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EXHIBIT 2.2
______________________________________________________________________
STOCK PURCHASE AGREEMENT
among
GETTY IMAGES INC.,
GETTY COMMUNICATIONS LIMITED,
VISUAL COMMUNICATIONS GROUP (VCG) B.V.,
UNITED BUSINESS INFORMATION B.V.
and
UNITED NEWS & MEDIA PLC
_______________________________________
Dated as of March 21, 2000
______________________________________________________________________
THIS AGREEMENT SHALL BE KEPT CONFIDENTIAL PURSUANT TO THE TERMS OF THE
CONFIDENTIALITY AGREEMENT BETWEEN UNITED NEWS &
MEDIA PLC AND GETTY IMAGES INC.
DATED DECEMBER 9, 1999.
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TABLE OF CONTENTS
SUMMARY OF TRANSACTION ...................................................... 1
ARTICLE I -- CERTAIN DEFINITIONS AND TERMS ................................ 1
1.1 Specific Definitions ......................................... 1
1.2 Other Terms .................................................. 7
1.3 Other Definitional Provisions ................................ 7
ARTICLE II -- PURCHASE AND SALE OF VERMONT SHARES .......................... 8
2.1 Basic Transaction ............................................ 8
2.2 Purchase Price ............................................... 8
2.3 Cash Adjustment .............................................. 8
2.4 Closing; Deliveries; Payment ................................. 10
ARTICLE III -- REPRESENTATIONS AND WARRANTIES
CONCERNING THE TRANSACTION ................................................ 11
3.1 Representations and Warranties of Unicorn, UBIBV and VCG ..... 11
(a) Organization ............................................ 11
(b) Execution; Authorization of Transaction ................. 11
(c) Brokers' Fees ........................................... 12
(d) Vermont Shares .......................................... 12
(e) Litigation Regarding Vermont Shares ..................... 12
3.2 Representations and Warranties of the Buyer .................. 12
(a) Organization ............................................ 13
(b) Execution; Authorization of Transaction ................. 13
(c) Brokers' Fees ........................................... 13
(d) Investment .............................................. 13
ARTICLE IV -- REPRESENTATIONS AND WARRANTIES
OF UBIBV CONCERNING THE VERMONT ENTITIES .................................. 14
ARTICLE V -- PRE-CLOSING COVENANTS ........................................ 14
5.1 General ...................................................... 14
5.2 Press Releases and Public Announcements ...................... 14
5.3 Disclosure ................................................... 15
5.4 Operation of Business ........................................ 15
5.5 Notices; HSR ................................................. 18
5.6 Assistance ................................................... 19
5.7 Issuance of Securities ....................................... 19
5.8 Other Changes ................................................ 19
5.9 Pensions ..................................................... 19
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5.10 Bonuses............................................................ 19
ARTICLE VI -- POST-CLOSING COVENANTS......................................... 20
6.1 Further Actions Regarding Transfer................................. 20
6.2 Confidentiality.................................................... 20
6.3 Covenants.......................................................... 20
6.4 Access to Information.............................................. 21
6.5 Removal of Trademarks, Etc......................................... 22
6.6 Certain Taxes...................................................... 22
6.7 Tax Returns; Utilization of Tax Losses............................. 23
6.8 Leases............................................................. 25
6.9 Indemnifying Party................................................. 26
6.10 ▇▇▇▇▇▇ ▇▇▇▇▇....................................................... 26
6.11 [Intentionally Omitted]............................................ 26
6.12 New York Lease..................................................... 26
6.13 Share Options...................................................... 27
ARTICLE VII -- CONDITIONS TO OBLIGATION TO CLOSE............................. 28
7.1 Conditions to Obligation of Buyer and Communications............... 28
(a) Performance of Obligations of UBIBV........................... 28
(b) Closing Documentation......................................... 28
(c) Approval of Legal Matters..................................... 30
(d) No Litigation................................................. 30
(e) ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Waiting Period.............................. 30
(f) Laws.......................................................... 30
(g) Financial Capacity............................................ 30
(h) Form 403...................................................... 30
7.2 Conditions to Obligation of Unicorn, VCG and UBIBV................. 31
(a) Performance of Obligations of Buyer and Communications........ 31
(b) Closing Documentation......................................... 31
(c) Approval of Legal Matters..................................... 32
(d) No Litigation................................................. 32
(e) ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Waiting Period.............................. 32
ARTICLE VIII -- REMEDIES FOR BREACHES OF THIS AGREEMENT...................... 32
8.1 Survival of Representations and Warranties......................... 32
8.2 Indemnification Provisions for Benefit of Buyer and Communications. 34
8.3 Indemnification Provisions for Benefit of UBIBV and VCG............ 35
8.4 Matters Involving Third Parties.................................... 36
8.5 Sole Remedy........................................................ 37
8.6 Unlimited Claims................................................... 37
8.7 Litigation Claim................................................... 38
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ARTICLE IX - TERMINATION............................................... 38
9.1 Termination of Agreement................................... 38
9.2 Effect of Termination...................................... 38
9.3 Liquidated Damages......................................... 39
ARTICLE X - MISCELLANEOUS.............................................. 39
10.1 Entire Agreement........................................... 39
10.2 No Third-Party Beneficiaries............................... 39
10.3 Succession and Assignment.................................. 40
10.4 Counterparts............................................... 40
10.5 Headings................................................... 40
10.6 Notices.................................................... 40
10.7 Governing Law.............................................. 41
10.8 Return of Information...................................... 41
10.9 Amendments and Waivers..................................... 41
10.10 Severability............................................... 42
10.11 Expenses................................................... 42
10.12 Construction............................................... 42
10.13 Incorporation of Exhibits, Annexes and Schedules........... 42
10.14 Specific Performance....................................... 42
10.15 Submission to Jurisdiction................................. 43
10.16 Fulfillment of Obligations................................. 43
10.17 Schedules.................................................. 44
10.18 Definition of "ordinary course"............................ 44
10.19 Attorney's Fees............................................ 44
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DISCLOSURE SCHEDULE
SCHEDULE SECTION HEADING
-------- ---------------
I Intercompany Debt
S Subsidiaries
Section 3.1 Representation and Warranties (Seller Side)
Section 3.2 Representation and Warranties (Buyer Side)
Section 5.4(g) Operation of Business
Section 4.1 Interest in Related Entities
Section 4.3 Vermont Entities Capitalization
Section 4.4 Investments
Section 4.5 No Violations
Section 4.6 Title to Assets; Encumbrances
Section 4.7 Possession
Section 4.8 Personal Property
Section 4.10(a) Intellectual Property
Section 4.10(b) Infringement by VCG
Section 4.10(d) Validity
Section 4.10(e) Claims
Section 4.10(f) Infringement against VCG
Section 4.10(m) Registered Marks
Section 4.10(n) Owned Images
Section 4.10(q) Licensed Images
Section 4.10(s) Storage/Handling Contracts
Section 4.10(v) Photographer Contracts
Section 4.11 Environmental Protection
Section 4.13 Certain Changes and Events
Section 4.14 Absence of Changes
Section 4.15 Tax Matters
Section 4.16 Compliance with Laws
Section 4.17 Litigation regarding Vermont Entities
Section 4.18 Permits
Section 4.19 Employees; Labor Relations
Section 4.20(a) Employee Benefit Plans
Section 4.20(c) Qualification; Compliance
Section 4.22 Agreements
Section 4.23 Certain Matters Concerning Pix
Section 4.24 Insurance
EXHIBITS
Exhibit A Form of Joint Press Release
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STOCK PURCHASE AGREEMENT
Agreement entered into as of March 21, 2000, by and among United Business
Information B.V., a corporation organized pursuant to the laws of The
Netherlands ("UBIBV"), Visual Communications Group (VCG) B.V., a corporation
organized under the laws of The Netherlands ("VCG"), United News & Media plc,
an English limited company ("Unicorn"), Getty Communications Limited, an
English limited company ("Communications"), and Getty Images Inc., a Delaware
corporation ("Buyer"). Buyer, Communications, UBIBV and Unicorn are referred to
collectively herein as the "Parties" and each individually as a "Party".
SUMMARY OF TRANSACTION
WHEREAS, UBIBV owns a majority of the issued and outstanding capital stock
and equity interests of VCG;
WHEREAS, VCG is the legal and beneficial owner of all of the issued stock
or share capital of Visual Communications Group Holdings Ltd., a company
incorporated in England and Wales ("VCG Holdings"), Definitive Stock, Inc., a
Delaware corporation ("Definitive Stock"), and VCG Holdings LLC ("VCGLLC") a
Delaware limited liability company; and
WHEREAS, Buyer desires to purchase, and VCG desires to sell all of the
Definitive Stock Shares and all of the VCGLLC Shares, upon the terms and subject
to the satisfaction of the conditions set forth in this Agreement; and
WHEREAS, Communications desires to purchase, and VCG desires to sell all
of the VCG Holdings Shares, upon the terms and subject to the satisfaction of
the conditions set forth in this Agreement; and
NOW, THEREFORE, to effect such transactions and in consideration of the
mutual covenants, representations, warranties and agreements hereinafter set
forth and other good and valuable consideration, the receipt of which is hereby
acknowledged by each Party, and intending to be legally bound hereby, the
Parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS AND TERMS
1.1 SPECIFIC DEFINITIONS. As used in this Agreement, the following terms
shall have the meanings set forth or as referenced below:
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"Adverse Consequences" shall mean actions, suits, proceedings, hearings,
investigations, charges, complaints, claims, demands, injunctions, judgments,
orders, decrees, rulings, damages, dues, penalties, fines, costs, amounts paid
in settlement, liabilities, obligations, taxes, liens, losses, expenses, and
fees, including court costs and reasonable attorneys' fees and expenses.
"Affiliate" shall mean with respect to any Person, any Person directly or
indirectly controlling, controlled by, or under common control with, such
other Person at the time at which the determination of affiliation is made. As
used in this definition, the term "control" (including, with correlative
meanings, the terms "controlled by" and "under common control with"), as
applied to any Person, means the possession, direct or indirect, of the power
to direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities or other ownership
interests, by contract or otherwise. (When used in relation to Buyer or
Communications, the term "Affiliate" shall include the Vermont Entities after
the Closing and when used in relation to a Vermont Entity the term "Affiliate"
shall include the Buyer and Communications after the Closing.)
"Agreement" shall mean this Agreement, as the same may be amended or
supplemented from time to time in accordance with the terms hereof.
"Approved Images" shall have the meaning set forth in Section 4.10.
"Authorizations" shall have the meaning set forth in Section 4.18.
"Assets" means the assets of the Vermont Entities, including all real and
personal property owned or leased by the Vermont Entities.
"Bavaria" shall mean VCG Deutschland GmbH, a corporation organized under
the laws of Germany.
"Bavaria Agreement" shall mean the Stock Purchase Agreement dated of even
date herewith among Unicorn, UBIBV, Ludgate Holdings GmbH, a corporation
organized under the laws of Germany, ▇▇▇▇ ▇▇▇▇▇ Associates GmbH, a corporation
organized under the laws of Germany, and Buyer.
"Bavaria Entities" shall mean Bavaria and each of its Subsidiaries.
"Bavaria Financial Statements" shall have the meaning set forth in Section
4.12 of the Bavaria Agreement.
"Benefit Plans" shall have the meaning set forth in Section 4.20.
"Books and Records" shall mean all books, ledgers, files, reports, plans
and operating records
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of, or maintained by or for, the Vermont Entities.
"Business" shall mean the business of the Vermont Entities, taken together
as a group, comprised of the licensing of still photography images to persons
in the advertising, design, publishing and corporate markets.
"Business Day(s)" shall mean any day or days other than a Saturday, a
Sunday or a United States federal holiday or a state holiday in the State of
New York.
"Buyer" shall have the meaning set forth in the recitals.
"Cash Adjustment Amount" shall have the meaning set forth in Section 2.3.
"Cash Statement" shall have the meaning set forth in Section 2.3.
"Chosen Courts" shall have the meaning set forth in Section 10.15.
"Closing" shall mean the closing of the transactions contemplated by this
Agreement.
"Closing Date" shall have the meaning set forth in Section 2.4(a).
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Communications" shall have the meaning set forth in the recitals.
"Confidentiality Agreement" shall mean the Agreement dated December 9,
1999 between Unicorn and Buyer.
"Contracts" shall mean any agreements, contracts, leases, purchase orders,
arrangements, commitments and licenses, whether oral or written.
"Damages" shall mean any and all costs, damages, liabilities, fines, fees,
penalties, interest obligations, deficiencies, losses, Taxes and expenses
(including, without limitation, amounts paid in settlement, interest, court
costs, costs of investigation, reasonable fees and expenses of attorneys,
accountants, actuaries, and experts, and other reasonable expenses of
litigation or mediation of any claim, default, or assessment), and diminution
in value, including incidental and consequential damages, whether or not
involving a third party claim.
"Definitive Stock" shall have the meaning set forth in the recitals.
"Definitive Stock Shares" shall mean all of the issued stock and share
capital of Definitive Stock.
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"Disclosure Schedule" shall have the meaning set forth in Article IV.
"Dispute Accountants" shall have the meaning set forth in Section 2.3.
"Employees" shall mean all current and former employees of the Vermont
Entities.
"Encumbrances" shall mean any and all mortgages, pledges, assessments,
security interests, leases, subleases, liens, adverse claims, tribal claims,
levies, charges, options, warrants, assignments, rights to possession, rights
of others or restrictions (whether on voting, sale, transfer, disposition or
otherwise) or other encumbrances of any kind, whether imposed by agreement,
understanding, law or equity, or any conditional sale contract, title retention
contract, or other contract to give or refrain from giving any of the foregoing.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended.
"GAAP" shall have the meaning set forth in Section 2.3.
"Governmental Authority" shall mean any court (including a court of
equity), any federal, provincial, state, county, municipal or other government
or governmental department, ministry, commission, board, bureau, agency or
instrumentality, any securities commission, stock exchange or other regulatory
or self regulatory body, any arbitrator or arbitration tribunal and any other
tribunal, whether domestic or foreign.
"Governmental Authorizations" shall mean all licenses, permits,
certificates and other authorizations and approvals required (i) with respect to
Buyer, Communications, UBIBV, VCG or a Vermont Entity to perform their
respective obligations hereunder and (ii) with respect to the Vermont Entities,
to carry on its business as currently conducted or presently proposed to be
conducted under applicable laws, ordinances or regulations of any Governmental
Authority.
"Group Entities" shall mean the Vermont Entities and the Bavaria Entities,
and each such entity shall be referred to individually as a "Group Entity".
"Holdings" shall mean Ludgate Holdings GmbH, a corporation organized under
the laws of Germany.
"HSR Act" shall mean the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of
1976, as amended.
"Image" shall have the meaning set forth in Section 4.10.
"Indemnified Parties" shall have the meaning set forth in Section 8.4(a).
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"Indemnifying Party" shall have the meaning set forth in Section 8.4(a).
"Intellectual Property" shall have the meaning set forth in Section 4.10.
"Intercompany Debt" shall mean that debt owing by any of the Group
Entities to UBIBV or any of UBIBV's Affiliates (other than the Group Entities),
or by UBIBV or any of UBIBV's Affiliates to any Group Entity as at the Closing
Date and to the extent set forth on a Schedule I, to be delivered by UBIBV to
Buyer not less than two (2) Business Days prior to the Closing Date. For
purposes of Purchase Price in Section 2.2 hereof. Intercompany Debt addressed
in the Bavaria Agreement shall be excluded.
"Knowledge of Seller" shall mean knowledge of at least one of the
directors and executive officers of UBIBV or at least one of the following
directors and executive officers of VCG: ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ (with respect only to Section 4.15) and
▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (with respect only to Section 4.10) and ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ (with respect only to Section 4.10). "Knowledge of Seller" shall
include the knowledge that any of such persons would have had if he or she had
made due inquiry.
"Laws" shall mean any federal, state, foreign, or local law, statute,
ordinance, rule, regulation, order, judgment or decree.
"Leases" shall have the meaning set forth in Section 4.9.
"Licensed Images" shall have the meaning set forth in Section 4.10.
"Licensed Intellectual Property" shall have the meaning set forth in
Section 4.10.
"Listed Intellectual Property" shall have the meaning set forth in Section
4.10.
"Material Adverse Effect" shall mean a material adverse effect on the
validity or enforceability of this Agreement, on the ability of a particular
Party to perform its obligations under this Agreement, or on the business,
operations, assets, liabilities, condition (financial or otherwise) or results
of operations of such Party.
"Material Agreement" shall have the meaning set forth in Section 4.22.
"Merger" shall have the meaning set forth in Section 4.23.
"Owned Images" shall have the meaning set forth in Section 4.10.
"Owned Intellectual Property" shall have the meaning set forth in Section
4.10.
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"Person" shall mean an individual, a corporation, a partnership, an
association, a limited liability company, a trust or other entity or
organization.
"Regulatory Law" means the ▇▇▇▇▇▇▇ Act, as amended, the ▇▇▇▇▇▇▇ Act, as
amended, the HSR Act, the Federal Trade Commission Act, as amended, and all
other federal, state and foreign, if any, statutes, rules, regulations, orders,
decrees, administrative and judicial doctrines and other laws that are designed
or intended to prohibit, restrict or regulate (i) mergers, acquisitions or
other business combinations, (ii) foreign investment or (iii) actions having
the purpose or effect of monopolization or restraint of trade or lessening
competition.
"Returns" shall mean all information, notices, accounts, computations,
returns, declarations, reports, estimates, information returns and statements
of any nature regarding Taxes.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Software" shall have the meaning set forth in Section 4.10.
"Subsidiaries" shall mean any corporation, company, partnership or other
entity the majority of the voting equity or other ownership interests of which
is owned, directly or indirectly, by the entity in connection with which the
term is employed, and shall include, in the case of a partnership, any
partnership whose general partner is the entity in connection with which the
term is employed (when referring to VCG Holdings, Definitive Stock or VCGLLC,
"Subsidiaries" shall include without limitation each of the entities set forth
on Schedule S attached hereto).
"Taxes" shall mean all federal, state, local or foreign taxes, charges,
duties, fees, imposts, levies or other assessments, in all cases in the nature
of taxation, including, but not limited to income, gross receipts, windfall
profits, capital, net worth, profits, corporate value added, capital duty,
severance, real property, personal property, inheritance, gift, production,
sales, use, license, excise, franchise, employment, withholding, transfer, ad
valorem, inventory, capital stock, social security, national insurance,
payroll, unemployment, severance, stamp, occupation or similar taxes, customs
duties, fees, assessments and charges of any kind whatsoever, in each case: (i)
whether computed on a separate, consolidated, combined, unitary or any other
basis (including pursuant to a statutorily imposed transferee liability); and
(ii) together with any interest, additions or penalties with respect thereto
and any interest in respect of such additions or penalties.
"Taxing Authority" shall mean the Internal Revenue Service and any other
domestic or foreign governmental authority responsible for the administration
of any Taxes.
"UBIBV" shall have the meaning set forth in the recitals.
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"UK Benefit Plans" shall mean (a) United Money Purchase Pension Scheme;
(b) Group Personal Pension Scheme for VCG employees; (c) United Magazines Final
Salary Pension Scheme; (d) the personal pension arrangement for Mr. Angeloglou
with Scottish Widows; and (e) United Pension Plan.
"Unapproved Images" shall have the meaning set forth in Section 4.10.
"Unicorn" shall have the meaning set forth in the recitals.
"VCG" shall have the meaning set forth in the recitals.
"VCG Holdings" shall have the meaning set forth in the recital.
"VCG Holdings Shares" shall mean all of the issued stock and share capital
of VCG Holdings.
"VCGLLC" shall have the meaning set forth in the recitals.
"VCGLLC Shares" shall mean all of the issued and outstanding equity or
other ownership interests in VCGLLC.
"Vermont Entities" shall mean VCG Holdings, Definitive Stock, VCGLLC and
each of their Subsidiaries.
"Vermont Shares" shall mean all of the VCG Holdings Shares, all of the
Definitive Stock Shares and all of the VCGLLC Shares.
1.2 OTHER TERMS. Other terms may be defined elsewhere in the text of this
Agreement and, unless otherwise indicated, shall have the meaning specifically
ascribed to such terms wherever such terms appear elsewhere in this Agreement.
1.3 OTHER DEFINITIONAL PROVISIONS.
(a) References in this Agreement to "Sections," "Articles,"
"Exhibits," "Annexes" and "Schedules" are to sections, articles, exhibits,
annexes and schedules herein and hereto unless otherwise indicated. Unless
otherwise set forth herein, references in this Agreement to any document,
instrument or agreement (including, without limitation, this Agreement) (i)
shall include all exhibits, annexes, schedules and other attachments thereto,
(ii) shall include all documents, instruments or agreements issued or executed
in replacement thereof and (iii) shall mean such document, instrument or
agreement, or replacement or predecessor thereto, as amended, modified or
supplemented from time to time in accordance with its terms and in effect at any
given time.
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(b) Wherever from the context it appears appropriate, each term
stated in either the singular or plural shall include the singular or plural.
(c) The words "hereof", "herein", and "hereunder" and words of
similar import, when used in this Agreement, shall refer to this Agreement as a
whole and not to any particular provision of this Agreement.
(d) References to any statute or statutory provision shall be
construed as a reference to such statute or statutory provision as in force at
the date of this Agreement and as respectively subsequently amended, re-enacted
or consolidated.
ARTICLE II
PURCHASE AND SALE OF VERMONT SHARES
2.1 BASIC TRANSACTION. On the terms and subject to the conditions of this
Agreement, and in reliance upon the representations and warranties of the
Parties herein, at the Closing, (i) Buyer agrees to purchase from VCG, and VCG
agrees to sell, transfer and convey to Buyer, or cause the sale, transfer and
conveyance to Buyer, all of the Definitive Stock Shares and VCGLLC Shares, and
(ii) Communications agrees to purchase from VCG and VCG agrees to sell,
transfer and convey to Communications, all of the VCG Holdings Shares,
collectively for the consideration specified in Section 2.2 hereof.
