Agreement and Plan of Merger - TMP Worldwide Inc., Worldwide Classified Inc., McKelvey Enterprises Inc. and Telephone Marketing Programs Inc.
AGREEMENT AND PLAN OF MERGER
OF
TMP WORLDWIDE INC.,
WORLDWIDE CLASSIFIED INC.,
MCKELVEY ENTERPRISES, INC.
AND
TELEPHONE MARKETING PROGRAMS INCORPORATED
AGREEMENT AND PLAN OF MERGER made as of ____________ __, 1996, by and
among TMP Worldwide Inc., a Delaware corporation ("TMP"), Worldwide Classified
Inc., a Delaware corporation ("WCI"), McKelvey Enterprises, Inc., a New York
corporation ("MEI"), Telephone Marketing Programs Incorporated, a Delaware
corporation ("Newco"), and each of the stockholders set forth on Schedule I
hereto that signs this Agreement (the "Stockholders").
W I T N E S S E T H:
WHEREAS, the issued and outstanding capital stock of TMP, WCI, MEI and
Newco consists of _______ shares of common stock, par value $.01 per share, of
TMP ("TMP Common Stock"), _____ shares of common stock, par value $.01 per
share, of WCI ("WCI Common Stock"), ___ shares of common stock, par value $.001
per share, of MEI ("MEI Common Stock"), _______ shares of 10.5% Cumulative
Preferred Stock, par value $10.00 per share, of MEI ("Preferred Stock"), and 1
share of Class B common stock, par value $.001 per share, of Newco ("Newco Class
B Common Stock"), respectively;
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WHEREAS, the Stockholders own issued and outstanding shares of capital
stock of TMP, WCI, MEI and Newco;
WHEREAS, one of the Stockholders (the "Interactive Stockholder") owns
10 shares of the issued and outstanding common stock, par value $.01 per share,
of TMP Interactive Inc., a Delaware corporation ("Interactive");
WHEREAS, the Stockholders desire that (i) TMP merge with and into MEI,
(ii) WCI thereupon merge with and into MEI and (iii) MEI thereupon merge with
and into Newco (collectively, the "Mergers");
WHEREAS, the Stockholders desire that upon consummation of the
Mergers, the Interactive Stockholder exchange the 10 shares of the issued and
outstanding common stock, par value $.01 per share, of Interactive ("Interactive
Common Stock") owned by him for shares of common stock, par value $.001 per
share, of Newco (the "Exchange"); and
WHEREAS, the respective Boards of Directors of TMP, WCI, MEI and Newco
deem it advisable and in the best interests of each such corporation that the
Mergers and the Exchange be effected.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, the parties hereto agree, subject to
the terms and conditions set forth herein and in the General Corporation Law of
the State of Delaware and the Business Corporation Law of the State of New York,
as follows:
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ARTICLE I
THE MERGERS AND EXCHANGE
SECTION 1.01. THE MERGERS AND EXCHANGE. Upon the terms and subject to the
conditions set forth in this Agreement, and in accordance with the Delaware
General Corporation Law (the "GCL") and the New York Business Corporation Law
(the "BCL"), the Mergers shall occur in the following sequence at the Effective
Time (as hereinafter defined): (i) TMP shall be merged with and into MEI,
(ii) thereupon WCI shall be merged with and into MEI, and (iii) thereupon MEI
shall merge with and into Newco. Following the Mergers, the separate corporate
existence of TMP, WCI and MEI shall cease and Newco shall continue as the
surviving corporation (the "Surviving Corporation") and shall succeed to and
assume all the rights and obligations of TMP, WCI and MEI in accordance with the
GCL and the BCL. At the Effective Time, immediately following the consummation
of the Mergers, the Exchange shall occur.
SECTION 1.02. CLOSING. The closing of the Mergers and the Exchange will
take place at 10:00 a.m. on a date to be specified by TMP, WCI and MEI, which
may be on, but shall be no later than, the third business day after the day on
which there shall have been satisfaction or waiver of the conditions set forth
in Articles VIII, IX, X and XI (the "Closing Date"), at the offices of Newco,
1633 Broadway, New York, New York 10019, unless another date or place is agreed
to in writing by the parties hereto.
SECTION 1.03. EFFECTIVE TIME. On the Closing Date, or as soon as
practicable thereafter, the parties shall file certificates of merger or other
appropriate documents (in any such case, a "Certificate of Merger") executed in
accordance with the relevant provisions of the GCL and the BCL, as applicable,
and shall make all other filings or recordings required
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under the GCL and the BCL. The Mergers shall become effective at such time as
the Certificate of Merger reflecting the Merger of MEI into Newco is duly filed
with the Delaware Secretary of State or at such other time as TMP, WCI, MEI and
Newco shall agree should be specified in that Certificate of Merger (the time
the Mergers become effective being the "Effective Time").
SECTION 1.04. EFFECTS OF THE MERGER. The Mergers shall have the effects
set forth in Section 259 of the GCL and Section 906 of the BCL, as applicable.
SECTION 1.05. CERTIFICATE OF INCORPORATION AND BYLAWS.
(a) The certificate of incorporation of Newco as in effect immediately
prior to the Effective Time, as amended by this Agreement, shall be the
certificate of incorporation of the Surviving Corporation, until thereafter
changed or amended as provided therein or by applicable law. The certificate of
incorporation of Newco is hereby amended effective as of the Effective Time by
striking ARTICLE I in its entirety and replacing therefor:
"ARTICLE I
NAME
The name of the Corporation is TMP Worldwide Inc. (the
"Corporation")."
(b) The Bylaws of Newco as in effect at the Effective Time shall be the
Bylaws of the Surviving Corporation, until thereafter changed or amended as
provided therein or by law.
SECTION 1.06. DIRECTORS AND OFFICERS. The directors and officers of Newco
immediately prior to the Effective Time shall be the directors and officers of
the Surviving Corporation.
