1
EXECUTION COPY
VOTING AND TENDER AGREEMENT
Voting and Tender Agreement (this "AGREEMENT"), dated as of August 12,
2001, by and among ▇▇▇▇ ▇▇▇▇▇ & Sons, Inc., a New York corporation ("PARENT"),
HMI Acquisition Corp., a Delaware corporation and a direct or indirect
wholly-owned subsidiary of Parent ("SUB"), International Data Group, Inc., a
Delaware corporation ("STOCKHOLDER PARENT"), and IDG Enterprises, Inc., a
Delaware corporation and a wholly-owned subsidiary of Stockholder Parent
("STOCKHOLDER SUB" and, together with Stockholder Parent, the "STOCKHOLDER
PARTIES").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Parent, Sub and Hungry Minds, Inc., a Delaware corporation
("COMPANY"), are entering into an Agreement and Plan of Merger (the "MERGER
AGREEMENT") pursuant to which Sub has agreed to make a tender offer (the
"OFFER") for all outstanding shares of Class A Common Stock, par value $.001 per
share, of the Company (the "COMMON STOCK"), at a price per share of $6.09, net
to the seller in cash, without interest (such price, or such higher price per
share of Common Stock as may be paid in the Offer, being referred to herein as
the "OFFER PRICE"), to be followed by a merger (the "MERGER") of Sub with and
into the Company (all capitalized terms not otherwise defined herein shall have
the meanings given to them in the Merger Agreement);
WHEREAS, the Stockholder Parties collectively hold 11,161,949 shares of
the Common Stock (the "SHARES");
WHEREAS, as a condition to the willingness of Parent and Sub to enter
into the Merger Agreement, each of Parent and Sub has required that the
Stockholder Parties agree, and in order to induce Parent and Sub to enter into
the Merger Agreement, each Stockholder Party has agreed, to enter into this
Agreement simultaneously with the execution and delivery by the parties thereto
of the Merger Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration, the adequacy of
which is hereby acknowledged, and intending to be legally bound hereby, the
parties hereto agree as follows:
1. TENDER BY STOCKHOLDER PARTIES.
-----------------------------
1.1 TENDER OF SHARES. Subject to Section 6 below, the Stockholder
Parties, jointly and severally, agree to tender and sell to Parent and/or Sub,
not later than one (1) business day prior to the Initial Expiration Date of the
Offer, all the Shares (and any shares of Common Stock acquired by any
Stockholder Party subsequent to the date hereof) pursuant to and in accordance
with the Offer. The Stockholder Parties, jointly and severally, agree that they
shall deliver to the depositary for the Offer, not later than one (1) business
day before the Initial Expiration Date of the Offer, either a letter of
transmittal together with the certificates for the Shares, if available, or a
"Notice of Guaranteed Delivery", if the Shares are not available. After such
tender the Stockholder Parties shall not withdraw any such Shares.
2
1.2 ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. In the event of any
change in the number of issued and outstanding shares of Common Stock by reason
of any stock dividend, subdivision, merger, recapitalization, combination,
conversion or exchange of shares, or any other change in the corporate or
capital structure of the Company (including, without limitation, the declaration
or payment of an extraordinary dividend of cash or securities), the term
"Shares" shall be deemed to refer to and include the Shares as well as all such
stock dividends and distributions and any shares into which or for which any or
all of the Shares may be changed or exchanged.
2. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER PARTIES. The
Stockholder Parties, jointly and severally, represent and warrant to Parent and
Sub that:
2.1 POWER AND AUTHORITY. Each Stockholder Party has all necessary power
and authority to enter into and perform all of its obligations under this
Agreement and to sell, assign, transfer and deliver to Parent and/or Sub,
pursuant to the terms and subject to the conditions of this Agreement and the
Merger Agreement, the Shares that it legally and/or beneficially owns. This
Agreement and each Stockholder Party's consummation of the transactions
contemplated hereby have been duly and validly authorized, executed and
delivered by such Stockholder Party, and no other corporate action or
proceedings on the part of any Stockholder Party are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby.
2.2 NO OTHER RIGHTS. Except for this Agreement, there are no
outstanding options, warrants or rights to purchase or acquire any of the
Shares.
2.3 ONLY SHARES. The Stockholder Parties are the beneficial owners (as
defined in Section 9.17(b) of the Merger Agreement) of all of the Shares. On the
date hereof, the Shares constitute all of the shares of Common Stock of the
Company owned of record or beneficially owned by the Stockholder Parties. The
Stockholder Parties have sole voting power and sole power to issue instructions
with respect to the matters set forth in Section 1 hereof, sole power of
disposition and sole power to agree to all of the matters set forth in this
Agreement, in each case with respect to all of the Shares, with no limitations,
qualifications or restrictions on such rights (subject to applicable securities
laws). There is no beneficiary or holder of a voting trust certificate or other
interest of any trust of which the Stockholder Parties are settlor or trustee or
any other person whose consent is required for the execution, delivery and
performance of this Agreement or the consummation by the Stockholder Parties of
the transactions contemplated hereby.