2.2 PURCHASE PRICE. At the Closing, as the Purchase Price to be paid by
Buyer and Communications for the Vermont Shares, Buyer and Communications shall
pay to VCG the aggregate sum of $203,000,000 less the amount of Intercompany
Debt (the "Purchase Price"), subject to post-Closing adjustment to increase or
decrease the Purchase Price by the Cash Adjustment Amount pursuant to Section
2.3.
2.3 CASH ADJUSTMENT. As soon as practicable, but in any event not later
than five (5) business days following the Closing Date, Buyer shall cause to be
delivered to UBIBV an unaudited statement of the cash, cash equivalents and bank
overdrafts of the Group Entities taken as a whole (the "Cash Statement"), as of
the close of business on the Closing Date, prepared in accordance with United
Kingdom generally accepted accounting standards applied on a basis consistent
with the prior practices of the Group Entities (hereinafter, "GAAP"), provided,
however, that cash, cash equivalents and bank overdrafts will be determined for
purposes of the Cash Statement through full application of the procedures used
in preparing the most recent balance sheet included within the Audited Vermont
Financial Statements and the Bavaria Financial Statements. For the avoidance of
doubt, in calculating the amount of cash, such amount shall be reduced by the
amount of any checks drawn prior to Closing which have not been present prior to
closing, and increased by the amount of any receipts paid-in but not yet cleared
as of the Closing. For the avoidance of doubt, the Cash Statement shall be
prepared and shall reflect the cash balances of the Group Entities immediately
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prior to settlement of the Intercompany Debt.
UBIBV and its accountants PriceWaterhouseCoopers LLC ("UBIBV's
Accountants"), shall have the right to review the Cash Statement, and in
connection with such review, UBIBV and UBIBV's Accountants shall have the right
to examine any books and records of the Group Entities reasonably necessary to
make a complete review of the Cash Statement, and Buyer shall make available to
UBIBV and UBIBV's Accountants their working papers related to the preparation of
the Cash Statement.
Within five (5) business days after UBIBV receives the Cash Statement,
UBIBV shall give written notice to Buyer of any objections UBIBV has with
respect to the Cash Statement, which notice shall specify the basis for such
objections in reasonable detail. If UBIBV does not notify Buyer of any
objections within such five business day period, then UBIBV shall be deemed to
have accepted the Cash Statement and the amounts reflected therein shall become
final and binding on the Parties for purposes of this Section 2.3.
If UBIBV objects to the Cash Statement as provided above, then the parties
shall negotiate in good faith to resolve such objections and arrive at an
agreed upon Cash Statement. Any objections of UBIBV which have not been
resolved by the parties within 10 business days after the delivery of UBIBV's
objections to Buyer shall be presented for resolution to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
(the "Dispute Accountants"). The Dispute Accountants shall promptly resolve the
disputed items in accordance with the provisions of this Section 2.3 and the
determinations of the Dispute Accountants in respect thereof shall be final and
binding upon the parties for purposes of this Section 2.3. Neither party will
disclose to the Dispute Accountants, nor will the Dispute Accountants consider
for any purpose, any settlement offer made by either party.
As used in this Agreement, the term "Cash Statement" shall mean such
statement in the form which becomes final and binding upon the Parties as
hereinabove provided.
After the Cash Statement is finalized, the Purchase Price shall be
adjusted upward or downward as follows: (A) if the net amount of cash, cash
equivalents and bank overdrafts reflected on the Cash Statement exceeds Pound
Sterling 450,000, then the Purchase Price shall be increased by the amount of
such excess (the "Cash Adjustment Amount") and Buyer shall pay the Cash
Adjustment Amount to UBIBV, or (B) if the net amount of cash, cash equivalents
and bank overdrafts reflected on the Cash Statement are less than Pound
Sterling 450,000, then the Purchase Price shall be decreased by the amount of
such deficiency (the "Cash Adjustment Amount") and UBIBV shall pay the Cash
Adjustment Amount to Buyer.
The appropriate party shall, within one (1) business day after the Cash
Statement becomes final and binding, pay to the other party the Cash Adjustment
Amount, together with interest thereon at a rate of LIBOR plus one percent (1%)
calculated from the Closing Date to the date on which the Cash Adjustment
Amount is received by the party that is entitled to payment thereof.
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2.4 Closing; Deliveries; Payment.
(a) The closing of the transactions contemplated by this Agreement (the
"Closing") shall take place at the offices of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ at Two
Wall Street, New York, New York, commencing at 10:00 a.m. local time on March
26, 2000, or at such other, or such additional, time and place as the Parties
hereto may mutually agree (the "Closing Date"). The Closing shall be deemed to
have occurred at 12:01 a.m. local time, on the Closing Date.
(b) The Vermont Shares shall be delivered to Buyer and Communications free
and clear of all liens, pledges, encumbrances, claims, security interests,
charges, voting trusts, voting agreements, other agreements, rights, options,
warrants or restrictions or claims of any kind, nature or description, other
than pursuant to this Agreement. At the Closing, UBIBV and VCG shall also
deliver such certificates, instruments, and documents as are required of UBIBV
and VCG under the terms and provisions of this Agreement, all of which shall be
in form and substance reasonably satisfactory to Buyer. At the Closing, VCG
shall deliver to Communications a duly executed stock transfer form in relation
to the entire issued share capital of VCG Holdings, together with a share
certificate in respect of the number of shares constituted in that stock
transfer form in favor of Communications and shall cause the name of
Communications to be entered into the register of members of VCG Holdings as the
registered holder of such shares subject to the stock transfer form being duly
stamped. At the Closing, VCG shall deliver to Buyer (on its permitted assignee)
stock powers duly endorsed in blank in respect of the Definitive Stock Shares.
(c) At the Closing, Buyer shall pay the Purchase Price to VCG for the
Vermont Shares in immediately available funds by wire transfer to such
account(s) as shall be designated by VCG in writing at least two (2) full
Business Days prior to the Closing. Buyer and VCG shall agree prior to the
Closing on the allocation of the Purchase Price among the Vermont Entities.
Buyer shall deliver such certificates, instruments and documents as are required
of Buyer and Communications under the terms and provisions of this Agreement,
all of which shall be in form and substance reasonably satisfactory to VCG.
(d) On the Closing Date, Buyer and Communications will cause the Vermont
Entities to settle all Intercompany Debt and shall put them in funds to do so in
an amount equal to the Intercompany Debt. If and to the extent that following
payment of all Intercompany Debt any amount is or may become payable by any of
the Vermont Entities to UBIBV or any Affiliate of UBIBV (other than a Vermont
Entity), the occurrence of Closing shall take effect as a waiver by UBIBV, for
itself and on behalf of each of its Affiliates, of any amount so payable, except
with respect to normal trading balances payable to OiT and Express Newspapers
Limited and receivable by FPG International, L.L.C. in respect to web hosting,
image purchasing and rent respectively, which shall survive and continue on
normal terms or as otherwise provided herein.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
CONCERNING THE TRANSACTION
------------------------------
3.1 REPRESENTATIONS AND WARRANTIES OF UNICORN, UBIBV AND VCG. Unicorn,
UBIBV and VCG jointly and severally represent and warrant to Buyer and
Communications that the statements contained in this Section 3.1 are correct
and complete with respect to itself as of February 27, 2000 and will be correct
and complete with respect to itself as of the Closing Date (as though made then
and as though the Closing Date were substituted for the date of this Agreement
throughout this Section 3.1), except as set forth in Section 3.1 of the
Disclosure Schedule attached hereto.
(a) Organization. Each of Unicorn, UBIBV and VCG is a company duly
organized and validly existing under the laws of its jurisdiction of
organization and has all requisite corporate power and authority to own, lease
and operate its properties and to carry on its business as now being conducted.
(b) Execution; Authorization of Transaction. Each of UBIBV, Unicorn
and VCG has all requisite corporate power and authority to enter into this
Agreement and to perform its obligations hereunder, subject to the receipt of
the approvals, consents and authorizations contemplated hereby. This Agreement
has been duly and validly authorized, executed and delivered by each of UBIBV,
VCG and Unicorn and constitutes a legal, valid and binding obligation of UBIBV,
VCG and Unicorn, enforceable against each of them in accordance with its terms
and conditions, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity principles. Except for
filings, permits, authorizations, consents and approvals as may be required
under, and other applicable requirements of, the HSR Act and as otherwise set
forth in Section 3.1 to the Disclosure Schedule, no filing with or notice to,
and no permit, authorization, consent or approval of, any Governmental
Authority is necessary for the execution and delivery by each of UBIBV, VCG and
Unicorn of this Agreement or the consummation by each of them of the
transactions contemplated hereby, except where the failure to obtain such
permits, authorizations, consents or approvals or to make such filings or give
such notice do not or would not reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect. Neither the execution, delivery
and performance of this Agreement by each of UBIBV, VCG and Unicorn nor the
consummation by them of the transactions contemplated hereby will (i) conflict
with or result in any breach of any provision of the respective articles of
association or bylaws (or similar governing documents) of UBIBV, VCG, Unicorn
or any of the Vermont Equities, or (ii) result in a violation or breach of,
or constitute (with or without due notice or lapse of time or both) a default
(or give rise to any right of termination, amendment, cancellation or
acceleration or lien) under, any of the terms, conditions or provisions of any
Law applicable to UBIBV, VCG and Unicorn or any of the Vermont Entities or any
note, bond, mortgage, indenture, lease, license, contract, agreement or other
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instrument or obligation to which UBIBV, VCG, Unicorn or any of the Vermont
Entities is a party or by which any of them or any of their respective
properties or assets may be bound, except in the case of violations, breaches or
defaults which do not or would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect.
(c) Brokers' Fees. None of UBIBV, VCG or Unicorn has any liability or
obligation to pay any fees or commissions to any broker, finder, or agent with
respect to the transactions contemplated by this Agreement for which the Vermont
Entities, Buyer or Communications could become liable or obligated.
(d) Vermont Shares VCG is the legal and beneficial owner of all of the
Vermont Shares, in each case free and clear of any restrictions on transfer
(other than any restrictions under the Securities Act, state securities laws and
restrictions on transfer set forth in the Articles of Association of VCG),
Taxes, Encumbrances, options, warrants, purchase rights, contracts, commitments,
equities, claims, and demands. Neither UBIBV nor VCG is a party to any option,
warrant, purchase right, or other contract or commitment that could require
UBIBV or VCG to sell, transfer, or otherwise dispose of any capital stock of the
Vermont Entities (other than this Agreement). Neither UBIBV nor VCG is a party
to any trust, proxy, or other agreement or understanding with respect to the
voting of any shares or capital stock of VCG Holdings, Definitive Stock or
VCGLLC. The Vermont Shares owned by VCG constitute 100% of the outstanding
voting capital of VCG Holdings, Definitive Stock and VCGLLC. No dividends or
other distributions of cash or property have been declared on the Vermont Shares
to any person which are due and/or have remained unpaid.
(e) Litigation Regarding Vermont Shares There are no actions, suits,
claims, investigations or legal or administrative or arbitration (or other
binding alternative dispute resolution) proceedings pending or, to the Knowledge
of Seller, threatened by or against: (I) UBIBV or VCG relating to the Vermont
Shares owned by VCG or (II) UBIBV or VCG relating to this Agreement and/or the
transactions contemplated hereby, before any court, governmental agency or other
body, and no judgment, order, writ, injunction, decree or other similar command
of any court or governmental agency or other body has been entered against or
served upon: (I) UBIBV or VCG relating to the Vermont Shares owned by VCG, or
(II) UBIBV or VCG relating to this Agreement and/or the transactions
contemplated hereby.
3.2 REPRESENTATIONS AND WARRANTIES OF THE BUYER. Buyer represents and
warrants to UBIBV and VCG that the statements contained in this Section 3.2 are
correct and complete as of February 27, 2000 and will be correct and complete as
of the Closing Date (as though made then and as though the Closing Date were
substituted for the date of this Agreement throughout this Section 3.2), except
as set forth in Section 3.2 of the Disclosure Schedule attached hereto.
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(a) Organization. Each of Buyer and Communications is a corporation duly
organized and validly existing under the laws of the jurisdiction of its
incorporation and has all requisite corporate power and authority to own, lease
and operate its properties and to carry on its business as now being conducted.
(b) Execution; Authorization of Transaction. Each of Buyer and
Communications has all requisite corporate power and authority to enter into
this Agreement and to perform its obligations hereunder, subject to the receipt
of the approvals, consents and authorizations contemplated hereby. This
Agreement has been duly and validly authorized, executed and delivered by Buyer
and Communications and constitutes a legal, valid and binding obligation of
Buyer and Communications, enforceable in accordance with its terms and
conditions, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity principles. Except for
filings, permits, authorizations, consents and approvals as may be required
under, and other applicable requirements of, the HSR Act and as otherwise set
forth in Section 3.2 to the Disclosure Schedule, no filing with or notice to,
and no permit, authorization, consent or approval of, any Governmental
Authority is necessary for the execution and delivery by Buyer and
Communications of this Agreement or the consummation by Buyer and
Communications of the transactions contemplated hereby, except where the
failure to obtain such permits, authorizations, consents or approvals or to
make such filings or give such notice do not or would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.
Neither the execution, delivery and performance of this Agreement by Buyer and
Communications nor the consummation by Buyer and Communications of the
transactions contemplated hereby will (i) conflict with or result in any breach
of any provision of the articles of incorporation or bylaws (or similar
governing documents) of Buyer or Communications, (ii) result in a violation or
breach of, or constitute (with or without due notice or lapse of time or both)
a default (or give rise to any right of termination, amendment, cancellation or
acceleration or lien) under, any of the terms, conditions or provisions of any
Law applicable to Buyer or Communications or any note, bond, mortgage,
indenture, lease, license, contract, agreement or other instrument or
obligation to which Buyer or Communications is a party or by which Buyer or
Communications or any of their respective properties or assets may be bound,
except in the case of violations, breaches or defaults which do not or would
not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.
(c) Brokers' Fees. Neither Buyer nor Communications has any liability or
obligation to pay any fees or commissions to any broker, finder, or agent with
respect to the transactions contemplated by this Agreement for which UBIBV, VCG
or Unicorn could become liable or obligated.
(d) Investment. Buyer is acquiring the Definitive Stock Shares and the
VCGLLC Shares, and Communications is acquiring the VCG Holdings Shares, solely
for the purpose of investment and not with a view to, or for sale in connection
with, any distribution thereof in violation of the Securities Act. Buyer and
Communications acknowledge that the Vermont Shares are not
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registered under the Securities Act or any applicable state securities law, and
that such Vermont Shares may not be transferred or sold except pursuant to the
registration provisions of the Securities Act or pursuant to an applicable
exemption therefrom and pursuant to state securities laws and regulation as
applicable.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF UBIBV CONCERNING THE VERMONT ENTITIES
UBIBV represents and warrants to Buyer and Communications, as of
February 27, 2000 and as of the Closing Date (except that representations and
warranties that are made as of a specific date need to be true only as of such
date), as provided in Annex A hereto, subject to and except as disclosed in the
Disclosure Schedule delivered by UBIBV to Buyer and Communications and initialed
by the Parties (the "Disclosure Schedule"). For purposes of this Agreement the
disclosure of any matter in any Section of the Disclosure Schedule shall serve
as sufficient disclosure for purposes of all of the representations and
warranties contained in Annex A hereto as to which the descriptive nature of the
disclosure provides sufficient notice of the materials, facts or items described
therein to indicate such disclosure's relevancy to other representations and
warranties.
ARTICLE V
PRE-CLOSING COVENANTS
The Parties agree as follows with respect to the period between the
execution of this Agreement and the Closing.
5.1 GENERAL. Each of the Parties will use its commercially reasonable
efforts to take all action and to do all things necessary, proper, or advisable
in order to consummate and make effective the transactions contemplated by this
Agreement (including satisfaction, but not waiver, of the closing conditions
set forth in Article VII below).
5.2 PRESS RELEASES AND PUBLIC ANNOUNCEMENTS. No Party shall issue or
cause to be issued any press release or make or cause to be made any public
announcement relating to the subject matter of this Agreement prior to the
Closing (except for the joint press release to be made on or about the Closing
Date in the form attached hereto as Exhibit A), without the prior written
approval of the other Parties; provided, however, that any Party may make any
public disclosure it believes in good faith is required by applicable law, as a
result of being listed on an exchange or any listing or trading agreement
concerning its publicly-traded securities (in which case the disclosing Party
will use its best efforts to advise the other Parties prior to making the
disclosure). The provisions of this Section 5.2 shall supersede any conflicting
provision contained in the Confidentiality Agreement.
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5.3 DISCLOSURE. All information delivered to Buyer and Communications by
UBIBV, VCG or the Vermont Entities, or to which Buyer and Communications have
been provided access by UBIBV, VCG or the Vermont Entities or in connection
with this Agreement and the transactions contemplated hereby shall be subject
to the terms of the Confidentiality Agreement, which Confidentiality Agreement
shall survive the Closing or any termination of this Agreement.
5.4 OPERATION OF BUSINESS. Except as contemplated by this Agreement,
UBIBV shall procure that each of the Vermont Entities shall conduct its
operations in the ordinary and usual course of business consistent with past
practice and to the extent consistent therewith, with no less diligence and
effort than would be applied in the absence of this Agreement, use their
commercially reasonable efforts: (i) to preserve intact its current business
organizations, and (ii) to keep available the service of its current officers
and employees and to preserve its relationships with customers, suppliers and
others having business dealings with it to the end that goodwill and ongoing
businesses shall be unimpaired at the Closing Date. Without limiting the
generality of the foregoing, and except as otherwise expressly provided in this
Agreement or in the Disclosure Schedule, prior to the Closing Date no Vermont
Entity will, without the prior written consent of Buyer and Communications:
(a) amend its certificate of incorporation or bylaws (or other
similar governing instrument);
(b) authorize for issuance, issue, sell, deliver or agree or commit
to issue, sell or deliver (whether through the issuance or granting of options,
warrants, commitments, subscriptions, rights to purchase or otherwise) any
stock of any class or any other securities convertible into or exchangeable for
any stock or any equity equivalents (including, without limitation, any stock
options or stock appreciation rights);
(c) (i) split, combine or reclassify any shares of its capital
stock; (ii) declare, set aside or pay any dividend or other distribution
(whether in cash, stock or property or any combination thereof) in respect of
its capital stock; (iii) make any other actual, constructive or deemed
distribution in respect of any shares of its capital stock or otherwise make
any payments to stockholders in their capacity as such; or (iv) redeem,
repurchase or otherwise acquire any of its securities or any securities of any
of its subsidiaries;
(d) adopt a plan of complete or partial liquidation, dissolution,
merger, consolidation, restructuring, recapitalization or other reorganization
of itself or any of its subsidiaries;
(e) alter through merger, liquidation, reorganization, restructuring
or in any other fashion the corporate structure or ownership of any subsidiary;
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(f) (i) incur or assume any long-term or short-term debt or issue any
debt securities, except for borrowings under existing lines of credit in the
ordinary and usual course of business consistent with past practice and in
amounts not material to the Group Entities taken as a whole; (ii) assume,
guarantee, endorse or otherwise become liable or responsible (whether directly,
contingently or otherwise) for the obligations of any other person, except in
the ordinary and usual course of business consistent with past practice and in
amounts not material to the Group Entities, taken as a whole, and except for
obligations of the wholly-owned Subsidiaries of VCG Holdings, Definitive Stock
and VCGLLC; (iii) make any loans, advances or capital contributions to, or
investments in, any other person (other than to the wholly-owned Subsidiaries of
VCG Holdings, Definitive Stock or VCGLLC or customary loans or advances to
employees in the ordinary and usual course of business consistent with past
practice and in amounts not material to the maker of such loan or advance); (iv)
pledge or otherwise encumber shares of capital stock of any of the Vermont
Entities; or (v) mortgage or pledge any of its material assets, tangible or
intangible, or create or suffer to exist any material Lien thereupon;
(g) except as may be required by Law or as contemplated by this
Agreement, enter into, adopt or amend or terminate any bonus, profit sharing,
compensation, severance, termination, stock option, stock appreciation right,
restricted stock, performance unit, stock equivalent, stock purchase agreement,
pension, retirement, deferred compensation, employment, severance or other
employee benefit agreement, trust, plan, fund, award or other arrangement for
the benefit or welfare of any director, officer or employee in any manner, or
(except as set forth in Section 5.4(g) of the Disclosure Schedule, as required
under existing agreements, and hiring and compensation adjustments occurring in
the ordinary course of business consistent with past practices) increase in any
manner the compensation or fringe benefits of any director, officer or employee
or pay any benefit not required by any plan and arrangement as in effect as of
February 27, 2000 (including, without limitation, the granting of stock
appreciation rights or performance units);
(h) acquire, sell, lease or dispose of any assets outside the
ordinary and usual course of business consistent with past practice or any
assets which in the aggregate are material to the Group Entities taken as a
whole, enter into any commitment or transaction outside the ordinary and usual
course of business consistent with past practice or grant any exclusive
distribution rights;
(i) except as may be required as a result of a change in Law or in
GAAP, change any of the accounting principles or practices used by it;
(j) revalue in any material respect any of its assets, including,
without limitation, writing down the value of inventory or writing-off notes or
accounts receivable other than in the ordinary and usual course of business
consistent with past practice or as required by GAAP;
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(k) acquire (by merger, consolidation, or acquisition of stock or assets)
any corporation, partnership or other business organization or division thereof
or any equity interest therein; (ii) enter into any contract or agreement,
other than in the ordinary and usual course of business consistent with past
practice, or amend in any material respect any of the Material Agreements (iii)
authorize any new capital expenditure or expenditures which, individually, are
in excess of $60,000 or, in the aggregate, are in excess of $250,000 or (iv)
enter into or amend any contract, agreement, commitment or arrangement
providing for the taking of any action that would be prohibited hereunder;
provided that notwithstanding the foregoing each Vermont Entity shall continue
to make any capital expenditure in accordance with any capital expenditure plan
in existence at February 27, 2000;
(l) make or revoke any Tax election, or settle or compromise any Tax
liability or change (or make a request to any taxing authority to change) any
aspect of its method of accounting for Tax purposes;
(m) pay, discharge or satisfy any material claims, liabilities or
obligations (absolute, accrued, asserted or unasserted, contingent or
otherwise), other than the payment, discharge or satisfaction contemplated by
this agreement or in the ordinary and usual course of business consistent with
past practice of liabilities reflected or reserved against in the consolidated
financial statements of the Vermont Entities, or otherwise incurred in the
ordinary and usual course of business consistent with past practice, or waive
the benefits of, or agree to modify in any manner, any confidentiality,
standstill or similar agreement to which any of the Vermont Entities is a party;
provided that each Vermont Entity shall continue to pay its creditors as they
fall due in the period up to the Closing Date consistent with past practices;
(n) settle or compromise any pending or threatened suit, action or claim
relating to the transactions contemplated hereby;
(o) enter into any agreement or arrangement that limits or otherwise
restricts the Vermont Entities or any successor thereto or that could, after
the Closing Date, limit or restrict the Vermont Entities or any successor
thereto, from engaging or competing in any line of business or in any
geographic area;
(p) commit to any new expenditure in respect to iSwoop; or
(q) take, propose to take, or agree in writing or otherwise to take, any
of the actions described in Sections 5.4(a) through 5.4(p) or any action which
would make any of the representations or warranties of UBIBV contained in this
Agreement (i) which are qualified as to materiality untrue or incorrect or (ii)
which are not so qualified untrue or incorrect in any material respect.