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ARTICLE II
EFFECT OF THE MERGER ON THE CAPITAL STOCK OF
TMP, WCI, MEI AND NEWCO; EXCHANGE OF CERTIFICATES; THE EXCHANGE
SECTION 2.01. EFFECT ON CAPITAL STOCK. As of the Effective Time, by
virtue of the Mergers and without any action on the part of any holder of TMP
Common Stock, WCI Common Stock, MEI Common Stock or Preferred Stock, or Newco
Class B Common Stock:
(a) CAPITAL STOCK OF TMP. As of the Effective Time, each then outstanding
share of TMP Common Stock shall automatically be converted into approximately
_____ shares of common stock, par value $.001 per share, of MEI (the shares of
MEI common stock into which outstanding shares of TMP Common Stock and WCI
Common Stock are converted, as provided for herein, are referred to herein as
the "MEI Exchange Stock"), as more specifically set forth opposite the name of
each holder of TMP Common Stock on Schedule I, and each then outstanding share
of TMP Common Stock shall thereupon be canceled and retired and no additional
consideration shall be delivered therefor. As of the Effective Time, each then
outstanding option to purchase a share of TMP Common Stock under TMP's 1996
Stock Option Plan and TMP's 1996 Stock Option Plan for Non-Employee Directors,
whether or not then exercisable, shall automatically be converted into an option
to purchase approximately ____ shares of MEI Exchange Stock on the same terms
and conditions applicable prior to the Effective Date except as otherwise
expressly provided on Schedule II, as more specifically set forth opposite the
name of each option holder on Schedule II, and each then outstanding option to
purchase shares of TMP Common Stock under TMP's 1996 Stock Option Plan and TMP's
1996 Stock Option Plan for Non-Employee Directors shall thereupon be canceled
and retired and no additional consideration shall be delivered therefor. As of
the Effective Time, the outstanding warrant of BNY Financial Corporation
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to purchase shares of TMP Common Stock granted pursuant to the Warrant Agreement
of October 13, 1993, as amended, shall automatically be converted into a warrant
to purchase shares of MEI Exchange Stock on the same terms and conditions
applicable prior to the Effective Date except as otherwise expressly provided on
Schedule II, and the outstanding warrant of BNY Financial Corporation to
purchase shares of TMP Common Stock shall thereupon be canceled and retired and
no additional consideration shall be delivered therefor. Without limiting the
effect of the Mergers or the provisions of Section 1.04 hereof, as of the
Effective Time TMP's 1996 Stock Option Plan and 1996 Stock Option Plan for Non-
Employee Directors will each by virtue of the Mergers be assumed and adopted as
a stock option plan of MEI, adjusted to reflect the numbers of shares and option
exercise prices set forth on Schedule II. Each share of capital stock of TMP
held in the treasury of TMP shall be canceled and retired and cease to exist
without any conversion thereof. No certificates representing fractional shares
of MEI common stock, par value $.001 per share, shall be issued upon any of the
foregoing conversions.
(b) CAPITAL STOCK OF WCI. Upon the conversions specified in subsection
(a) above, each then outstanding share of WCI Common Stock shall be converted
into approximately _____ shares of MEI Exchange Stock, as more specifically set
forth opposite the name of each holder of WCI Common Stock on Schedule I, and
each then outstanding share of WCI Common Stock shall thereupon be canceled and
retired and no additional consideration shall be delivered therefor. Upon the
conversions specified in subsection (a) above, each share of capital stock of
WCI held in the treasury of WCI shall be canceled and retired and cease to exist
without any conversion thereof. No certificates representing fractional shares
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of MEI common stock, par value $.001 per share, shall be issued upon any of the
foregoing conversions.
(c) CAPITAL STOCK OF MEI. Upon the conversions specified in subsections
(a) and (b) above, each then outstanding share of MEI Common Stock and MEI
Exchange Stock held and beneficially owned by persons or entities other than
Andrew J. McKelvey ("AJM") shall be converted into approximately ____ shares of
common stock, par value $.001 per share, of Newco (collectively, the "Newco
Exchange Stock"), and each then outstanding share of MEI Common Stock and MEI
Exchange Stock beneficially owned by AJM shall be converted into approximately
___ shares of Class B common stock, $.001 par value, of Newco (collectively, the
"Newco Class B Exchange Stock"), and each then outstanding share of Preferred
Stock shall be converted into approximately ____ shares of 10.5% Cumulative
Preferred Stock, par value $10.00 per share, of Newco (collectively, the "Newco
Preferred Stock"), in each case as more specifically set forth opposite the name
of each holder of MEI Common Stock and MEI Exchange Stock on Schedule I, and
each then outstanding share of MEI Common Stock, MEI Exchange Stock and
Preferred Stock shall thereupon be canceled and retired and no additional
consideration shall be delivered therefor. Upon the conversions specified in
subsections (a) and (b) above, each then outstanding option to purchase a share
of MEI Exchange Stock under TMP's 1996 Stock Option Plan and 1996 Stock Option
Plan for Non-Employee Directors resulting from the conversions specified in
subsection (a) above shall automatically be converted into an option to purchase
approximately ____ shares of Newco Exchange Stock on the same terms and
conditions applicable upon the conversions specified in subsection (a) above
except as otherwise expressly provided on Schedule II, as more specifically set
forth opposite the name of each
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option holder on Schedule II, and each then outstanding option to purchase
shares of MEI Exchange Stock under TMP's 1996 Stock Option Plan and 1996 Stock
Option Plan for Non-Employee Directors resulting from the conversions specified
in subsection (a) above shall thereupon be canceled and retired and no
additional consideration shall be delivered therefor. Upon the conversions
specified in subsections (a) and (b) above, the outstanding warrant of BNY
Financial Corporation to purchase shares of MEI Exchange Stock granted pursuant
to the Warrant Agreement of October 13, 1993, as amended, resulting from the
conversions specified in subsection (a) above shall automatically be converted
into a warrant to purchase shares of Newco Exchange Stock on the same terms and
conditions applicable upon the conversion specified in subsection (a) above
except as otherwise expressly provided on Schedule II, and the outstanding
warrant of BNY Financial Corporation to purchase shares of MEI Exchange Stock
resulting from the conversions specified in subsection (a) above shall thereupon
be canceled and retired and no additional consideration shall be delivered
therefor. Without limiting the effect of the Mergers or the provisions of
Section 1.04 hereof, TMP's 1996 Stock Option Plan and 1996 Stock Option Plan for
Non-Employee Directors will each by virtue of the Mergers be assumed and adopted
as a stock option plan of Newco, adjusted to reflect the numbers of shares and
option exercise prices set forth on Schedule II. Upon the conversions specified
in subsections (a) and (b) above, each share of capital stock of MEI held in the
treasury of MEI shall be canceled and retired and cease to exist without any
conversion thereof. No certificates representing fractional shares of common
stock, par value $.001 per share, of Newco, or of Class B common stock, par
value $.001 per share, of Newco, or of 10.5%
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Cumulative Preferred Stock, par value $10.00 per share, of Newco, shall be
issued upon any of the foregoing conversions.
