EXHIBIT 2.1 ASSET PURCHASE AGREEMENT

EXHIBIT 2.1

EXECUTION COPY

 

 

 

 

 

 

 

 

 

 

 

ASSET PURCHASE AGREEMENT

 

between

 

PROQUEST INFORMATION AND LEARNING COMPANY

 

(as “Seller”)

 

and

 

NATIONAL ARCHIVE PUBLISHING COMPANY

 

(as “Buyer”)

 

Dated October 28, 2005

EXECUTION COPY

 

Table of Contents

 

 

1

EXECUTION COPY

 

 

2

EXECUTION COPY

 

 

3

ASSET PURCHASE AGREEMENT dated as of October 28, 2005 (This “ Agreement ”), between PROQUEST INFORMATION AND LEARNING COMPANY, a corporation organized under the laws of the state of Delaware (“ Seller ”), and NATIONAL ARCHIVE PUBLISHING COMPANY, a corporation organized under the laws of the state of Michigan (“ Buyer ”).

 

INTRODUCTION

 

A. Seller is engaged, among other businesses, in the business of manufacturing and selling microform versions of periodicals, newspapers, collections and dissertations and creating digital versions of the same from earlier print or microform versions.

 

B. Seller wishes to sell and Buyer wishes to purchase the line of business comprised of manufacturing and selling microform versions of Periodicals (the “ Periodicals Microform Business ”), including the tangible and intangible assets related exclusively thereto identified herein.

 

C. Seller also wishes to sell and Buyer wishes to purchase substantially all of the manufacturing assets (the “ Production Assets ”) for the microforming (master and duplication), scanning (paper to digital and film to digital) and Digitization of ProQuest Retained Microform Products, subject to the execution of an agreement (the “ Manufacturing Agreement ”) by Buyer and Seller whereby Buyer will manufacture such ProQuest Retained Microform Products and digital versions for Seller together with certain other Services to the extent provided therein.

 

D. Seller is also engaged in the business of producing paper and electronic instructor-selected supplementary classroom materials (“ Coursepacks ”) and printed custom textbooks, including authors’ original works for the post-secondary education market (the “ XanEdu Business ”). Seller wishes to sell and Buyer wishes to purchase the XanEdu Business.

 

E. The Periodicals Microform Business, the XanEdu Business and the content manufacturing business related to the Production Assets are collectively referred to herein as the “ Acquired Businesses ”.

 

F. Without limitation, Seller is retaining the following (collectively, the “ Retained Business ”):

 

(i) all rights to create and/or render (including reproduction and distribution) a Periodical in a digital or other electronic format which is not (other than for storage) the creation of a physical medium; and

 

(ii) all right, title and interest in and to the ProQuest Retained Microform Products, including, without limitation, all Electronic Rights and rights to the physical medium thereof.

 

G. Seller is also selling and Buyer is acquiring the 180,000 square foot manufacturing and office building and the land situated at 300 Zeeb Road, Ann Arbor, Michigan (the “ Facility ”).

 

1

H. The parties desire to consummate the foregoing transactions upon the terms and subject to the conditions of this Agreement.

 

I. Capitalized terms used but not defined elsewhere in this Agreement are defined in Section 11.06.

 

In consideration of the premises and the mutual covenants and agreements contained herein, Seller and Buyer hereby agree as follows:

 

ARTICLE I

TRANSFER OF ASSETS; ASSUMPTION OF LIABILITIES AND PURCHASE PRICE

 

Section 1.01     Transfer of Property and Assets . As of the Effective Time, Seller hereby sells, transfers, conveys, assigns and delivers to Buyer, and Buyer hereby purchases, acquires and accepts from Seller, all of Seller’s right, title and interest in and to the following assets, free and clear of all Liens (other than Permitted Liens and Real Estate Encumbrances), but excluding the Excluded Assets (collectively, the “ Transferred Assets ”):

 