2.4 TITLE. Each Stockholder Party is the record and beneficial owner of
all of its Shares held by such Stockholder Party and has, and upon the closing
of the Offer, Sub shall receive, good and marketable title to such Shares, free
and clear of all liens, claims, encumbrances and security interests of any
nature whatsoever.
2.5 VALIDITY. This Agreement has been duly and validly executed and
delivered by each Stockholder Party and constitutes the legal, valid and binding
agreement of such Stockholder Party, enforceable against such Stockholder Party
in accordance with its terms, except as enforcement may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other similar laws relating to creditors' rights
2
3
generally and except that the availability of legal and equitable remedies,
including specific performance, is subject to general principles of equity,
including principles of commercial reasonableness, good faith and fair dealing
and the discretion of the court before which any proceeding therefor may be
brought.
2.6 NON-CONTRAVENTION. The execution, delivery and performance of this
Agreement does not, and the consummation of the transactions contemplated hereby
and compliance with the provisions hereof will not, contravene, conflict with,
or result in any violation of, breach of or default by (with or without notice
or lapse of time, or both) any Stockholder Party under, or give rise to a right
of termination, cancellation or acceleration of any obligation under, or result
in the creation of any Lien, security interest, charge or encumbrance upon any
of the properties or assets of any Stockholder Party under, any provision of:
(i) the charter or organizational documents of such Stockholder Party, (ii) any
loan or credit agreement, note, bond, mortgage, indenture, lease or other
agreement, instrument, permit, concession, franchise or license applicable to
such Stockholder Party or (iii) any judgment, order, decree, statute, Law,
ordinance, injunction, rule or regulation applicable to such Stockholder Party
or any of its properties or assets, other than, in the case of clauses (ii) and
(iii), any such conflicts, violations, defaults, rights, liens, security
interests, charges or encumbrances that, individually or in the aggregate, would
not materially impair the ability of such Stockholder Party to perform its
obligations hereunder or prevent, limit or restrict the consummation of any of
the transactions contemplated hereby.
3. REPRESENTATIONS AND WARRANTIES OF PARENT AND SUB. Parent and Sub,
jointly and severally, represent and warrant to the Stockholder Parties that:
3.1 POWER AND AUTHORITY. Each of Parent and Sub has the requisite
corporate power and authority to execute and deliver this Agreement, to perform
its obligations hereunder and to consummate the transactions contemplated
hereby. This Agreement and the consummation by Parent and Sub of the
transactions contemplated hereby have been duly and validly authorized by each
of Parent and Sub, and no other corporate action or proceedings on the part of
Parent and Sub are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby.
3.2 VALIDITY. This Agreement has been duly and validly executed and
delivered by each of Parent and Sub and constitutes the legal, valid and binding
agreement of each of Parent and Sub, enforceable against each of them in
accordance with its terms, except as enforcement may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other similar laws relating to creditors' rights generally and except that the
availability of legal and equitable remedies, including specific performance, is
subject to general principles of equity, including principles of commercial
reasonableness, good faith and fair dealing and the discretion of the court
before which any proceeding therefor may be brought.
3.3 NON-CONTRAVENTION. The execution, delivery and performance of this
Agreement does not, and the consummation of the transactions contemplated hereby
and compliance with the provisions hereof will not, contravene, conflict with,
or result in any violation of, breach of or default by (with or without notice
or lapse of time, or both) either of Parent or Sub under, or give rise to a
right of termination, cancellation or acceleration of any
3
4
obligation under, or result in the creation of any Lien, security interest,
charge or encumbrance upon any of the properties or assets of either
Parent or Sub under, any provision of: (i) the charter or organizational
documents of Parent or Sub, (ii) any loan or credit agreement, note, bond,
mortgage, indenture, lease or other agreement, instrument, permit, concession,
franchise or license applicable to Parent or Sub or (iii) any judgment, order,
decree, statute, Law, ordinance, injunction, rule or regulation applicable to
Parent or Sub or any of their properties or assets, other than, in the case of
clauses (ii) and (iii), any such conflicts, violations, defaults, rights, liens,
security interests, charges or encumbrances that, individually or in the
aggregate, would not materially impair the ability of Parent or Sub to perform
its obligations hereunder or prevent, limit or restrict the consummation of any
of the transactions contemplated hereby.
