "Indenture"), between the Company
and State Street Bank and Trust Company (herein called the
"Trustee"), to which Indenture and all indentures supplemental
thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and the holders of the
Notes.
In case an Event of Default, as defined in the
Indenture, shall have occurred and be continuing, the principal of
and accrued interest on all Notes may be declared, and upon said
declaration shall become, due and payable, in the manner, with the
effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company
and the Trustee, with the consent of the holders of not less than
a majority in aggregate principal amount of the Notes at the time
outstanding, evidenced as in the Indenture provided to execute
supplemental indentures adding any provisions to or changing in
any manner or eliminating any of the provisions of the Indenture
or of any supplemental indenture or modifying in any manner the
rights of the holders of the Notes; provided, however, that no
such supplemental indenture shall (i) extend the fixed maturity of
any Note, or reduce the rate or extend the time of payment of
interest thereon, or reduce the principal amount thereof or
premium, if any, thereon, or reduce any amount payable on
redemption thereof, alter the obligation of the Company to redeem
the Notes at the option of the holders upon the occurrence of a
Change of Control or impair or affect the right of any Noteholder
to institute suit for the payment thereof, or make the principal
thereof or interest or premium, if any, thereon payable in any
coin or currency other than that provided in the Notes or impair
the right to exchange the Notes for Preferred Stock or to convert
the Notes into Common Stock subject to the terms set forth in the
Indenture, including Sections 15.6 and 17.6 thereof, without the
consent of the holder of each Note so affected or (ii) reduce the
aforesaid percentage of Notes, the holders of which are required
to consent to any such supplemental indenture, without the consent
of the holders of all Notes then outstanding. It is also provided
in the Indenture that, prior to any declaration accelerating the
maturity of the Notes, the holders of a majority in aggregate
principal amount of the Notes at the time outstanding may on
behalf of the holders of all of the Notes waive any past default
or Event of Default under the Indenture and its consequences
except a default in the payment of interest or any premium on or
the principal of any of the Notes, a failure by the Company to
convert any Notes into Common Stock of the Company or to exchange
any Notes for Preferred Stock of the Company or a default in
respect of a covenant or provision of the Indenture which under
Article XI thereof cannot be modified or amended without the
consent of the holders of all Notes then outstanding. Any such
consent or waiver by the holder of this Note (unless revoked as
provided in the Indenture) shall be conclusive and binding upon
such holder and upon all future holders and owners of this Note
and any Notes which may be issued in exchange or substitution
hereof, irrespective of whether or not any notation thereof is
made upon this Note or such other Notes.
No reference herein to the Indenture and no provision of
this Note or of the Indenture shall alter or impair the obligation
of the Company, which is absolute and unconditional, to pay the
principal of and any premium and interest on this Note at the
place, at the respective times, at the rate and in the coin or
currency herein prescribed.
Interest on the Notes shall be computed on the basis of
a year of twelve 30-day months.
The Notes are issuable in registered form without
coupons in denominations of $1,000 principal amount and integral
multiples thereof. At the office or agency of the Company
referred to on the face hereof, and in the manner and subject to
the limitations provided in the Indenture, without payment of any
service charge but with payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection
with any registration or exchange of Notes, Notes may be exchanged
for a like aggregate principal amount of Notes of other authorized
denominations.
The Notes will not be redeemable at the option of the
Company prior to November 2, 1998. On or after such date and
prior to maturity the Notes may be redeemed at the option of the
Company as a whole, or from time to time in part, upon mailing a
notice of such redemption not less than 30 nor more than 60 days
before the date fixed for redemption to the holders of Notes at
their last registered addresses, all as provided in the Indenture,
at the following optional redemption prices (expressed as
percentages of the principal amount), together in each case with
accrued interest to the date fixed for redemption.
If redeemed during the 12-month period beginning:
Date Percentage
November 2, 1998 102.2%
November 1, 1999 101.1%
and 100% at November 1, 2000; provided that if the date fixed for
redemption is a May 1 or November 1, then the interest payable on
such date shall be paid to the holder of record on the next
preceding April 15 or October 15, respectively.
If a Change of Control (as defined in the Indenture)
shall occur at any time, then each holder of Notes shall have the
right to require that the Company purchase such holder's Notes in
whole or in part in integral multiples of $1,000, at a purchase
price in cash in an amount equal to 101% of the principal amount
of such Notes, plus accrued and unpaid interest, if any, on the
repurchase date pursuant to an offer to be made by the Company and
in accordance with the procedures set forth in the Indenture.
Subject to the provisions of the Indenture, the holder
hereof has the right, at its option, at any time after 60 days
following the latest date of original issuance of the Notes and
prior to the close of business on November 1, 2000, or, as to all
or any portion hereof called for redemption, prior to the close of
business on the Business Day next preceding the date fixed for
redemption (unless the Company shall default in payment due upon
redemption thereof), to exchange the principal amount hereof or
any portion of such principal which is $1,000 or an integral
multiple thereof, into that number of fully paid and non-
assessable shares of the Company's Preferred Stock obtained by
dividing the principal amount of this Note, or portion thereof to
be exchanged by the exchange price of $1000.00, or such exchange
price as adjusted from time to time as provided in the Indenture,
or to convert the principal hereof or any portion of such
principal which is $1,000 or an integral multiple thereof, into
that number of fully paid and non-assessable shares of Company's
Common Stock, as said shares shall be constituted at the date of
conversion, obtained by dividing the principal amount of this Note
or portion thereof to be converted by the conversion price of
$53.00 or such conversion price as adjusted from time to time as
provided in the Indenture, in either case, upon surrender of this
Note, together with any conversion or exchange notice, as the case
may be, as provided in the Indenture, to the Company at the office
or agency of the Company maintained for that purpose in the
Borough of Manhattan, The City of New York, or at the option of
such holder, the Corporate Trust Office of the Trustee, and,
unless the shares issuable on conversion or exchange are to be
issued in the same name as this Note, duly endorsed by, or
accompanied by instruments of transfer in form satisfactory to the
Company duly executed by, the holder or by his duly authorized
attorney. In the case of any exchange, dividends on the Preferred
Stock issuable upon such exchange will commence to accrue as of
the most recent date as of which interest has been paid, or duly
provided for, on the Notes unless no interest has been paid or
duly provided for on the Notes, in which case from ____________,
1995 and no further adjustment will be made with regard to
interest due on the Note, or portions thereof, so exchanged. No
adjustment in respect of interest or dividends will be made upon
any conversion; provided, however, that if this Note shall be
surrendered for conversion or exchange during the period from the
close of business on any record date for the payment of interest
through the close of business on the Business Day next preceding
the following interest payment date, this Note (unless it or the
portion being converted or exchanged shall have been called for
redemption on a date in such period) must be accompanied by an
amount, in funds acceptable to the Company, equal to the interest
payable on such interest payment date on the principal amount
being converted or exchanged. No fractional shares will be issued
upon any conversion or exchange, but an adjustment in cash will be
made, as provided in the Indenture, in respect of any fraction of
a share which would otherwise be issuable upon the surrender of
any Note or Notes for conversion or exchange.
Any Notes called for redemption, unless surrendered for
exchange or conversion on or before the close of business on the
date fixed for redemption, may be deemed to be purchased from the
holder of such Notes in an amount equal to the applicable
redemption price, together with accrued interest to the date fixed
for redemption, by one or more investment bankers or other
purchasers who may agree with the Company to purchase such Notes
from the holders thereof and convert them into Common Stock or
exchange them for Preferred Stock of the Company and to make
payment for such Notes as aforesaid to the Trustee in trust for
such holders.
Upon due presentment for registration of transfer of
this Note at the office or agency of the Company in the Borough of
Manhattan, The City of New York, or at the option of the holder of
this Note, at the Corporate Trust office of the Trustee, a new
Note or Notes of authorized denominations for an equal aggregate
principal amount will be issued to the transferee in exchange
thereof, subject to the limitations provided in the Indenture,
without charge except for any tax or other governmental charge
imposed in connection therewith.
The Company, the Trustee, any authenticating agent, any
paying agent, exchange or any conversion agent and any Note
registrar may deem and treat the registered holder hereof as the
absolute owner of this Note (whether or not this Note shall be
overdue and notwithstanding any notation of ownership or other
writing hereon made by anyone other than the Company or any Note
registrar), for the purpose of receiving payment hereof, or on
account hereof, for the exchange or conversion hereof and for all
other purposes, and neither the Company nor the Trustee nor any
other authenticating agent nor any paying agent nor any other
exchange or conversion agent nor any Note registrar shall be
affected by any notice to the contrary. All payments made to or
upon the order of such registered holder shall, to the extent of
the sum or sums paid, satisfy and discharge liability for monies
payable on this Note.
No recourse for the payment of the principal of or any
premium or interest on this Note, or for any claim based hereon or
otherwise in respect hereof, and no recourse under or upon any
obligation, covenant or agreement of the Company in the Indenture
or any indenture supplemental thereto or in any Note, or because
of the creation of any indebtedness represented thereby, shall be
had against any incorporator, stockholder, officer or director, as
such, past, present or future, of the Company or of any Successor
Company, either directly or through the Company or any Successor
Company, whether by virtue of any constitution, statute or rule of
law or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and
as part of the consideration for the issue hereof, expressly
waived and released.
Terms used in this Note and defined in the Indenture are
used herein as therein defined.
ABBREVIATIONS
The following abbreviations, when used in the inscription of the
face of this Note, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT
TEN ENT - as tenants by the ____________________ Custodian
entireties (Cust)
JT TEN - as joint tenants with ____________________ under
right of survivorship (minor)
and not as tenants in
common
Uniform Gifts to
minors Act ___________________
(State)
Additional abbreviations may also be used
though not in the above list.
[FORM OF CONVERSION NOTICE]
CONVERSION NOTICE
TO: SoftKey International Inc.
The undersigned registered owner of this Note hereby
irrevocably exercises the option to convert this Note, or the
portion hereof (which is $1,000 principal amount or an integral
multiple thereof) below designated, into shares of Common Stock,
par value $.01 per share, of the Company in accordance with the
terms of the Indenture referred to in this Note, and directs that
the shares issuable and deliverable upon such conversion, and any
Notes representing any unconverted principal amount hereof, be
issued and delivered to the registered holder hereof unless a
different name has been indicated below. If shares or any portion
of this Note not converted are to be issued in the name of a
person other than the undersigned, the undersigned will check the
appropriate box below and pay all transfer taxes payable with
respect thereto. Any amount required to be paid to the
undersigned on account of interest accompanies this Note.
Dated: _______________________
__________________________________
__________________________________
Signature(s)
Signature(s) must be guaranteed by an eligible Guarantor
Institution (banks, stock brokers, savings and loan associations
and credit unions) with membership in an approved signature
guarantee medallion program pursuant to Securities and Exchange
Commission Rule 17Ad-15 if shares of Common Stock are to be
issued, or Notes to be delivered, other than to and in the name of
the registered holder.
_____________________________________
Signature Guarantee
Fill in for registration of shares if to
be issued, and Notes if to be delivered,
other than to and in the name of the
registered holder:
_______________________________
(Name)
_______________________________
(Street Address)
_______________________________
(City, State and Zip Code)
Please print name and address
__________________________
Social Security or other
Taxpayer Identification
Number
Principal amount to be
converted (if less than
all) $___________________
[FORM OF EXCHANGE NOTICE]
EXCHANGE NOTICE
TO: SoftKey International Inc.
The undersigned registered owner of this Note hereby
irrevocably exercises the option to exchange this Note, or the
portion hereof (which is $1,000 principal amount or an integral
multiple thereof) below designated, into shares of Preferred
Stock, par value $.01 per share, of the Company in accordance with
the terms of the Indenture referred to in this Note, and directs
that the shares issuable and deliverable upon such exchange, and
any Notes representing any unexchanged principal amount hereof, be
issued and delivered to the registered holder hereof unless a
different name has been indicated below. If shares or any portion
of this Note not exchanged are to be issued in the name of a
person other than the undersigned, the undersigned will check the
appropriate box below and pay all transfer taxes payable with
respect thereto. Any amount required to be paid to the
undersigned on account of interest accompanies this Note.
Dated: ___________
____________________
____________________
Signature(s)
Signature(s) must be guaranteed by an eligible Guarantor
institution (banks, stock brokers, savings and loan associations
and credit unions) with membership in an approved signature
guarantee medallion program pursuant to Securities and Exchange
Commission Rule 17Ad-15 if shares of Preferred Stock are to be
issued, or Notes to be delivered, other than to and in the name of
the registered holder.
_____________________________________
Signature Guarantee
Fill in for registration of shares if to
be issued, and Notes if to be delivered,
other than to and in the name of the
registered holder:
_______________________________
(Name)
_______________________________
(Street Address)
_______________________________
(City, State and Zip Code)
Please print name and address
__________________________
Social Security or other
Taxpayer Identification
Number
Principal amount to be
exchanged (if less than
all) $______________
[FORM OF OPTION TO ELECT REPAYMENT
UPON A CHANGE OF CONTROL]
To: SoftKey International Inc.
The undersigned registered owner of this Note hereby
irrevocably acknowledges receipt of a notice from SoftKey
International Inc. (the "Company") as to the occurrence of a
Change of Control with respect to the Company and requests and
instructs the Company to repay the entire principal amount of this
Note, or the portion thereof (which is $1,000 principal amount or
an integral multiple thereof) below designated, in accordance with
the terms of the Indenture referred to in this Note, together with
accrued interest to such date, to the registered holder hereof.
Dated:________________ ____________________
____________________
Signature(s)
____________________
Social Security or Other
Taxpayer Identification
Number
Principal amount to be
repaid (if less than all):
$___________________
(FORM OF ASSIGNMENT)
For value received _________________________ hereby
sell(s), assign(s) and transfer(s) unto ___________________
(Please insert social security or other identifying number of
assignee) the within Note, and hereby irrevocably constitutes and
appoints ____________________ attorney to transfer the said Note
on the books of the Company, with full power of substitution in
the premises.
In connection with any transfer of the within Note (or
any issuance of shares of Common Stock, par value $.Ol per share,
or shares of Preferred Stock, par value $.01 per share, of SoftKey
International Inc. upon conversion or exchange of the within Note)
occurring prior to the third anniversary of the date of original
issuance of such Note, the undersigned confirms that such Note (or
shares of Common Stock or Preferred Stock, as the case may be) are
being transferred:
( ) To SoftKey International Inc. or a subsidiary thereof; or
( ) Pursuant to and in compliance with Rule 144A under the
Securities Act of 1933, as amended; or
( ) To an institutional Accredited investor pursuant to and in
compliance with the Securities Act of 1933, as amended; or
( ) Pursuant to and in compliance with Regulation S under the
Securities Act of 1933, as amended; or
( ) Pursuant to and in compliance with Rule 144 under the
Securities Act of 1933, as amended.
Unless one of the boxes above is checked, the Trustee
will refuse to register any of the within Notes (or such shares of
Common Stock or Preferred Stock, as the case may be) in the name
of any person other than the registered holder thereof (or
hereof); provided, however, that the Trustee may, in its sole
discretion, register the transfer of such Notes (or such shares of
Common Stock or Preferred Stock, as the case may be) if it has
received such certifications, legal opinions and/or other
information as the Company has reasonably requested to confirm
that such transfer is being made pursuant to an exemption from, or
in a transaction not subject to, the registration requirements of
the Securities Act of 1933, as amended.
In addition, if the transferee is an institutional
accredited investor or a purchaser who is not a U.S. person, the
holder must furnish to the Trustee (i) in the case of an
institutional accredited investor, a signed letter containing
certain representations and agreements relating to the
restrictions on transfer of the security evidenced hereby and (ii)
such other certifications, legal opinions or other information as
it may reasonably require to confirm that such transfer is being
made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act of
1933, as amended.
Dated: ________________
_______________________
_______________________
Signature(s)
Signature(s) must be
guaranteed by an eligible
Guarantor institution (banks,
stock brokers, savings and
loan associations and credit
unions) with membership in an
approved signature guarantee
medallion program pursuant to
Securities and Exchange
Commission Rule 17Ad-15.
_______________________
Signature Guarantee
NOTICE: The signature on the conversion notice or the exchange
notice, the option to elect payment upon a Change of Control or
the assignment must correspond with the name as written upon the
face of the Note in every particular without alteration or
enlargement or any change whatever.
EXHIBIT B - FORM OF GLOBAL NOTE
[FORM OF FACE OF NOTE]
No. A-1 $____________________
CUSIP_______________
SOFTKEY INTERNATIONAL INC.
5 1/2% Senior Convertible/Exchangeable Note Due 2000
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITARY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
THE NOTE EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT)
("INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S.
PERSON AND IS ACQUIRING THE NOTE EVIDENCED HEREBY IN AN
OFFSHORE TRANSACTION; (2) AGREES THAT IT WILL NOT PRIOR TO
THE DATE THAT IS THREE YEARS AFTER THE LATER OF THE ORIGINAL
ISSUANCE OF THE NOTE EVIDENCED HEREBY AND THE LAST DATE ON
WHICH SOFTKEY INTERNATIONAL INC. (THE "COMPANY") OR ANY
"AFFILIATE" (AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT)
OF THE COMPANY WAS THE OWNER OF THE NOTE (THE "RESTRICTION
TERMINATION DATE") RESELL OR OTHERWISE TRANSFER THE NOTE
EVIDENCED HEREBY OR THE COMMON STOCK ISSUABLE UPON CONVERSION
OR EXCHANGE OF SUCH NOTE EXCEPT (A) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) TO AN
INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH
TRANSFER, FURNISHES TO STATE STREET BANK AND TRUST COMPANY,
AS TRUSTEE, A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS
ON TRANSFER OF THE NOTE EVIDENCED HEREBY (THE FORM OF WHICH
LETTER CAN BE OBTAINED FROM SUCH TRUSTEE), (D) OUTSIDE THE
UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT OR (E) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
(IF AVAILABLE); AND (3) AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THE NOTE EVIDENCED HEREBY IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THE NOTE EVIDENCED HEREBY
BEFORE THE RESTRICTION TERMINATION DATE, THE HOLDER MUST
CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF
RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS
CERTIFICATE TO STATE STREET BANK AND TRUST COMPANY, AS
TRUSTEE. IF THE PROPOSED TRANSFER IS PURSUANT TO CLAUSE (C),
(D) OR (E) ABOVE, THE HOLDER MUST PRIOR TO SUCH TRANSFER,
FURNISH TO STATE STREET BANK AND TRUST COMPANY, AS TRUSTEE,
SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS
THE COMPANY MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE
RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION "UNITED STATES" AND "U.S. PERSON" HAVE
THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.