(i) the Facility, as more particularly described in Schedule 1.01(i) hereto (the “ Real Property ”), including all of Seller’s rights, title and interest in and to all buildings, fixtures, appurtenances, improvements, easements, privileges, rights-of-way, mineral rights, air rights, permits, site plan approvals or development rights, all engineering or soil studies, reports or surveys, all utilities and agreements and the maximum number of divisions permitted under the Michigan Land Division Act to the extent applicable to the Facility and to the extent transferable;

 

(ii) all machinery and equipment used exclusively in the Acquired Businesses, including, without limitation, those assets listed on Schedule 1.01(ii) hereto (the “ Tangible Assets ”);

 

(iii) subject to Seller’s exclusive Electronic Rights thereto and the Periodicals Access Agreement, the microform product masters (or copies thereof) of Periodicals produced by Seller prior to the Closing;

 

(iv) subject to the provisions of the Lease, the microform vaults at the Facility (the “ Vault ”);

 

(v) all inventory and supplies, including paper, photographs, film, printing negatives, production artwork, illustrations, printing plates, promotional materials, packaging materials, sales solicitation materials, direct mail materials, labels, stationery and other production materials, located at the Facility to the extent utilized exclusively in the Acquired Businesses or the production of Microform Products (the “ Inventory ”);

 

(vi) subject to Section 1.03, all rights under those contracts, agreements, subscriptions, commitments, binding arrangements, leases of real and

 

2

personal property, subleases, content licenses and purchase orders (collectively, the “ Contracts ”), in each case, to the extent applicable exclusively to the Acquired Businesses and otherwise to the extent separable set forth on Schedule 3.07(a) and any other Contracts that would have been listed on Schedule 3.07(a) but for the dollar thresholds set forth therein (collectively, the “ Transferred Contracts ”);

 

(vii) to the extent separable from the records of the Seller by commercially reasonable efforts, the following books, records, files and papers, whether in hard copy or computer format, in Seller’s possession, to the extent related to the conduct of the Acquired Businesses: sales records, books of account, files, invoices, inventory records, accounting records, advertising materials, subscriber, controlled circulation, advertising, supplier and customer lists (together with the right to use the names and addresses contained on such lists), whether past, current or prospective, cost and pricing information, business plans, and all research materials (the “ Books and Records ”),

 

(viii) to the extent transfer is permitted under applicable Law or regulation and subject to Section 1.03, the permits, approvals, franchises, licenses or other authorizations granted by any Governmental Entity that are used or held exclusively for use in the conduct of the Acquired Businesses, the occupancy of the Facility or the use of the Transferred Assets at the Facility (the “ Permits ”);

 

(ix) the Intellectual Property limited to (A) those registered trademarks and trade names, and internet domain names for the XanEdu Business, as listed on Schedule 1.01(ix) , (B) the trademarks and registered copyrights identified on Schedule 1.01(ix) , together with any unregistered copyrights, (C) the ColdSeal software, (D) the XanEdu Integration Program (“ XIP ”) software (to the extent such software was developed and is owned by Seller and which may constitute improvements to third-party software), (E) the XanEdu website, (F) the XanEdu related content database and related rights database (to the extent assignable as of the Closing or with consent thereafter) and (G) pursuant to the Software License Agreement, a license to (1) the software related to the Business Systems Replacement software (to the extent such software was developed and is owned by Seller and which may constitute customizations, modifications, and configurations to third-party software), (2) any and all other customizations, modifications, and configurations made and developed by Seller to third-party software applications that are not being transferred but are separately licensed by Buyer, to the extent Seller has the right to license such customizations, modifications and configurations to Buyer, and (3) all know-how, methods and processes used or held for use in the conduct of the Acquired Businesses or the use of the Production Assets (together, the “ Transferred Intellectual Property ”);

 

(x) the rights to market, sell, publish and distribute the Microform Products of the Periodicals Microform Business;

 

(xi) accounts, notes and other receivables as of the Effective Time to the extent related to the Acquired Businesses;

 

3

(xii) all security deposits, advance payments and pre-paid expenses, in each case to the extent related to the Acquired Businesses and attributed to periods after the Closing Date (except as provided in Section 1.02(vi));

 

(xiii) all claims, demands, actions, suits and causes of action, whether class, individual or otherwise in nature, in law or in equity (collectively, “ Claims ”) to the extent relating to any Transferred Asset, any Assumed Liability or the Acquired Businesses; and

 

(xiv) all goodwill of the Acquired Businesses and including the value of good customer relations and the right to represent oneself as a successor to the Acquired Businesses as limited by the Trademark License Agreement.