4. COVENANTS OF THE STOCKHOLDER PARTIES.
4.1 NO DISPOSITION OR ENCUMBRANCE OF SHARES; NO PROXIES. The
Stockholder Parties, jointly and severally, represent, covenant and agree that,
except for the proxy granted in Section 5 and as contemplated by this Agreement:
(a) they shall not, directly or indirectly, during the period commencing or the
date hereof and continuing until this provision terminates pursuant to Section 7
hereof: offer for sale or agree to sell, transfer, tender, assign, pledge,
hypothecate or otherwise dispose of or enter into any contract, option or other
arrangement or understanding with respect to, or consent to, the offer for sale,
sale, transfer, tender, assign, pledge, hypothecation, encumbrance, assignment
or other disposition of, or create any security interest, Lien, claim, pledge,
option, right of first refusal, agreement, limitation on voting rights, charge
or other encumbrance of any nature whatsoever with respect to any or all of the
Shares or any interest thereon now legally and/or beneficially owned by any
Stockholder Party, or that may hereafter be acquired by, any Stockholder Party;
(b) they shall not grant any proxy, irrevocable proxy or power of attorney or
deposit any Shares into a voting trust or enter into a voting agreement with
respect to the voting of Shares (each a "VOTING PROXY") to any person except to
vote in favor of any of the transactions contemplated by this Agreement or the
Merger Agreement; (c) they have granted no Voting Proxy which is currently (or
which will hereafter become) effective with respect to the Shares, and if any
Voting Proxy has been granted to any person, such Voting Proxy is hereby
revoked; (d) no Voting Proxy shall be given or written consent executed by any
Stockholder Party after the date hereof with respect to the Shares (and if given
or executed, shall not be effective) so long as this Agreement remains in
effect; and (e) they shall not, and shall not offer to agree to, acquire any
additional shares of Common Stock, or options, warrants or other rights to
acquire shares of Common Stock (except upon exercise of stock options presently
held by any Stockholder Party), without the prior written consent of Parent or
Sub.
5. VOTING AGREEMENT. Each Stockholder Party, jointly and severally, hereby
agrees that, during the time this Agreement is in effect, at any meeting of the
stockholders of the Company, however called, and in any action by written
consent of the stockholders of the Company, it shall vote all of the Shares
legally and/or beneficially owned by it (i) in favor of the Merger, the Merger
Agreement (as amended from time to time, except for an amendment, modification
or waiver that results in termination of this Agreement pursuant to Section
clause (a) of the second sentence of Section 7 hereof) and any of the
transactions contemplated by the Merger Agreement; (ii) against any action or
agreement that would result in a breach in any material respect of any covenant,
representation or warranty or any other obligation of the
4
5
Company under the Merger Agreement; and (iii) against any action or agreement
that would materially impede, interfere with or attempt to discourage the Offer
or the Merger. The Stockholder Parties hereby irrevocably grant to and appoint
Parent as the Stockholder Parties' proxy and attorney-in-fact (with full power
and substitution), for and in the name, place and stead of the Stockholder
Parties, to vote, act by written consent or grant a consent, proxy or approval
in respect of all Shares held by the Stockholder Parties with respect to such
vote or action by written consent, solely for the purposes of voting in favor of
the Merger, the Merger Agreement (as amended from time to time, except for an
amendment, modification or waiver that results in termination of this Agreement
pursuant to clause (a) of the second sentence of Section 7 hereof) and any of
the transactions contemplated by the Merger Agreement. The Stockholder Parties
hereby affirm that such proxy shall be irrevocable and shall be deemed coupled
with an interest, in accordance with Section 212(e) of the Delaware General
Corporation Law. This proxy shall lapse and be of no further force and effect
from and after the date of this Agreement is terminated pursuant to Section 7
hereof.
6. SOPHISTICATION. The Stockholder Parties acknowledge being informed and
sophisticated investors and, together with the Stockholder Parties' financial
advisors and independent legal counsel, have undertaken such investigation as
they have deemed necessary, including the review of the Merger Agreement and
this Agreement, to enable the Stockholder Parties to make an informed and
intelligent decision with respect to the Merger Agreement and this Agreement and
the transactions contemplated hereby.
7. EFFECTIVENESS; TERMINATION; NO SURVIVAL. This Agreement shall become
effective upon its execution by each Stockholder Party, Parent and Sub and upon
the execution of the Merger Agreement. This Agreement may be terminated as to
any Stockholder Party at any time by mutual written consent of such Stockholder
Party, Parent and Sub. This Agreement, and all the obligations of the
Stockholder Parties hereunder, including, without limitation, their obligations
under Sections 1, 4 and 5 above, shall terminate, without any action by the
parties hereto, upon the earliest to occur of (a) in the event of an amendment
or modification to or wavier under the Merger Agreement, including without
limitation any reduction of the Offer Price, that is or would be economically
adverse to either of the Stockholder Parties, upon such amendment, modification
or wavier, (b) in the event the Merger Agreement is terminated by any party in
accordance with its terms, upon such termination, (c) in the event the Merger is
consummated, upon the Effective Time (as defined in the Merger Agreement) or (d)
December 31, 2001. The representations and warranties of the parties set forth
in Sections 2 and 3 hereof shall not survive the termination of this Agreement.