(d) CAPITAL STOCK OF NEWCO. Upon the conversions specified in subsections
(a), (b) and (c) above, the 1 then outstanding share of Newco Class B Common
Stock shall remain outstanding as 1 outstanding share of Class B Common Stock of
Newco, the Surviving Corporation, as more specifically set forth on Schedule I.
(e) THE EXCHANGE. Upon the conversions specified in subsections (a), (b)
and (c) above, the 10 then outstanding shares of Interactive Common Stock shall
be exchanged by the Interactive Stockholder for the number of shares of Newco
Exchange Stock set forth opposite the name of the Interactive Stockholder on
Schedule I. The Interactive Stockholder shall deliver the certificate for the
10 shares of Interactive Common Stock owned by him duly endorsed for transfer or
accompanied by a duly executed stock power.
(f) SHARES OF DISSENTING STOCKHOLDERS. Notwithstanding anything in this
Agreement to the contrary, any issued and outstanding shares of TMP Common
Stock, WCI Common Stock, MEI Common Stock or Preferred Stock held by a person (a
"Dissenting Stockholder") who objects to the Mergers and complies with all the
provisions of Delaware law or New York law, as applicable, concerning the right
of holders of TMP Common Stock, WCI Common Stock, MEI Common Stock or Preferred
Stock to dissent from the Mergers and require appraisal of their shares of TMP
Common Stock, WCI Common Stock, MEI Common Stock or Preferred Stock ("Dissenting
Shares") shall not be converted as described in Section 2.01(a), (b) or (c), as
applicable, but shall become the right to receive such consideration as may be
determined to be due to such Dissenting Stockholder pursuant to the laws of the
State of Delaware or the State of New York, as applicable. If, after the
Effective Time, such
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Dissenting Stockholder withdraws his demand for appraisal or fails to perfect or
otherwise loses his right of appraisal, in any case pursuant to the GCL or BCL,
as applicable, his shares of TMP Common Stock, WCI Common Stock, MEI Common
Stock or Preferred Stock, as applicable, shall be deemed canceled and retired as
of the Effective Time and such Dissenting Stockholder shall receive the shares
of MEI Exchange Stock, Newco Exchange Stock, Newco Class B Exchange Stock or
Newco Preferred Stock, as applicable, set forth opposite his name on Schedule I.
If required pursuant to the terms of this Section, Newco shall take all lawful
action necessary to make the appropriate cash payments, if any, to holders of
Dissenting Shares.
SECTION 2.02. EXCHANGE OF CERTIFICATES.
(a) Newco shall act as exchange agent in connection with the Mergers and
the Exchange. At or prior to the Closing Date, holders of TMP Common Stock, WCI
Common Stock, MEI Common Stock and Preferred Stock shall have delivered
certificates representing such TMP Common Stock, WCI Common Stock, MEI Common
Stock and Preferred Stock to Newco. Upon delivery to Newco of certificates
representing TMP Common Stock and WCI Common Stock, Newco shall cancel and
retire such certificates and issue to the holders thereof the shares of MEI
Exchange Stock to which they are entitled as a result of the Mergers as
specified on Schedule I. Holders of MEI Exchange Stock shall immediately
deliver such shares to Newco. Upon delivery to Newco of certificates
representing MEI Exchange Stock, MEI Common Stock and Preferred Stock, Newco
shall cancel and retire such certificates and issue to the holders thereof the
shares of Newco Exchange Stock, Newco Class B Exchange Stock and Newco Preferred
Stock to which they are entitled as a result of the Mergers as specified on
Schedule I. Upon delivery to Newco of certificates
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representing Interactive Common Stock in accordance with Section 2.01(e), Newco
shall become the owner of those shares and shall issue to the Interactive
Stockholder the shares of Newco Exchange Stock to which he is entitled as a
result of the Exchange as specified on Schedule I.
(b) NO FURTHER OWNERSHIP RIGHTS IN STOCK. All shares of Newco Exchange
Stock, Newco Class B Exchange Stock and Newco Preferred Stock issued upon the
surrender of TMP Common Stock, WCI Common Stock, MEI Common Stock and Preferred
Stock and MEI Exchange Stock in accordance with the terms of this Article II
shall be deemed to have been issued in full satisfaction of all rights
pertaining to the shares of TMP Common Stock, WCI Common Stock, MEI Common Stock
and Preferred Stock and MEI Exchange Stock, and there shall be no further
registration of transfers on the stock transfer books of the Surviving
Corporation of the shares of TMP Common Stock, WCI Common Stock, MEI Common
Stock and Preferred Stock which were outstanding immediately prior to the
Effective Time or MEI Exchange Stock which were outstanding at the Effective
Time in accordance with this Agreement. If, after the Effective Time, TMP
Common Stock, WCI Common Stock, MEI Common Stock and Preferred Stock or MEI
Exchange Stock is presented to the Surviving Corporation or the exchange agent
for any reason, such stock shall be canceled and retired and MEI Exchange Stock,
Newco Common Stock or Newco Preferred Stock, as the case may be, shall be
exchanged as provided in this Article II, except as otherwise provided by law.