 

Section 1.02      Excluded Assets. Notwithstanding anything to the contrary contained in this Agreement, Seller shall retain all of its right, title and interest in and to, and there shall be excluded from the sale, transfer, assignment and delivery to Buyer hereunder, any and all assets or properties not specifically included in Section 1.01 (collectively, the “ Excluded Assets ”). Without limitation, those assets of Seller set forth below are explicitly excluded:

 

(i) cash, cash equivalents, investments, securities and bank and other depository accounts;

 

(ii) books and records, licenses and permits or goodwill to the extent related to the Excluded Assets, the Retained Business or the Retained Liabilities and all personnel and employment records;

 

(iii) any assets related to any employee benefit plan in which any Business Employees participate;

 

(iv) except for the Transferred Intellectual Property and the grant of rights under the Trademark License Agreement and the Software License Agreement, all Intellectual Property, including, (A) the name and mark “ UMI ,” any variations and derivations thereof, and any other logos or trademarks of Seller, alone or with any other name or mark, (B) the software related to the Business Systems Replacement software (to the extent such software was developed or owned by Seller and which may constitute improvements to third-party software), (C) any and all customizations, modifications, and configurations made and developed by Seller to third-party software applications that are not being transferred but are separately licensed by Buyer, and (D) all know-how, methods and processes used or held for use in the conduct of the Acquired Businesses or the use of the Production Assets;

 

(v) all ProQuest Retained Microform Products and all rights to the Retained Business, including all Electronic Rights held by Seller for all microform associated with the transferred Periodicals Microform Business;

 

(vi) all prepaid expenses for software maintenance and licensing fees;

 

4

(vii) all tangible and intangible property comprising the data center and network infrastructure of Seller, whether or not such items would otherwise be considered fixtures of the Facility, including the assets listed on Schedule 1.02(vii) , but excluding the assets listed on Schedule 1.01(ii) ;

 

(viii) all rights to Contracts which are not Transferred Contracts;

 

(ix) any refunds, claims for refunds or rights to receive refunds from any Taxing Authority with respect to Taxes paid or to be paid by Seller or any of its Affiliates relating to periods or portions thereof ending on or prior to the Closing Date;

 

(x) any records (including accounting records) related to Taxes paid or payable by Seller or any of its Affiliates and all financial and Tax records relating to the Acquired Businesses; provided that Buyer shall be entitled to copies of any such records (other than records related to income Taxes) that it may reasonably request;

 

(xi) Seller’s corporate charter documents, minute books, stockholder records, stock transfer records, similar corporate records and corporate seal;

 

(xii) such records as relate to the negotiation and consummation of the transactions provided for in this Agreement and all records prepared in connection with the sale of the Acquired Businesses;

 

(xiii) all insurance policies relating to the Transferred Assets, any refunds paid or payable in connection with the cancellation or discontinuance of any such insurance policies, and any claims made under any such insurance policies;

 

(xiv) Claims arising under insurance policies or based on pending, or threatened litigation, including all rights to indemnification for expenses and attorney’s fees in connection therewith, and all rights to assert Claims that Seller ever had, now have or in the future may have, whether known or unknown, relating in any way to the purchase or procurement of any goods, services or products (in each case, other than any Inventory) by, or on behalf of, the Acquired Businesses, in either case, at any time up until the Closing, along with any and all recoveries by settlement, judgment or otherwise in connection with any such Claims;

 

(xv) Seller’s rights under this Agreement and any other agreements contemplated hereby and any other agreements, certificates and instruments delivered in connection with this Agreement, and

 

(xvi) all assets on Schedule 1.02(xvi) .