Notwithstanding anything to the contrary herein, no termination of this
Agreement shall relieve the parties of liability for breach hereof prior to such
termination.
8. FURTHER ASSURANCES. Subject to the terms of this Agreement, from time to
time, each Stockholder Party shall execute and deliver such additional documents
and use its best efforts to take, or cause to be taken, all such further
actions, and to do or cause to be done, all things necessary, proper or
advisable in the most expeditious manner possible, under applicable laws and
regulations to consummate and make effective the transactions contemplated by
this Agreement.
5
6
9. MISCELLANEOUS.
9.1 NOTICES. Any notice request, instruction or other document to be
given hereunder by any party to the other parties shall be in writing and
delivered personally or sent by overnight courier, registered or certified mail,
postage prepaid, or by facsimile transmission, as follows:
(a) If to Parent or Sub, to:
▇▇▇▇ ▇▇▇▇▇ & Sons, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chief Executive Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇ ▇▇▇▇▇ & Sons, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with an additional copy to (which shall not
constitute notice):
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Simeon Gold, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to any Stockholder Party, to:
International Data Group, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Vice President of Finance
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
6
7
with a copy to:
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and in all cases, with copies to:
Hungry Minds, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and
Fulbright & ▇▇▇▇▇▇▇▇ L.L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
9.2 WAIVERS AND AMENDMENT. Any provision of this Agreement may be
waived at any time by the party which is entitled to the benefits thereof and
this Agreement may be amended, changed, supplemented or otherwise modified or
terminated at any time. No such waiver, amendment, change, supplement,
modification or termination shall be effective except upon the execution and
delivery of a written agreement by the parties hereto.
9.3 ENTIRE AGREEMENT. This Agreement and the Merger Agreement contain
the entire agreement, and supersede all other prior and contemporaneous
agreements and understandings, both written and oral, among the parties hereto
with respect to the subject matter hereof. This Agreement is not intended to
confer upon any other person any rights or remedies hereunder.
9.4 SUCCESSORS AND ASSIGNS. This Agreement shall not be assigned by any
party hereto, except that Parent or Sub may assign its rights under this
Agreement to another direct or indirect wholly-owned subsidiary of Parent, but
such assignment shall not relieve Parent or Sub of its respective obligations
hereunder. This Agreement shall be binding upon, inure solely to the benefit of
and be enforceable by and against the parties hereto and their successors
(including heirs, administrators and executors of individuals) and permitted
assigns. Nothing in this Agreement, express or implied, is intended to or shall
confer upon any other person, any rights, benefits or remedies of any nature
whatsoever under or by reason of this Agreement. Without limiting the foregoing,
no direct or indirect holder of any equity interests or securities (whether such
holder is a limited or general partner, member, stockholder or otherwise, or any
7
8
affiliate of any party hereto, nor any director, officer, employee,
representative, agent or other controlling person of each of the parties hereto
and their respective affiliates) shall have any liability or obligation arising
under this Agreement or the transactions contemplated hereby.
9.5 REMEDIES. Each of the parties hereto acknowledges and agrees that
each other party would be irreparably damaged in the event any of the provisions
of this Agreement were not performed by the other in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that each
party shall be entitled to an injunction or injunctions to redress any breaches
of this Agreement and to specifically enforce the terms and provisions hereof in
any action instituted in any court of the United States or any state thereof
having jurisdiction, in addition to any other remedy to which such party may be
entitled at law or in equity.
9.6 EXPENSES. Each of the parties shall pay its own expenses in
connection with the negotiation, execution and performance of this Agreement.
9.7 COUNTERPARTS. This Agreement and any amendments hereto may be
executed in two or more counterparts, each of which shall be considered to be an
original, both of which together shall constitute the same instrument.
9.8 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to the
principles of conflicts of laws thereof.
9.9 SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
9.10 EFFECT OF HEADINGS. The section headings herein are for
convenience only and shall not affect the meaning or interpretation of this
Agreement.
8
9
IN WITNESS WHEREOF, the parties have executed this Agreement to take
effect as of the date set forth above.
▇▇▇▇ ▇▇▇▇▇ & Sons, Inc.
By:______________________________________
Name:
Title:
HMI Acquisition Corp.
By: _____________________________________
Name:
Title:
International Data Group, Inc.
By: _____________________________________
Name:
Title:
IDG Enterprises, Inc.
By: _____________________________________
Name:
Title:
9