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5.5 NOTICES; HSR. (a) Each of the Parties will give any notices to, make
any filings with, and use its reasonable commercial efforts (in the case of
Buyer, subject to the provisions of Section 5.5(c) below) to obtain any
authorizations, consents, and approvals of governments and governmental
agencies in connection with the matters referred to in Section 3.1(b) and
Section 3.2(b) above. Without limiting the generality of the foregoing, each of
the Parties (or appropriate Affiliates) have filed the Notification and Report
Forms and related material were required to be filed with the Federal Trade
Commission (the "FTC") and the Antitrust Division of the United States
Department of Justice (the "DOJ") under the HSR Act, and each of the Parties
will make (and UBIBV will cause its appropriate Affiliate to make) any further
filings pursuant thereto that may be necessary, proper, or advisable in
connection therewith. Any filing fees required in connection with filings under
the HSR Act shall be borne by Buyer.
(b) Each of UBIBV, VCG, VCG Holdings, Definitive Stock, VCGLLC and Buyer
shall use its reasonable efforts to (i) cooperate in all respects with each
other in connection with any filing or submission and in connection with any
investigation or other inquiry, including any proceeding initiated by a private
party, (ii) promptly inform the other party of any communication received by
such party from, or given by such party to the DOJ, the FTC or any other
Governmental Authority and of any material communication received or given in
connection with any proceeding by a private party, in each case regarding any
of the transactions contemplated hereby, and (iii) consult with each other in
advance to the extent practicable of any meeting or conference with the DOJ,
the FTC or any such other Governmental Authority or, in connection with any
proceeding by a private party, with any other Person, and to the extent
permitted by the DOJ, the FTC or such other applicable Governmental Authority
or other Person, give the other party the opportunity to attend and participate
in such meetings and conferences.
(c) In furtherance and not in limitation of the covenant of Buyer set
forth in Sections 5.5(a) and (b) above, if any administrative or judicial
action or proceeding, including any proceeding by a private party, is
instituted (or threatened to be instituted) challenging any transaction
contemplated by this Agreement as violative of any Regulatory Law, or if any
statute, rule, regulation, executive order, decree, injunction or
administrative order is enacted, entered, promulgated or enforced by a
Governmental Authority which would make this Agreement or the other
transactions contemplated hereby illegal or would otherwise prohibit or
materially impair or delay the consummation of this Agreement or the other
transactions contemplated hereby, Buyer shall use its best efforts, including
without limitation, selling, holding separate or otherwise disposing of or
conducting its business in a specified manner, or agreeing to sell, hold
separate or otherwise dispose of or conduct its business in a specified manner
or permitting the sale, holding separate or other disposition of, any assets of
Buyer or its Subsidiaries or Affiliates or the conducting of their business in
a specified manner, to vigorously contest and resist any such action or
proceeding and to have vacated, lifted, reversed or overturned any decree,
judgment, injunction or other order, whether temporary, preliminary or
permanent, that is in effect and that prohibits, prevents or restricts
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the consummation of this Agreement or the other transactions contemplated
hereby and to have such statute, rule, regulation, executive order, decree,
injunction or administrative order repealed, rescinded or made inapplicable so
as to permit the consummation of the transactions contemplated by this
Agreement.
5.6 ASSISTANCE. Subject to Section 5.3 hereof, UBIBV and VCG shall
provide Buyer and Communications with such assistance as they may reasonably
request and shall generally assist Buyer and Communications with respect to the
introduction of Buyer, Communications and their representatives and agents, to
appropriate governmental agencies or officials having regulatory jurisdiction
over the Business and shall cooperate generally with Buyer and Communications
in all reasonable respects, including, with limitation, communications with
employees, customers and suppliers.
5.7 ISSUANCE OF SECURITIES. Except as otherwise contemplated hereby UBIBV
shall not permit any of the Vermont Entities to (i) issue any debt or equity
security or any options or warrants, (ii) enter into any subscriptions,
agreements, plans or other commitments pursuant to which any of the Vermont
Entities is or may become obligated to issue any shares of its capital stock or
any securities convertible into shares of its capital stock, (iii) otherwise
change or modify its capital structure, (iv) make interim distributions, (v)
engage in any reorganization or similar transaction, or (vi) agree to take any
of the foregoing actions.
5.8 OTHER CHANGES. VCG and/or the Vermont Entities may (i) make capital
expenditures of an emergency nature required to avoid imminent material damage
to or shutdown of the Business, or reasonably necessary for safety reasons,
(ii) take such actions as may be required by law, (iii) change, for any
Employee who is not exempt from the overtime provisions of the Fair Labor
Standards Act, the method of calculating the regular rate of pay for overtime
pay calculation purposes to using a weighted average of the different rates
earned by the Employee during the workweek.
5.9 PENSIONS. The provisions of the Pension Schedule shall have effect in
respect of the UK Benefit Plans.
5.10 BONUSES. At the Closing Date, VCG shall procure that no amounts in
the nature of bonus payments will remain payable by any Vermont Entity to any
of its employees or former employees (i) for the calendar year ended December
31, 1999, or (ii) in the nature of "stay or loyalty bonuses" payable to any
employee of a Vermont Entity in connection with the transactions contemplated
by this Agreement.
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ARTICLE VI
POST-CLOSING COVENANTS
The Parties agree as follows with respect to the period following the Closing:
6.1 FURTHER ACTIONS REGARDING TRANSFER. From and after the Closing, each
Party hereto shall, if reasonably requested by any other Party, execute and
deliver such further instruments of conveyance and transfer and take such other
reasonable action as may be necessary or desirable to provide more effectively
the sale and transfer of the Vermont Shares to Buyer and Communications.
6.2 CONFIDENTIALITY. For a period of three years after the Closing, UBIBV,
VCG, Unicorn and their Affiliates shall not divulge, furnish or make available,
to anyone (other than Buyer, Communications, UBIBV, VCG, Unicorn and their
respective Affiliates) any knowledge or information with respect to any
proprietary information of the Vermont Entities. This Section 6.2 shall not
apply to any such proprietary information which (i) shall have entered the
public domain or become available to the public through no act or omission of
UBIBV, VCG, Unicorn or any Affiliate of the foregoing, (ii) shall have become
available to UBIBV, VCG, Unicorn or any Affiliate of the foregoing from a third
party whom UBIBV, VCG, Unicorn or such Affiliate of the foregoing reasonably
believes is not obligated to the Vermont Entities, Buyer or Communications to
keep such proprietary information confidential, or (iii) shall be required by
law to be disclosed.
6.3 COVENANTS. Each of UBIBV, VCG, Unicorn and their Affiliates undertakes
with the Buyer and Communications that, without the prior written consent of
Buyer it will not and it will procure that none of their respective Affiliates
will:
(a) for the period of 3 years after the date of this Agreement, either
on its own account or in conjunction with or on behalf of any person carry on or
be engaged, concerned or interested (directly or indirectly and whether as
principal, shareholder, agent, consultant, partner or otherwise) in carrying on
the Business, provided, however, that the provisions of this Section 6.3(a)
shall in no way be construed to restrict UBIBV, VCG, Unicorn and their
Affiliates that are currently engaged in an activity that competes with the
Business from continuing to engage in such activity at levels which are not
materially greater than the levels at which such activity is currently
conducted; or
(b) for the period of 3 years after the date of this Agreement, either
on its own account or in conjunction with or on behalf of any other person,
solicit or endeavor to entice away from any Vermont Entity, with a view to
obtaining its business in relation to the business, any person who is (and was
at the Closing Date) a customer of a Vermont Entity; or
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(c) for the period of 3 years after the date of this Agreement,
either on its own account or in conjunction with or on behalf of any person,
employ, solicit or endeavor to entice away from any Vermont Entity any person
employed or engaged by any Vermont Entity in an executive or managerial
capacity, whether or not such person would commit a breach of contract by
reason of leaving service or office, except for ▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇.
For purposes of this section 6.3(c), bona fide public advertisements shall not
be deemed to constitute "solicitation" or "enticement" in violation of the
provisions hereof; or
(d) Notwithstanding the foregoing, none of UBIBV, VCG, Unicorn and
their Affiliates shall, either on its own account or in conjunction with or on
behalf of any person, employ solicit or endeavor to entice ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ away
from Buyer or Buyer's Affiliates for so long as ▇▇ ▇▇▇▇▇▇▇ is employed by Buyer
or one of Buyer's Affiliates, provided, however, that the foregoing restriction
shall not apply in the event that, by the Closing Date, ▇▇ ▇▇▇▇▇▇▇ has not
agreed to become an employee of Buyer or one of Buyer's Affiliates following
the Closing Date.
6.4 ACCESS TO INFORMATION.
(a) In order to facilitate the resolution of any third-party claims
made by or against or incurred by or indemnified by UBIBV prior to or after the
Closing, upon reasonable notice, Buyer and Communications shall, after the
Closing: (i) afford the officers, employees and authorized agents and
representatives of UBIBV reasonable access, during normal business hours, to
the offices, properties, books and records of Buyer, Communications and the
Vermont Entities with respect to the Business for the period prior to the
Closing; (ii) furnish to the officers, employees and authorized agents and
representatives of UBIBV such additional financial and other information
regarding the Business for the period prior to the Closing as Buyer,
Communications or any Vermont Entity has in its possession and UBIBV may from
time to time reasonably request; and (iii) make available to UBIBV, the
employees of Buyer, Communications and the Vermont Entities whose assistance,
testimony or presence is necessary to assist UBIBV in evaluating any such
claims and in defending such claims, including the presence of such persons as
witnesses in hearings on trials for such purposes; provided, however, that
such investigation shall not unreasonably interfere with the businesses or
operations of Buyer, Communications or any of their Affiliates; and provided,
however, that Buyer and Communications shall not be obligated to disclose any
information which they or any of their Affiliates holds under a legally binding
obligation of confidentiality or which is protected by any privilege.
(b) In order to facilitate the resolution of any third-party claims
made by or against or incurred by Buyer or Communications after the Closing,
upon reasonable notice, UBIBV, VCG and, with respect to Taxes, Unicorn shall,
after the Closing: (i) afford the officers, employees and authorized agents and
representatives of Buyer and Communications reasonable access, during normal
business hours, to the offices, properties, books and records of UBIBV and VCG
(and, as regards Taxes, of Unicorn) with respect to the Business and the Assets
for the period prior to the Closing; (ii) furnish to the officers, employees
and authorized agents and representatives of Buyer
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and Communications such additional financial and other information regarding
the Business and the Assets for the period prior to the Closing as Buyer and
Communications may from time to time reasonably request; and (iii) make
available to Buyer and Communications, the employees of UBIBV and VCG (and, as
regards Taxes of any Vermont Entity, of Unicorn) whose assistance, testimony or
presence is necessary to assist Buyer and Communications in evaluating any such
claims and in defending such claims, including the presence of such persons as
witnesses in hearings or trials for such purposes; provided, however, that such
investigation shall not unreasonably interfere with the businesses or
operations of UBIBV, VCG, Unicorn or any of their Affiliates; and provided,
however, that neither UBIBV nor Unicorn shall be obligated to disclose any
information which it or any of its Affiliates holds under a legally binding
obligation of confidentiality or which is protected by any privilege.
6.5 REMOVAL OF TRADEMARKS, ETC. As promptly as practicable after the
Closing, and in no event later than ninety (90) days after the Closing Date,
Buyer and Communications agree to (and will cause the Vermont Entities to)
cease use of and to delete, remove or otherwise obliterate from the Assets, and
from all packaging, advertisements, marketing and promotional materials and
other materials used by the Vermont Entities, all trade names and trademarks of
UBIBV, VCG and their Affiliates, including, but not limited to, references to
"United News & Media" "UNM" and derivatives thereof, and logos associated
therewith, provided, however, that for a period of six months following the
Closing Date, Buyer, Communications and their Affiliates shall be permitted to
dispose of inventory included in the Assets on the Closing Date which bears the
trade names or trade-marks of UBIBV, VCG and their Affiliates, and provided
further that Buyer, Communications and their Affiliates may, following the
Closing Date, ship, deliver and display catalogs bearing such trade names or
trademarks which have been produced prior to the Closing Date.
6.6 CERTAIN TAXES. All transfer, documentary, sales, use, stamp,
registration and other similar taxes and fees (including any penalties and
interest, but excluding taxes imposed on income) incurred in connection with
this Agreement, shall, whether imposed upon UBIBV, VCG, Buyer, Communications or
any Vermont Entity, be borne by Buyer or Communications. VCG will file all
necessary Returns and other documentation with respect to all such taxes, and,
if required by applicable law, Buyer and Communications will, and will cause
the Vermont Entities to, joint in the execution of any such Returns and other
documentation. All costs and expenses incurred in connection with VCG's filing
of Returns hereunder shall be borne by Buyer or Communications. Buyer and VCG
further agree (and each shall cause the Vermont Entities to), upon request, to
use their best efforts to obtain any certificate or other document from any
governmental authority or any other Person as may be necessary to mitigate,
reduce or eliminate any such tax that could be imposed (including, but not
limited to, with respect to the transactions contemplated hereby).
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6.7 TAX RETURNS; UTILIZATION OF TAX LOSSES.
(a) In respect of any Tax accounting period of any Vermont Entity
ending on or before the Closing Date, VCG and such of VCG's Affiliates as are
legally competent to do so ("the Surrendering Companies") shall be entitled
(but not required) to surrender and Buyer and Communications shall procure that
the relevant Vermont Entity shall cooperate with the Surrendering Companies to
accept, receive or utilize some or all Tax losses of the relevant Surrendering
Company so as to reduce or extinguish any pre-Closing Tax liability of the
Vermont Entity.
(b) To the extent that a Tax loss surrendered in accordance with
paragraph (a) above reduces or eliminates a Tax liability for any 1999 Tax
accounting period that was provided for in the Audited Vermont Financial
Statements, Buyer and Communications shall cause the relevant Vermont Entity to
pay as consideration to the relevant Surrendering Company an amount certified
by VCG's auditors to be equal to the difference between (i) the Tax otherwise
due and payable absent such surrender and (ii) the Tax due and payable taking
into account such surrender. Any payments that are due to be made by the
relevant Vermont Entity hereunder shall be made on the date on which the Tax
that is saved by virtue of such surrender would otherwise first have been due
and payable. To the extent that a Tax liability for any 1999 Tax accounting
period is either paid to the relevant Taxing Authority or reduced by reasons of
a Tax loss surrendered by a Surrendering Company that is reimbursed pursuant to
this Section 6.7(b), the accrual or reserve for Taxes in the Audited Vermont
Financial Statements shall be reduced for purposes of Section 8.2(c) hereof.
(c) To the extent that a Tax loss surrendered in accordance with
Section 6.7(a) reduces or eliminates a Tax liability that was not provided for
in the Audited Vermont Financial Statements in respect of a 1999 Tax accounting
period, no payment shall be made therefor by the relevant Vermont Entity but
the full value or benefit of such surrender to the relevant Vermont Entity
shall be taken into account when computing the amount of any Adverse
Consequences suffered by any relevant Vermont Entity.
(d)(i) Except as provided in Section 6.7(d)(iii), VCG, or its duly
authorized agents, shall be responsible for and have the conduct of preparing,
submitting and agreeing all Returns of the Vermont Entities (and
correspondence and other documentation relating thereto) with respect to Tax
accounting periods ending on or before the December 31, 1999, subject to all
such Returns being submitted in draft form to Buyer or to Buyer's duly
authorized agent for comment at least 42 days before the same are due to be
submitted to the relevant Taxing Authority. Buyer or Buyer's agents shall
within 21 days of such submission provide written comments thereon to VCG and
if VCG shall not have received comments within that period, Buyer shall be
deemed to have approved such draft Returns. Such deemed approval shall not by
itself constitute a waiver of Buyer's or Communications' other rights, if any,
under this Agreement. If Buyer or Buyer's agents shall have made any written
comments in accordance with the provisions of this Section, VCG shall not
unreasonably refuse to adopt such comments provided that VCG and VCG's agents
shall not be
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obliged to submit any Return to any relevant Taxing Authority unless reasonably
satisfied that it is accurate and complete in all material respects. VCG and
Buyer shall respectively afford (or procure to be afforded) to the other or to
the other's agents such information and assistance as may reasonably be required
to prepare, submit and agree all relevant Returns.
(ii) For Vermont Entities which are tax resident in the Netherlands and
Germany, UBIBV, VCG, and their duly authorized agents, shall be responsible for
and have the conduct of preparing, submitting and agreeing to the relevant
fiscal unity Returns for Tax accounting periods beginning prior to the Closing
Date (and correspondence and other documentation relating thereto) subject to
all such returns being submitted in draft form to Buyer or to Buyer's duly
authorized agent for comment at least 42 days before the same are due to be
submitted to the relevant Taxing Authority. Buyer or Buyer's agents shall within
21 days of such submission provide written comments thereon to VCG and if VCG
shall not have received comments within that period, Buyer shall be deemed to
have approved such draft Returns. Such deemed approval shall not by itself
constitute a waiver of Buyer's other rights, if any, under this Agreement. If
Buyer or Buyer's agents shall have made any written comments in accordance with
the provisions of this Section, VCG shall not unreasonably refuse to adopt such
comments provided that VCG and VCG's agents shall not be obliged to submit any
Return to any relevant Taxing Authority unless reasonably satisfied that it is
accurate and complete in all material respects. VCG and Buyer shall respectively
afford (or procure to be afforded) to the other or to the other's agents such
information and assistance as may reasonably be required to prepare, submit and
agree all relevant Returns.
(iii) Buyer, or its duly authorized agents, shall be responsible for and
have the conduct of preparing, submitting and agreeing (x) all ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ Federal, state and local income tax returns (and correspondence and other
documentation relating thereto) of Vermont Entities which are organized in the
United States and (y) 1999 Irish income tax returns of iSwoop Limited and iSwoop
International Limited, subject to all such Returns being submitted in draft form
to VCG or to VCG's duly authorized agent for comment at least 42 days before the
same are due to be submitted to the relevant Taxing Authority. VCG or VCG's
agents shall within 21 days of such submission provide written comments thereon
to Buyer and if Buyer shall not have received comments within that period, VCG
shall be deemed to have approved such draft Returns. Such deemed approval shall
not by itself constitute a waiver of VCG's other rights, if any, under this
Agreement. If VCG or VCG's agents shall have made any written comments in
accordance with the provisions of this Section, Buyer shall not unreasonably
refuse to adopt such comments provided that Buyer and Buyer's agents shall not
be obliged to submit any Return to any relevant Taxing Authority unless
reasonably satisfied that it is accurate and complete in all material respects.
VCG and Buyer shall respectively afford (or procure to be afforded) to the other
or to the other's agents such information and assistance as may reasonably be
required to prepare, submit and agree all relevant Returns.
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(iv) Except as provided in Section 6.7(d)(ii), Buyer, or its
duly authorized agents, shall be responsible for and have the conduct of
preparing, submitting and agreeing all Returns (and correspondence and other
documentation relating thereto) of Vermont Entities for Tax accounting periods
beginning on or after January 1, 2000, subject to all such Returns for which
Buyer and Communications will seek indemnification under Section 8.2(c) hereof
being submitted in draft form to VCG or to VCG's duly authorized agent for
comment at least 42 days before the same are due to be submitted to the
relevant Taxing Authority. VCG or VCG's agents shall within 21 days of such
submission provide written comments thereon to Buyer and if Buyer shall not
have received comments within that period, VCG shall be deemed to have approved
such draft Returns. Such deemed approval shall not by itself constitute a
waiver of VCG's other rights, if any, under this Agreement. If VCG or VCG's
agents shall have made any written comments in accordance with the provisions
of this Section, Buyer shall not unreasonably refuse to adopt such comments
provided that Buyer and Buyer's agents shall not be obliged to submit any
Return to any relevant Taxing Authority unless reasonably satisfied that it is
accurate and complete in all material respects. VCG and Buyer shall
respectively afford (or procure to be afforded) to the other or to the other's
agents such information and assistance as may reasonably be required to prepare,
submit and agree all relevant Returns.