 

Section 1.03     Consents to Certain Assignments .

 

5

(a) This Agreement shall not constitute an assignment of any applicable Transferred Asset if a third party consent is required to transfer such asset until such consent is so obtained. During the period between the Closing Date and June 30, 2006, each of the parties will continue to use its commercially reasonable efforts to obtain the consent of all third parties to the sale, transfer and assignment to Buyer of all Transferred Assets hereunder to the extent required, including under any Transferred Contract as set forth in Schedule 3.07 or, to the extent required and reasonably requested by Buyer, any other Transferred Contract or Permit. Each of the parties shall pay its own expenses incurred in connection with obtaining any such third party consents.

 

(b) Once any such consent is received, the Seller shall promptly fully transfer and deliver such Transferred Asset to Buyer, in a form substantially similar to the assignment and assumption agreements delivered to Buyer at Closing; provided that with respect to any non-material Transferred Asset for which consent of a third party has not been obtained, Buyer shall accept the assignment of such Transferred Asset at the Closing. If any such consent of a third party to the sale, transfer and assignment to Buyer of all Transferred Assets hereunder, to the extent required

 

(c) The parties agree that, subject to Section 1.03(a), the parties shall cooperate with each other in any lawful and commercially reasonable arrangement reasonably proposed by the parties under which Buyer shall obtain (without infringing upon the legal rights of any third party) the economic claims, rights and benefits under the asset, claim or right with respect to which the consent has not been obtained in accordance with this Agreement (including naming Buyer as an exclusive sales agent for the then-current term of the contract, without extensions, at a commission calculated to keep Buyer whole, sub-contracting, sub-licensing or sub-leasing to Buyer). The parties shall not be required to pay any consideration to any third party in order to obtain the consent of such third party (including, without limitation, any third-party license fee).

 

(d) Under the same terms and conditions as set forth in Sections 1.03(a) and 1.03(b) above, Seller may seek consent to a partial assignment of a Transferred Contract if the rights under such Transferred Contract pertains to both the Acquired Businesses and the Retained Business.

 

Section 1.04     Assumption of Liabilities .

 

(a) As of the Effective Time, Buyer shall assume and thereafter pay, perform and discharge when due and payable only the following Liabilities (collectively, but excluding any Retained Liabilities, the “ Assumed Liabilities ”):

 

(i) Liabilities of Seller under the Transferred Contracts and Permits, except, (x) as provided in Section 1.04(b)(iv), (y) any Liability arising out of or relating to a breach that occurred prior to the Closing or (z) any breach of any representation, warranty or covenant of Seller under this Agreement;

 

(ii) all Liabilities for trade accounts payable, accrued expenses, accrued royalties, deferred revenue incurred by the Seller with respect to the

 

6

Transferred Assets reflected on the Interim Statements or the Working Capital Statement and without duplication of the foregoing, all Liabilities of the Periodicals Microform Business reflected in the Deferred Liability Adjustment calculation pursuant to Section 2.05 and of the Acquired Businesses reflected in the Working Capital calculation pursuant to Section 2.04;

 

(iii) all Liabilities assumed by Buyer pursuant to Article VI hereof;

 

(iv) all Liabilities arising out of the Acquired Businesses after the Closing Date, including all Liabilities in connection with the production or sale of products that are shipped or otherwise released after the Closing Date, including any subsequent copies or versions thereof;

 

(v) except as provided in Section 1.04(b)(v), all past, present and future Liabilities and obligations under Environmental Laws relating to the Real Property and the Acquired Business, whether arising out of or in connection with the use of the Real Property or the operation of the Business before or after the Closing Date.

 

(vi) all other current Liabilities reflected on the Interim Statements or the Working Capital Statement arising out of the Acquired Businesses.