SOFTKEY INTERNATIONAL INC., a corporation duly organized
and validly existing under the laws of the State of Delaware
(herein called the "Company"), which term includes any Successor
Company under the Indenture referred to on the reverse hereof, for
value received hereby promises to pay to _________________________
____________________________________________________________
____________________________________________________________, or
registered assigns, the principal sum of __________________
___________________________________________________________
Dollars (subject to adjustment as set forth in the next paragraph
hereof) on November 1, 2000, at the office or agency of the
Company maintained for that purpose in the Borough of Manhattan,
The City of New York, or, at the option of the holder of this
Note, at the Corporate Trust office of the Trustee, in such coin
or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and
private debts, and to pay interest, semi-annually on May 1 and
November 1 of each year, commencing May 1, 1996, on said principal
sum at said office or agency, in like coin or currency, at the
rate per annum specified in the title of this Note, from the May 1
or November 1, as the case may be, next preceding the date of this
Note to which interest has been paid or duly provided for, unless
the date hereof is a date to which interest has been paid or duly
provided for, in which case from the date of this Note, or unless
no interest has been paid or duly provided for on the Notes, in
which case from ___________, 1995, until payment of said principal
sum has been made or duly provided for. Notwithstanding the
foregoing, if the date hereof is after any April 15 or October 15,
as the case may be, and before the following May 1 or November 1
other than October 15, 1995, this Note shall bear interest from
such May 1 or November 1, respectively; provided, however, that if
the Company shall default in the payment of interest due on such
May 1 or November 1, then this Note shall bear interest from the
next preceding May 1 or November 1 to which interest has been paid
or duly provided for or, if no interest has been paid or duly
provided for on such Note, from __________, 1995. The interest so
payable on any May 1 or November 1 will be paid to the person in
whose name this Note (or one or more Predecessor Notes) is
registered at the close of business on the record date, which
shall be the April 15 or October 15 (whether or not a Business
Day) next preceding such May 1 or November 1, respectively;
provided that any such interest not punctually paid or duly
provided for shall be payable as provided in the Indenture.
Interest may, at the option of the Company, be paid by check
mailed to the registered address of such person.
The aggregate principal amount of the Note in global form
represented hereby may from time to time be reduced or increased
to reflect exchanges of a part of this Note in global form for
definitive Notes or exchanges of definitive Notes for a part of
this Note in global form or exchanges or conversions or
redemptions of a part of this Note in global form or cancellations
of a part of this Note in global form or transfers of definitive
Notes in return for a part of this Note in global form or
transfers of a part of this Note in global form effected by
delivery of definitive Notes, in each case, and in any such case,
by means of notations on the Schedule of Exchanges, Conversions,
Redemptions, Cancellations and Transfers on the last page hereof.
Notwithstanding any provision of this Note to the contrary, (i)
exchanges of a part of this Note in global form for definitive
Notes, (ii) exchanges of definitive Notes for a part of this Note
in global form, (iii) conversions, exchanges or redemptions of a
part of this Note in global form, (iv) cancellations of a part of
this Note in global form, (v) transfers of definitive Notes in
return for a part of this Note in global form and (vi) transfers
of a part of this Note in global form effected by delivery of
definitive Notes may be effected without the surrendering of this
Note in global form, provided that appropriate notations on the
Schedule of Exchanges, Conversions, Redemptions, Cancellations and
Transfers are made by the Trustee, or the Custodian at the
direction of the Trustee, to reflect the appropriate reduction or
increase, as the case may be, in the aggregate principal amount of
this Note in global form resulting therefrom or as a consequence
thereof.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, including, without limitation,
provisions giving the holder of this Note the right to convert
this Note into Common Stock and exchange this Note for Preferred
Stock of the Company on the terms and subject to the limitations
referred to on the reverse hereof and as more fully specified in
the Indenture. Such further provisions shall for all purposes
have the same effect as though fully set forth at this place.
This Note shall be deemed to be a contract made under the
laws of the State of New York, and for all purposes shall be
construed in accordance with and governed by the laws of said
State.
This Note shall not be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have
been manually signed by the Trustee or a duly authorized
authenticating agent under the Indenture.
IN WITNESS WHEREOF, the Company has caused this Note to be
duly executed under its corporate seal.
SOFTKEY INTERNATIONAL INC.
By:________________________________
Name:
Title:
Dated: _______________________
Attest:
______________________________
Secretary
[FORM OF CERTIFICATE AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
This is one of the Notes Described in the within-named
Indenture.
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By: _____________________________
Authorized Officer
As Authenticating Agent
(if different from Trustee)
By: _____________________________
Authorized Officer
[FORM OF REVERSE OF NOTE]
SoftKey International Inc.
5 1/2% Senior Convertible/Exchangeable Note Due 2000
This Note is one of a duly authorized issue of Notes of the
Company, designated as its 5 1/2% Senior Convertible/Exchangeable
Notes due 2000 (herein called the "Notes"), limited to the
aggregate principal amount of $150,000,000 all issued or to be
issued under and pursuant to an Indenture dated as of __________,
1995 (herein called the "Indenture"), between the Company and
State Street Bank and Trust Company (herein called the "Trustee"),
to which Indenture and all indentures supplemental thereto
reference is hereby made for a description of the rights,
limitations to rights, obligations, duties and immunities
thereunder of the Trustee, the Company and the holders of the
Notes.
In case an Event of Default, as defined in the Indenture,
shall have occurred and be continuing, the principal of and
accrued interest on all Notes may be declared, and upon said
declaration shall become, due and payable, in the manner, with the
effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the holders of not less than a
majority in aggregate principal amount of the Notes at the time
outstanding, evidenced as in the Indenture provided, to execute
supplemental indentures adding any provisions to or changing in
any manner or eliminating any of the provisions of the Indenture
or of any supplemental indenture or modifying in any manner the
rights of the holders of the Notes; provided, however, that no
such supplemental indenture shall (i) extend the fixed maturity of
any Note, or reduce the rate or extend the time of payment of
interest thereon, or reduce the principal amount thereof or
premium, if any, thereon, or reduce any amount payable on
redemption thereof, alter the obligation of the Company to redeem
the Notes at the option of the holders upon the occurrence of a
Change of Control or impair or affect the right of any Noteholder
to institute suit for the payment thereof, or make the principal
thereof or interest or premium, if any, thereon payable in any
coin or currency other than that provided in the Notes or impair
the right to exchange the Notes for Preferred Stock or to convert
the Notes into Common Stock subject to the terms set forth in the
Indenture, including Sections 15.6 and 17.6 thereof, without the
consent of the holder of each Note so affected or (ii) reduce the
aforesaid percentage of Notes, the holders of which are required
to consent to any such supplemental indenture, without the consent
of the holders of all Notes then outstanding. It is also provided
in the Indenture that, prior to any declaration accelerating the
maturity of the Notes, the holders of a majority in aggregate
principal amount of the Notes at the time outstanding may on
behalf of the holders of all of the Notes waive any past default
or Event of Default under the Indenture and its consequences
except a default in the payment of interest or any premium on or
the principal of any of the Notes, a failure by the Company to
exchange the Notes for Preferred Stock or to convert any Notes
into Common Stock of the Company or a default in respect of a
covenant or provision of the Indenture which under Article XI
thereof cannot be modified or amended without the consent of the
holders of all Notes then outstanding. Any such consent or waiver
by the holder of this Note (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such holder and
upon all future holders and owners of this Note and any Notes
which may be issued in exchange or substitution hereof,
irrespective of whether or not any notation thereof is made upon
this Note or such other Notes.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of
the Company, which is absolute and unconditional, to pay the
principal of and any premium and interest on this Note at the
place, at the respective times, at the rate and in the coin or
currency herein prescribed.
Interest on the Notes shall be computed on the basis of a
year of twelve 30-day months.
The Notes are issuable in registered form without coupons in
denominations of $1,000 principal amount and integral multiples
thereof. At the office or agency of the Company referred to on
the face hereof, and in the manner and subject to the limitations
provided in the Indenture, without payment of any service charge
but with payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any
registration or exchange of Notes, Notes may be exchanged for a
like aggregate principal amount of Notes of other authorized
denominations.
The Notes will not be redeemable at the option of the Company
prior to November 2, 1998. On or after such date and prior to
maturity the Notes may be redeemed at the option of the Company as
a whole, or from time to time in part, upon mailing a notice of
such redemption not less than 30 nor more than 60 days before the
date fixed for redemption to the holders of Notes at their last
registered addresses, all as provided in the Indenture, at the
following optional redemption prices (expressed as percentages of
the principal amount), together in each case with accrued interest
to the date fixed for redemption.
If redeemed during the 12-month period beginning:
Date Percentage
November 2, 1998 102.2%
November 1, 1999 101.1%
and 100% at November 1, 2000; provided that if the date fixed for
redemption is a May 1 or November 1, then the interest payable on
such date shall be paid to the holder of record on the next
preceding April 15 or October 15, respectively.
If a Change of Control (as defined in the Indenture)
shall occur at any time, then each holder of Notes shall have the
right to require that the Company purchase such holder's Notes in
whole or in part in integral multiples of $1,000, at a purchase
price in cash in an amount equal to 101% of the principal amount
of such Notes, plus accrued and unpaid interest, if any, to the
repurchase date pursuant to an offer to be made by the Company and
in accordance with the procedures set forth in the Indenture.
Subject to the provisions of the Indenture, the holder
hereof has the right, at its option, at any time after 60 days
following the latest date of original issuance of the Notes and
prior to the close of business on November 1, 2000, or, as to all
or any portion hereof called for redemption, prior to the close of
business on the Business Day next preceding the date fixed for
redemption (unless the Company shall default in payment due upon
redemption thereof), exchange the principal amount hereof or any
portion of such principal which is $1,000 or an integral multiple
thereof, into that number of fully paid and non-assessable shares
of the Company's Preferred Stock obtained by dividing the
principal amount of this Note, or portion thereof to be exchanged,
by the exchange price of $1000.00 or such exchange price as
adjusted from time to time as provided in the Indenture, or to
convert the principal hereof or any portion of such principal
which is $1,000 or an integral multiple thereof, into that number
of fully paid and non-assessable shares of Company's Common Stock,
as said shares shall be constituted at the date of conversion,
obtained by dividing the principal amount of this Note or portion
thereof to be converted by the conversion price of $53.00 or such
conversion price as adjusted from time to time as provided in the
Indenture, in either case, upon surrender of this Note, together
with an exchange notice or a conversion notice, as the case may
be, as provided in the Indenture, to the Company at the office or
agency of the Company maintained for that purpose in the Borough
of Manhattan, The City of New York, or at the option of such
holder, the Corporate Trust Office of the Trustee, and, unless the
shares issuable on conversion or exchange are to be issued in the
same name as this Note, duly endorsed by, or accompanied by
instruments of transfer in form satisfactory to the Company duly
executed by the holder or by his duly authorized attorney. In the
case of any exchange, dividends on the Preferred Stock issuable
upon such exchange will commence to accrue as of the most recent
date as of which interest has been paid, or duly provided for, on
the Notes unless no interest has been paid or duly provided for on
the Notes, in which case from ____________, 1995 and no further
adjustment will be made with regard to interest due on the Note,
or portions thereof, so exchanged. No adjustment in respect of
interest or dividends will be made upon any conversion; provided,
however, that if this Note shall be surrendered for conversion or
exchange during the period from the close of business on any
record date for the payment of interest through the close of
business on the Business Day next preceding the following interest
payment date, this Note (unless it or the portion being converted
or exchanged shall have been called for redemption on a date in
such period) must be accompanied by an amount, in funds acceptable
to the Company, equal to the interest payable on such interest
payment date on the principal amount being converted or exchanged.
No fractional shares will be issued upon any conversion or
exchange, but an adjustment in cash will be made, as provided in
the Indenture, in respect of any fraction of a share which would
otherwise be issuable upon the surrender of any Note or Notes for
conversion or exchange.
Any Notes called for redemption, unless surrendered for
conversion or exchange on or before the close of business on the
date fixed for redemption, may be deemed to be purchased from the
holder of such Notes at an amount equal to the applicable
redemption price, together with accrued interest to the date fixed
for redemption, by one or more investment bankers or other
purchasers who may agree with the Company to purchase such Notes
from the holders thereof and convert them into Common Stock or
exchange them for Preferred Stock of the Company and to make
payment for such Notes as aforesaid to the Trustee in trust for
such holders.
Upon due presentment for registration of transfer of this
Note at the office or agency of the Company in the Borough of
Manhattan, The City of New York, or at the option of the holder of
this Note, at the Corporate Trust office of the Trustee, a new
Note or Notes of authorized denominations for an equal aggregate
principal amount will be issued to the transferee in exchange
thereof, subject to the limitations provided in the Indenture,
without charge except for any tax or other governmental charge
imposed in connection therewith.
The Company, the Trustee, any authenticating agent, any
paying agent, any exchange or conversion agent and any Note
registrar may deem and treat the registered holder hereof as the
absolute owner of this Note (whether or not this Note shall be
overdue and notwithstanding any notation of ownership or other
writing hereon made by anyone other than the Company or any Note
registrar), for the purpose of receiving payment hereof, or on
account hereof, for the exchange or conversion hereof and for all
other purposes, and neither the Company nor the Trustee nor any
other authenticating agent nor any paying agent nor any other
exchange or conversion agent nor any Note registrar shall be
affected by any notice to the contrary. All payments made to or
upon the order of such registered holder shall, to the extent of
the sum or sums paid, satisfy and discharge liability for monies
payable on this Note.
No recourse for the payment of the principal of or any
premium or interest on this Note, or for any claim based hereon or
otherwise in respect hereof, and no recourse under or upon any
obligation, covenant or agreement of the Company in the Indenture
or any indenture supplemental thereto or in any Note, or because
of the creation of any indebtedness represented thereby, shall be
had against any incorporator, stockholder, officer or director, as
such, past, present or future, of the Company or of any Successor
Company, either directly or through the Company or any Successor
Company, whether by virtue of any constitution, statute or rule of
law or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and
as part of the consideration for the issue hereof, expressly
waived and released.
Terms used in this Note and defined in the Indenture are used
herein as therein defined.
[FORM OF CONVERSION NOTICE]
CONVERSION NOTICE
TO: SoftKey International Inc.
The undersigned registered owner of this Note hereby
irrevocably exercises the option to convert this Note, or the
portion hereof (which is $1,000 principal amount or an integral
multiple thereof) below designated, into shares of Common Stock,
par value $.01 per share, of the Company in accordance with the
terms of the Indenture referred to in this Note, and directs that
the shares issuable and deliverable upon such conversion, and any
Notes representing any unconverted principal amount hereof, be
issued and delivered to the registered holder hereof unless a
different name has been indicated below. If shares or any portion
of this Note not converted are to be issued in the name of a
person other than the undersigned, the undersigned will check the
appropriate box below and pay all transfer taxes payable with
respect thereto. Any amount required to be paid to the
undersigned on account of interest accompanies this Note.
Dated: _______________________
__________________________________
__________________________________
Signature(s)
Signature(s) must be guaranteed by an eligible Guarantor
Institution (banks, stock brokers, savings and loan associations
and credit unions) with membership in an approved signature
guarantee medallion program pursuant to Securities and Exchange
Commission Rule 17Ad-15 if shares of Common Stock are to be
issued, or Notes to be delivered, other than to and in the name of
the registered holder.
_____________________________________
Signature Guarantee
Fill in for registration of shares if to
be issued, and Notes if to be delivered,
other than to and in the name of the
registered holder:
_______________________________
(Name)
_______________________________
(Street Address)
_______________________________
(City, State and Zip Code)
Please print name and address
__________________________
Social Security or other
Taxpayer Identification
Number
Principal amount to be
converted (if less than
all) $___________________
[FORM OF EXCHANGE NOTICE)
EXCHANGE NOTICE
To: SoftKey International Inc.
The undersigned registered owner of this Note hereby
irrevocably exercises the option to exchange this Note, or the
portion hereof (which is $1,000 principal amount or an integral
multiple thereof) below designated, into shares of Preferred
Stock, par value $.01 per share, of the Company in accordance with
the terms of the Indenture referred to in this Note, and directs
that the shares issuable and deliverable upon such exchange, and
any Notes representing any unconverted principal amount hereof, be
issued and delivered to the registered holder hereof unless a
different name has been indicated below. If shares or any portion
of this Note not exchanged are to be issued in the name of a
person other than the undersigned, the undersigned will check the
appropriate box below and pay all transfer taxes payable with
respect thereto. Any amount required to be paid to the
undersigned on account of interest accompanies this Note.
Dated:
_________________________________
Signature(s)
Signature(s) must be guaranteed by an eligible Guarantor
institution (banks, stock brokers, savings and loan associations
and credit unions) with membership in an approved signature
guarantee medallion program pursuant to Securities and Exchange
Commission Rule 17Ad-15 if shares of Common Stock are to be
issued, or Notes to be delivered, other than to and in the name of
the registered holder.
________________________________
Signature Guarantee
Fill in for registration of shares if to
be issued, and Notes if to be delivered,
other than to and in the name of the
registered holder:
_______________________________
(Name)
_______________________________
(Street Address)
_______________________________
(City, State and Zip Code)
Please print name and address
__________________________
Social Security or other
Taxpayer Identification
Number
Principal amount to be
exchanged (if less than
all) $___________________
[FORM OF OPTION TO ELECT REPAYMENT]
UPON A CHANGE OF CONTROL)
To: SoftKey International Inc.
The undersigned registered owner of this Note hereby
irrevocably acknowledges receipt of a notice from SoftKey
International Inc. (the "Company") as to the occurrence of a
Change of Control with respect to the Company and requests and
instructs the Company to repay the entire principal amount of this
Note, or the portion thereof (which is $1,000 principal amount or
an integral multiple thereof) below designated, in accordance with
the terms of the Indenture referred to in this Note, together with
accrued interest to such date, to the registered holder hereof.
Dated:________________________
___________________________________
___________________________________
Signature(s)
___________________________________
Social Security or Other Taxpayer
Identification Number
___________________________________
Principal amount to be repaid (if
less than all): $__________________
EXHIBIT C
[FORM OF
CERTIFICATE OF DESIGNATION]
SOFTKEY INTERNATIONAL INC.