(e) (i) To the extent that it does not result in more than nominal
Adverse Consequences to any of them, Buyer shall procure that all Vermont
Entities shall cause the agreed Returns referred to in Section 6.7(d) and,
subject to Section 6.7(a) above, all such claims, disclaimers, surrenders and
elections as may be directed by UBIBV relating to all such Returns of all
Vermont Entities with respect to Tax accounting periods ending on or before the
Closing Date to be authorized, signed and returned to UBIBV for submission to
the Taxing Authority as soon as is reasonably practicable. VCG shall submit
such claims, disclaimers, surrenders and elections to the relevant Vermont
Entity for such signature sufficiently in advance of the required filing date
for the relevant Vermont Entity to adequately review such claim, disclaimer,
surrender or election.
(ii) Buyer shall, and shall procure that all Vermont Entities,
cooperate with VCG and its agents as and to the extent reasonably requested by
VCG, in connection with VCG's exercise of their rights and responsibilities
under this Section 6.7. Such cooperation shall include retention and (upon VCG
request) the provision of records and information which are reasonably relevant
to such exercise, and making employees available on a mutually convenient basis
to provide additional information and explanation of any material provided
hereunder. VCG shall reimburse Buyer and the Vermont Entities for any
reasonable out of pocket expenditures incurred by them by reason of such
cooperation.
6.8 LEASES. Buyer shall indemnify VCG and its Affiliates, in the manner
and subject to the limitations set forth in Article VIII, from and against any
and all claims and Adverse Consequences arising from the Leases for all periods
after the Closing Date.
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6.9 INDEMNIFYING PARTY In the event that the net worth of UBIBV shall, at
any time during the period for which UBIBV is obligated to indemnify Buyer
pursuant to Section 8.1 and 8.2 hereof, be less than $650,000,000, Unicorn shall
cause one of its Affiliates having a net worth of not less than $650,000,000
execute such agreement(s) as may be reasonably requested by Buyer including
legal opinions or other assurances as to the enforceability of such agreements
to provide for the assignment by UBIBV and the assumption by such Affiliate of
UBIBV's indemnification obligations pursuant to such Section, provided that in
no event shall such indemnification obligations be expanded or increased beyond
the limitations set forth in such Section.
6.10 ▇▇▇▇▇▇ ▇▇▇▇▇ UBIBV shall use its commercially reasonable efforts to
cause ▇▇▇▇▇▇ ▇▇▇▇▇ to voluntarily resign his employment by the Vermont Entity
by which he is currently employed on the third business day following the
Closing, and Buyer and Communications will cause such Vermont Entity to waive
in writing its right to notice of termination of Mr Nugee's employment with
such Vermont Entity.
6.11 [INTENTIONALLY OMITTED]
6.12 NEW YORK LEASE The Parties hereby covenant and agree that, for a
period of 6 months following the Closing Date, Unicorn shall be permitted to
continue its occupation of such portion of the office space located on the 5th
floor at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ as it presently occupies
pursuant to an oral sublease from FPG International, LLC (successor-in-interest
to FPG International Group, Inc., the lessee thereof pursuant to the Lease
dated August 9, 1990 with ▇▇-▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ Associates, Limited
Partnership (the "Landlord"), as amended), on the same terms, including without
limitation, rental rate, as Unicorn presently occupies such space. The Parties
hereby agree that Unicorn's sublease shall require 6 months prior written
notice for termination by FPG International, LLC. Buyer hereby covenants and
agrees that neither it nor its Affiliates will serve any such termination
notice prior to the six month anniversary of the Closing Date. During the
initial 12 month period, Buyer shall use its commercially reasonable efforts to
assist Unicorn in (i) securing the Landlord's consent to and approval of this
Section 6.12 (with respect to Unicorn's continued occupation, and (ii) securing
a direct lease of such space from the Landlord. On furtherance of the
foregoing, the Parties hereby agree that FPG International LLC and Unicorn
shall be permitted to enter into a written sublease reflecting the terms of the
existing sublease described above, in a form reasonably acceptable to Buyer.
6.13 SHARE OPTIONS
(a) Definitions
the "SCHEMES" the Sharesave Plan, the 1994 International Scheme,
the 1994 UK Scheme and the 1994 ▇▇▇▇ and any other
share option schemes adopted and operated by
UBIBV;
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the "THE 1994
INTERNATIONAL SCHEME" the Unapproved 1994 International Executive
Share Option Scheme;
the "1994 ▇▇▇▇" the Approved 1994 UK Executive Share Option
Scheme;
the "SHARESAVE PLAN" the 1997 Unapproved United News & Media plc
International Sharesave Plan;
the "OPTION" an option over shares in the issued ordinary
share capital of Unicorn Plc, the terms of
which are as determined by the applicable
Scheme;
"RELEVANT EMPLOYEE" a person who is an employee of any one or
more Vermont Entities on or after Closing and
who currently has or may in the future have
any rights under any of the Schemes, which
expression shall include the personal
representatives of such individual and any
other person deriving rights under any such
Scheme from such individual;
"RETAINED GROUP" UBIBV and any subsidiary or subsidiary
undertaking or any holding company for the
time being of UBIBV, or any subsidiary or
subsidiary undertaking of such holding
company other than the Vermont Entities;
"SCHEME RIGHTS" the right of a Relevant Employee under the
Schemes to exercise any Option under the
Schemes on or in consequence of Closing in
favour of such Relevant Employee.
(b) UBIBV's Obligations
Where Scheme Rights confer upon any Relevant Employee any legal or
contractual right to exercise any outstanding Option under any Scheme and any
Relevant Employee elects to exercise any outstanding Option under any Scheme in
accordance with such legal or contractual right, then UBIBV shall or shall
procure that all relevant shares or securities are issued to the Relevant
Employee in satisfaction of such exercise.
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(c) Buyer's Obligations
Buyer shall co-operate with VCG to ensure that, following Closing,
it shall, at the request of VCG, take such steps as shall be reasonably
necessary or desirable to enable the Retained Group to efficiently administer
the Schemes in an effective and timely manner in relation to the Relevant
Employees (including enabling the Retained Group to utilize the payroll
services of the Vermont Entities to effect any payment and any consequential
deductions therefrom in respect of income tax, social security or the like
required to be made as a result of UBIBV acquitting its responsibilities under
paragraph 2 above.). In particular, and without prejudice to the generality of
the foregoing, Buyer and Communications shall procure that neither they nor any
of the Vermont Entities grant or purport to grant any rights or entitlements
under any Scheme nor does nor purports to do anything pursuant to any Scheme.
For the avoidance of doubt, as between the Parties, Buyer shall be responsible
for any relevant Taxes occurring upon exercise of Scheme Rights as employer of
the Relevant Employees.
ARTICLE VII
CONDITIONS TO OBLIGATION TO CLOSE
7.1 CONDITIONS TO OBLIGATIONS OF BUYER AND COMMUNICATIONS. The
obligations of Buyer and Communications under this Agreement and the
consummation by Buyer and Communications of the transactions contemplated
hereby are subject to the satisfaction at or prior to the Closing of the
following conditions, unless waived by Buyer and Communications in writing:
(a) Performance of Obligations of UBIBV. UBIBV shall have materially
performed all obligations required to be performed by it under this Agreement,
and materially complied with all covenants for which compliance by it is
required under this Agreement, prior to or at the Closing.
(b) Closing Documentation. Buyer and Communications shall have
received the following documents, agreements and instruments from UBIBV and VCG:
(i) Duly executed stock powers and stock transfer forms,
together with share certificates, if applicable, for the Vermont Shares
described in Section 2.4(b) hereof in forms mutually agreeable to the parties;
(ii) Certificates signed by an officer or director of UBIBV
certifying as to the matters set forth in Section 7.1(a) above with respect to
UBIBV;
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(iii) An opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, U.S. counsel for
Unicorn, UBIBV and VCG, dated the date of the Closing and addressed to Buyer and
Communications, in form and substance reasonably acceptable to Buyer and
Communications, together with such opinions of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, PWC Landwell,
or other counsel reasonably acceptable to Buyer and Communications, as shall be
required;
(iv) The Shareholders Registers of VCG Holdings, Definitive Stock
and VCGLLC (which shall be updated at Closing) and statutory company books,
including the minute books and stock record books, of the Vermont Entities to
the extent required to be maintained or actually maintained;
(v) A certificate of a member of the Management Board of each of
UBIBV and VCG dated the Closing Date certifying (A) that attached thereto are
true, complete and correct copies of the Articles of Association of each of
UBIBV, VCG, VCGLLC, VCG Holdings and Definitive Stock as in effect on the date
of such certification, (B) that the Articles of Association or other
organizational document of each of the foregoing entities have not been amended
since the date of the last amendment referred to in the certificate, (C) that
attached thereto are true, complete and correct copies of resolutions, as in
effect on the date of such certification, duly adopted by the Board of Directors
of UBIBV and VCG or a duly authorized committee thereof, approving the
transactions contemplated hereby and authorizing the execution, delivery and
performance by UBIBV and VCG of this Agreement and the sale and transfer of the
Vermont Shares owned by VCG in accordance herewith, and (D) as to the incumbency
and signatures of the officers of UBIBV and VCG executing this Agreement and all
instruments or other documents delivered in connection with this Agreement;
(vi) [Intentionally omitted]
(vii) Signed resignation letters of all directors and officers of
the Vermont Entities requested by Buyer prior to Closing (or actions of the
Shareholders or Board of Directors of VCG removing such persons as directors and
officers); and
(viii) All other instruments and documents required by this
Agreement to be delivered by UBIBV and VCG to Buyer and Communications on or
before the Closing, including execution and delivery of the Bavaria Agreement.
(c) Approval of Legal Matters. The form of all instruments, certificates
and documents to be executed and delivered by UBIBV and VCG to Buyer and
Communications pursuant to this Agreement shall be reasonably satisfactory to
Buyer and its counsel, none of whose approval shall be unreasonably withheld or
delayed.
(d) No Litigation. Except with respect to matters relating to antitrust
laws including the HSR Act which, for purposes of this Section 7.1 are addressed
exclusively in Section
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7.1(e) below:
(i) No action, suit or other proceeding shall be pending or
threatened before any court, tribunal or governmental authority seeking or
threatening to restrain or prohibit the consummation of the transactions
contemplated by this Agreement or seeking to obtain substantial damages in
respect thereof, or involving a claim that consummation thereof would result in
the violation of any law, decree or regulation of any governmental authority
having appropriate jurisdiction; provided, however, that no such action, suit or
proceeding commenced or threatened by a private person or entity shall
constitute failure of a condition to Buyer's obligations under this Agreement;
and
(ii) No order, decree or ruling of any governmental authority or
court shall have been entered prohibiting, restraining or otherwise preventing
the consummation of the transactions contemplated hereby.
(e) ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Waiting Period. All applicable waiting periods
under the HSR Act shall have expired without any indication by the Department
of Justice or the Federal Trade Commission that either of them intends to
challenge the transactions contemplated hereby, provided, however, that nothing
in this Section 7.1(e) shall be construed to constitute a modification of
Buyer's obligations as set forth in Section 5.5 hereof.
(f) Laws. No statute, rule, regulation or order shall have been
adopted or promulgated which materially adversely affects the Business, the
Assets of the Group Entities taken together as a whole.
(g) Financial Capacity. Buyer shall have obtained sufficient funds to
purchase the Vermont Shares on the terms and conditions contemplated by this
Agreement after using its reasonable commercial efforts to obtain such funds.
(h) Form 403. UBIBV shall have provided the filing by The Telegraph
Colour Library Limited at the Companies Registry of a duly executed and
completed Form 403 in respect of the charge in favour of Hambros Bank Limited.
7.2 CONDITIONS TO OBLIGATIONS OF UNICORN, VCG AND UBIBV. The obligations
of Unicorn and UBIBV under this Agreement and the consummation by Unicorn, VCG
and UBIBV of the transactions contemplated hereby are subject to the
satisfaction at or prior to the Closing of the following conditions, unless
waived by Unicorn, VCG and UBIBV in writing:
(a) Performance of Obligations of Buyer and Communications. Each of
Buyer and Communications shall have performed all obligations required to be
performed by it under this Agreement, and complied with all covenants for which
compliance by it is required under this Agreement, prior to or at the Closing.
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(b) Closing Documentation. UBIBV and VCG shall have received the following
documents, agreements and instruments from Buyer and Communications:
(i) Payment of the Purchase Price pursuant to Section 2.2 hereof;
(ii) A certificate signed by an officer of each of Buyer and
Communications certifying as to the matters set forth in Section 7.2(a) above;
(iii) An opinion of Weil, Gotshal & ▇▇▇▇▇▇, LLP, counsel for Buyer and
Communications, dated the date of the Closing and addressed to UBIBV and VCG,
in form and substance reasonably acceptable to UBIBV and VCG;
(iv) Copies of all consents, approvals and notices referred to in
Section 3.2(b) hereof;
(v) A certificate of the Secretary or an Assistant Secretary of each
of Buyer and Communications dated the Closing Date certifying (A) that attached
thereto are true, complete and correct copies of resolutions, as in effect on
the date of such certification, duly adopted by the Board of Directors of Buyer
and Communications, or a duly authorized committee thereof, approving the
transactions contemplated hereby and authorizing the execution, delivery and
performance by Buyer and Communications of this Agreement and the purchase and
acquisition by Buyer and Communications of the Vermont Shares in accordance
herewith, and (B) as to the incumbency and signatures of the officers of Buyer
and Communications executing this Agreement and all instruments or other
documents delivered in connection with this Agreement; and
(vi) All other instruments and documents required by this Agreement
to be delivered by Buyer and Communications to UBIBV and VCG on or before the
Closing, including execution and delivery of the Bavaria Agreement.
(c) Approval of Legal Matters. The form of all instruments, certificates
and documents to be executed and delivered by Buyer and Communications to UBIBV
and VCG pursuant to this Agreement shall be reasonably satisfactory to UBIBV
and its counsel, none of whose approval shall be unreasonably withheld or
delayed.
(d) No Litigation
(i) No action, suit or other proceeding shall be pending or
threatened before any court, tribunal or governmental authority seeking or
threatening to restrain or prohibit the consummation of the transactions
contemplated by this Agreement or seeking to obtain substantial damages in
respect thereof, or involving a claim that consummation thereof would result
in the violation of any law, decree or regulation of any governmental authority
having appropriate jurisdiction; provided, however, that no such action, suit
or proceeding commenced or threatened
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by a private person or entity shall constitute failure of a condition to
UBIBV's or VCG's obligations under this Agreement; and
(ii) No order, decree or ruling of any governmental authority or
court shall have been entered prohibiting, restraining or otherwise preventing
the consummation of the transactions contemplated hereby.
(e) ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Waiting Period. All applicable waiting periods
under the HSR Act, shall have expired without any indication by the Department
of Justice or the Federal Trade Commission that either of them intends to
challenge the transactions contemplated hereby.
ARTICLE VIII
REMEDIES FOR BREACHES OF THIS AGREEMENT
8.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Notwithstanding any
otherwise applicable statute of limitations, all of the representations and
warranties of Unicorn, VCG and UBIBV contained in Section 3.1 and all of the
representations and warranties of UBIBV contained in Sections 4.1 - 4.24 of
Annex A hereto, or in any certificate, annex or Schedule to this Agreement or
prepared by UBIBV in connection with this Agreement (including the Disclosure
Schedule) shall survive the Closing hereunder and continue in full force and
effect for the period specified below:
(a) for the representations and warranties contained in
Sections 4.6-4.14 and 4.16 - 4.24 of Annex A, until the 18 month anniversary of
the Closing Date;
(b) notwithstanding Section 8.1(a) above, for claims in relation to
the lost Licensed Images or model consents with releases (or lack thereof)
within the Knowledge of Seller prior to February 27, 2000 (including, for
purposes of this Article VIII, claims in relation to lost Licensed Images or
model consents with arising under the Bavaria Agreement) ("Media Claims"),
until the 5 year anniversary of the Closing Date; and
(c) for all other representations, warranties and covenants of the
parties, until the expiration of the applicable statute of limitations,
including extensions thereof.
Any Party entitled to receive indemnification pursuant to this Article
VIII shall use commercially reasonable efforts to seek recovery (including both
cost of defense and indemnity) under applicable insurance policies with respect
to any Adverse Consequences. In determining the amount payable hereunder there
shall be taken into account the dollar amount of any insurance as other net
proceeds actually received by (or paid for the benefit of) the party claiming
indemnification hereunder with respect to the events giving rise to a claim
hereunder. In the event that a Party (a "Collecting Party") receives payment
under this Article VIII from another Party (a "Paying Party"),
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and then subsequently receives insurance proceeds with respect to the matter
for which such Collecting Party received indemnification payment from Paying
Party, Collecting Party shall, within two (2) business days of the receipt of
such insurance proceeds, remit such proceeds to Paying Party up to the amount
previously paid by Paying Party.
Except as provided in the immediately following paragraph, no Party shall
be entitled to indemnification hereunder for any Adverse Consequences for which
indemnification is sought under the Bavaria Agreement, and no Party shall be
entitled to indemnification for any Adverse Consequences under the Bavaria
Agreement for which indemnification is sought hereunder.
UBIBV and Buyer hereby agree that to the extent that indemnification
claims pursuant to Section 8.2(a), 8.2(c) and 8.3 of the Bavaria Agreement
exceed the aggregate maximum amount set forth in such Sections, Buyer and UBIBV
shall be entitled to raise such claims hereunder as if the indemnities and
warranties contained in this Agreement relating to the Vermont Entities (or any
of them) were warranties and indemnities relating to the Bavaria Entities, to
the extent such claims (together with indemnification claims hereunder) do not
exceed the aggregate maximum amounts set forth in Sections 8.2(a), 8.2(c) and
8.3 hereof. Similarly UBIBV and Buyer hereby agree that to the extent that
indemnification claims pursuant to Sections 8.2(a) and 8.3 hereof exceed the
aggregate maximum amount set forth in such Sections, Buyer and UBIBV shall be
entitled to raise such claims under the comparable provisions of the Bavaria
Agreement as if the indemnities and warranties contained in the Bavaria
Agreement relating to the Bavaria Entities (or any of them) were warranties and
indemnities relating to the Vermont Entities, to the extent such claims
(together with indemnification claims thereunder) do not exceed the aggregate
maximum amounts set forth in Sections 8.2(a), 8.2(c) and 8.3 of the Bavaria
Agreement.
The Parties hereby acknowledge and agree that any item disclosed in
Section 4.10 of the Disclosure Schedule hereto shall be deemed to constitute
disclosure of such item in the comparable section of the Disclosure Schedule to
the Bavaria Agreement for purposes thereof.
8.2 INDEMNIFICATION PROVISIONS FOR BENEFIT OF BUYER AND COMMUNICATIONS
(a) In the event that any of Unicorn, VCG or UBIBV breach (or in the
event any third party alleges facts that, if true, would mean that any of
Unicorn, VCG or UBIBV has breached) any of their representations, warranties,
and covenants contained herein, or in any certificate, annex or Schedule
delivered pursuant hereto (except with respect to Media Claims, which are the
subject of Section 8.2(b) below), and, if there is an applicable survival
period pursuant to Section 8.1 above, provided that Buyer or Communications, as
the case may be, makes a written claim for indemnification against UBIBV
pursuant to Section 10.6 below within such survival period, then UBIBV agrees
to indemnify Buyer, Communications, VCGLLC, Definitive Stock and VCG Holdings
from and against the entirety of any Adverse Consequences any of the foregoing
entities may suffer resulting from, arising out of, relating to, in the nature
of, or caused by the breach (or the alleged breach), up to, together with
Adverse Consequences under Section 8.2(c), an aggregate
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maximum amount equal to one-half of the Purchase Price; provided, however, that
UBIBV shall have no obligation to indemnify Buyer, Communications, VCGLLC,
Definitive Stock or VCG Holdings from and against any Adverse Consequence
(treating as a single Adverse Consequence related Adverse Consequences arising
out of a single fact situation) that does not equal or exceed $25,000 ("De
Minimis Claims"); and provided, further, that UBIBV shall have no obligation to
indemnify Buyer, Communications, VCGLLC, Definitive Stock or VCG Holdings until
all such Adverse Consequences shall exceed $2,000,000 in aggregate amount (taken
together with any Adverse Consequences pursuant to the Bavaria Agreement, and
not including, in either case, any Adverse Consequences that are De Minimis
Claims) at which time UBIBV shall be liable to Buyer, Communications, Definitive
Stock, VCGLLC and VCG Holdings for all Adverse Consequences from the first $1 of
such Adverse Consequences.
(b) In the event Buyer or Communications makes a written claim for
indemnification against UBIBV pursuant to Section 10.6 below within the survival
period set forth in Section 8.1(b) above with respect to Adverse Consequence
suffered by Buyer, Communications, VCGLLC, Definitive Stock or VCG Holdings as a
result of Media Claims, UBIBV agrees to indemnify the foregoing entities from
and against all such Adverse Consequences any of the foregoing entities may
suffer resulting from, arising out of or relating to such lost Licensed Images
or model releases, up to an aggregate maximum amount equal to $2,000,000,
provided, however, that UBIBV shall have no obligation to indemnify Buyer,
Communications, VCGLLC, Definitive Stock or VCG Holdings from and against any
Adverse Consequences until all such Adverse Consequences shall exceed $500,000
in aggregate amount (taken together with any such Adverse Consequences pursuant
to the Bavaria Agreement), and provided, further that UBIBV shall have no
obligation to indemnify Buyer, Communications, VCGLLC, Definitive Stock or VCG
Holdings from and against that first $500,000 in aggregate amount of any such
Adverse Consequences.