 

(b) Notwithstanding the foregoing or any other writing to the contrary, Buyer is assuming only the Assumed Liabilities and shall not assume, nor be obligated to pay, perform or discharge, any other Liabilities and whether due or to become due, of Seller. All such other Liabilities shall be retained by and remain Liabilities of Seller (all such Liabilities not being assumed by Buyer being herein referred to as the “ Retained Liabilities ”). Notwithstanding any provision in the Agreement or any other writing to the contrary, Retained Liabilities shall include:

 

(i) all Taxes imposed upon Seller for the period on or prior to the Closing Date;

 

(ii) except as provided in Section 1.04(a)(iii) or Article VI, all Liabilities of Seller for the Business Employees;

 

(iii) all Liabilities in connection with the production or sale of any products that are shipped or otherwise released on or prior to the Closing Date, but not including any versions or copies thereof shipped or otherwise released after the Closing Date;

 

(iv) all Liabilities in connection with any guarantee existing as of the date hereof against the unearned royalties in a partially transferred content license which pertains to both the Acquired Businesses and the Retained Business, or as set forth on Schedule 1.04(b)(iv) ;

 

(v) all past, present and future Liabilities and obligations arising under Environmental Laws arising out of or resulting from Seller’s discharge, release,

 

7

emission or disposal of Hazardous Substances on, into, upon or from the Real Property in connection with its operation of the Acquired Business or use of the Real Property prior to the Closing Date;

 

(vi) all Liabilities of Seller to the extent relating to or arising out of the Excluded Assets or not constituting an Assumed Liability.

 

Section 1.05     Purchase Price.

 

(a) The purchase price for the Transferred Assets (excluding the Facility) is $21,000,000 (the “ Purchase Price ”), subject to adjustment in accordance with Section 2.06. Buyer hereby delivers to Seller (i) in cash $19,000,000 plus or minus (x) the Estimated Working Capital Adjustment (pursuant to Section 2.04(b)) and plus or minus (y) the Estimated Deferred Liability Adjustment (pursuant to Section 2.05(b)) (such amount being the “ Closing Date Payment ”) and (ii) a secured subordinated promissory note in the form of Exhibit A attached hereto in the amount of $2,000,000 which will bear interest at the rate of nine percent (9%) per annum, shall be paid in four (4) annual installments of principal in the amount of $500,000 each, plus accrued interest, to be paid on December 31 of each year beginning on December 31, 2006, with the entire balance due on December 31, 2009 (the “ Promissory Note ”).

 

(b) The purchase price for the Facility is $9,000,000 (the “ Facility Purchase Price ”). Buyer hereby delivers the Facility Purchase Price in cash to Seller.

 

ARTICLE II

CLOSING AND POST-CLOSING PURCHASE PRICE ADJUSTMENT

 

Section 2.01      Closing . The closing of the transactions contemplated hereby (the “ Closing ”) shall occur concurrently with the execution of this Agreement at the offices of Dykema Gossett PLLC, Ann Arbor, Michigan, as of the date of this Agreement (the “ Closing Date ”). The Closing shall be deemed to be effective as of the 12:01 a.m. on October 28, 2005 (the “Effective Time”).

 

Section 2.02      Deliveries by Seller. Seller hereby delivers or causes to be delivered to Buyer (i) duly executed bills of sale, assignments, including separate assignments related to Transferred Intellectual Property, a covenant deed to the Real Property, assignment and assumption of leases, estoppel affidavits, affidavits or other documents required for issuance of an owner’s title policy without standard exceptions, and other instruments of transfer relating to the Transferred Assets (it being understood that the bills of sale, assignments, instruments of transfer and agreements referred to in clause (i) shall not require Seller to make any additional representations, warranties or covenants, expressed or implied, not contained in this Agreement), (ii) a duly executed counterpart of a Transitional Services Agreement in the form of Exhibit B hereto (the “ Transitional Services Agreement ”) , (iii) a duly executed counterpart of the Manufacturing Agreement in the form of Exhibit C hereto, (iv) a duly executed counterpart of a Trademark License Agreement in the form of Exhibit D hereto (the “ Trademark License Agreement ”), (v) a duly executed counterpart of a Software License Agreement in the form of Exhibit E hereto (the “ Software License Agreement ”), (vi) a duly executed counterpart of a