AND
STATE STREET BANK AND TRUST COMPANY
TRUSTEE
INDENTURE
DATED AS OF _____________, 1995
5 1/2% SENIOR CONVERTIBLE/EXCHANGEABLE NOTES DUE 2000
TABLE OF CONTENTS
ARTICLE I - DEFINITIONS . . . . . . . . . . . . . . . . . . . . 2
Section 1.1 Definitions . . . . . . . . . . . . . . . . . 2
ARTICLE II - ISSUE, DESCRIPTION, EXECUTION, REGISTRATIONAND
EXCHANGE OF NOTES . . . . . . . . . . . . . . . . . . . . 7
Section 2.1 Designation, Amount and Issue of Notes . . . . 7
Section 2.2 Form of Notes . . . . . . . . . . . . . . . . 8
Section 2.3 Date and Denomination of Notes;
Payments of Interest . . . . . . . . . . . . . . . . 8
Section 2.4 Execution of Notes . . . . . . . . . . . . . 10
Section 2.5 Exchange and Registration of Transfer
of Notes; Restrictions on Transfer; Depositary . . . 11
Section 2.6 Mutilated, Destroyed, Lost or Stolen
Notes . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 2.7 Temporary Notes . . . . . . . . . . . . . . . 20
Section 2.8 Cancellation of Notes Paid, Etc . . . . . . . 20
Section 2.9 Ranking . . . . . . . . . . . . . . . . . . . 21
ARTICLE III - REDEMPTION OF NOTES . . . . . . . . . . . . . . . 21
Section 3.1 Redemption Prices . . . . . . . . . . . . . . 21
Section 3.2 Notice of Redemption, Selection of Notes . . 21
Section 3.3 Payment of Notes Called for Redemption . . . 23
Section 3.4 Conversion/Exchange Arrangement on
Call for Redemption . . . . . . . . . . . . . . . . . 24
Section 3.5 Purchase of Notes Upon a Change of Control . 25
ARTICLE IV - [RESERVED] . . . . . . . . . . . . . . . . . . . . 26
ARTICLE V - PARTICULAR COVENANTS OF THE COMPANY . . . . . . . . 26
Section 5.1 Payment of Principal, Premium and Interest . 26
Section 5.2 Maintenance of Office or Agency . . . . . . . 26
Section 5.3 Appointments to Fill Vacancies in
Trustee's office . . . . . . . . . . . . . . . . . . 27
Section 5.4 Provisions as to Paying Agent . . . . . . . . 27
Section 5.5 Corporate Existence . . . . . . . . . . . . . 28
Section 5.6 Rule 144A Information Requirement . . . . . . 28
Section 5.7 Stay, Extension and Usury Laws . . . . . . . 29
Section 5.8 Amendments to Series C Preferred Stock . . . 29
ARTICLE VI - NOTEHOLDERS' LISTS AND REPORTS BY THE COMPANY . . 29
Section 6.1 Noteholders' Lists . . . . . . . . . . . . . 29
Section 6.2 Reports by Company . . . . . . . . . . . . . 29
ARTICLE VII - DEFAULTS AND REMEDIES . . . . . . . . . . . . . . 30
Section 7.1 Events of Default . . . . . . . . . . . . . . 30
Section 7.2 Payments of Notes on Default; Suit
Therefor . . . . . . . . . . . . . . . . . . . . . . 32
Section 7.3 Application of Monies Collected by Trustee . 34
Section 7.4 Proceedings by Noteholder . . . . . . . . . . 35
Section 7.5 Proceedings by Trustee . . . . . . . . . . . 36
Section 7.6 Remedies Cumulative and Continuing . . . . . 36
Section 7.7 Direction of Proceedings and Waiver
of Defaults by Majority of Noteholders . . . . . . . 37
Section 7.8 Notice of Defaults . . . . . . . . . . . . . 37
Section 7.9 Undertaking to Pay Costs . . . . . . . . . . 37
ARTICLE VIII - CONCERNING THE TRUSTEE . . . . . . . . . . . . . 38
Section 8.1 Duties and Responsibilities of Trustee . . . 38
Section 8.2 Reliance on Documents, Opinions, Etc . . . . 39
Section 8.3 No Responsibility for Recitals, Etc . . . . . 40
Section 8.4 Trustee, Paying Agents, Exchange Agents,
Conversion Agents or Registrar May own Notes . . . . 40
Section 8.5 Monies to Be Held in Trust . . . . . . . . . 41
Section 8.6 Compensation and Expenses of Trustee . . . . 41
Section 8.7 Officers' Certificate as Evidence . . . . . . 41
Section 8.8 Conflicting Interests of Trustee . . . . . . 42
Section 8.9 Eligibility of Trustee . . . . . . . . . . . 42
Section 8.10 Resignation or Removal of Trustee . . . . . 42
Section 8.11 Acceptance by Successor Trustee . . . . . . 43
Section 8.12 Successor, by Merger, Etc . . . . . . . . . 44
Section 8.13 Limitation on Rights of Trustee as
Creditor . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE IX - CONCERNING THE NOTEHOLDERS . . . . . . . . . . . . 45
Section 9.1 Action by Noteholders . . . . . . . . . . . . 45
Section 9.2 Proof of Execution by Noteholders . . . . . . 45
Section 9.3 Who Are Deemed Absolute Owners . . . . . . . 45
Section 9.4 Company-Owned Notes Disregarded . . . . . . . 46
Section 9.5 Revocation of Consents, Future
Holders Bound . . . . . . . . . . . . . . . . . . . . 47
ARTICLE X - NOTEHOLDERS MEETINGS . . . . . . . . . . . . . . . 47
Section 10.1 Purposes for Which Meetings May be Called . 47
Section 10.2 Manner of Calling Meetings; Record Date . . 47
Section 10.3 Call of Meeting by Company or Noteholders . 48
Section 10.4 Who may Attend and Vote at Meetings . . . . 48
Section 10.5 Manner of Voting at Meetings and
Record to be Kept . . . . . . . . . . . . . . . . . . 48
Section 10.6 Exercise of Rights of Trustee and
Noteholders not to be Hindered or delayed . . . . . . 49
ARTICLE XI - SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . 49
Section 11.1 Supplemental Indentures Without
Consent of Noteholders . . . . . . . . . . . . . . . 49
Section 11.2 Supplemental Indentures with Consent of
Noteholders . . . . . . . . . . . . . . . . . . . . . 51
Section 11.3 Effect of Supplemental Indentures . . . . . 52
Section 11.4 Notation on Notes . . . . . . . . . . . . . 52
Section 11.5 Evidence of Compliance of Supplemental
Indenture to be Furnished Trustee . . . . . . . . . . 52
ARTICLE XII - CONSOLIDATION, MERGER, SALE, CONVEYANCE,TRANSFER AND
LEASE . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 12.1 Company May Consolidate, Etc. on
Certain Terms . . . . . . . . . . . . . . . . . . . . 53
Section 12.2 Successor Company to Be Substituted . . . . 53
Section 12.3 Opinion of Counsel to Be Given Trustee . . . 54
ARTICLE XIII - SATISFACTION AND DISCHARGE OF INDENTURE;UNCLAIMED
MONEYS . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 13.1 Legal Defeasance and Covenant
Defeasance of the Notes . . . . . . . . . . . . . . . 54
Section 13.2 Termination of Obligations upon
Cancellation of the Notes . . . . . . . . . . . . . . 57
Section 13.3 Survival of Certain Obligations . . . . . . 57
Section 13.4 Acknowledgment of Discharge by Trustee . . . 58
Section 13.5 Application of Trust Assets . . . . . . . . 58
Section 13.6 Repayment to the Company; Unclaimed Money . 58
Section 13.7 Reinstatement . . . . . . . . . . . . . . . 59
ARTICLE XIV - IMMUNITY OF INCORPORATORS, STOCKHOLDERS,OFFICERS AND
DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 14.1 Indenture and Notes Solely Corporate
Obligations . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE XV - CONVERSION OF NOTES . . . . . . . . . . . . . . . 59
Section 15.1 Right to Convert . . . . . . . . . . . . . . 59
Section 15.2 Exercise of Conversion Privilege;
Issuance of Common Stock on Conversion;
No Adjustment for Interest or Dividends . . . . . . . 60
Section 15.3 Cash Payments in Lieu of Fractional
Shares . . . . . . . . . . . . . . . . . . . . . . . 62
Section 15.4 Conversion Price . . . . . . . . . . . . . . 62
Section 15.5 Adjustment of Conversion Price . . . . . . . 62
Section 15.6 Effect of Reclassification,
Consolidation, Merger or Sale . . . . . . . . . . . . 72
Section 15.7 Transfer or Similar Taxes on Shares Issued . 73
Section 15.8 Reservation of Shares; Shares to Be
Fully Paid; Listing of Common Stock . . . . . . . . . 73
Section 15.9 Responsibility of Trustee . . . . . . . . . 74
Section 15.10 Notice to Holders Prior to Certain
Actions . . . . . . . . . . . . . . . . . . . . . . . 74
ARTICLE XVI - MISCELLANEOUS PROVISIONS . . . . . . . . . . . . 75
Section 16.1 Provisions Binding on Company's
Successors . . . . . . . . . . . . . . . . . . . . . 75
Section 16.2 Official Acts by Successor Company . . . . . 75
Section 16.3 Addresses for Notices, Etc . . . . . . . . . 75
Section 16.4 Governing Law . . . . . . . . . . . . . . . 76
Section 16.5 Evidence of Compliance with Conditions
Precedent; Certificates to Trustee . . . . . . . . . 76
Section 16.6 Legal Holidays . . . . . . . . . . . . . . . 77
Section 16.7 No Security Interest Created . . . . . . . . 77
Section 16.8 Trust Indenture Act . . . . . . . . . . . . 77
Section 16.9 Benefits of Indenture . . . . . . . . . . . 77
Section 16.10 Table of Contents, Headings Etc . . . . . . 77
Section 16.11 Authenticating Agent . . . . . . . . . . . 77
Section 16.12 Execution in Counterparts . . . . . . . . . 78
Section 16.13 Pooling of Interests . . . . . . . . . . . 78
ARTICLE XVII - EXCHANGE OF NOTES . . . . . . . . . . . . . . . 79
Section 17.1 Right to Exchange . . . . . . . . . . . . . 79
Section 17.2 Exercise of Exchange Privilege;
Issuance of Preferred Stock on Exchange;
Adjustment for Interest or Dividends . . . . . . . . 79
Section 17.3 Cash Payments in Lieu of Fractional Shares . 81
Section 17.4 Exchange Price . . . . . . . . . . . . . . . 81
Section 17.5 Adjustment of Exchange Price . . . . . . . . 81
Section 17.6 Effect of Reclassification, Consolidation,
Merger or Sale . . . . . . . . . . . . . . . . . . . 83
Section 17.7 Transfer or Similar Taxes on Shares Issued . 84
Section 17.8 Reservation of Stock; Shares to Be
Fully Paid; Listing of Preferred Stock . . . . . . . 84
Section 17.9 Responsibility of Trustee . . . . . . . . . 85
Section 17.10 Notice to Holders Prior to Certain
Actions . . . . . . . . . . . . . . . . . . . . . . . 86
EXHIBIT A - FORM OF DEFINITIVE NOTE . . . . . . . . . . . 88
CERTIFICATE OF AUTHENTICATION . . . . . . . . . . . . . . 91
ABBREVIATIONS . . . . . . . . . . . . . . . . . . . . . . 96
FORM OF CONVERSION NOTICE] CONVERSION NOTICE . . . . . . . 97
FORM OF EXCHANGE NOTICE] EXCHANGE NOTICE . . . . . . . . . 99
OPTION TO ELECT REPAYMENT UPON A CHANGE OF CONTROL . . . 101
FORM OF ASSIGNMENT . . . . . . . . . . . . . . . . . . . 102
EXHIBIT B - FORM OF GLOBAL NOTE . . . . . . . . . . . . 104
FORM OF CERTIFICATE AUTHENTICATION . . . . . . . . . . . 108
FORM OF REVERSE OF NOTE . . . . . . . . . . . . . . . . 109
CONVERSION NOTICE . . . . . . . . . . . . . . . . . . . 114
FORM OF EXCHANGE NOTICE . . . . . . . . . . . . . . . . 116
FORM OF OPTION TO ELECT REPAYMENT] UPON
A CHANGE OF CONTROL . . . . . . . . . . . . . . . . 118
EXHIBIT C FORM OF CERTIFICATE OF DESIGNATION . . . . . . 119
____________________________________________________________________________
SECURITIES RESALE REGISTRATION RIGHTS AGREEMENT
DATED AS OF NOVEMBER 30, 1995
BY AND AMONG
TRIBUNE COMPANY
AND
SOFTKEY INTERNATIONAL INC.
SECURITIES RESALE REGISTRATION RIGHTS AGREEMENT
This SECURITIES RESALE REGISTRATION RIGHTS AGREEMENT
(this "Agreement") is made and entered into as of November 30,
1995 by and among SOFTKEY INTERNATIONAL INC., a Delaware
corporation (the "Company"), and TRIBUNE COMPANY, a Delaware
corporation (the "Purchaser"), which Purchaser (i) has agreed to
purchase from the Company $150,000,000 principal amount of 51/2%
Senior Convertible/ Exchangeable Notes due 2000 (the "Notes")
pursuant to the Purchase Agreement (as defined below) and (ii)
will acquire shares of Common Stock (as defined below) pursuant
to the Merger Agreement (as defined below).
This Agreement is made pursuant to (i) the Securities
Purchase Agreement dated as of November 30, 1995 (the "Purchase
Agreement") by and among the Company and the Purchaser and (ii)
the Agreement and Plan of Merger dated as of November 30, 1995
providing for two separate reverse subsidiary mergers of wholly
owned subsidiaries of the Company with and into wholly owned
subsidiaries of the Purchaser (the "Merger Agreement"). In order
to induce the Purchaser to purchase the Notes, the Company has
agreed to provide the registration rights set forth in this
Agreement. The execution and delivery of this Agreement is
provided for in the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized
terms shall have the following meanings:
Act: Securities Act of 1933, as amended.
Agreement: As defined in the preamble hereto.
Broker-Dealer: Any broker or dealer registered under
the Exchange Act (as hereinafter defined).
Certificate of Designation: The Certificate of
Designation for the Preferred Shares.
Closing Date: The earliest to occur of (a) the closing
of the transactions contemplated by the Merger Agreement and (b)
the purchase and sale of the Notes to the Purchaser.
Commission: Securities and Exchange Commission.
Common Stock: Common Stock of the Company, par value
$.01 per share.
Company: As defined in the preamble hereto.
Effectiveness Target Date: As defined in Section 3
hereof.
Exchange Act: Securities Exchange Act of 1934, as
amended.
Exempt Resales: Any transaction exempt from the
registration requirements of the Act in which the Purchaser sells
the Notes, including without limitation sales (i) to "qualified
institutional buyers," as such term is defined in Rule 144A under
the Act ("QIBs"), (ii) to institutional "accredited investors,"
as such term is defined in Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Act ("Accredited Institutions") and (iii)
outside the United States, to certain persons in offshore
transactions in reliance on Regulation S under the Act.
Holder: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 6(a) hereof.
Indenture: The Indenture by and among the Company and
State Street Bank and Trust Company, as trustee (the "Trustee"),
pursuant to which the Notes are to be issued, as such Indenture
as amended, modified or supplemented from time to time in
accordance with the terms thereof.
Interest Payment Date: As defined in the Indenture and
the Notes.
NASD: National Association of Securities Dealers, Inc.
Person: An individual, partnership, corporation,
trust, unincorporated organization or a government, agency or
political subdivision thereof.
Preferred Shares: The Company's 51/2% Series C
Convertible Preferred Stock into which the Notes are exchangeable
at the option of the Holders thereof.
Prospectus: The prospectus included in the
Registration Statement, as amended or supplemented including
without limitation by any post-effective amendments thereto, and
all material incorporated by reference into such prospectus.
Purchase Agreement: As defined in the preamble hereto.
Purchaser: As defined in the preamble hereto.
Registrable Securities: As defined in Section 3(a)(i)
hereto.
Registration Statement: The continuous registration
statement of the Company which is filed pursuant to Rule 415
under the Act, including the Prospectus included therein, all
amendments and supplements thereto (including any post-effective
amendments) and all exhibits and material incorporated by
reference therein.
Shelf Filing Deadline: As defined to Section 3 hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C.
Section 77aaa-77bbbb), as amended and in effect on the date of
the Indenture.
Transfer Restricted Securities: Each Note, each
Preferred Share and each share of Common Stock (i) issuable upon
conversion of the Notes or Preferred Shares and (ii) issuable to
Purchaser under the Merger Agreement held by the Purchaser or,
except in the case of shares of Common Stock issuable to
Purchaser under the Merger Agreement, its transferee until the
date on which such Note, Preferred Share or share of Common
Stock, as the case may be, has been registered under the Act and
disposed of in accordance with an effective Registration
Statement.
Underwritten Registration or Underwritten Offering: A
registration in which securities of the Company are sold to an
underwriter for reoffering to the public.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities: The securities
entitled to the benefits of this Agreement are the Transfer
Restricted Securities and, more particularly, the Registrable
Securities.
(b) Holders of Transfer Restricted Securities. A
Person is deemed to be a holder of Transfer Restricted Securities
(each, a "Holder") whenever such Person owns Transfer Restricted
Securities of record.
SECTION 3. REGISTRATION
(a) Shelf Registration. The Company hereby agrees to:
(i) use its best efforts to file or cause to be filed
the Registration Statement on or prior to the 90th day after
the Closing Date (the "Shelf Filing Deadline"), which
Registration Statement shall provide for resales of all
Transfer Restricted Securities except (A) Transfer
Restricted Securities held by transferees of any Holder who
or which becomes a Holder after the Registration Statement
is declared effective and (B) Transfer Restricted Securities
held by the transferee of any Holder who or which holds less
than $5,000,000 in principal amount of the Notes or the
equivalent (on an "as exchanged" or "as converted" basis) in
Preferred Shares or shares of Common Stock (such Transfer
Restricted Securities being hereinafter referred to as the
"Registrable Securities"), provided that the Holders thereof
shall have provided the information required pursuant to
Section 3(b) hereof; and
(ii) use all reasonable efforts to cause the
Registration Statement to be declared effective by the
Commission as promptly as practicable after the Closing Date
(the "Effectiveness Target Date").
Subject to any notice by the Company in accordance with Section
4(b) hereof of the existence of any fact or event of the kind
described in Section 4(b)(iii)(D) hereof, the Company shall use
all reasonable efforts to keep the Registration Statement
continuously effective, supplemented and amended as required by
the provisions of Sections 4(a) and (b) hereof to the extent
necessary to ensure that it is available for resales of Transfer
Restricted Securities by the Holders of Transfer Restricted
Securities entitled to the benefit of this Section 3(a) and to
ensure that the Registration Statement conforms to the
requirements of this Agreement, the Act and the policies, rules
and regulations of the Commission as announced from time to time
thereunder for a period of at least three years following the
Closing Date.