Until shares of TMP Common Stock, WCI Common Stock, MEI Common Stock and
Preferred Stock and MEI Exchange Stock are surrendered for conversion, all such
shares shall, by virtue of the Mergers, be deemed for all purposes to evidence
ownership of the number of shares of Newco Exchange Stock, Newco Class B
Exchange Stock or Newco Preferred
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Stock, as the case may be, to which the holder (or, in the case of AJM, the
beneficial owner) of TMP Common Stock, WCI Common Stock, MEI Common Stock and
Preferred Stock and MEI Exchange Stock would be entitled upon full conversion as
though all conversions applicable to those shares pursuant to the Mergers had
taken place, except as otherwise required by law. All shares of Newco Exchange
Stock issued to the Interactive Stockholder upon the surrender of the 10 shares
of Interactive Common Stock owned by him in accordance with the terms of this
Article II shall be deemed to have been issued in full satisfaction of all
rights pertaining to those shares of Interactive Common Stock. If, after the
Effective Time, all or part of the 10 shares of Interactive Common Stock owned
prior to the Effective Date by the Interactive Stockholder are presented to the
Surviving Corporation or the exchange agent or Interactive for any reason, Newco
shall become the owner of those shares and shall issue to the Interactive
Stockholder the shares of Newco Exchange Stock to which he is entitled as a
result of the Exchange as specified on Schedule I. Until the 10 shares of
Interactive Common Stock held by the Interactive Stockholder prior to the
Effective Date are surrendered for exchange, all such shares shall, by virtue of
the Exchange, be deemed for all purposes to evidence ownership of the number of
shares of Newco Exchange Stock to which the Interactive Stockholder would be
entitled upon their exchange pursuant to the Exchange.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE STOCKHOLDERS
The Stockholders hereby represent and warrant severally, and not jointly,
to TMP, WCI, MEI and Newco that:
SECTION 3.01. STOCK OWNERSHIP. Each Stockholder owns, of record and
beneficially, all of the TMP Common Stock, WCI Common Stock, MEI Common Stock
and Preferred Stock, Newco Class B Common Stock and Interactive Common Stock set
forth opposite such Stockholder's name on Schedule I.
SECTION 3.02. AUTHORITY. Each Stockholder has full capacity to enter into
this Agreement and this Agreement is a legal, valid and binding obligation of
each Stockholder and is enforceable against such Stockholder in accordance with
its terms and conditions.
SECTION 3.03. INVESTMENT INTENT. Each Stockholder understands and
acknowledges that the MEI Exchange Stock, Newco Exchange Stock, Newco Class B
Exchange Stock and Newco Preferred Stock are being offered to the Stockholders
in reliance by TMP, WCI, MEI and Newco upon the exemption provided in Section
4(2) of the Securities Act of 1933, as amended (the "Securities Act"), from the
registration requirements of the Securities Act; and each Stockholder makes the
following representations and warranties with the intent that the same may be
relied upon in determining the suitability of each Stockholder as a purchaser of
securities:
(a) MEI Exchange Stock, Newco Exchange Stock, Newco Class B Exchange Stock
and Newco Preferred Stock, as the case may be, is being acquired solely for the
account of each Stockholder, for investment purposes only, and not with a view
to, or for sale in connection with, any distribution thereof and with no present
intention of distributing or
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reselling any part of the MEI Exchange Stock, Newco Exchange Stock, Newco Class
B Exchange Stock and Newco Preferred Stock, as the case may be.
(b) Each Stockholder is knowledgeable and experienced in making and
evaluating investments of this nature and desires that the Mergers and the
Exchange be effected on the terms and conditions set forth herein.
(c) Each Stockholder is able to bear the economic risk of an investment in
the MEI Exchange Stock, Newco Exchange Stock, Newco Class B Exchange Stock and
Newco Preferred Stock, as the case may be.
(d) Each Stockholder has had the opportunity to ask questions of and
receive answers from TMP, WCI, MEI, Newco and Interactive concerning the Mergers
and the Exchange. Notwithstanding the foregoing, however, each Stockholder is
entering into this Agreement based solely on such Stockholder's evaluation of
the Mergers and the Exchange.
SECTION 3.04. LEGEND. Each Stockholder agrees that the certificates
evidencing the stock acquired pursuant to this Agreement will have a legend
placed thereon stating that the shares represented by such certificates have not
been registered under the Securities Act or any state securities laws and
setting forth or referring to the restrictions on transferability.
SECTION 3.05. INDEMNIFICATION. Each Stockholder agrees to defend and hold
TMP, WCI, MEI, Newco and each other Stockholder harmless against and in respect
of any and all claims, demands, losses, costs, expenses, obligations,
liabilities, damages, recoveries and deficiencies, including interest,
penalties, and reasonable attorney fees, that any of them shall incur or suffer,
which arise out of, result from or relate to any material breach of, or failure
by such Stockholder to perform any of its representations, warranties, covenants
and
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agreements in this Agreement or in any exhibit or other instrument furnished or
to be furnished by such Stockholder under this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF TMP
TMP represents and warrants to WCI, MEI, Newco and the Stockholders that:
SECTION 4.01. ORGANIZATION. TMP is a corporation duly organized, validly
existing, and in good standing under the laws of Delaware and has all necessary
corporate power to own its properties and to carry on its business as presently
conducted.
SECTION 4.02. CAPITAL. The authorized capital stock of TMP consists of
1,000,000 shares of common stock, par value $.01 per share, of which _______
shares are currently issued and outstanding.
SECTION 4.03. AUTHORITY. The Board of Directors of TMP has authorized the
execution of this Agreement and the transactions contemplated hereby, and TMP
has full power and authority to execute, deliver and perform this Agreement and
this Agreement is a legal, valid and binding obligation of TMP, and is
enforceable against TMP in accordance with its terms and conditions, subject to
the approval of its stockholders. TMP shall submit this Agreement to the
stockholders of TMP entitled to vote thereon in accordance with the GCL and
TMP's certificate of incorporation and bylaws.
SECTION 4.04. INDEMNIFICATION. TMP agrees to indemnify, defend and hold
WCI, MEI, Newco and the Stockholders harmless against and in respect of any and
all claims, demands, losses, costs, expenses, obligations, liabilities, damages,
recoveries and deficiencies, including interest, penalties, and reasonable
attorney fees, that any of them
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shall incur or suffer, which arise out of, result from or relate to any material
breach of, or failure by TMP to perform any of its representations, warranties,
covenants and agreements in this Agreement or in any schedule, certificate,
exhibit or other instrument furnished or to be furnished by TMP under this
Agreement.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF WCI
WCI represents and warrants to TMP, MEI, Newco and the Stockholders that:
SECTION 5.01. ORGANIZATION. WCI is a corporation duly organized, validly
existing, and in good standing under the laws of Delaware and has all necessary
corporate power to own its properties and to carry on its business as presently
conducted.