 

8

Periodicals Access Agreement in the form of Exhibit F hereto (the “ Periodical License Agreement ”), (vii) a duly executed counterpart of the Lease Agreement in the form of Exhibit G hereto (the “ Lease ”), (viii) a duly executed certificate in the form specified in Treas. Reg. Section 1.1445-2 (b)(2)(iii) (FIRPTA), (ix) a duly executed counterpart of each of the subleases for Seller’s facilities at Copley and Louisville in the form of Exhibits H and I , respectively (collectively, the “ Subleases ”), (x) a duly executed counterpart for the sublease of the warehouse in the form of Exhibit J , (the “ Warehouse Sublease ”), (xi) a duly executed counterpart of the lease agreement for Seller’s facility at Wooster in the form of Exhibit K (the “ Wooster Lease ”), (xii) a UCC financing statement evidencing the security interest of Seller in the assets of Buyer to secure the promissory note, (xiii) an opinion of legal counsel to the Seller and (xiv) a duly executed counterpart of the subordination agreement in the form acceptable to Seller, Buyer and Buyer’s lenders (the “ Subordination Agreement ”).

 

Section 2.03     Deliveries by Buyer. Buyer hereby delivers to Seller and/or the Title Company, as applicable, (i) payment by wire transfer of immediately available funds to one or more accounts designated in writing by Seller of the Facility Purchase Price and Closing Date Payment, (ii) the Promissory Note, (iii) duly executed counterparts to the deed, bills of sale, assignments and other instruments of transfer referred to in Section 2.02, and duly executed assumption agreements and other instruments of assumption providing for the assumption of the Assumed Liabilities, (iv) a duly executed counterpart of the Transitional Services Agreement, (v) a duly executed counterpart of the Manufacturing Agreement, (v) a duly executed counterpart of the Trademark License Agreement, (vi) a duly executed counterpart of the Software License Agreement, (vii) a duly executed counterpart of the Periodicals Access Agreement, (viii) a duly executed counterpart of the Lease, (ix) a duly executed counterpart of each of the Subleases, (x) a duly executed counterpart of the Warehouse Sublease, (xi) a duly executed counterpart of the Wooster Lease and (xii) a duly executed counterpart of the Subordination Agreement.

 

Section 2.04     Working Capital Purchase Price Adjustment.

 

(a) Working Capital. The term “ Working Capital ” means Current Assets minus Current Liabilities of the Acquired Businesses. The term “ Current Assets ” means the total current assets, including accounts receivable, net of allowances, inventory, net of allowances, and prepaid expenses and other current assets, constituting Transferred Assets of the Acquired Businesses and the term “ Current Liabilities ” means the total current liabilities, including accounts payable and other accrued expenses, deferred revenue, advanced payment periodicals (BSA advance payments) and computer leases constituting Assumed Liabilities of the Acquired Businesses. Current Assets and Current Liabilities relating to Taxes (other than accrued sales tax payable) and the Incentive Plans shall not be taken into account in determining Working Capital. To the extent pro rations pursuant to Section 8.03 are not calculated and paid at Closing, such pro rations shall be taken into account in the calculation of Working Capital. The “ Target Working Capital of the Acquired Businesses ” is $(11,124,617), calculated as set forth on Schedule 2.04 .

 

(b) Estimated Working Capital. Prior to the date of this Agreement, the Seller has provided the Buyer written notice of the Estimated Working Capital of the Acquired Businesses as of the Effective Time. The “ Estimated Working Capital of the Acquired Businesses ” has been calculated in accordance with the calculation of the Target Working

 

9

Capital of the Acquired Businesses. The “ Estimated Working Capital Adjustment ” shall mean the amount by which the Estimated Working Capital is more or less than Target Working Capital of the Acquired Businesses. The Estimated Working Capital Adjustment is $1,500,000.