(b) Certificated Securities; Provision by Holders of
Certain Information in Connection with the Registration
Statement. No Holder of Registrable Securities may include any
of its Transfer Restricted Securities in the Registration
Statement pursuant to this Agreement unless (i) such Holder holds
such Transfer Restricted Securities in the form of physical
certificates and (ii) until such Holder furnishes to the Company
in writing, within 20 business days after receipt of a request
therefor, such information as the Company may reasonably request
for use in connection with the Registration Statement or any
Prospectus or preliminary Prospectus included therein. In
connection with all such requests for information from Holders of
Registrable Securities, the Company shall notify such Holders of
the requirements set forth in the preceding sentence. Each
Holder as to which the Registration Statement is being effected
agrees to furnish promptly to the Company all information
required to be disclosed in order to make the information
previously furnished to the Company by such Holder not materially
misleading.
SECTION 4. REGISTRATION PROCEDURES
(a) In connection with the Registration Statement, the
Company shall comply with all the provisions of Section 4(b)
below and shall use all reasonable efforts to effect such
registration to permit the resale of the Registrable Securities
being sold in accordance with the intended method or methods of
distribution thereof.
(b) In connection with the Registration Statement and
any Prospectus required by this Agreement, the Company shall:
(i) subject to Section 4(b)(xv) hereof, use all
reasonable efforts to keep the Registration Statement
continuously effective and provide all requisite financial
statements for the period specified in Section 3 of this
Agreement; upon the occurrence of any event that would cause
the Registration Statement or the Prospectus contained
therein (A) to contain a material misstatement or omission
or (B) not to be effective and usable for resales of
Registrable Securities during the period required by this
Agreement, the Company shall file promptly an appropriate
amendment to the Registration Statement correcting any such
misstatement or omission, and, in the case of either clause
(A) or (B), except as set forth in Section 4(b)(xv) below,
use all reasonable efforts to cause such amendment to be
declared effective and the Registration Statement and the
related Prospectus to become usable for their intended
purpose(s) as soon as practicable thereafter;
(ii) prepare and file with the Commission such
amendments and post-effective amendments to the Registration
Statement as may be necessary to keep the Registration
Statement effective for the applicable period set forth in
Section 3 hereof, or such shorter period as will terminate
when all Registrable Securities covered by the Registration
Statement have been sold; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as
so supplemented, cause the Prospectus to be filed pursuant
to Rule 424 under the Act and to comply fully with the
applicable provisions of Rules 424 and 430A under the Act in
a timely manner; and comply with the provisions of the Act
with respect to the disposition of all securities covered by
the Registration Statement during the applicable period in
accordance with the intended method or methods of
distribution by the sellers thereof set forth in the
Registration Statement or supplement to the Prospectus;
(iii) advise the underwriter(s), if any, and selling
Holders promptly and, if requested by such Persons, to
confirm such advice in writing, (A) when the Prospectus or
any Prospectus supplement or post-effective amendment to the
Registration Statement has been filed, and, with respect to
the Registration Statement or any post-effective amendment
thereto, when the same has become effective, (B) of any
request by the Commission for amendments to the Registration
Statement or amendments or supplements to the Prospectus or
for additional information relating thereto, (C) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Act or
of the suspension by any state securities commission of the
qualification of the Registrable Securities for offering or
sale in any jurisdiction or of the initiation of any
proceeding for any of the preceding purposes, (D) of the
existence of any fact or the happening of any event
(including without limitation pending negotiations relating
to, or the consummation of, a transaction or the occurrence
of any which would require additional disclosure of
material, nonpublic information by the Company in the
Registration Statement as to which the Company has a bona
fide business purpose for preserving confidentiality or
which renders the Company unable to comply with Commission
requirements) that makes untrue any statement of a material
fact made in the Registration Statement, the Prospectus, any
amendment or supplement thereto or any document incorporated
by reference therein, or that requires the making of any
additions to or changes in the Registration Statement or the
Prospectus in order to make the statements therein not
misleading. If at any time the Commission shall issue any
stop order suspending the effectiveness of the Registration
Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the
qualification or exemption from qualification of the
Registrable Securities under state securities or Blue Sky
laws, the Company shall use its best efforts to obtain the
withdrawal or lifting of such order at the earliest possible
time;
(iv) furnish to each of the selling Holders, upon
request, and to each of the underwriter(s), if any, before
filing with the Commission, copies of the Registration
Statement or any Prospectus included therein and any
amendments or supplements thereto (including all documents
incorporated by reference prior to the effectiveness of the
Registration Statement), which documents, other than
documents incorporated by reference, will be subject to the
review of such Holders and underwriter(s), if any, for a
period of at least five business days, and the Company shall
not file the Registration Statement or Prospectus or any
amendment or supplement to the Registration Statement or
Prospectus to which a selling Holder of Registrable
Securities covered by the Registration Statement or the
underwriter(s), if any, shall reasonably object within five
business days after the receipt thereof; a selling Holder or
underwriter(s), if any, shall be deemed to have reasonably
objected to such filing only if the Registration Statement,
amendment, Prospectus or supplement, as applicable, as
proposed to be filed, contains a material misstatement or
omission;
(v) if practicable, promptly prior to the filing of
any document that is to be incorporated by reference into
the Registration Statement or Prospectus subsequent to the
effectiveness thereof, and in any event no later than the
date such document is filed with the Commission, provide
copies of such document to the selling Holders, if
requested, and to the underwriter(s), if any, make
representatives of the Company available for discussion of
such document and other customary due diligence matters, and
include such information in such document prior to the
filing thereof as such selling Holders or underwriter(s), if
any, reasonably may request;
(vi) make available at reasonable times for inspection
by the selling Holders, any underwriter(s) participating in
any disposition pursuant to the Registration Statement and
any attorney or accountant retained by such selling Holders
or any of the underwriter(s), all financial and other
records, pertinent corporate documents and properties of the
Company and cause the officers, directors and employees of
the Company to supply all information reasonably requested
by any such Holder, underwriters, attorney or accountant in
connection with the Registration Statement subsequent to the
filing thereof and prior to its effectiveness;
(vii) if requested by any selling Holders or the
underwriters, if any, promptly incorporate in the
Registration Statement or any Prospectus, pursuant to a
supplement or post-effective amendment if necessary, such
information as such selling Holders and underwriters, if
any, may reasonably request to have included therein,
including, without limitation, information relating to the
"Plan of Distribution" of the Registrable Securities,
information with respect to the principal amount or number
of shares of Registrable Securities being sold to such
underwriter(s), the purchase price being paid therefor and
any other terms of the offering of the Registrable
Securities to be sold in such offering and make all required
filings of any such Prospectus supplement or post-effective
amendment as soon as practicable after the Company is
notified of the matters to be incorporated in such
Prospectus supplement or post-effective amendment;
(viii) cause the Notes or Preferred Shares covered by
the Registration Statement to be rated with the appropriate
rating agencies, if so requested by the Holders of a
majority in aggregate principal amount of Notes, in the case
of the Notes, or a majority of the Preferred Shares, in the
case of the Preferred Shares, or the underwriter(s) for any
Underwritten Offering of such Notes or Preferred Shares, if
any;
(ix) [Intentionally omitted]
(x) deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of
each Prospectus (including each preliminary prospectus
intended for public distribution) and any amendment or
supplement thereto as such Persons reasonably may request;
the Company hereby consents to the use of each Prospectus
and any amendment or supplement thereto by each of the
selling Holders and each of the underwriter(s), if any, in
connection with the offering and the sale of the Transfer
Restricted Securities covered by any Prospectus or any
amendment or supplement thereto;
(xi) enter into such customary agreements (including
an underwriting agreement), and make such customary
representations and warranties, and, subject to Section
4(b)(xv) hereof, take all such other customary actions in
connection therewith in order to expedite or facilitate the
disposition of the Registrable Securities pursuant to the
Registration Statement contemplated by this Agreement, all
to such extent as may be requested by the Purchaser or by
any Holder of Registrable Securities or underwriter in
connection with any sale or resale pursuant to the
Registration Statement contemplated by this Agreement; and
whether or not an underwriting agreement is entered into and
whether or not the registration is an Underwritten
Registration, the Company shall:
(A) furnish to the Purchaser, each selling Holder
and each underwriter, if any (including any Broker-
Dealer who may be deemed to be an underwriter),
officers' certificates, legal opinions and comfort
letters, in such substance and scope as they may
request and as are customarily made by issuers to
underwriters in primary underwritten offerings, upon
the date of the effectiveness of the Registration
Statement;
(B) set forth in full or incorporate by reference
in the underwriting agreement, if any, indemnification
provisions and procedures substantially in the form of
those set forth in Section 6 hereof with respect to all
parties required to be indemnified pursuant to said
Section 6; and
(C) deliver such other documents and certificates
as may be reasonably requested by such parties to
evidence compliance with clause (A) above and with any
customary conditions contained in the underwriting
agreement or other agreement entered into by the
Company pursuant to this clause (xi), if any.
(xii) prior to any public offering of Registrable
Securities, cooperate with the selling Holders, the
underwriter(s), if any, and their respective counsel in
connection with the registration and qualification of the
Registrable Securities under the securities or Blue Sky laws
of such jurisdictions as the selling Holders or
underwriter(s) may request; and do any and all other acts or
things necessary or advisable to enable the disposition in
such jurisdictions of the Registrable Securities covered by
the Registration Statement; provided, however, that the
Company shall not be required to register or qualify as a
foreign corporation where it is not now so qualified or to
take any action that would subject it to service of process
in suits or to taxation, other than as to matters and
transactions relating to the Registration Statement, in any
jurisdiction where it is not now so subject;
(xiii) cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely preparation
and delivery of certificates representing Transfer
Restricted Securities to be sold and not bearing any
restrictive legends; and enable such Registrable Securities
to be in such denominations and registered in such names as
the Holders or the underwriter(s), if any, may request at
least two business days prior to any sale of Registrable
Securities made by such underwriter(s);
(xiv) use all reasonable efforts to cause the Transfer
Restricted Securities covered by the Registration Statement
to be registered with or approved by such other governmental
agencies or authorities as may be necessary to enable the
seller or sellers thereof or the underwriter(s), if any, to
consummate the disposition of such Registrable Securities,
subject to the proviso contained in clause (xii) above;
(xv) as soon as reasonably practicable after the
occurrence of any fact or event of the kind described in
clause (b)(iii)(D) above, prepare a supplement or post-
effective amendment to the Registration Statement or related
Prospectus or any document incorporated therein by reference
or file any other required document so that, as thereafter
delivered to the purchasers of Transfer Restricted
Securities, the Prospectus will not contain an untrue
statement of a material fact or omit to state any material
fact necessary, in light of the circumstances in which it
was made, to make the statements therein not misleading,
provided, however, that notwithstanding anything to the
contrary herein, the Company shall not be required to
prepare and file such a supplement or post-effective
amendment or document if the fact no longer exists; and
provided further however, that, in the event of a material
business transaction (including without limitation pending
negotiations relating to such transaction) which based upon
the advice of outside counsel reasonably acceptable to the
Purchaser, would require disclosure by the Company in the
Registration Statement of material, nonpublic information
which the Company has a bona fide business purpose for not
disclosing, then for so long as such circumstances and such
business purpose continue to exist (provided that such
period may not exceed 120 days in any calendar year), the
Company shall not be required to prepare and file a
supplement or post-effective amendment hereunder;
(xvi) provide a CUSIP number for all Transfer
Restricted Securities not later than the effective date of
the Registration Statement and provide the Trustee under the
Indenture with printed certificates for the Transfer
Restricted Securities which are in a form eligible for
deposit with The Depositary Trust Company;
(xvii) cooperate in any filings required to be made
with the NASD and in the performance of any due diligence
investigation by any underwriter (including any "qualified
independent underwriter") that is required to be retained in
accordance with the rules and regulations of the NASD, and
use all reasonable efforts to cause the Registration
Statement to become effective and be approved by such
governmental agencies or authorities as may be necessary to
enable the Holders selling Registrable Securities to
consummate the disposition of such Transfer Restricted
Securities;
(xviii) otherwise use its reasonable efforts to comply
with all applicable rules and regulations of the Commission,
and make generally available to its security holders, as
soon as practicable, a consolidated earnings statement
meeting the requirements of Rule 158 (which need not be
audited) for the twelve-month period (A) commencing at the
end of any fiscal quarter in which Transfer Restricted
Securities are sold to underwriters in a firm commitment or
best efforts Underwritten Offering or (B) if not sold to
underwriters in such an offering, beginning with the first
month of the Company's first fiscal quarter, as applicable,
commencing after the effective date of the Registration
Statement;
(xix) cause the Indenture to be qualified under the
TIA not later than the effective date of the Registration
Statement, and, in connection therewith: cooperate with the
Trustee and the Holders of Notes to effect such changes to
the Indenture as may be required for such Indenture to be so
qualified in accordance with the terms of the TIA; and
execute and use all reasonable efforts to cause the Trustee
to execute, all documents that may be required to effect
such changes and all other forms and documents required to
be filed with the Commission to enable such Indenture to be
so qualified in a timely manner;
(xx) cause all Registrable Securities covered by the
Registration Statement to be listed on any securities
exchange on which similar securities issued by the Company
are then listed if requested by the Holders of a majority in
aggregate principal amount of Notes, the Holders of a
majority of shares of the Preferred Shares, or the managing
underwriter(s), if any; and
(xxi) provide promptly to each Holder upon request any
document filed with the Commission pursuant to the
requirements of Section 13 and Section 15 of the Exchange
Act.
Each Holder agrees by acquisition of a Transfer
Restricted Security that, upon receipt of any notice from the
Company of the existence of any fact or event of the kind
described in Section 4(b)(iii)(D) hereof, such Holder will
forthwith discontinue disposition of Registrable Securities
pursuant to the applicable Registration Statement until such
Holder's receipt of the copies of a supplemented or amended
Prospectus as contemplated by Section 4(b)(xv) hereof, or until
it is advised in writing (the "Advice) by the Company that the
use of the Prospectus may be resumed, and, has received copies of
any additional or supplemental filings that are incorporated by
reference in the Prospectus. If so directed by the Company, each
Holder will deliver to the Company (at the expense of the
Company) all copies, other than permanent file copies then in
such Holder's possession, of the Prospectus covering such
Registrable Securities that was current at the time of receipt of
such notice. In the event the Company shall give any such
notice, the time period regarding the effectiveness of the
Registration Statement set forth in Section 3 hereof shall be
extended by the number of days during the period from and
including the date of the giving of such notice pursuant to
Section 4(b)(iii)(D) hereof to and including the date when each
selling Holder covered by the Registration Statement shall have
received the copies of the supplemented or amended prospectus
contemplated by Section 4(b)(xv) hereof or shall have received
the Advice.
Each Holder, by acquisition of a Transfer Restricted
Security, agrees that, to the extent that (A) such Holder is
deemed to be an "affiliate" of the Company for purposes of the
Securities Act or Accounting Series 130 and 135 of the Commission
and (B) (i) the Company has entered into a business combination
transaction intended to be accounted for as a pooling of
interests and (ii) such accounting treatment requires affiliates
of the Company to not dispose of or otherwise reduce such
affiliate's risk with respect to any Common Stock of the Company
during the period beginning 30 days prior to the effective date
of the transaction and until after such time as results covering
at least 30 days of combined operations of the combined entity
have been published, such Holder shall deliver to the Company an
"affiliate letter" in reasonable and customary form and
reasonably satisfactory to the Company.
SECTION 5. REGISTRATION EXPENSES
(a) All expenses incident to the Company's performance of
or compliance with this Agreement will be borne by the Company
regardless of whether the Registration Statement becomes
effective, including without limitation: (i) all registration
and filing fees and expenses (including, if applicable, the fees
and expenses of any "qualified independent underwriter" and its
counsel that may be required by the rules and regulations of the
NASD); (ii) all fees and expenses associated with compliance with
federal securities and state Blue Sky or securities laws; (iii)
all expenses of printing (including printing of any certificates
evidencing the Notes and Preferred Shares and printing of
Prospectuses), messenger and delivery services and telephone
charges; (iv) all fees and disbursements of counsel for the
Company and, as provided for in Section 5(b) below, the Holders
of Registrable Securities; (v) all application and filing fees in
connection with listing any securities on a national securities
exchange or automated quotation system pursuant to the
requirements hereof; and (vi) all fees and disbursements of
independent certified public accountants of the Company
(including the expenses of any special audit and comfort letters
required by or incident to such performance).
The Company will, in any event, bear its own internal
expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or
accounting duties), the expenses of any annual audit and the fees
and expenses of any Person, including special experts, retained
by the Company.
(b) In connection with the Registration Statement
required by this Agreement, the Company agrees to reimburse the
Purchaser and the Holders of Transfer Restricted Securities
being registered pursuant to the Registration Statement for the
reasonable fees and disbursements of not more than one counsel,
who shall be Sidley & Austin or such other counsel as may be
chosen by the Holders of a majority in principal amount or a
majority of the shares of the Registrable Securities for whose
benefit the Registration Statement is being prepared.
SECTION 6. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless
(i)each Holder and (ii) each person, if any, who controls (within
the meaning of Section 15 of the Act or Section 20 of the
Exchange Act) any Holder (any of the persons referred to in this
clause (ii) being hereinafter referred to as a "controlling
person") and (iii) the respective officers, directors, partners,
employees, representatives and agents of any Holder or any
controlling person (any person referred to in clause (i), (ii) or
(iii) may hereinafter be referred to as an "Indemnified Holder"),
to the fullest extent lawful, from and against any and all
losses, claims, damages, liabilities, judgments, costs and
expenses ("Losses") (including, without limitation and as
incurred, reimbursement of all costs of investigating, preparing,
pursuing or defending any claim or action, or any investigation
or proceeding by any governmental agency or body, commenced or
threatened, including the reasonable fees and expenses of counsel
to any Indemnified Holder) directly or indirectly caused by,
related to, based upon, arising out of or in connection with any
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or any Prospectus (or any
amendment or supplement thereto) or any omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading,
except insofar as such Losses are caused by an untrue statement
or omission or alleged untrue statement or omission that is made
in reliance upon and in conformity with information relating to
any of the Holders furnished in writing to the Company by any of
the Holders for use therein. The Company shall notify the
Holders promptly of the institution, threat or assertion of any
claim, proceeding (including any governmental investigation) or
litigation in connection with the matters addressed by this
Agreement which involves the Company or any Indemnified Holder.