(c) Without duplication of any indemnification payments pursuant to
Section 8.2(a), UBIBV agrees to indemnify Buyer and Communications from and
against (i) the Adverse Consequences of any Taxes payable by any Vermont Entity
for any Tax accounting period ending prior to January 1, 2000 (or, in the case
of a period that begins before December 31, 1999 and ends after such date, the
portion thereof through December 31, 1999), and (ii) one-half of the Adverse
Consequences of any income Taxes payable by any Vermont Entity for the period
beginning January 1, 2000 and ending on the Closing Date (the "Stub Period"),
up to, together with Adverse Consequences under Section 8.2(a), an aggregate
maximum amount equal to one-half of the Purchase Price. Whether or not an
income Tax accounting period ends on the Closing Date, income Taxes for the
Stub Period for the purposes of this Section 8.2(c) shall be determined based
upon a closing of the books on the Closing Date; provided, however that income
Taxes for the Stub Period shall exclude any Tax attributable to any
extraordinary income or gain that would not be recognized but for an action of
the Buyer or Communications after the Closing Date (including, without
limitation, an election under Code Section 338). With respect to any Taxes
payable for the fiscal year ending December 31, 1999 (or any portion thereof),
UBIBV shall be liable under the first sentence of this Section 8.2(c) only to
the extent that such Taxes are, in the aggregate, in excess of the accrual
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or reserve for Taxes as of December 31, 1999 in the Audited Vermont Financial
Statements. No claim may be brought under this Section 8.2(c) for any single
Tax item (or related series of items) which does not exceed $10,000. Any claim
hereunder must be brought within the time limit specified in Section 8.1(c).
8.3 INDEMNIFICATION PROVISIONS FOR BENEFIT OF UBIBV AND VCG. In the event
Buyer or Communications breaches (or in the event any third party alleges facts
that, if true, would mean Buyer of Communications has breached) any of its
representations, warranties, and covenants contained herein, or in any
certificate, annex or Schedule delivered pursuant hereto, and, if there is an
applicable survival period pursuant to Section 8.1 above, provided that UBIBV or
VCG makes a written claim for indemnification against Buyer and Communications
pursuant to Section 10.6 below within such survival period, then Buyer and
Communications agree, jointly and severally, to indemnify UBIBV and VCG from
and against any Adverse Consequences any of the foregoing entities may suffer
(including any Adverse Consequences UBIBV and VCG may suffer after the end of
any applicable survival period) resulting from, arising out of, relating to, in
the nature of, or caused by the breach (or the alleged breach), up to an
aggregate maximum amount equal to one-half of the Purchase Price, provided,
however, that Buyer and Communications shall not have any obligation to
indemnify UBIBV and VCG from and against any Adverse Consequence (treating as a
single Adverse Consequence related Adverse Consequences arising out of a single
fact situation) that does not equal or exceed $25,000 ("De Minimis Claims");
and provided, further, that Buyer and Communications shall not have any
obligation to indemnify UBIBV or VCG until all such Adverse Consequences shall
exceed $2,000,000 in aggregate amount (taken together with any Adverse
Consequences pursuant to the Bavaria Agreement, and not including, in either
case, any Adverse Consequences that are De Minimis Claims) at which time Buyer
and Communications shall, jointly and severally, be liable to UBIBV and VCG for
all Adverse Consequences from the first $1 of such Adverse Consequences.
8.4 MATTERS INVOLVING THIRD PARTIES.
(a) If any third party shall notify any Party (the "Indemnified
Party") with respect to any matter (a "Third Party Claim") which may give rise
to a claim for indemnification against any other Party (the "Indemnifying
Party") under this Article VIII, then the Indemnified Party shall promptly
notify the Indemnifying Party thereof in writing; provided, however, that no
delay on the part of the Indemnified Party in notifying the Indemnifying Party
shall relieve the Indemnifying Party from any obligation hereunder unless (and
then solely to the extent) the Indemnifying Party thereby is prejudiced.
(b) The Indemnifying Party will have the right to defend the
Indemnified Party against the Third Party Claim with counsel of its choice
satisfactory to the Indemnified Party so long as (i) the Indemnifying Party
notifies the Indemnified Party in writing within 15 days after the Indemnified
Party has given notice of the Third Party Claim that the Indemnifying Party
will indemnify the Indemnified Party from and against the entirety of any
Adverse Consequences the
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Indemnified Party may suffer resulting from, arising out of, relating to, in
the nature of, or caused by the Third Party Claim, (ii) the Indemnifying Party
provides the Indemnified Party with evidence acceptable to the Indemnified
Party that the Indemnifying Party will have the financial resources to defend
against the Third Party Claim and fulfill its indemnification obligations
hereunder, (iii) the Third Party Claim involves only money damages and does not
seek an injunction or other equitable relief, (iv) settlement of, or an adverse
judgment with respect to, the Third Party Claim is not, in the good faith
judgment of the Indemnified Party, likely to establish a precedential custom or
practice adverse to the continuing business interests of the Indemnified Party,
and (v) the Indemnifying Party conducts the defense of the Third Party Claim
actively and diligently.
(c) So long as the Indemnifying Party is conducting the defense of
the Third Party Claim in accordance with Section 8.4(b) above, (i) the
Indemnified Party may retain separate co-counsel at its sole cost and expense
and participate in the defense of the Third Party Claim, (ii) the Indemnified
Party will not consent to the entry of any judgment or enter into any
settlement with respect to the Third Party Claim without the prior written
consent of the Indemnifying Party (not to be withheld unreasonably), and (iii)
the Indemnifying Party will not consent to the entry of any judgment or enter
into any settlement with respect to the Third Party Claim without the prior
written consent of the Indemnified Party (not to be withheld unreasonably).
(d) In the event any of the conditions in Section 8.4(b) above is or
becomes unsatisfied, however, (i) the Indemnified Party may defend against, and
consent to the entry of any judgment or enter into any settlement with respect
to, the Third Party Claim in any manner it may deem appropriate (and the
Indemnified Party need not consult with, or obtain any consent from, any
Indemnifying Party in connection therewith), (ii) the Indemnifying Party will
reimburse the Indemnified Party promptly and periodically for the costs of
defending against the Third Party Claim (including reasonable attorneys' fees
and expenses), and (iii) the Indemnifying Party will remain responsible for any
Adverse Consequences the Indemnified Party may suffer resulting from, arising
out of, relating to, in the nature of, or caused by the Third Party Claim to
the fullest extent provided in this Article VIII.
(e) The Indemnified Party shall (and, in the case of Buyer and
Communications, shall cause the Vermont Entities to) cooperate fully, as and to
the extent reasonably requested by the other Party, in connection with any
Third Party Claim. Such cooperation shall include the retention and (upon the
other Party's request) the provision of records and information which are
reasonably relevant to any such Third Party Claim and making employees
available on a mutually convenient basis to provide additional information and
explanation of any material provided hereunder. The Parties agree (i) to
retain, and (in the case of Buyer and Communications) to cause the Vermont
Entities to retain, all books and records with respect to Tax matters pertinent
to the Vermont Entities relating to any taxable period beginning before the
Closing Date until six months after the expiration of the statute of
limitations (and, to the extent notified by Buyer, Communications or UBIBV, any
extensions thereof) of the respective taxable periods, and to abide by all
record retention obligations imposed by law or pursuant to agreements entered
into with any Taxing Authority, and (ii) to give
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the other Party reasonable written notice prior to transferring, destroying or
discarding any such books and records and, if the other Party so requests,
Buyer or Communications or UBIBV, as the case may be, shall allow the other
Party to take possession of such books and records.
8.5 SOLE REMEDY. Each Party acknowledges and agrees that the
foregoing indemnification provisions of this Article VIII (including the
limitations set forth herein) are such Party's sole and exclusive remedy
against the other Parties and their Affiliates for any claim with respect to
the transactions contemplated hereby or otherwise relating to any Vermont
Entity, or the Assets or the Business, and each Party hereby waives and
releases any statutory, equitable or common law remedies which might otherwise
be available against the other Parties and their Affiliates. All
indemnification payments under this Article VIII shall be deemed adjustments to
the Purchase Price.
8.6 UNLIMITED CLAIMS.
(a) The proviso contained in Section 8.2 shall not apply to
UBIBV's liability in respect of any breach of the representations and
warranties contained in Section 3.1 or in Sections 4.1, 4.2, 4.3, 4.4 or 4.5 or
the final sentence of Section 4.6 of Annex A, with respect to which such
Party's liability shall not exceed the Purchase Price hereunder.
(b) The proviso contained in Section 8.3 shall not apply to
Buyer's liability in respect of any breach of the representations and
warranties contained in Section 3.2 with respect to which such Party's
liability shall not exceed the Purchase Price hereunder.
8.7 LITIGATION CLAIM. Notwithstanding the foregoing provisions of
this Article VIII, UBIBV agrees to provide to Buyer and Communications (and the
appropriate Vermont Entities following the Closing) with the benefit of UBIBV's
insurance coverage to the extent that it exists with respect to any Adverse
Consequences Buyer, Communications or any of the Vermont Entities may suffer in
respect of the Latina claim identified and described in Section 4.17 of the
Disclosure Schedule. UBIBV hereby represents and warrants that the Latina claim
has been submitted to its insurance company and has not, as of February 27,
2000, received any notice of rejection or non-coverage.
ARTICLE IX
TERMINATION
9.1 TERMINATION OF AGREEMENT. This Agreement may be terminated by
the Parties as provided below:
(a) The Parties may terminate this Agreement by mutual written
consent at any time prior to the Closing:
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(b) Either of Buyer or Communications may terminate this Agreement by
giving written notice to each of UBIBV, VCG and Unicorn at any time prior to
the Closing if the Closing shall not have occurred on or before March 26, 2000,
by reason of the failure of any condition precedent under Section 7.1(a)-(d)
and 7.1(f) or (g) hereof (unless the failure results primarily from Buyer or
Communications themselves breaching any representation, warranty, or covenant
contained in this Agreement, including, without limitation, Buyer's covenant
set forth in Section 5.5 hereof, or unless the failure otherwise relates to the
HSR Act);
(c) Either of UBIBV, VCG or Unicorn may terminate this Agreement by
giving written notice to each of Buyer and Communications at any time prior to
the Closing if the Closing shall not have occurred on or before March 26, 2000,
by reason of the failure of any condition precedent under Section 7.2 hereof
(unless the failure results primarily from UBIBV, VCG or Unicorn themselves
breaching any representation, warranty, or covenant contained in this
Agreement).
9.2 EFFECT OF TERMINATION. If any Party terminates this Agreement
pursuant to Section 9.1 above, all rights and obligations of the Parties
hereunder shall terminate without any liability of any Party to any other Party
or their respective Affiliates, directors, officers or employees, except for
the obligations of the Parties hereto contained in this Section 9.2, Section
9.3 (if applicable) and in all other provisions which are stated to survive any
termination of this Agreement, including, without limitation, Sections 5.2,
5.3, 10.6, 10.7, 10.8, 10.9, 10.12, 10.16 and 10.20.
9.3 LIQUIDATED DAMAGES. Notwithstanding any other provision hereof, the
Parties hereby agree that, in the event that the transactions contemplated
hereby are not consummated by March 26, 2000 Buyer shall pay to UBIBV as
liquidated damages and a break-up fee, and not as a penalty, the aggregate
amount of $2,000,000 (subject to a dollar-for-dollar reduction for any payment
made pursuant to Section 9.3 of the Bavaria Agreement), except in the event
that the transactions contemplated are not consummated as a result of the
failure of the conditions to Closing set forth in Sections 7.1(a), (b), (c)
(unless Buyer unreasonably withholds or delays with respect to Section 7.1(c))
or (d) (with respect to Section 7.1(d) to the extent such litigation does not
arise out of the action of Buyer.)
ARTICLE X
MISCELLANEOUS
10.1 ENTIRE AGREEMENT. This Agreement (including the Annexes, Exhibits,
Schedules and documents attached hereto or referred to herein) constitutes the
entire agreement among the Parties and supersedes any prior understandings,
agreements, or representations by or among the Parties, written or oral, to the
extent they related in any way to the subject matter hereof, except for the
Confidentiality Agreement which will remain in full force and effect for the
term provided for therein.
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10.2 NO THIRD-PARTY BENEFICIARIES.
(a) Except as otherwise expressly provided for in this
Agreement, nothing in this Agreement, express or implied, is intended or shall
be construed to confer upon or give to any employee of UBIBV, VCG, VCGLLC,
Buyer, Communications, Definitive Stock, VCG Holdings, or any Subsidiary of the
foregoing, or any other Person, other than the Parties hereto (and their
successors and permitted assigns), any rights, remedies or other benefits under
or by reason of this Agreement.
(b) The Parties hereto agree and acknowledge that after the
Closing Date: (i) VCGLLC, Definitive Stock and VCG Holdings are intended third
party beneficiaries under this Agreement and are independently entitled to
avail themselves of all the rights and remedies of Buyer and Communications
hereunder and all benefits related thereto.
10.3 SUCCESSION AND ASSIGNMENT. This Agreement shall be binding upon
and inure to the benefit of the Parties named herein and their respective
successors and permitted assigns. No Party may assign either this Agreement or
any of his or its rights, interests, or obligations hereunder without the prior
written approval of the other Parties, provided, however, that Buyer may
assign, without the approval of the other parties, all or any portion of its
rights hereunder to any entity directly or indirectly owned wholly by Buyer, in
which extent Buyer shall, notwithstanding such assignment, remain wholly and
solely liable for the obligations, representations, warranties and covenants of
Buyer hereunder and under any certificate, schedule, annex or other agreement
delivered pursuant hereto.
10.4 COUNTERPARTS. This Agreement may be executed by exchanging
executed copies or facsimile signatures and in any number of counterparts, and
by any Party on separate counterparts, each of which as so executed and
delivered shall be deemed an original, but all of which together shall
constitute one and the same instrument, and it shall not be necessary in making
proof of this Agreement as to any Party hereto to produce or account for more
than one such counterpart executed and delivered by such Party.
10.5 HEADINGS. The Article and Section headings, and the table of
contents, contained in this Agreement are inserted for convenience only and
shall not affect in any way the meaning or interpretation of this Agreement.
10.6 NOTICES. All notices, certificates, requests, demands, claims,
and other communications hereunder shall be given in writing and shall be
delivered personally (including by personal courier or delivery service) or
sent by facsimile, telex or telegram or by the registered or certified mail
(return receipt requested), postage prepaid, to the Parties at the following
address (or at such other addresses as the shall be specified by like notice):
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IF TO UNICORN, VCG OR UBIBV: COPY TO:
c/o United News & Media plc ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇
Fax No.: ▇▇▇-▇▇-▇▇▇-▇▇▇-▇▇▇▇ Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Company Secretary Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
IF TO THE BUYER
OR COMMUNICATIONS: COPY TO:
Getty Images Inc. Weil, Gotshal & ▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇ Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ Page Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
GETTY IMAGES INC.
c/o PhotoDisc Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: General Counsel
Any notice given personally or by mail or telegram shall be effective when
received. Any notice given by telex or facsimile shall be effective when the
appropriate telex or facsimile answerback is received.
10.7 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of New York as to all matters,
including but not limited to matters of validity, construction, effect,
performance and remedies (without giving effect to any choice or conflict of law
provision or rule, whether of the State of New York or any other jurisdiction,
that would cause the application of the laws of any jurisdiction other than the
State of New York).
10.8 RETURN OF INFORMATION. If for any reason whatsoever the sale and
purchase of the Vermont Shares pursuant to this Agreement is not consummated,
Buyer shall promptly return to UBIBV and VCG all books, records and documents of
UBIBV, VCG and the Vermont Entities (including all copies, if any, thereof)
furnished by UBIBV, VCG or any of their Affiliates, agents,
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employees, or representatives, and shall not use or disclose the information
contained in such books, records or documents for any purpose or make such
information available to any other entity or person, except that one copy of
all such information may be retained in the files of Buyer's legal department.
10.9 AMENDMENTS AND WAIVERS. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by
Buyer, Communications, Unicorn, VCG and UBIBV. Any Party hereto may, by written
notice to the other Parties, waive any provision of this Agreement. No waiver
by any Party of any default, misrepresentation, or breach of warranty or
covenant hereunder, whether intentional or not, shall be deemed to extend to
any prior or subsequent default, misrepresentation, or breach of warranty or
covenant hereunder or affect in any way any rights arising by virtue of any
prior or subsequent such occurrence.
10.10 SEVERABILITY. The provisions of this Agreement shall be deemed
severable and any term or provision of this Agreement that is invalid or
unenforceable in any situation in any jurisdiction shall not affect the
validity or enforceability of the remaining terms and provisions hereof. If any
provision of this Agreement, or the application thereof to any person or entity
or any circumstance, is invalid or unenforceable, (i) a suitable provision
shall be substituted therefor in order to carry out, so far as may be valid and
enforceable, the intent and purpose of such invalid or unenforceable provision,
and (ii) the remainder of this Agreement and the application of such provision
to other persons, entities or circumstances shall not be affected by such
invalidity or unenforceability, nor shall such invalidity or unenforceability
affect the validity or enforceability of such provision, or the application
thereof, in any other jurisdiction.
10.11 EXPENSES. Except as otherwise expressly provided in this Agreement,
whether or not the transactions contemplated by this Agreement are consummated,
each of the Parties will bear its own costs and expenses (including, but not
limited to, all compensation and expenses of counsel, financial advisors,
consultants, actuaries and independent accountants) incurred in connection with
this Agreement and the transactions contemplated hereby.
10.12 CONSTRUCTION. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the Parties and no presumption or burden of proof shall arise favoring or
disfavoring any Party by virtue of the authorship of any of the provisions of
this Agreement. Any reference to any federal, state, local, or foreign statute
or law shall be deemed also to refer to all rules and regulations promulgated
thereunder, unless the context requires otherwise. The word "including" shall
mean including without limitation. The Parties intend that each representation,
warranty, and covenant contained herein shall have independent significance. If
any Party has breached any representation, warranty, or covenant contained
herein in any respect, the fact that there exists another representation,
warranty, or covenant relating to the same subject matter (regardless of the
relative levels of specificity) which the Party has not breached shall not
detract from or mitigate the fact that the Party is in breach of the first
representation, warranty, or covenant.
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10.13 INCORPORATION OF EXHIBITS, ANNEXES, AND SCHEDULES. The Exhibits,
Annexes, and Schedules identified in this Agreement are incorporated herein by
reference and made a part hereof. References herein to "Section 4".x shall
refer to Section 4.x of Annex A.
10.14 SPECIFIC PERFORMANCE. Each of the Parties acknowledges and
agrees that the other Parties would be damaged irreparably in the event any of
the provisions of this Agreement are not performed in accordance with their
specific terms or otherwise are breached. Accordingly, each of the Parties
agrees that the other Parties shall be entitled to an injunction or injunctions
to prevent breaches, or threatened breaches, of the provisions of this
Agreement and to enforce specifically this Agreement and the terms and
provisions hereof in any action instituted in any court of the United States or
any state thereof having jurisdiction over the Parties and the matter (subject
to the provisions set forth in Section 10.15 below), in addition to any other
remedy to which they may be entitled, at law or in equity.
10.15 SUBMISSION TO JURISDICTION. IF ANY PARTY SHALL HAVE THE RIGHT TO
SEEK RECOURSE TO A COURT WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATED
TO THIS AGREEMENT OR THE TRANSACTIONS CONTAINED IN OR CONTEMPLATED BY THIS
AGREEMENT, WHETHER IN TORT OR CONTRACT OR AT LAW OR IN EQUITY, THEN ANY ACTION
OR PROCEEDING IN RESPECT OF ANY SUCH DISPUTE SHALL BE BROUGHT EXCLUSIVELY IN
THE SUPREME COURT OF THE STATE OF NEW YORK FOR THE COUNTY OF NEW YORK (THE
"CHOSEN COURTS") AND (I) IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF
THE CHOSEN COURTS FOR SUCH PURPOSES, (II) WAIVES ANY OBJECTION TO LAYING VENUE
IN ANY SUCH ACTION OR PROCEEDING IN THE CHOSEN COURTS, (III) WAIVES ANY
OBJECTION THAT THE CHOSEN COURTS ARE AN INCONVENIENT FORUM OR DO NOT HAVE
JURISDICTION OVER ANY PARTY HERETO AND (IV) AGREES THAT SERVICE OF PROCESS UPON
SUCH PARTY IN ANY SUCH ACTION OR PROCEEDING SHALL BE EFFECTIVE IF NOTICE IS
GIVEN IN ACCORDANCE WITH SECTION 10.6 OF THIS AGREEMENT. EACH PARTY AGREES THAT
A FINAL JUDGMENT IN ANY ACTION OR PROCEEDING SO BROUGHT SHALL BE CONCLUSIVE AND
MAY BE ENFORCED BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW
OR AT EQUITY. EACH PARTY ALSO AGREES NOT TO BRING ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT IN ANY OTHER COURT. EACH OF BUYER
AND COMMUNICATIONS IRREVOCABLY DESIGNATES GETTY IMAGES INC.'S NEW YORK OFFICE
AS ITS AGENT AND ATTORNEY-IN-FACT FOR THE ACCEPTANCE OF SERVICE OF PROCESS ON
ITS BEHALF IN ANY SUCH CLAIM OR PROCEEDING AND TAKING ALL SUCH ACTS AS MAY BE
NECESSARY OR APPROPRIATE IN ORDER TO CONFER JURISDICTION OVER IT UPON THE
CHOSEN COURTS AND EACH OF BUYER AND COMMUNICATIONS STIPULATES THAT SUCH CONSENT
AND APPOINTMENT IS IRREVOCABLE AND COUPLED WITH AN INTEREST. EACH OF UBIBV,
VCG AND UNICORN IRREVOCABLY DESIGNATES CT CORPORATION AS ITS AGENT AND
ATTORNEY-IN-FACT FOR THE ACCEPTANCE OF SERVICE OF
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PROCESS AND MAKING AN APPEARANCE ON ITS BEHALF IN ANY SUCH CLAIM OR PROCEEDING
AND TAKING ALL SUCH ACTS AS MAY BE NECESSARY OR APPROPRIATE IN ORDER TO CONFER
JURISDICTION OVER IT UPON THE CHOSEN COURTS AND EACH OF UBIBV, VCG AND UNICORN
STIPULATES THAT SUCH CONSENT AND APPOINTMENT IS IRREVOCABLE AND COUPLED WITH AN
INTEREST.