SECTION 5.02. CAPITAL. The authorized capital stock of WCI consists of
1,000,000 shares of common stock, par value $.01 per share, of which _____
shares are currently issued and outstanding.
SECTION 5.03. AUTHORITY. The Board of Directors of WCI has authorized the
execution of this Agreement and the transactions contemplated hereby, and WCI
has full power and authority to execute, deliver and perform this Agreement and
this Agreement is a legal, valid and binding obligation of WCI, and is
enforceable against WCI in accordance with its terms and conditions, subject to
the approval of its stockholders. WCI shall submit this Agreement to the
stockholders of WCI entitled to vote thereon in accordance with the GCL and
WCI's certificate of incorporation and bylaws.
SECTION 5.04. INDEMNIFICATION. WCI agrees to indemnify, defend and hold
TMP, MEI, Newco and the Stockholders harmless against and in respect of any and
all
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claims, demands, losses, costs, expenses, obligations, liabilities, damages,
recoveries and deficiencies, including interest, penalties, and reasonable
attorney fees, that any of them shall incur or suffer, which arise out of,
result from or relate to any material breach of, or failure by WCI to perform
any of its representations, warranties, covenants and agreements in this
Agreement or in any schedule, certificate, exhibit or other instrument furnished
or to be furnished by WCI under this Agreement.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF MEI
MEI represents and warrants to TMP, WCI, Newco and the Stockholders that:
SECTION 6.01. ORGANIZATION. MEI is a corporation duly organized, validly
existing, and in good standing under the laws of New York and has all necessary
corporate power to own its properties and to carry on its business as presently
conducted.
SECTION 6.02. CAPITAL. The authorized capital stock of MEI consists of
200,000 shares of 10.5% Cumulative Preferred Stock, par value $10.00 per share,
of which _____ shares are currently issued and outstanding, and 2,000,000 shares
of common stock, par value $.001 per share, of which ________ shares are
currently issued and outstanding. The MEI Exchange Stock to be issued in the
Mergers is duly authorized, validly existing and, upon issuance in accordance
with the terms of this Agreement, will be fully paid and nonassessable.
SECTION 6.03. AUTHORITY. The Board of Directors of MEI has authorized the
execution of this Agreement and the transactions contemplated hereby, and MEI
has full power and authority to execute, deliver and perform this Agreement and
this Agreement is
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a legal, valid and binding obligation of MEI, and is enforceable against MEI in
accordance with its terms and conditions, subject to the approval of its
stockholders. MEI shall submit this Agreement to the stockholders of MEI
entitled to vote thereon in accordance with the BCL and MEI's certificate of
incorporation and bylaws.
SECTION 6.04. INDEMNIFICATION. MEI agrees to indemnify, defend and hold
TMP, WCI, Newco and the Stockholders harmless against and in respect of any and
all claims, demands, losses, costs, expenses, obligations, liabilities, damages,
recoveries and deficiencies, including interest, penalties, and reasonable
attorney fees, that any of them shall incur or suffer, which arise out of,
result from or relate to any material breach of, or failure by MEI to perform
any of its representations, warranties, covenants and agreements in this
Agreement or in any schedule, certificate, exhibit or other instrument furnished
or to be furnished by MEI under this Agreement.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF NEWCO
Newco represents and warrants to TMP, WCI, MEI and the Stockholders that:
SECTION 7.01. ORGANIZATION. Newco is a corporation duly organized,
validly existing, and in good standing under the laws of Delaware and has all
necessary corporate power to own its properties and to carry on its business as
presently conducted.
SECTION 7.02. CAPITAL. The authorized capital stock of Newco consists of
200,000,000 shares of common stock, par value $.001 per share, no shares of
which are currently issued and outstanding, 39,000,000 shares of Class B common
stock, par value $.001 per share, of which one share is currently issued and
outstanding, 200,000 shares of
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10.5% Cumulative Preferred Stock, par value $10.00 per share, no shares of which
are currently issued and outstanding, and 800,000 shares of preferred stock, par
value $.001 per share, no shares of which are currently issued and outstanding.
The Newco Exchange Stock, the Newco Class B Exchange Stock and the Newco
Preferred Stock to be issued in the Mergers are duly authorized, validly
existing and, upon issuance in accordance with the terms of this Agreement, will
be fully paid and nonassessable.
SECTION 7.03. AUTHORITY. The Board of Directors of Newco has authorized
the execution of this Agreement and the transactions contemplated hereby, and
Newco has full power and authority to execute, deliver and perform this
Agreement and this Agreement is a legal, valid and binding obligation of Newco,
and is enforceable against Newco in accordance with its terms and conditions,
subject to the approval of its stockholders. Newco shall submit this Agreement
to the stockholders of Newco entitled to vote thereon in accordance with the GCL
and Newco's certificate of incorporation and bylaws.
SECTION 7.04. INDEMNIFICATION. Newco agrees to indemnify, defend and hold
TMP, WCI, MEI and the Stockholders harmless against and in respect of any and
all claims, demands, losses, costs, expenses, obligations, liabilities, damages,
recoveries and deficiencies, including interest, penalties, and reasonable
attorney fees, that any of them shall incur or suffer, which arise out of,
result from or relate to any material breach of, or failure by Newco to perform
any of its representations, warranties, covenants and agreements in this
Agreement or in any schedule, certificate, exhibit or other instrument furnished
or to be furnished by Newco under this Agreement.
ARTICLE VIII
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CONDITIONS PRECEDENT TO TMP'S PERFORMANCE
SECTION 8.01. CONDITIONS. TMP's obligations hereunder shall be subject to
the satisfaction, on or before the Closing Date, of all the conditions set forth
in this Article VIII. TMP may waive any or all of these conditions in whole or
in part without prior notice; provided, however, that no such waiver of a
condition shall constitute a waiver by TMP of any other condition of or any of
TMP's other rights or remedies, at law or in equity, if WCI, MEI, Newco or the
Stockholders shall be in default of any of their respective representations,
warranties or covenants under this Agreement.