(b) In case any action or proceeding (including, without
limitation, any governmental or regulatory investigation or
proceeding) shall be brought or asserted against any of the
Indemnified Holders with respect to which indemnity may be sought
against the Company, such Indemnified Holder (or the Indemnified
Holder controlled by such controlling person) shall promptly
notify the Company in writing (provided that the failure to give
such notice shall not relieve the Company of its obligations
pursuant to this Agreement). Any Indemnified Holder shall have
the right to employ separate counsel in any such action and
participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Holder,
provided, however, that the fees and expenses of such counsel
shall be at the expense of the Company if (i) the Company has
failed to assume the defense and employ counsel reasonably
satisfactory to the Holders or (ii) the named parties to any such
action (including impleaded parties) include such Indemnified
Holder and the Company and such Indemnified Holder shall have
reasonably concluded that there may be one or more legal defenses
available to it that are different from or in addition to those
available to the Company; provided further that the Company shall
not in such event be responsible hereunder for the fees and
expenses of more than one firm of separate counsel, which firm
shall be designated by the Holders, in connection with any action
in the same jurisdiction, in addition to any local counsel. The
Company shall not be liable for any settlement of any such action
or proceeding effected with its prior written consent, which
consent shall not be unreasonably withheld or delayed, and the
Company agrees to indemnify and hold harmless any Indemnified
Holder from and against any Loss by reason of any settlement of
any action effected with its written consent. The Company shall
not, without the prior written consent of each Indemnified
Holder, settle or compromise or consent to the entry of a
judgment in or otherwise seek to terminate any pending or
threatened action, claim, litigation or proceeding in respect of
which indemnification or contribution may be sought hereunder
(whether or not any Indemnified Holder is a party thereto) unless
such settlement, compromise, consent or termination includes an
unconditional release of each Indemnified Holder from all
liability arising out of such action, claim, litigation or
proceeding.
(c) Each Holder of Transfer Restricted Securities
agrees, severally and not jointly, to indemnify and hold harmless
the Company, its directors, its officers, and any person
controlling (within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act) the Company, and the respective
officers, directors, partners, employees, representatives and
agents of each such person, to the same extent as the foregoing
indemnity from the Company to each of the Indemnified Holders,
but only with respect to claims and actions based on information
relating to such Holder furnished in writing by such Holder for
use in the Registration Statement or any Prospectus. In case any
action or proceeding shall be brought against any of the Company
or its directors or officers or any such controlling person in
respect of which indemnity may be sought against a Holder of
Transfer Restricted Securities, such Holder shall have the
rights and duties given the Company, and each of the Company or
its directors or officers of such controlling person shall have
the rights and duties given to each Holder by the proceeding
paragraph. In no event shall the liability of any selling Holder
hereunder be greater in amount than the dollar amount of the
proceeds received by such Holder upon the sale of the securities
registered pursuant to provisions hereof giving rise to such
indemnification obligation.
(d) If the indemnification provided for in this Section
6 is unavailable to a party entitled to indemnification in
respect of any Losses referred to herein, then each indemnifying
party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified
party as a result of such Losses (i) in such proportion as is
appropriate to reflect the relative benefits received by the
Company on the one hand and the Holders on the other hand from
their sale of Transfer Restricted Securities or (ii) if such
allocation is not permitted by applicable law, the relative fault
of the Company on the one hand and of the indemnified Holder on
the other in connection with the statements or omissions which
resulted in the Losses as well as any relevant equitable
considerations. The relative fault of the Company on the one
hand and of the Indemnified Holder on the other shall be
determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Indemnified Holder
and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement
or omission. The indemnity and contribution obligations of each
indemnifying party set forth herein shall be in addition to any
liability or obligation such indemnifying party may otherwise
have to any indemnified party.
The Company and each Holder of Transfer Restricted
Securities agree that it would not be just and equitable if
contribution pursuant to this Section 6(d) were determined by pro
rata allocation (even if Holders were treated as one entity for
such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by
an indemnified party as a result of the Losses referred to in the
immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 6, none of
the Holders (and their related Indemnified Holders) shall be
required to contribute, in the aggregate, any amount in excess of
the amount by which the total proceeds received by such Holder
with respect to the Notes exceeds the amount of any damages which
such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Holders' obligations to
contribute pursuant to this Section 6(d) are several in
proportion to the respective principal amount of Notes held by
each of the Holders hereunder and not joint.
SECTION 7. RULE 144A
The Company hereby agrees with each Holder, for so long
as any Transfer Restricted Securities remain outstanding, to make
available to any Holder or beneficial owner of Transfer
Restricted Securities in connection with any sale thereof and
any prospective purchase of such Transfer Restricted Securities
from such Holder or beneficial owner, any information required to
be supplied to a Holder by Rule 144A(d)(4) under the Act in order
to permit offers and sales of such Transfer Restricted Securities
pursuant to Rule 144A.
SECTION 8. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten
Registration hereunder unless such Holder (a) agrees to sell such
Holder's Transfer Restricted Securities on the basis provided in
any underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements and (b) completes and
executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other
documents required under the terms of such underwriting
arrangements.
SECTION 9. SELECTION OF UNDERWRITERS
The Holders of Registrable Securities covered by the
Registration Statement who desire to do so may sell such
Registrable Securities in an Underwritten Offering. In any such
Underwritten Offering, the investment banker or investment
bankers and manager or managers that will administer the offering
will be selected by the Holders of a majority in aggregate
principal amount or a majority of the shares of the Registrable
Securities included in such offering; provided that such
investment bankers and managers must be reasonably satisfactory
to the Company.
SECTION 10. MISCELLANEOUS
(a) Remedies. The Company agrees that monetary damages
would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Agreement and
hereby agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not,
on or after the date of this Agreement, enter into any agreement
with respect to its securities that is inconsistent with the
rights granted to the Holders in this Agreement or otherwise
conflicts with the provisions hereof. The rights granted to the
Holders hereunder are not inconsistent with the rights granted to
the holders of the Company's securities under any agreement in
effect on the date hereof.
(c) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and
waivers or consents to or departures from the provisions hereof
may not be given, unless the Company has obtained the written
consent of Holders of a majority of the outstanding principal
amount or a majority of the shares of Transfer Restricted
Securities.
(d) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by
hand-delivery, first-class mail (registered or certified, return
receipt requested), telex, telecopier or courier guaranteeing
overnight deliver;
(i) if to a Holder, at the address set forth on the
records of the Registrar under the Indenture, with a copy to
the Registrar under the Indenture; and
(ii) if to the Company:
SoftKey International Inc.
One Athenaeum Street
Cambridge, Massachusetts 02142
Attention: General Counsel
with a copy to:
Skadden, Arps, Slate, Meagher & Flom
One Beacon Street, 31st Floor
Boston, Massachusetts 02108
Attention: Louis A. Goodman
All such notices and communications shall be deemed to
have been duly given: at the time delivered by hand, if
personally delivered; five business days after being deposited in
the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt is acknowledged, if telecopied; and on the
next business day, if timely delivered to a courier guaranteeing
overnight delivery.
Copies of all such notices, demands or other
communications shall be concurrently delivered by the Person
giving the same to the Trustee at the address specified in the
Indenture.
(e) Successors and Assigns. This Agreement shall, to
the extent provided for herein, inure to the benefit of and be
binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted
Securities; provided, however, that this Agreement shall not
inure to the benefit of or be binding upon a successor or assign
of a Holder unless and to the extent such successor or assign
acquired Transfer Restricted Securities from such Holder.
(f) Counterparts. This Agreement may be executed in
any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute
one and the same agreement.
(g) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF.
(i) Severability. In the event that any one or more
of the provisions contained herein, or the application thereof in
any circumstance, is held invalid, illegal or unenforceable, the
validity, legality and enforceability of any such provision in
every other respect and the remaining provisions contained herein
shall not be affected or impaired thereby.
(j) Entire Agreement. This Agreement, together with
the other Transaction Documents (as defined in the Purchase
Agreement) and the Merger Agreement, is intended by the parties
as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject
matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or
referred to herein or therein with respect to the registration
rights granted by the Company with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect to
such subject matter.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
SOFTKEY INTERNATIONAL INC.
By:_______________________
Name:
Title:
TRIBUNE COMPANY
By:_______________________
Name:
Title:
____________________________________________________________________________
EXHIBIT C
SoftKey International Inc.
CERTIFICATE OF DESIGNATION
OF 5-1/2% SERIES C CONVERTIBLE
PREFERRED STOCK SETTING FORTH THE POWERS,
PREFERENCES, RIGHTS, QUALIFICATIONS,
LIMITATIONS AND RESTRICTIONS OF
SUCH SERIES OF PREFERRED STOCK
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware, SoftKey International Inc. (the
"Company"), a corporation organized and existing under the
General Corporation Law of the State of Delaware, in accordance
with the provisions of Section 103 thereof, DOES HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board
of Directors of the Company (the "Board of Directors") by Article
4.2.2 of the Restated Certificate of Incorporation of the
Company, as amended, and in accordance with the provisions of
Section 151 of the General Corporation Law of the State of
Delaware, the Board of Directors on ___________, 1995, adopted
the following resolution authorizing and creating a series of
Preferred Stock designated as 5-1/2% Series C Convertible
Preferred Stock:
RESOLVED that, pursuant to the authority vested in the
Board of Directors in accordance with the provisions of the
Restated Certificate of Incorporation, as amended, a series of
the class of authorized Preferred Stock, par value $.01 per
share, of the Company is hereby authorized and created and that
the designation and number of shares thereof and the voting
powers, preferences and relative, participating, optional and
other special rights of the shares of such series, and the
qualifications, limitations and restrictions thereof are as
follows:
Section 1. Designation and Number.
Section 1.1 Designation. The shares of such series
shall be designated as "5-1/2% Series C Convertible Preferred
Stock" (the "Series C Preferred Stock"). The maximum number of
shares of Series C Preferred Stock hereby authorized shall be
150,000 shares.
Section 1.2 Priority. The Series C Preferred Stock
shall, with respect to the payment of dividends and the
distribution of assets on liquidation, dissolution or winding up,
(i) rank prior to the Common Stock, par value $0.01 per share, of
the Company (the "Common Stock") and (ii) rank on a parity with
any other series of Preferred Stock hereinafter issued by the
Company.
Section 2. Dividends and Distributions.
Section 2.1 Dividends. The holders of shares of
Series C Preferred Stock, in preference to the holders of shares
of Common Stock and of any shares of other capital stock of the
Company ranking junior to the Series C Preferred Stock as to
payment of dividends, shall be entitled to receive, when, as and
if declared by the Board of Directors, out of the assets of the
Company legally available therefor, dividends in the amount per
share equal to 5-1/2% per annum of the Liquidation Preference (as
defined herein) of such share payable or accrued semi-annually on
May 1 and November 1 in each year commencing May 1, 1996 (each
such date a "Dividend Payment Date") to the persons in whose
names the Series C Preferred Stock is registered at the close of
business on the April 15 and October 15 immediately preceding
such Dividend Payment Date, as the case may be. Such dividends
shall begin to accrue on outstanding shares of Series C Preferred
Stock from the date of issuance of such shares of Series C
Preferred Stock; provided, in the case of any Series C Preferred
Stock issued upon exchange for the Company's $150 million
principal amount of 5-1/2% Senior Convertible/Exchangeable Notes
due 2000 (the "Notes"), such dividend shall begin to accrue and
accumulate from the date on which interest was last paid or duly
provided for on such Notes, or if no interest has been paid or
duly provided for prior to the date of such exchange, from
__________, 1995. Dividends payable for any partial dividend
period shall be computed on the basis of a 360-day year of twelve
30-day months. Dividends on the Series C Preferred Stock shall
accrue on a daily basis whether or not funds shall be legally
available for the payment thereof. Accrued but unpaid dividends
on the Series C Preferred Stock shall cumulate as of the Dividend
Payment Date on which they first become payable, and any and all
such accrued dividends shall be paid as provided in this Section
2, Section 5 and Section 7.
Section 2.2 No Additional Dividends. The holders of
shares of Series C Preferred Stock shall not be entitled to
receive any dividends or other distributions except as provided
herein.
Section 3. Voting Rights. In addition to any voting
rights provided by law, the holders of shares of Series C
Preferred Stock shall have the following voting rights:
Section 3.1 With Common Stock. So long as the Series
C Preferred Stock is outstanding, each share of Series C
Preferred Stock shall entitle the holder thereof to vote on all
matters voted on by holders of Common Stock voting together as a
single class with other shares entitled to vote at all meetings
of the stockholders of the Company. With respect to any such
vote, each share of Series C Preferred Stock shall entitle the
holder thereof to cast the number of votes equal to the number of
votes which could be cast in such vote by a holder of the shares
of capital stock of the Company into which such share of Series C
Preferred Stock is convertible on the record date for such vote.
Section 3.2 As a Class. The affirmative vote of the
holders of at least 66-2/3% of the outstanding shares of Series C
Preferred Stock, in person or by proxy, at a special or annual
meeting of stockholders called for the purpose, shall be
necessary to (i) authorize, increase the authorized number of
shares of, or issue (including on conversion or exchange of any
convertible or exchangeable securities or by reclassification),
any shares of any class or classes of the Company's capital stock
ranking prior to (either as to dividends or upon voluntary or
involuntary liquidation, dissolution or winding up) the Series C
Preferred Stock; (ii) increase the authorized number of shares
of, or issue (including on conversion or exchange of any
convertible or exchangeable securities or by reclassification)
any shares of, Series C Preferred Stock, except in connection
with the exchange of the Notes; (iii) authorize, adopt or approve
an amendment to the Restated Certificate of Incorporation of the
Company which would decrease the aggregate number of authorized
shares of Series C Preferred Stock, increase or decrease the par
value of the shares of Series C Preferred Stock, or alter or
change the powers, preferences or special rights of the shares of
Series C Preferred Stock so as to affect such shares of Series C
Preferred Stock adversely; (iv) authorize or issue shares of any
class or series of stock not authorized herein having any
preference or priority as to dividends or assets superior to any
such preference or priority of the Series C Preferred Stock; or
(v) reclassify any shares of Common Stock or any other shares of
capital stock of the Company other than the Series C Preferred
Stock (such shares other than (A) shares of capital stock of the
Company ranking senior (either as to dividends or upon
liquidation, dissolution or winding up of the Company) to the
Series C Preferred Stock and (B) Parity Stock (as hereinafter
defined) are hereinafter referred to as "Junior Stock") into
shares having any preference or priority as to dividends or
liquidation superior to or on a parity with any such preference
or priority of the Series C Preferred Stock; provided that Parity
Stock may be reclassified into a different series of Parity Stock
without the approval of the holders of Series C Preferred Stock.
Section 3.3 Right to Elect Directors as a Class. If
on any date dividends payable on the Series C Preferred Stock
shall have been in arrears and not paid in full for three semi-
annual periods, whether or not consecutive, the number of
directors constituting the Board of Directors shall, without
further action, be increased by two and the holders of shares of
Series C Preferred Stock shall have, in addition to the other
voting rights set forth herein, the exclusive right, voting
separately as a single class or as a class with the holders of
shares of Parity Stock (as hereinafter defined), if such holders
are then entitled to elect additional directors pursuant to any
provision of the Certificate of Designation for such stock that
is similar to this Section 3.3 ("Defaulted Parity Stock"), to
elect the directors of the Company to fill such newly created
directorships, the remaining directors to be elected by the other
classes of stock entitled to vote therefor (including the Series
C Preferred Stock in accordance with Section 3.1), at each
meeting of stockholders held for the purpose of electing
directors. Such additional directors shall continue as directors
and such additional voting right shall continue until such time
as all dividends accumulated on the Series C Preferred Stock have
been paid in full or all necessary funds have been set aside for
payment, as the case may be, at which time such additional
directors shall cease to be directors and such additional voting
right of the holders of Series C Preferred Stock shall terminate
subject to revesting in the event of each and every subsequent
event of the character indicated above. In no event shall the
holders of Series C Preferred Stock and/or the holders of Parity
Stock voting separately or together as a class be entitled to
elect a total of more than two directors to the Board of
Directors of the Company pursuant to this Section 3.3 and/or any
similar provision of the Certificate of Designation for any
Parity Stock.
Section 3.4.1 Exercise. The foregoing rights of
holders of shares of Series C Preferred Stock to take any actions
as provided in this Section 3 may be exercised at any annual
meeting of stockholders or at a special meeting of stockholders
held for such purpose as hereinafter provided or at any
adjournment thereof, or by the written consent, delivered to the
Secretary of the Company, of the holders of the minimum number of
shares required to take such action.
So long as such right to vote continues (and unless
such right has been exercised by written consent of the minimum
number of shares required to take such action), the Chairman of
the Board of the Company may call, and, upon the written request
of holders of record of 20% of the outstanding shares of Series C
Preferred Stock, if the holders of Series C Preferred Stock are
to vote separately as a single class, or the holders of record of
20% of the outstanding shares of Series C Preferred Stock and
Defaulted Parity Stock, if the holders of shares of Series C
Preferred Stock are to vote as a class with the holders of shares
of any Defaulted Parity Stock, addressed to the Secretary of the
Company at the principal office of the Company, shall call a
special meeting of the holders of shares entitled to vote as
provided herein. Such meeting shall be held within 30 days after
delivery of such request to the Secretary, at the place and upon
the notice provided by law and in the By-laws of the Company for
the holding of meetings of stockholders.
Section 3.4.2 Quorum. At each meeting of stockholders
at which the holders of shares of Series C Preferred Stock shall
have the right, voting separately as a single class or as a class
with the holders of shares of any Defaulted Parity Stock, to
elect directors of the Company as provided in this Section 3 or
to take any action, the presence in person or by proxy of the
holders of record of one-third of the total number of shares of
Series C Preferred Stock, if the holders of shares of Series C
Preferred Stock are to vote separately as a single class, or the
holders of record of one-third of the total number of shares of
Series C Preferred Stock and Defaulted Parity Stock, if the
holders of shares of Series C Preferred Stock are to vote as a
class with the holders of shares of any Parity Stock, then
outstanding and entitled to vote on the matter shall be necessary
and sufficient to constitute a quorum. At any such meeting or at
any adjournment thereof:
(i) the absence of a quorum of the holders of
shares of Series C Preferred Stock, if the holders of
Series C Preferred Stock are to vote separately as a
single class, or the holders of shares of Series C
Preferred Stock and Defaulted Parity Stock, if the
holders of shares of Series C Preferred Stock are to
vote as a class with the holders of shares of any
Parity Stock, shall not prevent the election of
directors other than those to be elected by the holders
of shares of Series C Preferred Stock or the holders of
shares of Series C Preferred Stock and Defaulted Parity
Stock, as the case may be, and the absence of a quorum
of the holders of shares of any other class or series
of capital stock shall not prevent the election of
directors to be elected by the holders of shares of
Series C Preferred Stock or the holders of shares of
Series C Preferred Stock and Defaulted Parity Stock, as
the case may be, or the taking of any action as
provided in this Section 3; and
(ii) in the absence of a quorum of the holders of
shares of Series C Preferred Stock, if the holders of
Series C Preferred Stock are to vote separately as a
single class, or the holders of shares of Series C
Preferred Stock and Defaulted Parity Stock, if the
holders of Series C Preferred Stock are to vote as a
class with the holders of shares of any Defaulted
Parity Stock, a majority of the holders of such shares
present in person or by proxy shall have the power to
adjourn the meeting as to the actions to be taken by
the holders of shares of Series C Preferred Stock or
the holders of shares of Series C Preferred Stock and
Defaulted Parity Stock, as the case may be, from time
to time and place to place without notice other than
announcement at the meeting until a quorum shall be
present.