 

(c) Working Capital Statement. Not later than 45 days after the Closing Date, Buyer shall deliver to Seller a statement (as it may finally be adjusted pursuant to this Section 2.04, the “ Working Capital Statement ”) setting forth the Working Capital of the Acquired Businesses as of the Effective Time (the “ Closing Working Capital of the Acquired Businesses ”) determined in accordance with Schedule 2.04 . After the Closing Date, at Seller’s request, Buyer shall cause Buyer’s employees to assist Seller and its representatives in their review of the Working Capital Statement and determination of Closing Working Capital of the Acquired Businesses and shall provide to Seller and its representatives any information reasonably requested and access at all reasonable times to the personnel, properties, books and records of the Acquired Businesses for such purpose. After the Closing Date, at Buyer’s request, Seller shall cause Seller’s employees to assist Buyer and its representatives in their preparation of the Working Capital Statement and determination of the Closing Working Capital of the Acquired Businesses and shall provide to Buyer and its representatives any information reasonably requested and access at all reasonable times to the personnel, properties, books and records of Seller related to the Acquired Businesses for such purpose.

 

(d) Objections, Resolution of Disputes. Unless Seller notifies Buyer in writing within 30 days after Buyer’s delivery of the Working Capital Statement of any objection to the computation of the Closing Working Capital of the Acquired Businesses set forth therein (a “ Notice of Objection ”), the Working Capital Statement delivered pursuant to Section 2.04(c) shall be final and binding. During such 30-day period, Seller and its representatives shall be permitted to review the work papers of Buyer relating to the Working Capital Statement. Any Notice of Objection shall specify in reasonable detail the basis for the objections set forth therein and shall include only objections based on (i) mathematical errors in the computation of the Closing Working Capital of the Acquired Businesses or (ii) the Closing Working Capital of the Acquired Businesses not having been calculated in a manner consistent with the Target Working Capital of the Acquired Businesses. If Seller provides such Notice of Objection to Buyer within such 30-day period, Buyer and Seller shall, during the 30-day period following Seller’s delivery of such Notice of Objection to Buyer, attempt in good faith to resolve Seller’s objections, including those raised in any other Notice of Objection provided by Seller during such following 30-day period. During such following 30-day period, Buyer and its representatives shall be permitted to review the work papers of Seller and Seller’s accountants relating to any Notice of Objection and the basis therefor. Any components or calculations making up the Closing Working Capital of the Acquired Businesses not objected to in a Notice of Objection shall be final and binding on the parties. If Buyer and Seller are unable to resolve all such objections within such period, the matters remaining in dispute shall be submitted to PricewaterhouseCoopers or its successor in interest (or, if such firm declines to act, to another nationally recognized public accounting firm mutually agreed upon by Buyer and Seller and, if Buyer and Seller are unable so to agree within 10 days after the end of such 30-day period, then Buyer and Seller shall each

 

10

select such a firm and such firms shall jointly select a third nationally recognized public accounting firm to resolve the disputed matters) (such agreed or selected firm being the “ Independent Auditor ”). The parties shall instruct the Independent Auditor to render its decision within 60 days of its selection. The resolution of disputed items by the Independent Auditor shall be final and binding, and the determination of the Independent Auditor shall constitute an arbitral award that is final, binding and unappealable and upon which a Judgment may be entered by a court having jurisdiction thereover. The fees and expenses of the Independent Auditor shall be borne equally by Buyer and Seller. The final determination of the Closing Working Capital of the Acquired Businesses shall be final and binding on the parties.

 

Section 2.05     Deferred Liability Adjustment .

 

(a) Deferred Liability Adjustment. The term “ Deferred Liability Adjustment ” means an amount calculated as follows: the sum of

 

(A) accounts receivable of the Periodicals Microform Business as of the Effective Time minus

 

(B) the Deferred Revenue Liability Balance of the Periodicals Microform Business as of the Effective Time, minus

 

(C) advanced payment periodicals (BSA advance payments) as of the Effective Time and minus

 

(D) accounts payable for royalties of the Periodicals Microform Business as of the Effective Time

 

multiplied by 57.5%. The calculation of the Deferred Liability Adjustment as of September 30, 2005 is set forth on Schedule 2.05 .