10.16 FULFILLMENT OF OBLIGATIONS. Any obligation of any Party to any
other Party under this Agreement, which obligation is performed, satisfied or
fulfilled by an Affiliate of such Party, shall be deemed to have been
performed, satisfied or fulfilled by such Party.
10.17 SCHEDULES. The inclusion of any matter in any schedule to this
Agreement shall be deemed to be an inclusion for all purposes of this
Agreement, including each representation and warranty to which it may relate,
but inclusion thereon shall expressly not be deemed to constitute admission by
either Party, or otherwise imply, that any such matter is material or create a
measure for materiality for the purposes of this Agreement.
10.18 DEFINITION OF "ORDINARY COURSE". For purposes of this Agreement,
the term "ordinary course" as it relates to the Business prior to the Closing
means in a manner substantially the same as that normally employed by VCG in
the ordinary course with respect to businesses it holds with a view towards
operating and maintaining such businesses rather than a view towards the sale
of such businesses to a third party.
10.19 ATTORNEY'S FEES. In any proceeding brought by any Party hereto
to enforce this Agreement, the prevailing Party shall be entitled to reasonable
attorneys' fees incurred by the prevailing Party in connection therewith, plus
court costs and experts' fees.
***************
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, UBIBV, VCG, Unicorn, Buyer and Communications have each
executed or caused this Agreement to be executed by their duly authorized
officers, as the case may be, each as of the date first above written.
GETTY IMAGES INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: CEO
GETTY COMMUNICATIONS LIMITED
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
UNITED BUSINESS INFORMATION B.V.
By:
----------------------
Name:
Title:
VISUAL COMMUNICATIONS GROUP (VCG)
B.V.
By:
----------------------
Name:
Title:
UNITED NEWS & MEDIA PLC
By:
----------------------
Name:
Title:
50
IN WITNESS WHEREOF, UBIBV, VCG, Unicorn, Buyer and Communications have each
executed or caused this Agreement to be executed by their duly authorized
officers, as the case may be, each as of the date first above written.
GETTY IMAGES INC.
By:
------------------------
Name:
Title:
GETTY COMMUNICATIONS LIMITED
By:
------------------------
Name:
Title:
UNITED BUSINESS INFORMATION B.V.
By: /s/ illegible signature
------------------------
Name:
Title:
VISUAL COMMUNICATIONS GROUP (VCG)
B.V.
By: /s/ illegible signature
------------------------
Name:
Title:
UNITED NEWS & MEDIA PLC
By: /s/ illegible signature
------------------------
Name:
Title:
51
Title:
ANNEX A
4.1 INTEREST IN RELATED ENTITIES. Except as set forth in Section 4.1 of
the Disclosure Schedule, neither nor any Affiliate of VCG (i) has any direct or
indirect interest in any person or entity which is a lessor of assets or
properties to, material supplier of, or provider of services to any Vermont
Entity, (ii) has a direct or indirect interest in or is a party to any contract
or agreement to which any Vermont Entity is a party, or (iii) owns directly or,
to the Knowledge of Seller, indirectly, any tangible or intangible property
which any Vermont Entity uses in the conduct of the Business, or (iv) has any
outstanding indebtedness to any Vermont Entity. For purposes of this Section,
any investment by VCG or any Affiliate of VCG in any company whose stock is
listed on a national securities exchange or actively traded in the
over-the-counter market, which investment represents no more than 5% of the
outstanding voting power of such company, shall be deemed not to constitute a
direct or indirect interest in such company.
4.2 ORGANIZATION; QUALIFICATION; POWER. VCG Holdings is a corporation
duly organized and validly existing and in good standing under the laws of
England and Wales. Definitive Stock is a corporation duly organized, validly
existing and in good standing under the laws of Delaware. VCGLLC is a limited
liability company duly organized, validly existing and in good standing under
the laws of Delaware. Each of the Subsidiaries of VCG Holdings, Definitive
Stock and VCGLLC is duly organized, validly existing and in good standing (with
respect to jurisdictions that recognize such concept) under the laws of its
jurisdiction of domicile. The Vermont Entities have all requisite corporate
power and authority to own, lease and operate the Assets and to carry on the
Business as it is now being conducted, except to the extent any failure to be
so empowered or authorized does not have a Material Adverse Effect. Prior to
the Closing, VCG shall have delivered to Buyer and Communications true,
complete and correct copies of the Articles of Association or other
organizational document (including all amendments thereto) and the By-Laws, as
currently in effect, of each of the Vermont Entities. Each of the Vermont
Entities is duly qualified or licensed and in good standing (with respect to
jurisdictions that recognize such a concept) to do business in each
jurisdiction in which the property owned, leased or operated by it or the
nature of the business conducted by it makes such qualification or licensing
necessary.
VCG represents and warrants that the records and minutes of the
meetings of the shareholders and the board of directors as well as the reports
of the statutory auditors of Pix SA and, where applicable, iSwoop EURL, have
been maintained in accordance with French law since the respective dates of
incorporation thereof.
Any shares of Pix SA held by Pix SA as a result of the Merger have
been acquired, held and recorded in accordance with French law governing the
merger by absorption of a company by the subsidiary thereof.
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4.3 CAPITALIZATION. All of the Vermont Shares are duly authorized,
validly issued, fully paid and non-assessable. No depository certificates of
shares in the share capital of VCG have been issued. Section 4.3 of the
Disclosure Schedule sets forth a list of all of the Vermont Entities, the
number of shares of each such entities' authorized capital stock and the number
and class of shares thereof duly issued and outstanding or, if the entity is a
limited partnership, the partnership's capital and the capital contributions
including their respective amounts. Each outstanding share of capital stock of
each of the Vermont Entities is duly authorized, validly issued fully paid and
non-assessable. The capital contributions of Vermont Entities being limited
partnerships have been duly taken over, fully paid and are non-assessable. VCG
owns all of the outstanding shares of capital stock or other equity interests
of VCG Holdings, Definitive Stock and VCGLLC, in each case free and clean of
all encumbrances. There are no pre-emptive rights, whether at law or otherwise,
to purchase any of the securities of VCG and there are no outstanding options,
warrants, subscriptions, agreements, plans or other commitments pursuant to
which any Vermont Entity is or may become obligated to sell or issue any
security.
4.4 INVESTMENTS. Except as set forth in Section 4.4 of the Disclosure
Schedule, as of the Closing Date, no Vermont Entity owns or maintains, directly
or indirectly, any capital stock or other equity or ownership or proprietary
interest in any corporation, partnership, association, trust, joint venture or
other entity.
4.5 NO VIOLATIONS. The execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby and the performance by
UBIBV and VCG of its obligations hereunder and under the agreements to be
executed and delivered pursuant hereto, do not and will not conflict with or
violate any of the terms of the Articles of Association, By-Laws or other
organizational documents of UBIBV, VCG or any Vermont Entity.
4.6 TITLE TO ASSETS; ENCUMBRANCES; DEBT. The Vermont Entities own, lease
or have the legal right to use all of the material Assets, including, without
limitation, real and personal property, presently used in the conduct of the
Business of the Vermont Entities, or which is otherwise owned, leased or used
by the Vermont Entities and, with respect to contract rights, enjoys the right
to the benefits of all material Contracts. The Vermont Entities have good and
marketable title to the Assets (except with respect to the Intellectual
Property included in such Assets, with respect to which, to the Knowledge of
Seller, the Vermont Entities have good and marketable title), free and clear of
all Encumbrances, except those specified in Section 4.6 of the Disclosure
Schedule, liens for taxes not yet due and payable, and Encumbrances that do not
in the aggregate have a Material Adverse Effect on the value or use by the
Vermont Entities of the Assets and the Intellectual Property, as currently
used. At the Closing, and following repayment of all Intercompany Debt, the
Vermont Entities shall be free of all debt of whatever kind or nature, except
for debts between the Vermont Entities, accounts payable and other liabilities
arising in the ordinary course of business.
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4.7 POSSESSION. Except as set forth in Section 4.7 of the Disclosure
Schedule, no other Person has a right of possession or, to the Knowledge of
Seller, claims possession of any material part of the Assets, except for the
rights of lessors over (a) the leased Personal Property identified in Section
4.8 of the Disclosure Schedule and (b) the leased Real Property identified in
Section 4.9 of the Disclosure Schedule.
4.8 PERSONAL PROPERTY.
(a) Set forth in Section 4.8(a) of the Disclosure Schedule is a list
of all material machinery and equipment, apparatus, motor vehicles, furniture,
furnishings and fixtures owned or leased by the Vermont Entities (the "Personal
Property").
(b) Each lease of Personal Property is valid and in full force and
effect, and none of the Vermont Entities is in default on any of their material
obligations under such leases and there is no event or condition that with the
giving of notice or the passage of time, or both, would create such a default
other than defaults that in the aggregate would not result in a Material Adverse
Effect. To the Knowledge of Seller, (i) no lessor under any of such leases is in
default of any of its obligations thereunder and (ii) there is no event or
condition that with the giving of notice or the passage of time, or both, would
create a default by any such lessor under any such lease. The Personal Property
has been maintained in good operating condition (in each case taking into
account the age of such Personal Property) a manner consistent with the ordinary
course of the Business.
4.9 REAL PROPERTY.
(a) No Owned Real Property. The Vermont Entities do not own any real
property.
(b) Leased Real Property. Section 4.9 of the Disclosure Schedule sets
forth all leases, subleases and other agreements under which any Vermont Entity
uses or occupies or has the legal right to use of occupy, now or in the future,
any real property (the "Leases").
(c) Compliance with Leases. Each of the Leases and each lease of real
property identified in Section 4.22 of the Disclosure Schedule is valid and in
full force and effect, and the Vermont Entities are not in default on any of
their obligations under such Leases and, to the Knowledge of Seller, there is no
event or condition that the giving of notice or the passage of time, or both,
would create such a default other than, in each case, defaults that in the
aggregate would not have a Material Adverse Effect. To the Knowledge of Seller,
(i) no lessor under any of such leases is in default of any of its obligations
thereunder and (ii) there is no event or condition that with the giving of
notice or the passage of time, or both, would create a default by any such
lessor under any such lease.
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(d) Pix Lease. To the extent required, the principal lessor consented
to the sublease entered into between Photographie Giraudon SA, as sub-lessee,
and Agence Generale d'Image, AGI SA, as sub-lessor, dated 1 October, 1994.
4.10 INTELLECTUAL PROPERTY.
(a) Section 4.10(a) of the Disclosure Schedule sets forth a true and
complete list of all (i) patents and patent applications, trademark and service
▇▇▇▇ registrations, trademark and service ▇▇▇▇ applications and, to the
Knowledge of Seller, all material common law trademarks and service marks,
registered copyrights and copyright applications, and Internet domain names, in
each case owned by a Vermont Entity and material to the business of the Vermont
Entities ("Listed Intellectual Property"), (ii) Software (as defined herein),
and (iii) licenses, sublicenses, and other agreements pertaining to Intellectual
Property, Software or Images (as defined herein) to which a Vermont Entity is a
party, including agreements with major Internet service providers and major
Internet portals, in each case that are material to the business of the Vermont
Entities ("Licensed Intellectual Property"). For purposes hereof, "Intellectual
Property" means any and all of the following, but excluding Images: (i) United
States, international, and foreign patents, patent applications and statutory
invention registrations, (ii) trademarks, service marks, intent to use
registrations, trade names, trade dress, slogans, logos, and Internet domain
names, including registrations and applications for registration thereof, (iii)
copyrights, including registrations and applications for registration thereof
and (iv) confidential and proprietary information. For purposes hereof, "Owned
Intellectual Property" means Listed Intellectual Property and any copyright,
confidential proprietary information including trade secrets and knowhow, owned
by a Vermont Entity and, to the Knowledge of Seller, material to the business of
the Vermont Entity, "Image" means a reproduction of any artwork, photograph,
illustration, font, video, clip art, map art, film, animation or any other type
of image. For purposes hereof, "Software" means all material computer software
developed by or on behalf of a Vermont Entity, or used by a Vermont Entity,
including all material computer software and databases operated or used by
Vermont or Bavaria on their web sites or used by Vermont or Bavaria in
connection with processing customer orders, storing customer information,
storing Image related vendor information, or storing and archiving Images. For
purposes hereof, "Approved Images" means Images used or held for use by the
Vermont Entities in connection with their business for which a Vermont Entity
has the right to grant licenses or sublicenses in writing to third parties. For
purposes hereof, "Unapproved Images" means Images used or held for use by the
Vermont Entities in connection with their business which are not Approved Images
(the Approved Images and Unapproved Images collectively being "Licensed
Images").
(b) To the Knowledge of Seller, the use of the Owned Intellectual
Property, Software, Licensed Images, and Licensed Intellectual Property by the
Vermont Entities in the ordinary course of business does not infringe upon or
misappropriate the valid Intellectual Property rights of any third party. Except
as set forth in section 4.10(b) of the Disclosure Schedule, no claim
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has been received that the use of the Owned Intellectual property, Software,
Licensed Images, or Licensed Intellectual Property in the ordinary course of
business does or may infringe upon or misappropriate the Intellectual Property
rights, right of privacy or right of publicity of any third party.
(c) The Vermont Entities are the owner of the entire and unencumbered
right, title and interest in and to each item of Owned Intellectual Property,
and the Vermont Entities are entitled to use the Owned Intellectual Property in
the ordinary day-to-day conduct of business.
(d) The Owned Intellectual Property and the Licensed Intellectual Property
include all of the material Intellectual Property and Software used in the
ordinary day-to-day conduct of the business of the Vermont Entities, and there
are no other items of Intellectual Property or Software that are material to
such ordinary day-to-day conduct of such business. Except as set forth in
Section 4.10(d) of the Disclosure Schedule, to the Knowledge of Seller, the
Owned Intellectual Property and Licensed Intellectual Property, is not subject
to any claim or challenge in relation to subsistence, validity or
enforceability and has not been adjudged invalid or unenforceable in whole or
part and, to the actual knowledge of VCG, the Listed Intellectual Property is
subsisting, valid and enforceable.
(e) Except as set forth in Section 4.10(e) of the Disclosure Schedule, no
claims have been made, asserted, are pending, or, to the Knowledge of Seller,
threatened against a Vermont Entity, and no international agent licensee of the
Owned Intellectual Property or end user of the Owned or Licensed Intellectual
Property has informed VCG that any claims have been made, asserted, are pending
or threatened against a Vermont Entity, (i) based upon or challenging or
seeking to deny or restrict the use, license, sublicense, distribution,
display, copying, performance, marketing or creation of derivative works by a
Vermont Entity of any of the Owned Intellectual Property or Licensed
Intellectual property, (ii) alleging that any services provided by, processes
used by, licenses by, sublicenses by, distribution by, display by, copying by,
performances by, marketing by or creation of derivative works by or products
manufactured or sold by a Vermont Entity infringe upon or misappropriate any
Intellectual Property right, right of privacy or right of publicity of any
third party, or (iii) alleging that any Intellectual Property licensed under
the Licensed Intellectual property infringes upon any Intellectual Property
right of any third party or is being licensed or sublicensed in conflict with
the terms of any license or other agreement and to the Knowledge of Seller no
such claims have been made, asserted, are pending, or threatened against any
third party licensor, any licensee, or end user of the Owned Intellectual
Property.
(f) Except as set forth in Section 4.10(f) of the Disclosure Schedule, to
the Knowledge of Seller no person is engaging in any activity that infringes
upon the Owned Intellectual Property or any Intellectual Property Licensed to
the Vermont Entities under the Licensed Intellectual Property. No Vermont
Entity has granted any license or other right to any third party with respect
to the Owned Intellectual Property or Licensed Intellectual Property on a free
or 'pro
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▇▇▇▇' basis without the consent of or a license from the owner of such
Intellectual Property. The consummation of the transactions contemplated by
this Agreement will not result in the termination or material impairment of any
of the Owned Intellectual Property.
(g) VCG has delivered or made available to the Buyer correct and
complete copies of all the material licenses and sublicenses of the Licensed
Intellectual Property (excluding for such purposes all Images included therein)
including all amendments thereto, and all current standard forms of all model
and property releases which are in the custody, or under the control, of VCG
and the Vermont Entities. With respect to each such material license and
sublicense:
(i) such license or sublicense is valid and binding and in
full force and effect with respect to the Vermont Entities and, to the knowledge
of VCG, with respect to the relevant counterparty and represents the entire
agreement between the respective licensor and licensee with respect to the
subject matter of such license or sublicense;
(ii) such license or sublicense will not cease to be valid
and binding and in full force and effect on terms identical to those currently
in effect as a result of the consummation of the transaction contemplated by
this Agreement, nor will the consummation of the transactions contemplated by
this Agreement constitute a breach or default under such license or sublicense
or otherwise give the licensor or sublicensor other than a Vermont Entity a
right to terminate such license or sublicense;
(iii) Except as set forth in Section 4.10 of the Disclosure
Schedule, (A) no Vermont Entity has received any notice of termination or
cancellation under such license or sublicense, (B) no Vermont Entity has
received any notice of a breach or default under such license or sublicense,
which breach has not been cured, and (C) to the Knowledge of Seller no Vermont
Entity has granted to any other third party any rights, adverse or otherwise,
under such license or sublicense that would constitute a breach of such license
or sublicense; and
(iv) no Vermont Entity, nor, to the Knowledge of Seller, any
other party to such license or sublicense is in breach or default in any
material respect, and, to the Knowledge of Seller, no event has occurred that,
with notice or lapse of time would constitute such a breach or default or
permit termination, modification or acceleration under such license or
sublicense.
(h) To the Knowledge of Seller, the Software is as of the Closing
Date free of all viruses, worms, trojan horses and other material known
contaminants, and does not contain any bugs, errors, or problems in each case
which is of a material nature that disrupts its operation or have
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an adverse impact on the operation of other software programs or operating
systems. The Vermont Entities do not import or export from the United States any
Software. No rights in the Software have been transferred to any third party
except to the customers of a Vermont Entity to whom a Vermont Entity licensed
such Software in the ordinary course of business.
(i) The Vermont Entities have the right to use all software
development tools, library functions, compilers, and other third party software
that is material to the business of the Vermont Entities, or that is required to
operate or modify the Software in a manner necessary for the ongoing operation
of the business. The Software which the Vermont Entities purport to own was
either developed (i) by employees of the Vermont Entities within the scope of
their employment; (ii) by independent contractors who have assigned their
rights to the Vermont Entities pursuant to enforceable written agreements; or
(iii) has otherwise been rightfully assigned. The source code for such Software
is maintained on the premises of the Vermont Entities and can be compiled from
the associated source code without undue burden. The Vermont Entities have
copies of all material documentation which exists relating to use, maintenance
and operation of such Software used in the conduct of the Business.
(j) The Vermont Entities have taken reasonable steps in accordance
with normal industry practice to maintain the confidentiality of their trade
secrets and other confidential Intellectual Property. To the Knowledge of
Seller: (i) there has been no misappropriation of any material trade secrets or
other material confidential Intellectual Property of any Vermont Entity by any
person, (ii) no employee, independent contractor or agent of any Vermont Entity
has misappropriated any material trade secrets of any other person in the course
of such performance as any employee, independent contractor or agent and (iii)
no Employee, independent contractor or agent of any Vermont Entity is in
material default or breach of any term of any employment agreement,
non-disclosure agreement, assignment of proprietary rights agreement or similar
agreement or contract relating in any way to the protection, ownership,
development, use or transfer of Owned or Licensed Intellectual Property.
(k) To the Knowledge of Seller, the Internal MIS Systems are Euro
Compliant. For purposes hereof, "Internal MIS Systems" means any computer
software and systems (including hardware, firmware, operating system software,
utilities and applications software) used in the ordinary course of the Business
that process financial information and that are material to the operation of the
Business, including, where applicable, payroll, accounting, billing/receivables,
purchasing payables, inventory, asset tracking, customer service, and human
resources. For purposes hereof, "Euro Compliant" means that the Internal MIS
Systems will record, store, process and present currency denominated in Euros,
in the same manner, and with the same functionality, as the Internal MIS Systems
record, store, process and present currencies denominated in U.S. Dollars and
major European currencies.
(l) The Vermont Entities have obtained the necessary permissions from
the
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appropriate parties for links on its web sites to third party web sites and to
use third party marks in association with those links.
(m) To the Knowledge of the Seller, the Vermont Entities have obtained
all necessary releases and permissions in writing for the use of any artists'
name, biography, likeness, and Image used in marketing and advertising materials
distributed by the Vermont Entities. Except as set forth in Section 4.10(m) of
the Disclosure Schedule, the Vermont Entities' registered trademarks and service
marks as listed at Section 4.10(a) of the Disclosure Schedule have been duly
registered with, filed in or issued by, as the case may be, the United States
Patent and Tradesman Office or such other domestic or foreign office of
appropriate jurisdiction, and such registrations, filings, issuances and other
actions remain in full force and effect, are current and unexpired.
(n) Except for public domain imagery as set forth in Section 4.10(n)
of the Disclosure Schedule, the Vermont Entities validly own or license all
Images used or held for use by a Vermont Entity which are material to the
operation of the business of any Vermont Entity as currently conducted. With
respect to each Image owned by a Vermont Entity ("Owned Images"), the Vermont
Entity, as applicable, has the right to display, reproduce, distribute, sell,
market, perform, advertise, bundle with other derivative works, create
derivative works, license and sublicense the use of such Image to the extent
required for the continued day-to-day operation of the business in a manner
consistent with past practices. The Owned Images and Licensed Images include all
of the Images used or held for use by the Vermont Entities which are material to
the day-to-day operation of the business as currently conducted. With respect to
the public domain Images offered by the Vermont Entities, each Image, to the
Knowledge of Seller, does not require a license or the payment of a fee for the
Vermont Entities' use in a manner consistent with past practice. Without
prejudice to the generality of the foregoing, nothing in this Section shall be
deemed to be construed as a representation or warranty with respect to the
Licensor's ownership or license of Images.