Section 3.4.3 Votes. For the taking of any action as
provided in Sections 3.2 and 3.3 by the holders of shares of
Series C Preferred Stock or the holders of shares of Series C
Preferred Stock and Defaulted Parity Stock, as the case may be,
each such holder shall have one vote for each share of such stock
standing in his name on the transfer books of the Company as of
any record date fixed for such purpose or, if no such date be
fixed, at the close of business on the Business Day (as defined
in Section 11) next preceding the day on which notice is given,
or if notice is waived, at the close of business on the Business
Day next preceding the day on which the meeting is held.
Section 3.4.4 Directors. Each director elected by the
holders of shares of Series C Preferred Stock or the holders of
shares of Series C Preferred Stock and Defaulted Parity Stock, as
the case may be, as provided in Section 3.3 shall, unless his
term shall expire earlier, hold office until the annual meeting
of stockholders next succeeding his election or until his
successor, if any, is elected and qualified.
In case any vacancy shall occur among the directors
elected by the holders of shares of Series C Preferred Stock or
the holders of shares of Series C Preferred Stock and Defaulted
Parity Stock, as the case may be, as provided in Section 3.3,
such vacancy may be filled for the unexpired portion of the term
by vote of the remaining director theretofore elected by such
holders (if there is a remaining director), or such director's
successor in office. If any such vacancy is not so filled within
20 days after the creation thereof or if both directors so
elected by the holders of Series C Preferred Stock or the holders
of Series C Preferred Stock and Defaulted Parity Stock, as the
case may be, shall cease to serve as directors before their terms
shall expire, the holders of the Series C Preferred Stock or the
holders of Series C Preferred Stock and Defaulted Parity Stock,
as the case may be, then outstanding and entitled to vote for
such directors may, by written consent as herein provided, or at
a special meeting of such holders called as provided herein,
elect successors to hold office for the unexpired terms of the
directors whose places shall be vacant.
Any director elected by the holders of shares of Series
C Preferred Stock voting separately as a single class or the
holders of shares of Series C Preferred Stock voting as a class
with the holders of shares of Defaulted Parity Stock may be
removed from office with or without cause by the vote or written
consent of the holders of at least a majority of the outstanding
shares of Series C Preferred Stock or a majority of the
outstanding shares of Series C Preferred Stock and Defaulted
Parity Stock, as the case may be. A special meeting of the
holders of shares of Series C Preferred Stock or the holders of
shares of Series C Preferred Stock and Defaulted Parity Stock, as
the case may be, may be called in accordance with the procedures
set forth in Section 3.4.1.
Section 3.4.5 Parity Stock. "Parity Stock" shall mean
any capital stock of the Company ranking on a parity (either as
to dividends or upon liquidation, dissolution or winding up of
the Company) with the Series C Preferred Stock.
Section 4. Certain Restrictions.
Section 4.1 Restrictions on Dividends. Whenever
dividends payable on shares of Series C Preferred Stock as
provided in Section 2 are not paid in full, thereafter and until
all unpaid dividends payable, whether or not declared, on the
outstanding shares of Series C Preferred Stock shall have been
paid in full or declared and set apart for payment, until all
necessary funds have been set apart for payment, the Company
shall not: (A) declare or pay dividends, or make any other
distributions, on any shares of Junior Stock (as defined in
Section 3.2), other than dividends or distributions payable in
Junior Stock; or (B) declare or pay dividends, or make any other
distributions, on any shares of Parity Stock, except (1)
dividends or distributions payable in Junior Stock and (2)
dividends or distributions paid ratably on the Series C Preferred
Stock and all Parity Stock on which dividends are payable or in
arrears, in proportion to the total amounts to which the holders
of all shares of the Series C Preferred Stock and such Parity
Stock are then entitled; provided, however, that in the case of
clause (2) the holders of at least 66-2/3% of the outstanding
shares of Series C Preferred Stock, voting separately as a single
class, or the holders of at least 66-2/3% of the outstanding
shares of Series C Preferred Stock and of any Parity Stock the
approval of holders of which is required for such a pro rata
dividend or distribution pursuant to any similar provision of the
Certificate of Designation for such stock, voting together as a
class, shall have approved the payment of such dividend or
distribution; and provided, further, that the restrictions of
this Section 4.1 shall not apply upon the affirmative vote of the
holders of 66-2/3% of the outstanding shares of Series C
Preferred Stock.
Section 4.2 Restrictions on Redemption or Purchase.
Whenever dividends payable on shares of Series C Preferred Stock
as provided in Section 2 are not paid in full, thereafter and
until all unpaid dividends payable, whether or not declared, on
the outstanding shares of Series C Preferred Stock shall have
been paid in full or declared and set apart for payment, until
all necessary funds have been set apart for payment, the Company
shall not: (A) redeem, purchase or otherwise acquire for
consideration any shares of Junior Stock or Parity Stock;
provided that (1) the Company may at any time redeem, purchase or
otherwise acquire shares of Junior Stock or Parity Stock in
exchange for any shares of Junior Stock, (2) the Company may
accept shares of any Parity Stock for conversion and (3) the
Company may at any time redeem, purchase or otherwise acquire
shares of any Parity Stock pursuant to any mandatory redemption,
put, sinking fund or other similar obligation, pro rata with the
Series C Preferred Stock in proportion to the total amount then
required to be applied by it to repurchase or otherwise acquire
shares of Series C Preferred Stock and shares of such Parity
Stock; provided, however, that in the case of clause (3) the
holders of at least 66-2/3% of the outstanding shares of Series C
Preferred Stock, voting separately as a single class, or the
holders of at least 66-2/3% of the outstanding shares of Series C
Preferred Stock and of any Parity Stock the approval of holders
of which is required for such a pro rata repurchase or other
acquisition pursuant to any similar provision of the Certificate
of Designation for such stock, voting together as a class, shall
have approved such repurchase or other acquisition; or (B) redeem
or purchase or otherwise acquire for consideration any shares of
Series C Preferred Stock; provided that the Company (1) may
accept shares of Series C Preferred Stock surrendered for
conversion into shares of capital stock of the Company pursuant
to Section 8, or (2) may redeem shares of Series C Preferred
Stock pro rata pursuant to Section 5.2; and provided, further,
that the restrictions of this Section 4.2 shall not apply upon
the affirmative vote of the holders of 66-2/3% of the outstanding
shares of Series C Preferred Stock.
Section 4.3 Purchase by Subsidiary. The Company shall
not permit any subsidiary of the Company to purchase or otherwise
acquire for consideration any shares of capital stock of the
Company unless the Company could, pursuant to Section 4.2,
purchase such shares at such time and in such manner.
Section 5. Redemption.
Section 5.1 Redemption Prices. The Company may, at
its option, redeem all or from time to time any part of the
Series C Preferred Stock on any date, upon notice as set forth in
Section 5.2, and at the redemption prices set forth below,
provided, however, that no such redemption shall be effected
before November 2, 1998; provided, further, that, notwithstanding
the foregoing, on November 1, 2000 the Company shall redeem all
of the Series C Preferred Stock then outstanding. The redemption
prices (expressed as percentages of the liquidation value of
$1,000.00), together in each case with accrued and unpaid
dividends thereon, whether or not declared, to the date of
redemption, payable in cash, shall be as follows:
If redeemed during the 12-month period beginning:
Date Percentage
November 1, 1998 102.2%
November 1, 1999 101.1%
and 100% on and after November 1, 2000.
Section 5.2 Notice of Redemption, Selection of Series
C Preferred Stock. In case the Company shall desire to exercise
the right to redeem all or, as the case may be, any part of the
Series C Preferred Stock pursuant to Section 5.1, it shall fix a
date for redemption and, in the case of any redemption pursuant
to Section 5.1, it shall mail or cause to be mailed a notice of
such redemption at least 30 and not more than 60 days prior to
the date fixed for redemption to the holders of Series C
Preferred Stock so to be redeemed as a whole or in part at their
last addresses as the same appear on the books of the Company.
Such mailing shall be by first class mail. The notice, if mailed
in the manner herein provided, shall be conclusively presumed to
have been duly given, whether or not the holder receives such
notice. In any case, failure to give such notice by mail or any
defect in the notice to the holder of any Series C Preferred
Stock designated for redemption as a whole or in part shall not
affect the validity of the proceedings for the redemption of any
other shares of Series C Preferred Stock.
Each such notice of redemption shall specify the
aggregate number of shares of Series C Preferred Stock to be
redeemed, the date fixed for redemption, the redemption price at
which Series C Preferred Stock is to be redeemed, the place or
places of payment, that payment will be made upon presentation
and surrender of certificates representing such Series C
Preferred Stock, that dividends accrued to the date fixed for
redemption will be paid as specified in said notice and that on
and after said date, dividends thereon or on the portion thereof
to be redeemed will cease to accrue. Such notice shall also
state the current Conversion Price (as defined below) and the
date on which the right to convert such Series C Preferred Stock
into Common Stock will expire. If fewer than all the Series C
Preferred Stock is to be redeemed, the notice of redemption shall
identify the Series C Preferred Stock to be redeemed.
On or prior to the Business Day prior to the redemption
date specified in the notice of redemption given as provided in
this Section, the Company will deposit with one or more paying
agents (or, if the Company is acting as its own paying agent, set
aside, segregate and hold in trust) an amount of money sufficient
to redeem on the redemption date all the Series C Preferred Stock
so called for redemption (other than those shares theretofore
surrendered for conversion into Common Stock) at the appropriate
redemption price, together with accrued dividends to the date
fixed for redemption. If any shares of Series C Preferred Stock
called for redemption are converted pursuant hereto, any money
deposited with any paying agent or so segregated and held in
trust for the redemption of such shares of Series C Preferred
Stock shall be paid to the Company upon its request or, if then
held by the Company, shall be discharged from such trust.
If fewer than all the shares of Series C Preferred
Stock are to be redeemed, the Company shall select the shares of
Series C Preferred Stock to be redeemed by lot or, in its sole
discretion, on a pro rata basis.
Section 5.3 Payment of Series C Preferred Stock Called
for Redemption. If notice of redemption has been given as above
provided, the Series C Preferred Stock with respect to which such
notice has been given shall, unless converted into Common Stock
pursuant to the terms hereof, become due and payable on the date
and at the place or places stated in such notice at the
applicable redemption price, together with dividends thereon
accrued to the date fixed for redemption, and on and after said
date (unless the Company shall default in the payment of such
redemption price, together with dividends thereon accrued to said
date), dividends on the Series C Preferred Stock so called for
redemption shall cease to accrue, and such Series C Preferred
Stock shall cease after the close of business on the Business Day
next preceding the date fixed for redemption to be convertible
into Common Stock and the holders thereof shall have no right in
respect of such shares of Series C Preferred Stock except the
right to receive the redemption price thereof and dividends
thereon to the date fixed for redemption. On presentation and
surrender of Series C Preferred Stock at a place of payment in
said notice specified, the said Series C Preferred Stock shall be
paid and redeemed by the Company at the applicable redemption
price, together with dividends accrued thereon to the date fixed
for redemption.
Section 5.4 Conversion Arrangement on Call for
Redemption. In connection with any redemption of Series C
Preferred Stock, the Company may arrange for the purchase and
conversion of any Series C Preferred Stock by an agreement with
one or more investment bankers or other purchasers to purchase
such Series C Preferred Stock by paying to the Company or a
paying agent designated by the Company in trust for the holders
of Series C Preferred Stock, on or before the date fixed for
redemption, an amount not less than the applicable redemption
price, together with dividends accrued to the date fixed for
redemption, of such Series C Preferred Stock. Notwithstanding
anything to the contrary contained in this Section 5, the
obligation of the Company to pay the redemption price of such
Series C Preferred Stock, together with dividends accrued to the
date fixed for redemption, shall be deemed to be satisfied and
discharged to the extent such amount is so paid by such
purchasers. If such an agreement is entered into, any Series C
Preferred Stock not duly surrendered for conversion by the
holders thereof may, at the option of the Company, be deemed, to
the fullest extent permitted by law, acquired by such purchasers
from such holders and (notwithstanding anything to the contrary
contained in Section 8) surrendered by such purchasers for
conversion, all as of immediately prior to the close of business
on the date fixed for redemption (and the right to convert any
such Series C Preferred Stock shall be deemed to have been
extended through such time), subject to payment of the above
amount as aforesaid. At the direction of the Company, any
payment agent appointed by the Company shall hold and dispose of
any such amount paid to it in the same manner as it would monies
deposited with it by the Company for the redemption of Series C
Preferred Stock.
Section 5.5. Purchase of Series C Preferred Stock Upon
a Change of Control.
Section 5.5.1 If a Change of Control (as defined in
Section 11) shall occur at any time, then each holder of Series C
Preferred Stock shall have the right to require that the Company
purchase, to the extent that the Company shall have funds legally
available therefor, such holder's shares of Series C Preferred
Stock in whole or in part at a purchase price (the "Change of
Control Purchase Price") in cash in an amount equal to 101% of
the Liquidation Preference of such Series C Preferred Stock, plus
accrued and unpaid dividends thereon, if any, to the repurchase
date (the "Change of Control Purchase Date") pursuant to the
offer described below (the "Change of Control Offer") and in
accordance with the other procedures set forth herein.
Section 5.5.2 Within 30 days following any Change of
Control, the Company shall give written notice of such Change of
Control to each holder of Series C Preferred Stock, by first-
class mail, postage prepaid, at his address appearing on the
books of the Company, stating, among other things: that a Change
of Control has occurred; the Change of Control Purchase Price and
the Change of Control Purchase Date (which shall be a Business
Day no earlier than 30 days nor later than 60 days from the date
such notice is mailed, or such later date as is necessary to
comply with requirements under the Exchange Act); that any shares
of Series C Preferred Stock not tendered will continue to accrue
dividends; that, unless the Company defaults in the payment of
the Change of Control Purchase Price, any shares of Series C
Preferred Stock accepted for payment pursuant to the Change of
Control Offer shall cease to accrue dividends after the Change of
Control Purchase Date; and certain other procedures that a holder
of Series C Preferred Stock must follow to accept a Change of
Control Offer or to withdraw such acceptance.
Section 5.5.3 The Company will comply with the
applicable tender offer rules, including Rule 13e-4 under the
Exchange Act, and any other applicable securities laws or
regulations in connection with a Change of Control Offer.
Section 5.5.4 The Company will not, and will not
permit any subsidiary to, create or permit to exist or become
effective any restriction that would materially impair the
ability of the Company to make a Change of Control Offer to
purchase the Series C Preferred Stock or, if such Change of
Control Offer is made, to pay for the Series C Preferred Stock
tendered for purchase.
Section 6. Reacquired Shares. Any shares of Series C
Preferred Stock converted, redeemed, purchased or otherwise
acquired by the Company in any manner whatsoever shall be retired
and canceled promptly after the acquisition thereof. All such
shares of Series C Preferred Stock shall upon their cancellation,
and upon the filing of an appropriate certificate with the
Secretary of State of the State of Delaware, become authorized
but unissued shares of Preferred Stock, par value $.01 per share,
of the Company, undesignated as to series, and may be reissued as
part of another series of Preferred Stock, par value $.01 per
share, of the Company subject to the conditions or restrictions
on issuance set forth herein.
Section 7. Liquidation, Dissolution or Winding Up.
Section 7.1 Bankruptcy or Insolvency. If the Company
shall commence a voluntary case under the Federal bankruptcy laws
or any other applicable Federal or State bankruptcy, insolvency
or similar law, or consent to the entry of an order for relief in
an involuntary case under any such law or to the appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator
(or other similar official) of the Company or of any substantial
part of its property, or make an assignment for the benefit of
its creditors, or admit in writing its inability to pay its debts
generally as they become due, or if a decree or order for relief
in respect of the Company shall be entered by a court having
jurisdiction in the premises in an involuntary case under the
Federal bankruptcy laws or any other applicable Federal or State
bankruptcy, insolvency or similar law, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or other
similar official) of the Company or any substantial part of its
property, or ordering the winding up or liquidation of its
affairs, and any such decree or order shall be unstayed and in
effect for a period of 90 consecutive days and on account of any
such event the Company shall liquidate, dissolve or wind up, or
if the Company shall otherwise liquidate, dissolve or wind up, no
distribution shall be made (i) to the holders of shares of Junior
Stock unless, prior thereto, the holders of shares of Series C
Preferred Stock, subject to Section 8, shall have received the
Liquidation Preference with respect to each share, or (ii) to the
holders of shares of Parity Stock, except distributions made
ratably on the Series C Preferred Stock and all Parity Stock in
proportion to the total amounts to which the holders of all
shares of the Series C Preferred Stock and Parity Stock are
entitled upon such liquidation, dissolution or winding up.
"Liquidation Preference" shall mean $1,000.00 per share of Series
C Preferred Stock, plus an amount equal to all accrued and unpaid
dividends thereon. After payment of the full amount to which the
holders of Series C Preferred Stock are entitled as provided in
this Section 7.1, such holders shall have no further right or
claim to any of the remaining assets of the Company.
Section 7.2 Consolidation or Merger. Neither the
consolidation, merger or other business combination of the
Company with or into any other person or persons nor the sale,
lease, exchange or other transfer of all or substantially all the
assets of the Company shall be deemed to be a liquidation,
dissolution or winding up of the Company for purposes of this
Section 7.
Section 7.3 Proportionate Amount. The Liquidation
Preference with respect to each fractional share of Series C
Preferred Stock outstanding shall be equal to a ratably
proportionate amount of the Liquidation Preference with respect
to each outstanding share of Series C Preferred Stock.
SECTION 8.