SECTION 8.02. ACCURACY OF REPRESENTATIONS. Except as otherwise permitted
by this Agreement, all representations and warranties by WCI, MEI, Newco and the
Stockholders in this Agreement or in any written statement that shall be
delivered to TMP by WCI, MEI, Newco or the Stockholders under this Agreement
shall be true and accurate on and as of the Closing Date as though made at that
time.
SECTION 8.03. PERFORMANCE. WCI, MEI, Newco and the Stockholders shall
have performed, satisfied and complied with all covenants, agreements and
conditions required by this Agreement to be performed or complied with by them,
on or before the Closing Date.
SECTION 8.04. ABSENCE OF LITIGATION. No action, suit or proceeding before
any court or any governmental body or authority, pertaining to the transactions
contemplated by this Agreement or to their consummation, shall have been
instituted or threatened against WCI, MEI, Newco or the Stockholders (or any of
them) on or before the Closing Date.
Section 8.05. STOCKHOLDER APPROVAL. The stockholders of each of TMP, WCI,
MEI and Newco shall have duly approved and adopted this Agreement by the
votes or
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consents of stockholders, if any, required by the applicable provisions of
the GCL or BCL, as the case may be.
SECTION 8.06. CLOSING CERTIFICATE. Each of WCI, MEI, Newco and each
Stockholder shall have delivered to TMP a certificate, dated the Closing Date,
certifying that each of the conditions specified in Sections 8.02, 8.03, 8.04
and 8.05 hereof have been fulfilled.
ARTICLE IX
CONDITIONS PRECEDENT TO WCI'S PERFORMANCE
SECTION 9.01. CONDITIONS. WCI's obligations hereunder shall be subject to
the satisfaction, on or before the Closing Date, of all the conditions set forth
in this Article IX. WCI may waive any or all of these conditions in whole or in
part without prior notice; provided, however, that no such waiver of a condition
shall constitute a waiver by WCI of any other condition of or any of WCI's other
rights or remedies, at law or in equity, if TMP, MEI, Newco or the Stockholders
shall be in default of any of their respective representations, warranties or
covenants under this Agreement.
SECTION 9.02. ACCURACY OF REPRESENTATIONS. Except as otherwise permitted
by this Agreement, all representations and warranties by TMP, MEI, Newco and the
Stockholders in this Agreement or in any written statement that shall be
delivered to WCI by TMP, MEI, Newco or the Stockholders under this Agreement
shall be true and accurate on and as of the Closing Date as though made at that
time.
SECTION 9.03. PERFORMANCE. TMP, MEI, Newco and the Stockholders shall
have performed, satisfied and complied with all covenants, agreements and
conditions required
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by this Agreement to be performed or complied with by them, on or before the
Closing Date.
SECTION 9.04. ABSENCE OF LITIGATION. No action, suit or proceeding before
any court or any governmental body or authority, pertaining to the transactions
contemplated by this Agreement or to their consummation, shall have been
instituted or threatened against TMP, MEI, Newco or the Stockholders (or any of
them) on or before the Closing Date.
SECTION 9.05. STOCKHOLDER APPROVAL. The stockholders of each of TMP, WCI,
MEI and Newco shall have duly approved and adopted this Agreement by the votes
or consents of stockholders, if any, required by the applicable provisions of
the GCL or BCL, as the case may be.
SECTION 9.06. CLOSING CERTIFICATE. Each of TMP, MEI, Newco and each
Stockholder shall have delivered to WCI a certificate, dated the Closing Date,
certifying that each of the conditions specified in Sections 9.02, 9.03, 9.04
and 9.05 hereof have been fulfilled.
ARTICLE X
CONDITIONS PRECEDENT TO MEI'S PERFORMANCE
SECTION 10.01. CONDITIONS. MEI's obligations hereunder shall be subject
to the satisfaction, on or before the Closing Date, of all the conditions set
forth in this Article X. MEI may waive any or all of these conditions in whole
or in part without prior notice; provided, however, that no such waiver of a
condition shall constitute a waiver by MEI of any other condition of or any of
MEI's other rights or remedies, at law or in equity, if TMP,
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WCI, Newco or the Stockholders shall be in default of any of their respective
representations, warranties or covenants under this Agreement.
SECTION 10.02. ACCURACY OF REPRESENTATIONS. Except as otherwise
permitted by this Agreement, all representations and warranties by TMP, WCI,
Newco and the Stockholders in this Agreement or in any written statement that
shall be delivered to MEI by TMP, WCI, Newco or the Stockholders under this
Agreement shall be true and accurate on and as of the Closing Date as though
made at that time.
SECTION 10.03. PERFORMANCE. TMP, WCI, Newco and the Stockholders shall
have performed, satisfied and complied with all covenants, agreements and
conditions required by this Agreement to be performed or complied with by them,
on or before the Closing Date.
SECTION 10.04. ABSENCE OF LITIGATION. No action, suit or proceeding
before any court or any governmental body or authority, pertaining to the
transactions contemplated by this Agreement or to their consummation, shall
have been instituted or threatened against TMP, WCI, Newco or the Stockholders
(or any of them) on or before the Closing Date.
SECTION 10.05. STOCKHOLDER APPROVAL. The stockholders of each of TMP,
WCI, MEI and Newco shall have duly approved and adopted this Agreement by the
votes or consents of stockholders, if any, required by the applicable
provisions of the GCL or BCL, as the case may be.
SECTION 10.06. CLOSING CERTIFICATE. Each of TMP, WCI, Newco and each
Stockholder shall have delivered to MEI a certificate, dated the Closing Date,
certifying that each of the conditions specified in Sections 10.02, 10.03, 10.04
and 10.05 hereof have been fulfilled.
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ARTICLE XI
CONDITIONS PRECEDENT TO NEWCO'S PERFORMANCE
SECTION 11.01. CONDITIONS. Newco's obligations hereunder shall be subject
to the satisfaction, on or before the Closing Date, of all the conditions set
forth in this Article XI. Newco may waive any or all of these conditions in
whole or in part without prior notice; provided, however, that no such waiver of
a condition shall constitute a waiver by Newco of any other condition of or any
of Newco's other rights or remedies, at law or in equity, if TMP, WCI, MEI or
the Stockholders shall be in default of any of their respective representations,
warranties or covenants under this Agreement.