(o) To the Knowledge of Seller, (a) no Vermont Entity has granted any
license, sublicense or other right to any other person with respect to any
Unapproved Images (b) no Vermont Entity has granted any license, sublicense or
other right to any other person with respect to any Approved Image that would
constitute a breach of any agreement or license pertaining to such Approved
Image, and (c) except as disclosed at Section 4.10 of the Disclosure Schedule no
Vermont Entity has granted any license, sublicense or other right to any other
person with respect to any Approved Image for which such Vermont Entity has no
model or property release where such license, sub-license or other right would
constitute a breach of a third party's rights without such model or property
release.
(p) To the Knowledge of Seller, (a) the display, sale, marketing,
distribution, bundling with other works, creation of derivative works, copying,
marketing, performance and advertising of the Licensed Images, and the licensing
and sublicensing of Approved Images as done, authorized or agreed to by the
Vermont Entities does not infringe upon the Intellectual Property
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right, right of publicity, or right of privacy of any third party, and (b) the
display, sale marketing, performance, distribution, bundling with other works,
creation of derivative works, copying and advertising of the Licensed Images,
and the licensing and sublicensing of Approved Images, as done, authorized or
agreed to by the Vermont Entities does not constitute a breach of any agreement
or license to which a Vermont Entity is a party.
(q) Except as set forth in Section 4.10(q) of the Disclosure Schedule, no
claims have been made, asserted, are pending, or to the Knowledge of Seller
threatened, against any Vermont Entity, and no international agent licensee of
the Licensed Images or end user of the Licensed Images has informed VCG that any
claims have been made, asserted, are pending or threatened against a Vermont
Entity, (i) based upon or challenging or seeking to deny or restrict the
display, sale, marketing, performance, distribution, bundling with other works,
creation of derivative works, copying, advertising, licensing or sublicensing by
any Vermont Entity of any of the Licensed Images, (ii) alleging that the sale,
reproduction, distribution, bundling with other derivative works, creation of
derivative works, copying, advertising, licensing or sublicensing of the
Licensed Images by any Vermont Entity or in accordance with the terms granted by
any Vermont Entity does or may infringe upon the Intellectual Property rights,
right of publicity, right of privacy of any third party, (iii) claiming in
respect of loss or damage to Licensed Images, (iv) claiming in respect of model
or property releases (or lack thereof) in respect of the Licensed Images, (v)
challenging the ownership of the Owned Images or the Vermont Entities' rights to
the Licensed Images, and to the Knowledge of Seller, no such claims have been
made, asserted, are pending, or threatened against any third party licensor, any
licensee, or any end user of a Licensed Images or an international agent for a
Vermont Entity. Except as set forth in Schedule 4.10(q) of the Disclosure
Schedule, no person has requested indemnification from any Vermont Entity based
on the proper use of an Owned Image or Licensed Image within the last 24 months.
(r) To the Knowledge of Seller, no person is engaging in any activity that
infringes upon the Licensed Images or upon the rights of any Vermont Entity
therein. The consummation of the transactions contemplated by this Agreement
will not result in the termination or impairment of any right of a Vermont
Entity to sell, copy, market, advertise, perform, bundle with other works,
create derivative works of, distribute or sublicense any of the Licensed Images.
(s) To the Knowledge of Seller, except as set forth in Section 4.10(s) of
the Disclosure Schedule, each of the Vermont Entities has, prior to any
display, bundling, marketing, performance, advertisement, sale, reproduction,
distribution or sublicensing of any Licensed Image, obtained in writing all
such releases and/or other third party consents or authorizations required by
law for such display, bundling, marketing, performance, advertisement, sale,
reproduction, distribution or sublicensing, or taken reasonable steps to ensure
that such releases, consents or authorizations have been given. Except as set
forth in Schedule 4.10(s) of the Disclosure Schedule the Vermont Entities have
not entered into any contract under which a Vermont Entity has assumed any
obligation for the storage and handling of Images outside of the ordinary
course of business.
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(t) With respect to each material license or agreement by which Vermont or
Bavaria has obtained the right to display, perform, advertise, market, sell,
reproduce, distribute, bundle with other derivative works, create derivative
works, market copy, license or sublicense the Licensed Images or by which
Vermont or Bavaria has granted to any third party the right to display, sell,
reproduce, perform or distribute any Licensed Images:
(i) such license or agreement is legal, valid, binding and
enforceable and in full force and effect with respect to the Vermont
Entities and, to the Knowledge of Seller, with respect to the relevant
counterparty and represents the entire agreement between the parties
thereto with respect to the subject matter thereof;
(ii) such license or agreement will not cease to be legal, valid,
binding and enforceable and in full force and effect on terms identical to
those currently in effect as a result of the consummation of the
transactions contemplated by this Agreement, nor will the consummation of
the transactions contemplated by this Agreement constitute a breach or
default under such license or agreement, or otherwise give any party
thereto a right to terminate such license or agreement;
(iii) except as set out in Section 4.10 of the Disclosure Schedule,
with respect to each such license or agreement, (A) no Vermont Entity has
received any notice of termination or cancellation under such license or
agreement, and no party thereto has any right of termination or
cancellation thereunder except in accordance with its terms (B) no Vermont
Entity has received any notice of a breach or default under such license or
agreement which breach or default has not been cured, and (C) to the
Knowledge of Seller no Vermont Entity has granted to any other person any
rights, adverse or otherwise, under such license or agreement that would
constitute a breach of such licence or agreement; and
(iv) none of the Vermont Entities nor, to the Knowledge of Seller,
any other party to such license or agreement, is in breach or default
thereof in any material respect, and, to the Knowledge of Seller, no event
has occurred that, with notice or lapse of time would constitute such a
breach or default or permit termination, modification or acceleration under
such license or agreement.
(u) No Vermont Entity has granted to any Person the right to distribute or
sell the Licensed Images except in the ordinary course of business.
(v) Section 4.10(v) of the Disclosure Schedule identifies each material
contract between a Vermont Entity and a photographer or other content provider
to a Vermont Entity that has been terminated or revoked since January 1, 1998
that involves the display, reproduction, distribution, creation of derivative
works, bundling with other works, licensing or sublicensing the use of any Image
owned or controlled by such third party.
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(w) All publicly and freely available electronic versions of Owned
Images and Licensed Images with a resolution level at or above "comping
resolution" distributed or made available by the Vermont Entities on a web
site, contain watermarks or similar protection mechanisms advertising or
marketing material.
4.11 ENVIRONMENTAL PROTECTION.
(a) Except as set forth in Section 4.11 of the Disclosure Schedule:
(i) no notice, notification, demand, request for information,
citation, summons or order has been received by, no complaint has been
filed against, no penalty has been assessed against, and no investigation,
action, claim, suit, proceeding or review is pending or, to the Knowledge
of Seller, threatened, by any person or Governmental Authority against, any
Vermont Entity with respect to any matters relating to or arising out of
any Environmental Law which, individually or in the aggregate, would have a
Material Adverse Effect;
(ii) to the Knowledge of Seller, no Hazardous Substance has been
discharged, disposed of, dumped, injected, pumped, deposited, spilled,
leaked, emitted or released at, on or under any property now or previously
owned, leased or operated by any Vermont Entity which circumstance,
individually or in the aggregate, would have a Material Adverse Effect; and
(iii) there are no Environmental Liabilities that, individually or
in the aggregate, have had or would have a Material Adverse Effect.
(b) For purposes of this Section, the following terms shall have the
meanings set forth below:
(i) "Vermont Entity" shall include any entity which is, in whole
or in part, a predecessor of any Vermont Entity;
(ii) "Environmental Laws" means any and all federal, state, local
and foreign law (including common law), treaty, judicial decision,
regulation, rule, judgment, order, decree, injunction, permit, or
governmental restrictions or any agreement with any Governmental Authority
or other third party, relating to human health and safety, the environment
or to pollutants, contaminants, wastes or chemicals or toxic, radioactive,
ignitable, corrosive, reactive or otherwise hazardous substances, wastes or
materials, in each case to the extent in effect on February 27, 2000;
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(iii) "Environmental Liabilities" means any and all liabilities of or
relating to the Vermont Entities of any kind whatsoever, whether accrued,
contingent, absolute, determined, determinable or otherwise, which (A) have
arisen under or relate to matters covered by Environmental Laws and (B)
have arisen from actions occurring or conditions existing on or prior to
the Closing; and
(iv) "Hazardous Substances" means any pollutant, contaminant, waste or
chemical or any toxic, radioactive, corrosive, reactive or otherwise
hazardous substance, waste or material, or any substance having any
constituent elements displaying any of the foregoing characteristics,
including, without limitation, petroleum, its derivatives, by-products and
other hydrocarbons, or any substance, waste or material regulated under any
Environmental Laws.
4.12 FINANCIAL STATEMENTS. VCG has previously furnished Buyer with a true
and complete copy of the audited consolidated balance sheets of VCG as of
December 31, 1999 and the related audited statements of income for the fiscal
year then ended including the notes thereto (the "Audited Vermont Financial
Statements"). Subject to the elimination of transactions and balances between
the Vermont Entities, the Audited Vermont Financial Statements present fairly in
all material respects the financial position of the Vermont Entities results of
operations and changes in financial position and the income of the Business for
the period ended on the date thereof in conformity with generally accepted
accounting principles in the United Kingdom, applied on a consistent basis.
There are no debts, liabilities or obligations of any kind, whether accrued or
fixed, absolute or contingent, matured or unmatured or determined or
determinable, to the extent required by GAAP to be reflected on financial
statements ("Liabilities") of any Vermont Entity, other than Liabilities (i)
reflected or reserved against on the Audited Vermont Financial Statements or
(ii) incurred in the ordinary course of business, consistent with the past
practices of the Vermont Entities, since December 31, 1999, provided, however,
that to the extent any such Liabilities exist, they shall be offset against any
assets reflected on the Audited Vermont Financial Statements which are later
determined to have a greater value than as reflected thereon.
4.13 ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as set forth in Section
4.13 of the Disclosure Schedule, since the date of the Audited Vermont Financial
Statements there has not been any event, change or effect which has had or would
reasonably be expected to have a Material Adverse Effect in the financial
condition, properties, business, results of operations or, to the Knowledge of
Seller, prospects of the Vermont Entities taken as a whole. None of the Vermont
Entities are currently in default on any installment or installments on
indebtedness for borrowed money, or on any rental payment on any long-term
lease.
4.14 ABSENCE OF CHANGES. Except as set forth in Section 4.14 of the
Disclosure Schedule, since the date of the Audited Vermont Financial Statements,
the Business has been operated in the ordinary course, and there has not been
incurred, nor has there occurred:
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(a) Any material damage, destruction or loss (whether or not covered by
insurance), adversely affecting the Business or any of the material Assets;
(b) Any issuance, declaration, setting aside or payment of any dividend or
other distribution of cash or property on any of the capital stock of any
Vermont Entity, or any direct or indirect redemption, purchase or other
acquisition of any shares of capital stock of any Vermont Entity or any
agreement or commitment by any Vermont Entity to do so;
(c) Any strikes, work stoppages or other material labor disputes involving
any Employees;
(d) Any sale, transfer or other disposition of any of the Assets, except
for sales made in the ordinary course of business;
(e) Any amendment, termination, waiver or cancellation of any Material
Agreement included in the Assets, or of any right or claim thereunder;
(f) Any (i) general uniform increase in the compensation of the Employees
of the Vermont Entities (including, without limitation, any increase pursuant to
any bonus, pension, profit sharing or other plan or commitment), other than in
the ordinary course of business and consistent with past practice, (ii) increase
in any compensation payable by any Vermont Entity to any officer, director,
Employee, consultant or agent of any Vermont Entity, other than in the ordinary
course of business and consistent with past practice, (iii) loan or commitment
therefor made by any Vermont Entity to any officer, director, stockholder,
Employee, consultant or agent of a Vermont Entity, (iv) grant of any severance
or termination pay to any director, officer or Employee of any Vermont Entity,
or (v) entering into any employment, deferred compensation or other similar
agreement (or any amendment to any such existing agreement) with any director,
officer or Employee or any Vermont Entity.
(g) Any change in the accounting methods, procedures or practices followed
by the Vermont Entities;
(h) Any material change in policies, operations or practices of the Vermont
Entities, including, without limitation, with respect to selling methods,
returns, discounts or other terms of sale, as well as payments of liabilities;
(i) Any sales contracts or commitments which will be materially in excess
of the capacity of the Vermont Entities as of the Closing Date;
(j) Any purchase contracts or commitments materially in excess of the
requirements of the Business in the ordinary course;
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(k) Except as contemplated by clause (i) of Section 5.8 hereof, any
capital appropriation, expenditure or commitment therefor by the Vermont
Entities;
(l) Except as contemplated by clauses (ii) and (iii) of Section 5.8
hereof and except with respect to the Severance Plans, any material change in
policies, operations or practices of the Vermont Entities concerning the
Employees thereof, including, without limitation, with respect to any Employee
fringe Benefit Plans;
(m) Any event, occurrence or development within the control of VCG
and the Vermont Entities which has, or would reasonably be expected to have a
Material Adverse Effect;
(n) Any creation or assumption by any Vermont Entity of any
Encumbrance on any Asset other than in the ordinary course of business,
consistent with past practice;
(o) Any making of any loan, advance or capital contribution to or
investment in any person by any Vermont Entity, involving an amount in excess of
Two Hundred Thousand Dollars ($200,000);
(p) Any making or rescission of any material express or deemed
election relating to Taxes, settlement or compromise of any material claim,
action, suit, litigation, proceeding, arbitration, investigation, audit or
controversy relating to Taxes, or except as may be required by applicable law,
made any change to any of its material methods of reporting income or
deductions for federal income tax purposes from those employed in the
preparation of its most recently filed federal and foreign income tax returns;
and
(q) Any agreement, whether in writing or otherwise, for any Vermont
Entity to take any of the actions enumerated in this Section 4.14 or any other
material action outside of the ordinary course of business.
4.15 TAX MATTERS. Except as will be disclosed not later than March 26,
2000 in a Schedule 4.15:
(a)(i) each U.S. Vermont Entity (as defined below) utilizes the
accrual method of accounting for computing its federal income Tax liability;
(ii) to the Knowledge of Seller, all Returns required to be filed by or on
behalf of any Vermont Entity have been timely filed in accordance with all
applicable laws (including allowance for extension of time to file); (iii) to
the Knowledge of Seller, such Returns are true, correct and complete in all
material respects (excluding, however, any inaccuracy the correction of which
would not cause a net Tax deficiency on such Returns); (iv) all Taxes shown on
such Returns as due and payable have been paid; (v) each Vermont Entity has
maintained with respect to transfer pricing proper intercompany agreements and
concurrent and supporting documentation as required under OECD guidelines, such
that no transfer pricing amounts will be denied as deductions in any
jurisdiction by reason of a lack of proper agreements or
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supporting documentation; (vi) there are no agreements or consents currently in
effect with any Taxing Authority for the extension or waiver of the time (A) to
file any Return or (B) for assessment or collection of any Taxes relating to the
income, properties, employees or operations of the Vermont Entities, or (C) for
the retention of records, documents or Returns; (vii) to the Knowledge of
Seller, all Taxes which the Vermont Entities are required by law to withhold or
collect have been duly withheld or collected, and have been timely paid over to
the appropriate Taxing Authority to the extent due and payable; and (viii) to
the Knowledge of the Seller, no power of attorney with respect to any Tax matter
of any Vermont Entity is currently in force.
(b) Each Vermont Entity that is a U.S. corporation (a "U.S. Vermont
Entity"), or is a non-U.S. corporation but is engaged in trade or business in
the United States, has filed all reports and has created and/or retained all
records required under Code Section 6038A with respect to its ownership by and
transactions with related parties. Each related foreign person required to
maintain records under Code Section 6038A with respect to transactions between
such Vermont Entity and the related foreign person has maintained such records.
All documents that are required to be created and/or preserved by the related
foreign person with respect to transactions with any such Vermont Entity are
either maintained in the United States, or such Vermont Entity is exempt from
the record maintenance requirements of Code Section 6038A with respect to such
transactions under Treasury Regulation Section 1.6038A-1. No such Vermont Entity
is a party to any record maintenance agreement with the Internal Revenue Service
with respect to Code Section 6038A.
(c) There is no action, suit, proceeding, investigation, audit or claim
currently pending or, to the Knowledge of Seller, threatened, regarding any
Taxes relating to the income, properties or operations of the Vermont Entities.
(d) No U.S. Vermont Entity (i) nor any Person on behalf of any U.S. Vermont
Entity has (A) executed or entered into a closing agreement pursuant to Code
Section 7121 (or any similar provision of U.S. state or local law) that is
currently in force and determines the Tax liabilities of the U.S. Vermont
Entities or (B) agreed to or is required to make any adjustments pursuant to
Code Section 481(a) by reason of a change in accounting method initiated by (or
on behalf of) any U.S. Vermont Entity, nor does VCG have knowledge that any
Taxing Authority has proposed any such adjustment or change in accounting
method, nor does any U.S. Vermont Entity have any application pending with any
Taxing Authority requesting permission for any changes in accounting methods
that relate to the business or operations of any of the U.S. Vermont Entities or
(ii) is subject to any private letter ruling of the Internal Revenue Service nor
is any request for such a ruling pending with the Internal Revenue Service.
(e)(i) No Vermont Entity has executed or entered into a binding agreement
with a non-U.S. Taxing Authority, similar to a Closing Agreement pursuant to US
Code Section 7121, that is currently in force and will determine the Tax
Liability of such Vermont Entity for any period ending after the Closing Date;
and (ii) to the Knowledge of Seller, no Vermont Entity is subject to any written
ruling addressed to it by a non-U.S. Taxing Authority, comparable to a private
letter
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ruling of the Internal Revenue Service, nor has any such ruling been requested.
(f) No Vermont Entity (i) is treated for any taxation purpose as
resident in a country other than the country of its incorporation or (ii) has
been subject to a claim by a Taxing Authority in a jurisdiction where a Vermont
Entity does not file Returns that it is or may be subject to taxation by that
jurisdiction.
(g) None of the Vermont Entities (i) has entered into any tax
sharing or similar agreement or arrangement (whether or not written and
including without limitation any arrangement under which tax losses or tax
reliefs are surrendered or claimed or agreed to be surrendered or claimed)
pursuant to which it will have any obligation to make any payments after the
Closing with respect to any period commencing after December 31, 1999, or (ii)
is liable to taxation chargeable primarily on any other company which is not a
Vermont Entity.
(h) There are no liens for any Tax on the assets of the Vermont
Entities except for taxes not yet due and payable.
(i) No Vermont Entity will be subject to a clawback of any Irish
stamp duty relief claimed under the Irish stamp duty legislation nor any
capital gains tax deferred under the Irish Taxes Acts by virtue of the entering
into and/or completion of this Agreement. To the Knowledge of Seller (limited,
however, to actual knowledge), no charge to taxation will arise on, nor will
any gain or loss otherwise be recognized by, any Vermont Entity by virtue of
the entering into and/or completion of this Agreement (excluding any charge to
taxation that would not arise, and gain or loss that would not be recognized,
but for an action of the Buyer after the Closing Date, including, without
limitation, an election under Code Section 338).
(j) To the Knowledge of Seller, each Vermont Entity is duly
registered in any country or jurisdiction where it could legally be subject to
the collection or payment of value added Tax ("VAT").
(k) Complete and correct copies of the Returns set forth in Schedule
4.15 (to be provided not later than March 26, 2000) were made available to the
Buyer and Communications prior to the date of this Agreement.
(l) There is no contract, agreement, plan or arrangement of any
Vermont Entity covering any person that, individually or collectively, will
give rise to the payment of any amount that would not be deductible by Buyer or
its Affiliates by reason of Code Sections 280G or 162(m).
(m) None of the U.S. Vermont Entities (i) is required to treat any
of their assets as owned by another person pursuant to the "safe harbor"
leasing provisions of the Code, (ii) owns assets that are "tax-exempt use
property" within the meaning of Code Section 168(h), "tax-exempt
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bond financed property" within the meaning of Code Section 168(g), "limited use
property" (as that term is defined in Rev. Proc. 76-30) or security for debt
the interest on which is tax-exempt under Code Section 103(a) or (iii) is
required to apply any of the foregoing rules under any comparable U.S. state or
local Tax provision.
(n) No (i) U.S. Vermont Entity nor any other Person on behalf of any U.S.
Vermont Entity has filed a consent pursuant to Code Section 341(f) or any
comparable foreign, state or local Tax provision or agreed to have Code Section
341(f)(2) or any comparable foreign, state or local Tax provision apply to any
disposition of a subsection (f) asset (as such term is defined in Code Section
341(f)(4)) owned by a Vermont Entity and (ii) UK Vermont Entity has acquired
any of its assets by virtue of a transfer from a group company under Section
171 of the UK Taxation of Chargeable Gains ▇▇▇ ▇▇▇▇.
(o) No claim has been made under Section 152 of the UK Taxation of
Chargeable Gains ▇▇▇ ▇▇▇▇ that affects the amount of the consideration which
would be allowable under Section 8 of such Act on a disposal of an asset by a
Vermont Entity.
(p) No Vermont Entity has at any time after April 6, 1965 repaid, redeemed
or purchased or agreed to repay, redeem or purchase, or granted an option under
which it may become liable to purchase, any shares of any class of its share
capital nor has any Vermont Entity after that date capitalized or agreed to
capitalize in the form of shares or debentures any profits or reserves of any
class or description or otherwise issued or agreed to issue any share capital
other than for the receipt of a new consideration (within the meaning of Part VI
of the UK Income and Corporation Taxes act 1988) or passed or agreed to pass any
resolution to do so.
(q) No indebtedness of any U.S. Vermont Entity is "corporate acquisition
indebtedness" within the meaning of Code Section 279(b), an "applicable high
yield discount obligation" within the meaning of Code Section 163(i) or debt on
which any portion of the interest thereon is "disqualified interest" within the
meaning of Code Section 163(h).