CONVERSION OF SERIES C PREFERRED STOCK
Section 8.1 Right to Convert. Subject to and upon
compliance with the provisions of this Certificate of
Designation, the holder of any share of Series C Preferred Stock
shall have the right, at his option, at any time (except that,
with respect to any shares of Series C Preferred Stock which
shall be called for redemption or delivered for repurchase, such
right shall terminate, except as provided in the third paragraph
of Section 8.2, at the close of business on the last Trading Day
prior to the date fixed for redemption of such shares of Series C
Preferred Stock unless the Company shall default in payment due
upon redemption thereof) to convert any such share into that
number of fully paid and nonassessable shares of Common Stock (as
such shares shall then be constituted) obtained by dividing
$1,000.00 for each such share so converted by the Conversion
Price in effect at such time, by surrender of the shares so to be
converted in the manner provided in Section 8.2. A holder of
Series C Preferred Stock is not entitled to any rights of a
holder of Common Stock until such holder has converted his Series
C Preferred Stock to Common Stock, and only to the extent such
Series C Preferred Stock is deemed to have been converted to
Common Stock under this Section 8.
Section 8.2 Exercise of Conversion Privilege; Issuance
of Common Stock on Conversion; No Adjustment for Dividends. In
order to exercise the conversion privilege with respect to any
Series C Preferred Stock, the holder of any such share of Series
C Preferred Stock to be converted in whole or in part shall
surrender such share of Series C Preferred Stock, duly endorsed,
at the principal office of the Company or with the Transfer Agent
for the Common Stock, and shall give written notice of conversion
in the form provided on the share of Series C Preferred Stock (or
such other notice which is acceptable to the Company) to the
office or agency that the holder elects to convert such shares
specified in said notice. Such notice shall also state the name
or names (with address) in which the certificate or certificates
for shares of Common Stock which shall be issuable on such
conversion shall be issued and shall be accompanied by transfer
taxes, if required pursuant to Section 8.7. Each such share
surrendered for conversion shall, unless the shares issuable on
conversion are to be issued in the same name as the registration
of such share of Series C Preferred Stock, be duly endorsed by,
or be accompanied by instruments of transfer in form satisfactory
to the Company duly executed by, the holder or his duly
authorized attorney.
As promptly as practicable after satisfaction of the
requirements for conversion set forth above, subject to
compliance with any restrictions on transfer if shares issuable
on conversion are to be issued in a name other than that of the
shareholder (as if such transfer were a transfer of the shares so
converted), the Company shall issue and shall deliver to such
holder at the address designated in the notice of conversion, a
certificate or certificates for the number of full shares
issuable upon the conversion of such shares in accordance with
the provisions of this Section 8 and a check or cash in respect
of any fractional interest in respect of a share of Common Stock
arising upon such conversion, as provided in Section 8. In case
any certificate shall be surrendered for partial conversion, the
Company shall issue and deliver to the holder of the certificate
so surrendered, without charge to him, a new certificate or
certificates in an aggregate share amount equal to the
unconverted portion of the surrendered certificate.
Each conversion shall be deemed to have been effected as
to any such certificate on the date on which the requirements set
forth above in this Section 8.2 have been satisfied as to such
certificate, and the person in whose name any certificate or
certificates for shares of Common Stock shall be issuable upon
such conversion shall be deemed to have become on said date the
holder of record of the shares represented thereby; provided,
however, that any such surrender on any date when the stock
transfer books of the Company shall be closed shall constitute
the person in whose name the certificates are to be issued as the
record holder thereof for all purposes on the next succeeding day
on which such stock transfer books are open, but such conversion
shall be at the Conversion Price in effect on the date upon which
such Series C Preferred Stock shall have been surrendered.
Section 8.3 Cash Payments in Lieu of Fractional Shares.
No fractional shares of Common Stock or scrip representing
fractional shares shall be issued upon conversion of Series C
Preferred Stock. If more than one certificate for shares of
Preferred Stock shall be surrendered for conversion at one time
by the same holder, the number of full shares which shall be
issuable upon conversion shall be computed on the basis of the
aggregate shares of Series C Preferred Stock (or specified
portions thereof to the extent permitted hereby) so surrendered.
If any fractional share of stock would be issuable upon the
conversion of any Series C Preferred Stock, the Company shall
make an adjustment therefor in cash at the current market value
thereof. The current market value of a share of Common Stock
shall be the Closing Price on the first Trading Day immediately
preceding the day on which the Series C Preferred Stock is deemed
to have been converted and such Closing Price shall be determined
as provided in Section 8.5.7.
Section 8.4 Conversion Price. The conversion price
shall be $53.00 (herein called the "Conversion Price") subject to
adjustment as provided in this Section 8.
Section 8.5 Adjustment of Conversion Price. The
Conversion Price shall be adjusted from time to time by the
Company as follows:
Section 8.5.1 In case the Company shall hereafter pay a
dividend or make a distribution to all holders of the outstanding
Common Stock in shares of Common Stock, the Conversion Price in
effect at the opening of business on the date following the date
fixed for the determination of stockholders entitled to receive
such dividend or other distribution shall be reduced by
multiplying such Conversion Price by a fraction the numerator of
which shall be the number of shares of Common Stock outstanding
at the close of business on the Record Date (as defined in
Section 8.5.7) fixed for such determination and the denominator
of which shall be the sum of such number of shares and the total
number of shares constituting such dividend or other
distribution, such reduction to become effective immediately
after the opening of business on the day following the Record
Date. The Company will not pay any dividend or make any
distribution on shares of Common Stock held in the treasury of
the Company.
Section 8.5.2 In case the Company shall issue rights or
warrants to all holders of its outstanding shares of Common Stock
entitling them (for a period expiring within 45 days after the
date fixed for determination of stockholders entitled to receive
such rights or warrants) to subscribe for or purchase shares of
Common Stock at a price per share less than the Current Market
Price (as defined in Section 8.5.7) on the Record Date fixed for
determination of stockholders entitled to receive such rights or
warrants, the Conversion Price shall be adjusted so that the same
shall equal the price determined by multiplying the Conversion
Price in effect at the opening of business on the date after the
Record Date by a fraction the numerator of which shall be the
number of shares of Common Stock outstanding at the close of
business on the Record Date plus the number of shares which the
aggregate offering price of the total number of shares so offered
would purchase at such Current Market Price, and the denominator
of which shall be the number of shares of Common Stock
outstanding on the close of business on the Record Date plus the
total number of additional shares of Common Stock so offered for
subscription or purchase. Such adjustment shall become effective
immediately after the opening of business on the day following
the Record Date fixed for determination of stockholders entitled
to receive such rights or warrants. To the extent that shares of
Common Stock are not delivered after the expiration or
termination of such rights or warrants, the Conversion Price
shall be readjusted to the Conversion Price which would then be
in effect had the adjustments made upon the issuance of such
rights or warrants been made on the basis of delivery of only the
number of shares of Common Stock actually delivered. In the
event that such rights or warrants are not so issued, the
Conversion Price shall again be adjusted to be the Conversion
Price which would then be in effect if such date fixed for the
determination of stockholders entitled to receive such rights or
warrants had not been fixed. In determining whether any rights
or warrants entitle the holders to subscribe for or purchase
shares of Common Stock at less than such Current Market Price,
and in determining the aggregate offering price of such shares of
Common Stock, there shall be taken into account any consideration
received for such rights or warrants, the value of such
consideration, if other than cash, to be determined by the Board
of Directors.
Section 8.5.3 In case outstanding shares of Common
Stock shall be subdivided into a greater number of shares of
Common Stock, the Conversion Price in effect at the opening of
business on the day following the day upon which such subdivision
becomes effective shall be proportionately reduced, and
conversely, in case outstanding shares of Common Stock shall be
combined into a smaller number of shares of Common Stock, the
Conversion Price in effect at the opening of business on the day
following the day upon which such combination becomes effective
shall be proportionately increased, such reduction or increase,
as the case may be, to become effective immediately after the
opening of business on the day following the day upon which such
subdivision or combination becomes effective.
Section 8.5.4 In case the Company shall, by dividend or
otherwise, distribute to all holders of its Common Stock shares
of any class of capital stock of the Company (other than any
dividends or distributions to which Section 8.5.1 applies) or
evidences of its indebtedness or assets (including securities,
but excluding any rights or warrants referred to in Section
8.5.2, and excluding any dividend or distribution (x) in
connection with the liquidation, dissolution or winding-up of the
Company, whether voluntary or involuntary, (y) exclusively in
cash or (z) referred to in Section 8.5.1 (any of the foregoing
hereinafter in this Section 8.5.4 called the "Securities")),
then, in each such case, the Conversion Price shall be reduced so
that the same shall be equal to the price determined by
multiplying the Conversion Price in effect immediately prior to
the close of business on the Record Date (as defined in Section
8.5.7) with respect to such distribution by a fraction of which
the numerator shall be the Current Market Price (determined as
provided in Section 8.5.7) on such date less the fair market
value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a resolution
of such board) on such date of the portion of the Securities so
distributed applicable to one share of Common Stock and the
denominator shall be such Current Market Price, such reduction to
become effective immediately prior to the opening of business on
the day following the Record Date; provided, however, that in the
event the then fair market value (as so determined) of the
portion of the Securities so distributed applicable to one share
of Common Stock is equal to or greater than the Current Market
Price on the Record Date, in lieu of the foregoing adjustment,
adequate provision shall be made so that each holder of Series C
Preferred Stock shall have the right to receive upon conversion
the amount of Securities such holder would have received had such
holder converted each Series C Preferred Stock on such date. In
the event that such dividend or distribution is not so paid or
made, the Conversion Price shall again be adjusted to be the
Conversion Price which would then be in effect if such dividend
or distribution had not been declared. If the Board of Directors
determines the fair market value of any distribution for purposes
of this Section 8.5.4 by reference to the actual or when issued
trading market for any securities comprising all or part of such
distribution, it must in doing so consider the prices in such
market over the same period used in computing the Current Market
Price pursuant to Section 8.5.7 to the extent possible.
Notwithstanding the foregoing provisions of this Section
8.5.4, no adjustment shall be made hereunder for any distribution
of Securities if the Company makes proper provision so that each
holder of Series C Preferred Stock who converts such Series C
Preferred Stock after the date fixed for determination of
stockholders entitled to receive such distribution shall be
entitled to receive upon such conversion, in addition to the
shares of Common Stock issuable upon such conversion, the amount
and kind of Securities that such holder would have been entitled
to receive if such holder had, immediately prior to such
determination date, converted such Series C Preferred Stock into
Common Stock; provided that, with respect to any Securities that
are convertible, exchangeable or exercisable, the foregoing
provision shall only apply to the extent (and so long as) the
Securities receivable upon conversion of such Series C Preferred
Stock would be convertible, exchangeable or exercisable, as
applicable, without any loss of rights or privileges for a period
of at least 60 days following conversion of such Series C
Preferred Stock.
Rights or warrants distributed by the Company to all
holders of Common Stock entitling the holders thereof to
subscribe for or purchase shares of the Company's capital stock
(either initially or under certain circumstances), which rights
or warrants, until the occurrence of a specified event or events
("Trigger Event"): (i) are deemed to be transferred with such
shares of Common Stock, (ii) are not exercisable and (iii) are
also issued in respect of future issuances of Common Stock, shall
not be deemed distributed for purposes of this Section 8.5.4 (and
no adjustment to the Conversion Price under Section 8.5.4 will be
required) until the occurrence of the earliest Trigger Event. In
addition, in the event of any distribution of rights or warrants,
or any Trigger Event with respect thereto, that shall have
resulted in an adjustment to the Conversion Price under this
Section 8.5.4, (1) in the case of any such rights or warrants
which shall all have been redeemed or repurchased without
exercise by any holders thereof, the Conversion Price shall be
readjusted upon such final redemption or repurchase to give
effect to such distribution or Trigger Event, as the case may be,
as though it were a cash distribution, equal to the per share
redemption or repurchase price received by a holder of Common
Stock with respect to such rights or warrants (assuming such
holder had retained such rights or warrants), made to all holders
of Common Stock as of the date of such redemption or repurchase,
and (2) in the case of such rights or warrants all of which shall
have expired or been terminated without exercise by any holder
thereof, the Conversion Price shall be readjusted as if such
issuance had not occurred.
For purposes of this Section 8.5.4 and Sections 8.5.1
and 8.5.2, any dividend or distribution to which this Section
8.5.4 is applicable that also includes shares of Common Stock, or
rights or warrants to subscribe for or purchase shares of Common
Stock (or both), shall be deemed instead to be (1) a dividend or
distribution of the evidences of indebtedness, assets or shares
of capital stock other than such shares of Common Stock or rights
or warrants (and any Conversion Price reduction required by this
Section 8.5.4 with respect to such dividend or distribution shall
then be made) immediately followed by (2) a dividend or
distribution of such shares of Common Stock or such rights or
warrants (and any further Conversion Price reduction required by
Sections 8.5.1 and 8.5.2 with respect to such dividend or
distribution shall then be made, except (A) the Record Date of
such dividend or distribution shall be substituted as "the date
fixed for the determination of stockholders entitled to receive
such dividend or other distribution" and "the date fixed for such
determination" within the meaning of Sections 8.5.1 and 8.5.2 and
(B) any shares of Common Stock included in such dividend or
distribution shall not be deemed "outstanding at the close of
business on the date fixed for such determination" within the
meaning of Section 8.5.1).
Section 8.5.5 In case the Company shall, by dividend
or otherwise, distribute to all holders of its Common Stock cash
(excluding any cash that is distributed upon a merger or
consolidation to which Section 8.6 applies or as part of a
distribution referred to in Section 8.5.4) in an aggregate amount
that, combined together with (1) the aggregate amount of any
other such distributions to all holders of its Common Stock made
exclusively in cash within the twelve (12) months preceding the
date of payment of such distribution, and in respect of which no
adjustment pursuant to this Section 8.5.5 has been made, and (2)
the aggregate of any cash plus the fair market value (as
determined by the Board of Directors, whose determination shall
be conclusive and described in a resolution of such board) of
consideration payable in respect of any tender offer, by the
Company or any of its subsidiaries for all or any portion of the
Common Stock concluded within the twelve (12) months preceding
the date of payment of such distribution, and in respect of which
no adjustment pursuant to Section 8.5.6 has been made, exceeds
20.0% of the product of the Current Market Price (determined as
provided in Section 8.5.7) on the Record Date with respect to
such distribution times the number of shares of Common Stock
outstanding on such date, then, and in each such case,
immediately after the close of business on such date, unless the
Company elects to reserve such cash for distribution to the
holders of the Series C Preferred Stock upon the conversion of
the Series C Preferred Stock so that any such holder converting
Series C Preferred Stock will receive upon such conversion, in
addition to the shares of Common Stock to which such holder is
entitled, the amount of cash which such holder would have
received if such holder had, immediately prior to the Record Date
for such distribution of cash, converted its Series C Preferred
Stock into Common Stock, the Conversion Price shall be reduced so
that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the close of
business on such date by a fraction (i) the numerator of which
shall be equal to the Current Market Price on the Record Date
less an amount equal to the quotient of (x) the excess of such
combined amount over such 20.0% and (y) the number of shares of
Common Stock outstanding on the Record Date and (ii) the
denominator of which shall be equal to the Current Market Price
on such date; provided, however, that in the event the portion of
the cash so distributed applicable to one share of Common Stock
is equal to or greater than the Current Market Price of the
Common Stock on the Record Date, in lieu of the foregoing
adjustment, adequate provision shall be made so that each Series
C Preferred Stock shareholder shall have the right to receive
upon conversion the amount of cash such holder would have
received had such holder converted each share of Series C
Preferred Stock on the Record Date. In the event that such
dividend or distribution is not so paid or made, the Conversion
Price shall again be adjusted to be the Conversion Price which
would then be in effect if such dividend or distribution had not
been declared.
Section 8.5.6 In case a tender offer made by the
Company or any of its subsidiaries for all or any portion of the
Common Stock shall expire and such tender offer (as amended upon
the expiration thereof) shall require the payment to stockholders
(based on the acceptance (up to any maximum specified in the
terms of the tender offer) of Purchased Shares (as defined
below)) of an aggregate consideration having a fair market value
(as determined by the Board of Directors, whose determination
shall be conclusive and described in a resolution of such board)
that combined together with (1) the aggregate of the cash plus
the fair market value (as determined by the Board of Directors,
whose determination shall be conclusive and described in a
resolution of such board), as of the expiration of such tender
offer, of consideration payable in respect of any other tender
offer, by the Company or any of its subsidiaries for all or any
portion of the Common Stock expiring within the twelve (12)
months preceding the expiration of such tender offer, and in
respect of which no adjustment pursuant to this Section 8.5.6 has
been made, and (2) the aggregate amount of any distributions to
all holders of the Company's Common Stock made exclusively in
cash within twelve (12) months preceding the expiration of such
tender offer, and in respect of which no adjustment pursuant to
Section 8.5.5 has been made, exceeds 20.0% of the product of the
Current Market Price (determined as provided in Section 8.5.7) as
of the last time (the "Expiration Time") tenders could have been
made pursuant to such tender offer (as it may be amended) times
the number of shares of Common Stock outstanding (including any
tendered shares) on the Expiration Time, then, and in each such
case, immediately prior to the opening of business on the day
after the date of the Expiration Time, the Conversion Price shall
be adjusted so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to
close of business on the date of the Expiration Time by a
fraction of which the numerator shall be the number of shares of
Common Stock outstanding (including any tendered shares) on the
Expiration Time multiplied by the Current Market Price of the
Common Stock on the Trading Day next succeeding the Expiration
Time and the denominator shall be the sum of (x) the fair market
value (determined as aforesaid) of the aggregate consideration
payable to stockholders based on the acceptance (up to any
maximum specified in the terms of the tender offer) of all shares
validly tendered and not withdrawn as of the Expiration Time (the
shares deemed so accepted, up to any such maximum, being referred
to as the "Purchased shares") and (y) the product of the number
of shares of Common Stock outstanding (less any Purchased Shares)
on the Expiration Time and the Current Market Price of the Common
Stock on the Trading Day next succeeding the Expiration Time,
such reduction to become effective immediately prior to the
opening of business on the day following the Expiration Time. In
the event that the Company is obligated to purchase shares
pursuant to any such tender offer, but the Company is permanently
prevented by applicable law from effecting any such purchases or
all such purchases are rescinded, the Conversion Price shall
again be adjusted to be the Conversion Price which would then be
in effect if such tender offer had not been made.