SECTION 11.02. ACCURACY OF REPRESENTATIONS. Except as otherwise permitted
by this Agreement, all representations and warranties by TMP, WCI, MEI and the
Stockholders in this Agreement or in any written statement that shall be
delivered to Newco by TMP, WCI, MEI or the Stockholders under this Agreement
shall be true and accurate on and as of the Closing Date as though made at that
time.
SECTION 11.03. PERFORMANCE. TMP, WCI, MEI and the Stockholders shall have
performed, satisfied and complied with all covenants, agreements and conditions
required by this Agreement to be performed or complied with by them, on or
before the Closing Date.
SECTION 11.04. ABSENCE OF LITIGATION. No action, suit or proceeding before
any court or any governmental body or authority, pertaining to the transactions
contemplated by this Agreement or to their consummation, shall have been
instituted or threatened against TMP, WCI, MEI or the Stockholders (or any of
them) on or before the Closing Date.
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SECTION 11.05. STOCKHOLDER APPROVAL. The stockholders of each of TMP, WCI,
MEI and Newco shall have duly approved and adopted this Agreement by the votes
or consents of stockholders, if any, required by the applicable provisions of
the GCL or BCL, as the case may be.
SECTION 11.06. CLOSING CERTIFICATE. Each of TMP, WCI, MEI and each
Stockholder shall have delivered to Newco a certificate, dated the Closing Date,
certifying that each of the conditions specified in Sections 11.02, 11.03, 11.04
and 11.05 hereof have been fulfilled.
ARTICLE XII
CONDITIONS PRECEDENT TO
THE STOCKHOLDERS' PERFORMANCE
SECTION 12.01. CONDITIONS. The Stockholders' obligations hereunder shall
be subject to the satisfaction, on or before the Closing Date, of all the
conditions set forth in this Article XII. The Stockholders may waive any or
all of these conditions in whole or in part without prior notice; provided,
however, that no such waiver of a condition shall constitute a waiver by the
Stockholders of any other condition of or any of the Stockholders' rights or
remedies, at law or in equity, if TMP, WCI, MEI and Newco shall be in default
of any of their representations, warranties or covenants under this Agreement.
SECTION 12.02. ACCURACY OF REPRESENTATIONS. Except as otherwise permitted
by this Agreement, all representations and warranties by TMP, WCI, MEI and Newco
in this Agreement or in any written statement that shall be delivered to the
Stockholders by WCI, TMP, MEI and Newco under this Agreement shall be true and
accurate on and as of the Closing Date as though made at that time.
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SECTION 12.03. PERFORMANCE. TMP, WCI, MEI and Newco shall have performed,
satisfied and complied with all covenants, agreements and conditions required by
this Agreement to be performed or complied with by them, on or before the
Closing Date.
SECTION 12.04. ABSENCE OF LITIGATION. No action, suit or proceeding before
any court or any governmental body or authority, pertaining to the transactions
contemplated by this Agreement or to their consummation, shall have been
instituted or threatened against TMP, WCI, MEI or Newco on or before the Closing
Date.
SECTION 12.05. STOCKHOLDER APPROVAL. The stockholders of each of TMP, WCI,
MEI and Newco shall have duly approved and adopted this Agreement by the votes
or consents of stockholders, if any, required by the applicable provisions of
the GCL or BCL, as the case may be.
SECTION 12.06. CLOSING CERTIFICATE. Each of WCI, TMP, MEI and Newco shall
have delivered to the Stockholders a certificate, dated the Closing Date and
signed by the president of each of TMP, WCI, MEI and Newco certifying that each
of the conditions specified in Sections 12.02, 12.03, 12.04 and 12.05 have been
fulfilled.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.01. CAPTIONS AND HEADINGS. The Articles and Section headings
throughout this Agreement are for convenience and reference only, and shall in
no way be deemed to define, limit, or add to the meaning of any provision of
this Agreement.
SECTION 13.02. NO ORAL CHANGE. This Agreement and any provisions hereof
may not be waived, changed, modified, or discharged orally, but it can be
changed by an
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agreement in writing signed by the party against whom enforcement of any waiver,
change, modification, or discharge is sought.
SECTION 13.03. NON-WAIVER. Except as otherwise expressly provided herein,
no waiver of any covenant, condition, or provision of this Agreement shall be
deemed to have been made unless expressly in writing and signed by the party
against whom such waiver is charged; and (i) the failure of any party to insist
in any one or more cases upon the performance of any of the provisions,
covenants, or conditions of this Agreement or to exercise any option herein
contained shall not be construed as a waiver or relinquishment for the future of
any such provisions, covenants or conditions, (ii) the acceptance of performance
of anything required by this Agreement to be performed with knowledge of the
breach or failure of a covenant, condition, or provision hereof shall not be
deemed a waiver of such breach or failure, and (iii) no waiver by any party of
one breach by another party shall be construed as a waiver with respect to any
other or subsequent breach.
SECTION 13.04. ENTIRE AGREEMENT. This Agreement contains the entire
Agreement and understanding among the parties hereto with respect to its subject
matter, and supersedes all prior agreements and understandings with respect to
its subject matter.
SECTION 13.05. CHOICE OF LAW. This Agreement and its application shall be
governed by the laws of the State of Delaware, without giving effect to the
principles of conflicts of laws thereof.
SECTION 13.06. TAX EFFECTS. The applicable provisions of the Internal
Revenue Code of 1986, as amended (the "Code"), Treasury Regulations, pertinent
judicial authorities, interpretive rulings of the Internal Revenue Service and
such other relevant authorities will apply to the Mergers. The mergers of WCI
with and into MEI, and MEI with and into
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Newco, shall under current law, constitute tax-free reorganizations under
Section 368(a) of the Code. WCI and MEI will both be parties to their
reorganization, and MEI and Newco will both be parties to their reorganization,
within the meaning of Section 368(b) of the Code. The merger of TMP with and
into MEI shall constitute a liquidation of a subsidiary into its parent, which
under current law, is a tax-free liquidation under Section 332 of the Code. No
gain or loss shall be recognized on the receipt by the parent corporation of
property distributed in complete liquidation of its subsidiary.