(r) None of the Vermont Entities is or has ever been a "United States
real property holding corporation," a "controlled foreign corporation," a
"personal holding company," a "foreign personal holding company," a "foreign
investment company," or a "passive foreign investment company," as each of
those terms is defined in the U.S. Code. None of the Vermont Entities would,
for 1999, have constituted a foreign investment company or a passive foreign
investment company had it had U.S. shareholders.
(s) None of the U.S. Vermont Entities has participated in, or cooperated
with, an "international boycott" within the meaning of Code Section 999.
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(t) Each Vermont Entity that is incorporated in Ireland or is engaged
in a trade or business in Ireland (an "Irish Vermont Entity") has (a) delivered
a notice of particulars to the Irish Revenue pursuant to Section 882 of the
Taxes Consolidation Act 1997 and (b) complied with the provisions of Chapter 8A
of the Taxes Consolidation ▇▇▇ ▇▇▇▇ in respect of all dividends paid and
distributions made.
(u) No Irish Vermont Entity (a) will be required to make any payment
under Section 411 of the Taxes Consolidation ▇▇▇ ▇▇▇▇ for the trading losses
surrendered in excess of the amount surrendered or (b) has made any disposals of
capital assets which would require Irish Revenue clearance under Section 980 of
the Taxes Consolidation ▇▇▇ ▇▇▇▇.
4.16 COMPLIANCE WITH LAWS, ETC. To the Knowledge of Seller, except with
respect to Environmental Laws, compliance with which is the subject of Section
4.11 hereof: (i) the Vermont Entities are in compliance with (A) all applicable
Laws and (B) all applicable orders, writs, judgments, injunctions, decrees and
similar commands of Governmental Authorities and all decisions and awards of any
arbitration panel or tribunal, except in each case where noncompliance would
have a Material Adverse Effect; and (ii) except as set forth in Section 4.16 of
the Disclosure Schedule, since the date of the Audited Vermont Financial
Statements, the Vermont Entities have not received any notification of any
asserted present or past failure by it to comply with such Laws or such orders,
writs, judgments, injunctions or decrees.
4.17 LITIGATION REGARDING THE VERMONT ENTITIES. Except as set forth in
Section 4.17 of the Disclosure Schedule, there are no (i) civil or criminal
actions, suits, claims, investigations or legal or administrative or
arbitration (or other binding alternative dispute resolution) proceedings
pending or, to the Knowledge of Seller, threatened against any Vermont Entity or
any of the Assets that seek damages in excess of $25,000 or which seek equitable
relief, or (ii) orders, writs, judgments, injunctions, decrees, awards or
similar commands of any Governmental Authority, or any arbitration tribunal or
panel, applicable to any Vermont Entity, except, in each case in this Section
4.17(ii), for those orders, writs, judgments, injunctions, decrees, awards or
similar commands which would not have Material Adverse Effect.
4.18 PERMITS, ETC. Set forth in Section 4.18 of the Disclosure Schedule is
a list of all material governmental licenses, permits, certificates or
inspection, other authorizations, filings and registrations which are necessary
for the Vermont Entities to own and operate the Business and Assets as presently
operated in all material respects (collectively, the "Authorizations"). All the
Authorizations have been duly and lawfully secured or made by UBIBV and are in
full force and effect and the Vermont Entities are in material compliance with
all such Authorizations. There are no proceedings pending or, to the Knowledge
of Seller, threatened to revoke or limit any Authorization. None of VCG or the
Vermont Entities have received notice of any violation of any Authorization.
Except as set forth in Section 4.18 of the Disclosure Schedule, none of the
transactions contemplated by this Agreement will terminate, violate or limit the
effectiveness of any of the Authorizations. The Vermont Entities have made, in a
timely manner, all material filings,
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reports, notices and other communications with the appropriate Governmental
Authority, and have otherwise taken, in a timely manner, all other action
required to be taken by them, reasonably necessary to secure the renewal of the
Authorizations prior to the dates of their respective expirations.
4.19 EMPLOYEES; LABOR RELATIONS. (a) Except as set forth in Section 4.19
of the Disclosure Schedule (i) the Vermont Entities (A) are not delinquent in
the payment to or on behalf of any past or present Employees of the Vermont
Entities of any wages, salaries, social security premiums, commissions,
bonuses, benefit plan contributions or other compensation (including without
limitation disability compensation) for all periods prior to February 27, 2000
and (B) are not delinquent in the payment of any amount which is due and
payable to any state or state fund pursuant to any workers' compensation
statute, rules or regulations or any amount which is due and payable to any
workers' compensation claimant or any other party arising under or with respect
to a claim that has been filed under state workers' compensation statutes and
approved in the ordinary course in accordance with the policies of the Vermont
Entities regarding workers' compensation and/or any applicable state statute or
administrative procedure; (ii) there is no labor strike, slowdown or work
stoppage in progress against any Vermont Entity; (iii) no collective bargaining
agreement currently exists or is currently being negotiated by any Vermont
Entity; (iv) to the Knowledge of Seller, there has been no request to any
Vermont Entity for collective bargaining on behalf of any Employees not
represented currently by a union or from the National Labor Relations Board in
respect of any Employees of any Vermont Entity; (v) to the Knowledge of Seller,
no union representation or jurisdictional dispute or question exists respecting
any Employees of any Vermont Entity; (vi) no material dispute exists between
any Vermont Entity and any of their respective sales representatives or, to the
Knowledge of Seller, between any such sales representatives with respect to
territory, commissions, products or any other terms of their representation;
and (vii) to the Knowledge of Seller, there has been no "mass layoff" or "plant
closing" as defined by WARN with respect to any of the Vermont Entities within
the six (6) months prior to Closing.
(b) With respect to Pix SA and iSwoop EURL, and since the respective
dates of incorporation thereof, all employer contributions payable to any state
social security agency (including, without limitation, L'Union pour le
Recouvrement des cotisations de Securite Sociale et d'Allocations Familiales)
have been paid in a timely manner.
4.20 EMPLOYEE BENEFITS.
(a) Benefits Plans. Section 4.20(a) of the Disclosure Schedule lists each
employee benefit plan (within the meaning of Section 3(3) of ERISA) consulting
or other compensation agreements, incentive, equity or equity-based
compensation, severance pay, sick leave, vacation pay, salary continuation for
disability, retirement benefits scheme (within the meaning of Section 611 of
the UK Income and Corporation Taxes Act 1988 (the "Taxes Act") personal pension
scheme (within the meaning of Section 630 of the Taxes Act) pension or
superannuation arrangement stock purchase plan, stock option plan, fringe
benefit plan, bonus plan and any other deferred compensation
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agreement or plan or funding arrangement which covers any Employee immediately
prior to Closing and which is sponsored or maintained or to which contributions
are required to be made by (i) UBIBV or VCG or (ii) any other organization which
is a member of a controlled group of organizations (within the meanings of
Sections 414(b), (c), (m) or (o) of the Code) or an associated employer (within
the meaning of Section 590A(3) or (4) of the Texas Act) of which VCG is a member
(the "Controlled Group"), such plans described in this sentence being referred
to collectively as the "Benefit Plans." Except as set forth on Section 4.20(a)
of the Disclosure Schedule, there are no material employee plans, arrangements,
benefit programs or similar plans which cover Employees immediately prior to
Closing. Schedule 4.20(a) separately set forth each Benefit Plan which is a
multiemployer plan, as defined in Section 3(37) of ERISA ("Multiemployer Plan"),
or is or has been subject to Sections 4063 or 4064 of ERISA ("Multiple Employer
Plans").
(b) Documents Furnished. VCG has made available to Buyer and Communications
a current, accurate and complete copy of each Benefit Plan specified in Section
4.20(a) of the Disclosure Schedule and, to the extent applicable, copies of the
most recent:
(i) determination letter or outstanding request for a determination
letter with respect to Benefit Plans intended to be qualified under Section
401(a) of the Code or, as the case may be, Chapters I or IV Part XIV or the
Taxes Act; and
(ii) Form 5500 with respect to all Benefit Plans, as applicable, for
which separate Form 5500's are filed, with all attachments and schedules
thereto.
(c) VCG has made available to Buyer and Communications copies of all
agreements, trust deeds and rules currently governing the UK Benefit Plans
together with copies of explanatory literature issued to members of the UK
Benefit Plans and a list of the Employees who are members of the UK Benefit
Plans with all details relevant to their membership including the basis upon
which their entitlements to benefits are calculated.
(d) Except as set forth on Section 4.20(c) of the Disclosure Schedule, for
each Benefit Plan specified below, the following is true:
(i) each such Benefit Plan which is intended to qualify under Section
401(a) of the Code as the case may be, Chapters I or IV Part XIV or the
Taxes Act has received a favorable determination letter as to its
qualification under the Code or the Taxes Act, and to the Knowledge of
Seller nothing has occurred, whether by action or failure to act, which
would cause the loss of such qualification;
(ii) with respect to all Benefit Plans, there are no actions, suits or
claims (other than routine claims for benefits in the ordinary course)
pending, and to the Knowledge of Seller there are no threatened actions,
suits or claims (other than routine claims for benefits in the ordinary
course);
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(iii) each of the Benefit Plans is, and its administration is and has
been since inception, in compliance with ERISA and the Code or equivalent UK
laws and regulation, except for such failures to comply which could not
reasonably be expected to have a Material Adverse Effect on the Business;
(iv) all contributions and other payments required to be made by
UBIBV, VCG or any Vermont Entity to any Benefit Plan under the terms of such
Benefit Plan in respect of Employees for any period ending on the Closing have
been made;
(v) no employer securities, employer real property or other employer
property is included in the assets of any Benefit Plan;
(vi) no assurance, promise or guarantee (oral or written) has been
made or given to an employee who is a member of a UK Benefit Plan of any
particular kind or amount of benefits (other than insured death in service
benefits) to be provided for or in respect of him on retirement, death or
leaving service;
(vii) Buyer will not have (x) any obligation to make any contribution
to any Multiemployer Plan under which VCG or the Controlled Group had
contribution obligations prior to the Closing Date or (y) any withdrawal
liability from any such Multiemployer Plan under Section 4201 of ERISA;
(viii) there has been no "reportable event" as that term is defined
in Section 4043 of ERISA and the regulations thereunder with respect to the
Benefit Plans which would require the giving of notice or any event requiring
disclosure under Section 4041(c)(3)(C) or 4063(a) of ERISA;
(ix) none of the VCG nor the Controlled Group has terminated any
Benefit Plan, or incurred any outstanding liability under Section 4062 of ERISA
to the PBGC, or to a trustee appointed under Section 4042 of ERISA. All
premiums due to the PBGC with respect to the Benefit Plans have been paid;
(x) neither VCG nor the Controlled Group or any organization to which
UBIBV is a successor parent corporation, within the meaning of Section 4069(b)
of ERISA, has engaged in any transaction, within the meaning of Section 4069 of
ERISA; and
(xi) none of the Benefit Plans which are "welfare benefit plans"
within the meaning of Section 3(1) of ERISA provide for continuing benefits or
coverage for any participant or any beneficiary or a participant
post-termination of employment, except as may be required under the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA") or
benefits at the expense of the participant or the participant's beneficiary and
each of UBIBV and the Controlled Group which maintains a "group health plan"
within the meaning of Section 5000(b)(1)
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of the Code has complied with the notice and continuation requirements of
Section 4980B of the Code, COBRA, Part 6 of Subtitle B of Title I of ERISA and
the regulations thereunder, except for such failures to comply which could not
reasonably be expected to have a Material Adverse Effect on the Business.
(e) No Changes. Except as set forth in Section 4.20 of the
Disclosure Schedule, on or after February 27, 2000 and before the Closing, no
Benefit Plan as it affects the Employees has been, or will be (i) amended in
any manner which would materially increase the benefits accrued, or which may
be accrued, by any participating or sponsoring employer thereunder or (ii)
amended in any manner which would increase the cost to UBIBV, VCG or any
Vermont Entity, or Buyer or Communications of maintaining such Benefit Plan
except to the extent required by law.
4.21 POWERS OF ATTORNEY. On the Closing Date, there will be no persons,
firms, associations, corporations or business organizations or entities holding
general or special powers of attorney from any Vermont Entity.
4.22 AGREEMENTS, ETC. Set forth in Section 4.22 of the Disclosure Schedule
is a list of all of the following contracts, agreements, documents,
instruments, understandings or arrangements, written or oral, included in the
Assets (collectively, the "Material Agreements"):
(a) Contracts involving the expenditure of more than Two Hundred
Thousand Dollars ($200,000) in any instance for the purchase of materials,
supplies, equipment or services, specifying those which are not cancelable on
thirty (30) days notice without penalty;
(b) Collective Bargaining Agreements with labor unions;
(c) Contracts and agreements relating to the leasing (as lessor or
lessee) or to the conditional purchase or sale of any property, real, personal
or mixed in excess of Two Hundred Thousand Dollars ($200,000) per year;
(d) Indentures, mortgages, promissory notes, loan agreements,
capital leases, security agreements, or other agreements or commitments for the
borrowing of money, or the purchase of assets involving deferred payments (in
the latter case, involving payments in excess of Two Hundred Thousand Dollars
per year), or which otherwise evidence indebtedness for borrowing or which
create an Encumbrance on any of the Assets;
(e) Guarantees of the obligations of a third party or agreements to
indemnify third parties;
(f) Individual employment, severance or consulting agreements or
arrangements under which payments were in excess of Two Hundred Thousand Dollars
($200,000) during 1999 or are reasonably projected to exceed Two Hundred
Thousand Dollars ($200,000) in 2000;
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(g) Distributor, dealer, sales, advertising, agency, manufacturer's
representative, franchise or similar contracts or any other contract relating to
the payment of a commission under which payments were in excess of Two Hundred
Thousand Dollars ($200,000) during 1999 or are reasonably projected to exceed
Two Hundred Thousand Dollars ($200,000) in 2000;
(h) contracts granting a right of first refusal or first negotiation
with respect to the capital stock of any Vermont Entity;
(i) partnership or joint venture agreements with unaffiliated third
parties;
(j) agreements for the acquisition, sale or lease of material
properties or assets of any Vermont Entity since December 31, 1996 which involve
payments in excess of Two Hundred Thousand Dollars ($200,000) per year;
(k) agreements that purport to limit, curtail or restrict the ability
of any Vermont Entity to compete in any geographic area or line of business,
except for exclusive distributor or agency agreements pursuant to which a
Vermont Entity is not the distributor or agent;
(l) agreements between any Vermont Entity, on the one hand, and UBIBV
or Affiliate of UBIBV, or any officer, director or Employee of any Vermont
Entity, on the other hand;
(m) contracts or agreements with any Governmental Authority which
involve payments in excess of Two Hundred Thousand Dollars ($200,000) per year;
and
(n) agreements relating to the license, purchase, right to use or
other supply of still photographic images to any Vermont Entity which involve
payments in excess of Two Hundred Thousand Dollars ($200,000) per year.
True copies of all written Material Agreements, described on Section 4.22
of the Disclosure Schedule have been furnished to the Buyer and Communications.
Each of the Material Agreements constitutes a valid and binding obligation of
the Vermont Entity party thereto, enforceable in accordance with its terms and
is valid and in full force and effect and, except as set forth in Section 4.22
of the Disclosure Schedule, the transactions contemplated hereby will not
require the consent of any party thereto or otherwise adversely affect the
validity and effectiveness thereof. The Vermont Entities are not in default in
any material respect or alleged to be in default in any material respect under
any Material Agreement nor, to the Knowledge of Seller, is any other party to
any of the Material Agreements in default of any of its obligations thereunder.
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4.23 CERTAIN MATTERS CONCERNING PIX.
(a) Pix SA is the resultant company from the merger by absorption of
Photographie Giraudon SA by Pix SA having as its effective date January 1, 1999
(the "Merger"). VCG further represents that the Merger (in particular, any and
all assessments or valuations made in connection therewith) was effected in
compliance with applicable French law and that the Merger has been duly
consummated, with retroactive effect to January 1, 1999, and is therefore valid
and opposable to third parties. Without in any way limiting the generality of
the foregoing, prior to the Merger, the share transfer agreement between Visual
Communications Group Limited and Photographie Giraudon SA dated 30 November,
1999, was validly made and duly filed with the clerk's office of the relevant
Commercial Court in a timely manner and that, with respect to the Merger, the
following formalities were duly complied with in a timely matter:
(i) consultation of workers' councils;
(ii) draft merger agreement approved by the boards;
(iii) appointment by the Court of a merger auditor;
(iv) filing of draft merger agreement with the Commercial Court;
(v) publication in a legal newspaper;
(vi) appropriate notice to shareholders;
(vii) appropriate notice to creditors;
(viii) special report of the boards; and
(ix) special report of the merger auditor.
(b) The actual net value of the assets of Photographie Giraudon SA
transferred to Pix SA pursuant to the Merger as compared to the net value of
said assets as valued in the Merger does not require adjustment or correction
to Pix SA's share capital as presently stated.
(c) Subsequent to the Merger, Pix SA had no off-balance sheet
liabilities other than those disclosed in Section 4.23 of the Disclosure
Schedule.
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4.24 INSURANCE. Section 4.24 of the Disclosure Schedule sets forth a list
of insurance policies (including information on the premiums payable in
connection therewith and the scope and amount of the coverage provided
thereunder) maintained by any Vermont Entity, which policies have been issued
by insurers which, to the Knowledge of Seller, are reputable and financially
sound and provide coverage for the operations conducted by the Vermont Entities
of a scope and coverage consistent with customary industry practice.
4.25 ADDITIONAL REPRESENTATIONS OR WARRANTIES. Except as expressly set
forth in Section 3.1 and in Sections 4.1 through 4.24 hereof or in the
certificates, annexes, Exhibits and Schedules hereto, VCG makes no
representations or warranties to Buyer or Communications (including, without
limitation, no representations or warranties with respect to financial
projections), express or implied, and no representations or warranties by
UBIBV, VCG or Unicorn to Buyer and Communications shall be deemed to arise
hereafter except as set forth (i) in this Agreement and the documents
contemplated hereby including any certificates, annexes or schedules executed
and/or delivered at the Closing by UBIBV and VCG or (ii) in documents otherwise
delivered by UBIBV and VCG to Buyer or Communications on or after the date of
this Agreement that have been executed by UBIBV and VCG and which expressly
makes representations and warranties to Buyer and Communications.
**************
[Remainder of Page Intentionally Left Blank]
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PENSION SCHEDULE
1. In this Schedule the following words shall, unless the context otherwise
requires, have the following meanings:
"APPROVAL" approval by the Board of Inland Revenue as
an exempt approved scheme for the purposes
of Chapter 1 of Part XIV of the Income and
Corporation Taxes ▇▇▇ ▇▇▇▇;
"THE EMPLOYEE MEMBERS" those employees and directors of the
Vermont Entities who are active members of
the UNM Plans at Closing (with the
exception of those Employees who are
members of the UNM Plans for life assurance
benefits only);
"THE PENSION TRANSFER DATE" 1 June 2000 or such other date as is
agreed in writing by UBIBV and Buyer;
"THE TRANSITIONAL PERIOD" the period commencing on the day
immediately following Closing and ending
on the day immediately preceding the
Pension Transfer Date; and
"THE UNM PLANS" each of:
(a) the United Money Purchase Pension
Plan;
(b) the United Pension Plan; and
(c) the United Magazines Final Salary
Pension Scheme.
2. UBIBV and Buyer shall use their reasonable endeavors to procure the
continued participation of the Vermont Entities in the UNM Plans during
the Transitional Period for the purpose of the continued membership of
the Employee Members.
3. Buyer undertakes that during the Transitional Period the relevant
Vermont Entities will:
3.1 pay contributions determined in accordance with the Rules of the UNM
Plans to the Trustees of the UNM Plans by no later than the 14th day of
the month following that in which the relevant contributions are due;
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3.2 in respect of life assurance benefits for Employee Members of the United
Money Purchase Pension Plan and the United Pension Plan, pay contributions
equal to 0.5% of pensionable pay to the Trustees of those Plans;
3.3 in respect of Mr C Baxendale, pay to the trustees of the United Magazines
Final Salary Pension Scheme employer contributions at the rate of 13.1% and
employee contributions at the rate of 5% of his pensionable pay;
3.4 not do or omit to do any act or thing which would or might prejudice the
Approval of the UNM Plans or the contracted-out status of the United
Magazines Final Salary Pension Scheme;
3.5 cooperate with UBIBV to ensure that Mr C Baxendale continues to be in
contracted out employment in respect of the United Magazines Final Salary
Pension Scheme.
4. UBIBV undertakes that during the Transitional Period it will take no
voluntary action and shall use its reasonable endeavours to procure that no
action is taken to wind-up the UNM Plans or alter the provisions of the UNM
Plans to the detriment of the Employee Members or Buyer or the Vermont
Entities without the prior written consent of Buyer which will not be
withheld unreasonably.
5. Buyer shall arrange for those of the Employee Members who are still in the
employment of the Vermont Entities on the Pension Transfer Date to be
offered membership of a group personal pension arrangement with effect from
the Pension Transfer Date.
6. Notwithstanding that an Employee Member may not have been a member of a UNM
Plan for two years and therefore have no legal entitlement to preserved
benefits under Chapter IV of the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, the UBIBV shall
use its reasonable endeavours to procure that the trustees of the relevant
UNM Plan will treat such an Employee Member as being so entitled.
7. UBIBV hereby agrees with Buyer (contracting for itself and as trustee for
the Vermont Entities) to indemnify Buyer and the Vermont Entities against
all losses, costs, expenses, damages, liabilities, demands, claims, actions
and proceedings which may be suffered or incurred by or made or brought
against Buyer or the Vermont Entities directly or indirectly in connection
with or as a consequence of the application of section 75 of the Pensions
▇▇▇ ▇▇▇▇ and any regulations made thereunder in relation to the United
Magazines Final Salary Pension Scheme.
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