Section 8.5.7 For purposes of this section 8.5, the
following terms shall have the meaning indicated:
(1) "Closing Price" with respect to any securities on
any day shall mean the closing sale price regular way on such day
or, in case no such sale takes place on such day, the average of
the reported closing bid and asked prices, regular way, in each
case on the New York Stock Exchange, or, if such security is not
listed or admitted to trading on such Exchange, on the principal
national security exchange or quotation system on which such
security is quoted or listed or admitted to trading, or, if not
quoted or listed or admitted to trading on any national
securities exchange or quotation system, the average of the
closing bid and asked prices of such security on the over-the-
counter market on the day in question as reported by the National
Quotation Bureau Incorporated, or a similar generally accepted
reporting service, or if not so available, in such manner as
furnished by any New York Stock Exchange member firm selected
from time to time by the Board of Directors for that purpose, or
a price determined in good faith by the Board of Directors, whose
determination shall be conclusive and described in a resolution
of such board.
(2) "Current Market Price" shall mean the average of
the daily Closing Prices per share of Common Stock for the ten
consecutive Trading Days immediately prior to the date in
question; provided, however, that (1) if the "ex" date (as
hereinafter defined) for any event (other than the issuance or
distribution or Change of Control requiring such computation)
that requires an adjustment to the Conversion Price pursuant to
Section 8.5.1, 8.5.2, 8.5.3, 8.5.4, 8.5.5 or 8.5.6 occurs during
such ten consecutive Trading Days, the Closing Price for each
Trading Day prior to the "ex" date for such other event shall be
adjusted by multiplying such Closing Price by the same fraction
by which the Conversion Price is so required to be adjusted as a
result of such other event, (2) if the "ex" date for any event
(other than the issuance, distribution or Change of Control
requiring such computation) that requires an adjustment to the
Conversion Price pursuant to Section 8.5.1, 8.5.2, 8.5.3, 8.5.4,
8.5.5 or 8.5.6 occurs on or after the "ex" date for the issuance
or distribution requiring such computation and prior to the day
in question, the Closing Price for each Trading Day on and after
the "ex" date for such other event shall be adjusted by
multiplying such Closing Price by the reciprocal of the fraction
by which the Conversion Price is so required to be adjusted as a
result of such other event and (3) if the "ex" date for the
issuance, distribution or Change of Control requiring such
computation is prior to the day in question, after taking into
account any adjustment required pursuant to clause (1) or (2) of
this proviso, the Closing Price for each Trading Day on or after
such "ex" date shall be adjusted by adding thereto the amount of
any cash and the fair market value (as determined by the Board of
Directors in a manner consistent with any determination of such
value for purposes of Section 8.5.4 or 8.5.6, whose determination
shall be conclusive and described in a resolution of such board)
of the evidences of indebtedness, shares of capital stock or
assets being distributed applicable to one share of Common Stock
as of the close of business on the day before such "ex" date.
For purposes of any computation under Section 8.5.6, the Current
Market Price of the Common Stock on any date shall be deemed to
be the average of the daily Closing Prices per share of Common
Stock for such day and the next two succeeding Trading Days;
provided, however, that if the "ex" date for any event (other
than the tender or exchange offer requiring such computation)
that requires an adjustment to the Conversion Price pursuant to
Section 8.5.1, 8.5.2, 8.5.3, 8.5.4, 8.5.5 or 8.5.6 occurs on or
after the Expiration Time for the tender or exchange offer
requiring such computation and prior to the day in question, the
Closing Price for each Trading Day on and after the "ex" date for
such other event shall be adjusted by multiplying such Closing
Price by the reciprocal of the fraction by which the Conversion
Price is so required to be adjusted as a result of such other
event. For purposes of this paragraph, the term "ex" date, (1)
when used with respect to any issuance or distribution, means the
first date on which the Common Stock trades regular way in the
relevant exchange or in the relevant market from which the
Closing Price was obtained without the right to receive such
issuance or distribution, (2) when used with respect to any
subdivision or combination of shares of Common Stock, means the
first date on which the Common Stock trades regular way on such
exchange or in such market after the time at which such
subdivision or combination becomes effective and (3) when used
with respect to any tender or exchange offer means the first date
on which the Common Stock trades regular way on such exchange or
in such market after the expiration of such offer.
Notwithstanding the foregoing, whenever successive adjustments to
the Conversion Price are called for pursuant to this Section 8.5,
such adjustments shall be made to the Current Market Price as may
be necessary or appropriate to effectuate the intent of this
Section 8.5 and to avoid unjust or inequitable results as
determined in good faith by the Board of Directors.
(3) "fair market value" shall mean the amount which a
willing buyer would pay a willing seller in an arm's-length
transaction.
(4) "Record Date" shall mean, with respect to any
dividend, distribution or other transaction or event in which the
holders of Common Stock have the right to receive any cash,
securities or other property or in which the Common Stock (or
other applicable security) is exchanged for or converted into any
combination of cash, securities or other property, the date fixed
for determination of stockholders entitled to receive such cash,
securities or other property (whether such date is fixed by the
Board of Directors or by statute, contract or otherwise).
(5) "Trading Day" shall mean (x) if the applicable
security is listed or admitted for trading on the New York Stock
Exchange or another national security exchange, a day on which
the New York Stock Exchange or that other national security
exchange is open for business or (y) if the applicable security
is quoted on the Nasdaq National Market, a day on which trades
may be made thereon or (z) if the applicable security is not so
listed, admitted for trading or quoted, any day other than a
Saturday or Sunday or a day on which banking institutions in the
State of New York are authorized or obligated by law or executive
order to close.
Section 8.5.8 The Company may make such reductions in
the Conversion Price, in addition to those required by Sections
8.5.1, 8.5.2, 8.5.3, 8.5.4, 8.5.5 and 8.5.6 as the Board of
Directors considers to be advisable to avoid or diminish any
income tax to holders of Common Stock or rights to purchase
Common Stock resulting from any dividend or distribution of stock
(or rights to acquire stock) or from any event treated as such
for income tax purposes. To the extent permitted by applicable
law, the Company from time to time may reduce the Conversion
Price by any amount for any period of time if the period is at
least 20 days, the reduction is irrevocable during the period and
the Board of Directors shall have made a determination that such
reduction would be in the best interests of the Company, which
determination shall be conclusive and described in a resolution
of such board. Whenever the Conversion Price is reduced pursuant
to the preceding sentence, the Company shall mail to all holders
of record of the Series C Preferred Stock a notice of the
reduction at least 15 days prior to the date the reduced
Conversion Price takes effect, and such notice shall state the
reduced Conversion Price and the period it will be in effect.
Section 8.5.9 No adjustment in the Conversion Price
shall be required unless such adjustment would require an
increase or decrease of at least 1% in such price; provided,
however, that any adjustments which by reason of this Section
8.5.9 are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All
calculations under this Section 8 shall be made by the Company
and shall be made to the nearest cent or to the nearest one one-
hundredth of a share, as the case may be.
No adjustment need be made for rights to purchase Common
Stock pursuant to a Company plan for reinvestment of dividends or
interest.
No adjustment need be made for a change in the par value,
or to or from no par value, of the Common Stock.
To the extent the Series C Preferred Stock becomes
convertible into cash, assets, property or securities (other than
Common Stock of the Company), no adjustment need be made
thereafter as to the cash, assets, property or such securities
(except as such securities may otherwise by their terms provide),
and interest shall not accrue on such cash.
Section 8.5.10 In any case in which this Section 8.5
provides that an adjustment shall become effective immediately
after a Record Date for an event, the Company may defer until the
occurrence of such event (i) issuing to the holder of any Series
C Preferred Stock converted after such Record Date and before the
occurrence of such event the additional shares of Common Stock
issuable upon such conversion by reason of the adjustment
required by such event over and above the Common Stock issuable
upon such conversion before giving effect to such adjustment and
(ii) paying to such holder any amount in cash in lieu of any
fraction pursuant to Section 8.3.
Section 8.6 Effect of Reclassification, Consolidation,
Merger or Sale. If any of the following events occur, namely (i)
any reclassification or change of outstanding shares of Common
Stock (other than a change in par value, or to or from no par
value, as a result of a subdivision or combination), (ii) any
consolidation, merger, or combination of the Company with another
corporation as a result of which holders of Common Stock shall be
entitled to receive stock, securities or other property or assets
(including cash) with respect to or in exchange for such Common
Stock or (iii) any sale or conveyance of the properties and
assets of the Company as, or substantially as, an entirety to any
other corporation as a result of which holders of Common Stock
shall be entitled to receive stock, securities or other property
or assets (including cash) with respect to or in exchange for
such Common Stock, (each of the foregoing being referred to as a
"Transaction"), each share of Series C Preferred Stock then
outstanding shall thereafter be convertible into the kind and
amount of shares of stock and other securities or property or
assets (including cash) receivable upon such reclassification,
change, consolidation, merger, combination, sale or conveyance by
a holder of a number of shares of Common Stock issuable upon
conversion of such share of Series C Preferred Stock (assuming,
for such purposes, a sufficient number of authorized shares of
Common Stock available to convert all such Series C Preferred
Stock) immediately prior to such reclassification, change,
consolidation, merger, combination, sale or conveyance, assuming
each holder of Common Stock did not exercise his rights of
election, if any, as to the kind or amount of securities, cash or
other property receivable upon such reclassification, change,
consolidation, merger, combination, sale or conveyance (provided
that, if the kind or amount of securities, cash or other property
receivable upon such reclassification, change, consolidation,
merger, combination, sale or conveyance is not the same for each
share of Common Stock in respect of which such rights of election
shall not have been exercised ("non-electing share"), then for
the purposes of this Section 8.6 the kind and amount of
securities, cash or other property receivable upon such
reclassification, change, consolidation, merger, combination,
sale or conveyance for each non-electing share shall be deemed to
be the kind and amount so receivable per share by a plurality of
the non-electing shares).
Notwithstanding anything contained herein to the
contrary, the Company will not effect any Transaction unless,
prior to the consummation thereof, (i) the Surviving Person
thereof shall assume, by written instrument mailed to each holder
of shares of Series C Preferred Stock if such shares are held by
50 or fewer holders or groups of affiliated holders or to each
Transfer Agent for the shares of Series C Preferred Stock if such
shares are held by a greater number of holders, the obligation to
deliver to such holder such stock, securities or other property
or assets (including cash) with respect to or in exchange for
Common Stock to which, in accordance with the foregoing
provisions, such holder is entitled and (ii) proper provision is
made to ensure that the holders of shares of Series C Preferred
Stock will be entitled to receive the benefits afforded by
Section 8.6. Such written instrument should provide for
adjustments which shall be as nearly as equivalent as may be
practicable to the adjustments provided for in this Section 8.6.
The above provisions of this Section shall similarly
apply to successive reclassifications, changes, consolidations,
mergers, combinations, sales and conveyances.
If this Section 8.6 applies to any event or occurrence,
Section 8.5 shall not apply.
Section 8.7 Transfer or Similar Taxes on Shares Issued.
The issue of stock certificates on conversions of Series C
Preferred Stock shall be made without charge to the converting
holder of Series C Preferred Stock for any transfer or similar
tax in respect of the issue thereof. The Company shall not,
however, be required to pay any such tax which may be payable in
respect of any transfer involved in the issue and delivery of
stock in any name other than that of the holder of any Series C
Preferred Stock converted, and the Company shall not be required
to issue or deliver any such stock certificate unless and until
the person or persons requesting the issue thereof shall have
paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has
been paid.
Section 8.8 Reservation of Shares; Shares to Be Fully
Paid; Listing of Common Stock. The Company shall provide, free
from preemptive rights, out of its authorized but unissued shares
or shares held in treasury, sufficient shares to provide for the
conversion of the Series C Preferred Stock from time to time as
such Series C Preferred Stock is presented for conversion.
Before taking any action which would cause an adjustment
reducing the Conversion Price below the then par value, if any,
of the shares of Common Stock issuable upon conversion of the
Series C Preferred Stock, the Company will take all corporate
action which may, in the opinion of its counsel, be necessary in
order that the Company may validly and legally issue shares of
such Common Stock at such adjusted Conversion Price.
The Company covenants that all shares of Common Stock
which may be issued upon conversion of Series C Preferred Stock
will, upon issue, be fully paid and nonassessable by the Company
and free from all transfer or similar taxes as described in
Section 8.7, liens and charges with respect to the issue thereof.
The Company further covenants that, if at any time the
Common Stock shall be listed on the New York Stock Exchange or
any other national securities exchange, the Company will, if
permitted by the rules of such exchange, list and keep listed, so
long as the Common Stock shall be so listed on such exchange, all
Common Stock issuable upon conversion of the Series C Preferred
Stock.
Section 8.9 Notice to Stockholders Prior to Certain
Actions. In case:
(a) the Company makes any distribution or dividend that
would require an adjustment in the Conversion Price pursuant to
Section 8.5; or
(b) the Company takes any action that would result in a
Transaction as defined in Section 8.6; or
(c) of the voluntary or involuntary dissolution,
liquidation or winding-up of the Company,
the Company shall cause to be mailed to each holder of Series C
Preferred Stock at his address appearing on the books of the
Company, as promptly as possible but in any event at least 15
days prior to the applicable date hereinafter specified, a notice
stating (x) the date on which a record date is to be taken for
the purpose of such dividend, distribution, rights or warrants,
or, if a record is not to be taken, the date as of which the
holders of Common Stock of record to be entitled to such
dividend, distribution, rights or warrants are to be determined
or (y) the date on which such reclassification, change,
consolidation, merger, sale, conveyance, transfer, dissolution,
liquidation or winding-up is expected to become effective or
occur and the date as of which it is expected that holders of
record of Common Stock shall be entitled to exchange their Common
Stock for securities or other property deliverable upon such
reclassification, change consolidation, merger, sale, conveyance,
transfer, dissolution, liquidation or winding-up. Failure to
give such notice, or any defect therein, shall not affect the
legality or validity of such dividend, distribution,
reclassification, change, consolidation, merger, sale,
conveyance, transfer, dissolution, liquidation or winding-up.
Neither the failure to give such notice nor any defect therein
shall affect the legality or validity of the proceedings
referenced in clauses (a) through (c) of this Section 8.9.
Section 9. Reports as to Adjustments. Upon any
adjustment of the Conversion Price then in effect and any
increase or decrease in the number of shares of Common Stock
issuable upon the operation of the conversion set forth in
Section 8, then, and in each such case, the Company shall
promptly deliver to the Transfer Agent for the Series C Preferred
Stock and the Transfer Agent for the Common Stock, a certificate
signed by the President or a Vice President and by the Treasurer
or an Assistant Treasurer or the Secretary or an Assistant
Secretary of the Company setting forth in reasonable detail the
event requiring the adjustment and the method by which such
adjustment was calculated and specifying the Conversion Price
then in effect following such adjustment and the increased or
decreased number of shares issuable upon the conversion set forth
in Section 8. The Company shall also promptly after the making
of such adjustment give written notice to the registered holders
of the Series C Preferred Stock at the address of each holder as
shown on the books of the Company maintained by the Transfer
Agent thereof, which notice shall state the Conversion Price then
in effect, as adjusted, and the increased or decreased number of
shares issuable upon the exercise of the right of conversion
granted by Section 8, and shall set forth in reasonable detail
the method of calculation of each with a brief statement of the
facts requiring such adjustment. Where appropriate, such notice
to holders of the Series C Preferred Stock may be given in
advance and included as part of the notice required under the
provisions of Section 8.9.
Section 10. Certain Covenants. Any registered holder
of Series C Preferred Stock may proceed to protect and enforce
its rights and the rights of such holders by any available remedy
by proceeding at law or in equity to protect and enforce any such
rights, whether for the specific enforcement of any provision in
this Certificate of Designation or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
Section 11. Definitions. For the purposes of this
Certificate of Designation of Series C Preferred Stock, the
following terms shall have the meanings indicated:
"Acquisition Prices" shall mean the volume weighted
average of the per share prices paid by a specified person or
group in acquiring Voting Stock.
"Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General
Rules and Regulations under the Exchange Act.
"Business Day" shall mean a day, other than a Saturday,
a Sunday or other day on which the banking institutions in the
State of New York, the State of California or the Commonwealth of
Massachusetts are authorized or obligated by law or executive
order to close or a day which is declared a national or New York,
California or Massachusetts state holiday.
"Change in Control" shall mean an event or series of
events pursuant to which (i) any "person" or "group" (as such
terms are used in Sections 13(d) and 14(d) of the Exchange Act)
acquires beneficial ownership (as determined in accordance with
Rule 13d-3 under the Exchange Act), directly or indirectly, of
more than 50% of the total Voting Stock of the Company at an
Acquisition Price less than the Conversion Price then in effect
with respect to the Series C Preferred Stock and (ii) holders of
Common Stock receive consideration which is not all or
substantially all common stock that is (or upon consummation of
or immediately following such event or events will be) listed on
a United States national securities exchange or approved for
quotation on the Nasdaq National Market or any similar United
States system of automated dissemination of quotations of
securities prices; provided, however, that any such person or
group shall not be deemed to be the beneficial owner of, or to
beneficially own, any Voting Stock tendered into a tender offer
until such tendered Voting Stock is accepted for purchase under
the tender offer.
Commission: The term "Commission" shall mean the
Securities and Exchange Commission.
Company: The term "Company" shall mean SoftKey
International Inc., a Delaware corporation.
Conversion Price: The term "Conversion Price" shall
have the meaning specified in Section 8.4.
Exchange Act: The term "Exchange Act" means the
Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
Junior Stock: The term "Junior Stock" shall have the
meaning set forth in Section 3.2.
Parity Stock: The term "Parity Stock" shall have the
meaning set forth in Section 3.4.5.
person: The terms "person" shall mean a corporation,
an association, a partnership, an individual, a joint venture, a
joint stock company, a trust, an unincorporated organization or a
government or an agency or a political subdivision thereof.
subsidiary: The term "subsidiary" of any specified
person shall mean (i) a corporation a majority of whose capital
stock with voting power under ordinary circumstances, to elect
directors is at the time directly or indirectly owned by such
person or (ii) any other person (other than a corporation) in
which such person or a subsidiary or subsidiaries of such person
directly or indirectly, at the date of determination thereof, has
at least majority ownership.
Surviving Person shall mean the continuing or surviving
person of a merger, consolidation or other corporate combination,
the person receiving a transfer of all or substantially all of
the properties and assets of the Company, or the person
consolidating with or merging into the Company in a merger,
consolidation or other combination in which the Company is the
continuing or surviving person, but in connection with which
Series C Preferred Stock or Common Stock of the Company is
exchanged, converted or reinstated into the securities of any
other person or cash or any other property.
Voting Stock: The term "Voting Stock" means stock of
the class or classes pursuant to which the holders thereof have
the general voting power under ordinary circumstances to elect at
least a majority of the board of directors, managers or trustees
of a corporation (irrespective of whether or not at the time
stock of any other class or classes shall have or might have
voting power by reason of the happening of any contingency).