Section 13.07. COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
SECTION 13.08. NOTICES. All notices, requests, demands, and other
communications under this Agreement shall be in writing and shall be deemed to
have been duly given on the date of service if served personally on the party to
whom notice is to be given, or on the third day after mailing if mailed to the
party to whom notice is to be given, by first class mail, registered or
certified, postage prepaid, and properly addressed as follows (or such other
address with respect to any party as shall be provided in writing by such party
to the other parties hereto):
TMP, WCI, MEI or NEWCO:
TMP Worldwide Inc.
1633 Broadway
New York, New York 10019
Attention: Mr. Andrew J. McKelvey
Myron F. Olesnyckyj, Esq.
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WITH A COPY TO:
Fulbright & Jaworski L.L.P.
666 Fifth Avenue
New York, New York 10103
Attention: Paul Jacobs, Esq.
THE STOCKHOLDERS:
to each Stockholder, respectively, in care of TMP.
SECTION 13.09. BINDING EFFECT. This Agreement shall inure to and be
binding upon the heirs, executors, personal representatives, successors and
permitted assigns, if any, of each of the parties to this Agreement who have
executed the same.
SECTION 13.10. MUTUAL COOPERATION. The parties hereto shall cooperate with
each other to achieve the purpose of this Agreement, and shall execute such
other and further documents and take such other and further actions as may be
necessary or convenient to effect the transactions described herein. Without
limiting the foregoing, if at any time after the Effective Date the Surviving
Corporation shall consider it to be advisable that any further conveyances,
agreements, documents, instruments and assurances of law or any other things are
necessary or desirable to vest, perfect, confirm or record in the Surviving
Corporation the title to any property, rights, privileges, powers, licenses and
franchises of TMP, WCI or MEI or otherwise to carry out the provisions of this
Agreement, the officers of TMP, WCI or MEI last in office shall execute and
deliver, upon the Surviving Corporation's request, any and all proper
conveyances, agreements, documents, instruments and assurances of law, and do
all things necessary or proper to vest, perfect, or confirm title to such
property, rights, privileges, powers, licenses and franchises in the Surviving
Corporation, and otherwise to carry out the provisions of this Agreement.
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SECTION 13.11. CONTRACTUAL OBLIGATIONS; MISCELLANEOUS. Without in any way
limiting the effect of the Mergers, it is understood and agreed that any
contractual rights, obligations and restrictions applicable to or relating to
any shares of, or any holders of shares of, TMP Common Stock, WCI Common Stock,
MEI Common Stock or Preferred Stock or MEI Exchange Stock shall remain in full
force and effect as to the applicable shares of, or to the applicable holder of
shares of, Newco Exchange Stock, Newco Class B Common Stock or Newco Preferred
Stock issuable or issued upon conversion of any shares of TMP Common Stock, WCI
Common Stock, MEI Common Stock or Preferred Stock or MEI Exchange Stock,
including but not limited to the rights, obligations and restrictions arising
under that certain TMP Stockholders' Agreement effective as of January 1, 1992.
It is understood and agreed that unless otherwise agreed to in writing by Newco
and AJM, no person or entity other than AJM, whether or not such person or
entity is specifically named in this Agreement or in the Schedules, shall be
entitled to convert or exchange their securities of, or rights, options or
warrants to acquire securities of, any of TMP, WCI or MEI into shares of, or
rights, options or warrants to acquire shares of, Class B common stock, par
value $.01 per share, of Newco. Without limiting the generality of the
foregoing, it is understood that any rights, options or warrants to purchase
common stock of any of TMP, WCI or MEI which are not specifically dealt with in
this Agreement or in the Schedules but survive the Merger by operation of law,
if any, shall mean and be rights, options or warrants to purchase common stock,
par value $.001 per share, of Newco.
SECTION 13.12. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations, warranties, covenants and agreements of the parties set forth
in this Agreement or in any
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instrument, certificate, opinion, or other writing providing for in it, shall
survive the Closing Date irrespective of any investigation made by or on behalf
of any party.
AGREED TO AND ACCEPTED as of the date first above written.
TMP WORLDWIDE INC.
By:
--------------------------------
Name:
Title:
WORLDWIDE CLASSIFIED INC.
By:
--------------------------------
Name:
Title:
MCKELVEY ENTERPRISES, INC.
By:
--------------------------------
Name:
Title:
TELEPHONE MARKETING PROGRAMS
INCORPORATED
By:
--------------------------------
Andrew J. McKelvey, President
------------------------------------
Andrew J. McKelvey
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------------------------------------
Edward C. Albertson
------------------------------------
Mark O. Brown
BTD ACQUISITION, INC.
By:
--------------------------------
Name:
Title:
------------------------------------
Alfred M. Cady, III
------------------------------------
Paul M. Camara
------------------------------------
Gerda L. Carlson
------------------------------------
Daniel Collins
------------------------------------
Thomas G. Collison
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CPC ACQUISITION CORP.
By:
--------------------------------
Name:
Title:
------------------------------------
George R. Eisele
------------------------------------
Martin L. Felde
------------------------------------
Joe M. Glick
------------------------------------
Grech Family Limited Partnership
------------------------------------
Bernice M. Hazell
------------------------------------
David A. Hosokawa
------------------------------------
Lance Johnson
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------------------------------------
Robert M. Kanne
------------------------------------
Harold L. Levy
------------------------------------
Ronald Plotkin
------------------------------------
Roxane Previty
------------------------------------
Nancy Rooney
------------------------------------
J. Christopher Stimac
------------------------------------
Michael Torrey
------------------------------------
James J. Treacy
------------------------------------
Lance Willis
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------------------------------------
John Yocom
YPMS ACQUISITION, INC.
By:
--------------------------------
Name:
Title:
TELEPHONE MARKETING PROGRAMS, INC.
PROFIT SHARING PLAN
By:
--------------------------------
Paul Camara
--------------------------------
Harold Levy
--------------------------------
Thomas G. Collison
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