 

(b) Estimated Deferred Liability Adjustment. Prior to the date of this Agreement, Seller has provided Buyer written notice of the Estimated Deferred Liability Adjustment as of the Effective Time. The “ Estimated Deferred Liability Adjustment ” shall mean an estimate of the Deferred Liability Adjustment calculated by Seller. The Estimated Deferred Liability Adjustment is $(5,500,000).

 

(c) Deferred Liability Adjustment. Not later than 45 days after the Closing Date, Buyer shall deliver to Seller a statement (as it may finally be adjusted pursuant to this Section 2.05, the “ Deferred Liability Adjustment Statement ”) setting forth the Deferred Liability Adjustment as of the Effective Time determined in accordance with Schedule 2.05 . After the Closing Date, at Seller’s request, Buyer shall cause Buyer’s employees to assist Seller and its representatives in their review of the Deferred Liability Statement and determination of the Deferred Liability Adjustment and shall provide to Seller and its representatives any information reasonably requested and access at all reasonable times to the personnel, properties, books and records of the Periodicals Microform Business for such purpose. After the Closing Date, at Buyer’s request, Seller

 

11

shall cause Seller’s employees to assist Buyer and its representatives in their preparation of the Deferred Liability Adjustment Statement and determination of the Deferred Liability Adjustment and shall provide to Buyer and its representatives any information reasonably requested and access at all reasonable times to the personnel, properties, books and records of Seller related to the Periodicals Microform Business for such purpose.

 

(d) Objections, Resolution of Disputes. Unless Seller notifies Buyer in writing within 30 days after Buyer’s delivery of the Deferred Liability Adjustment Statement of any objection to the computation of the Deferred Liability Adjustment set forth therein (a “ Notice of Objection ”), the Deferred Liability Adjustment Statement delivered pursuant to Section 2.05(c) shall be final and binding. During such 30-day period, Seller and their representatives shall be permitted to review the work papers of Buyer relating to the Deferred Liability Adjustment Statement. Any Notice of Objection shall specify in reasonable detail the basis for the objections set forth therein and shall include only objections based on mathematical errors in the computation of the Deferred Liability Adjustment Amount. Any Notice of Objection shall be resolved in accordance with the procedures regarding the resolution of Closing Working Capital in Section 2.04(d).

 

Section 2.06      Closing Payment Adjustment . The Purchase Price shall be either increased or decreased, as the case may be, by (x) the amount by which Closing Working Capital, as finally determined, exceeds or is less than the Estimated Working Capital plus (y) the amount by which the Deferred Liability Adjustment, as finally determined, exceeds or is less than the Estimated Deferred Liability Adjustment (the Purchase Price as so increased or decreased being hereinafter called the “ Adjusted Purchase Price ”). Within three Business Days after the Closing Working Capital has been finally determined in accordance with Section 2.04(d) and the Deferred Liability Adjustment has been finally determined in accordance with Section 2.05(d), (i) if the Closing Date Payment exceeds the Adjusted Purchase Price, Seller shall pay the excess to Buyer in cash, and (ii) if the Closing Date Payment is less than the Adjusted Purchase Price, Buyer shall pay to Seller such shortfall in cash. Any such payment hereunder shall be made by wire transfer of immediately available funds to an account designated in writing by Buyer or Seller, as the case may be, together with interest in the amount of such payment at the prime rate as published by the Wall Street Journal on the Closing Date calculated from the Closing Date to the date of payment. The Closing Date Payment, as it may be so increased or decreased, together with the Facility Purchase Price and the Promissory Note, are referred to herein as the “ Final Purchase Price ”.

 

Section 2.07      Post-Closing Books and Records . No changes made by Buyer after the Closing with respect to the accounting books and records of the Acquired Businesses shall affect the calculation of the Closing Working Capital or the Deferred Liability Adjustment. Without limiting the generality of the foregoing, no changes shall be made in any reserve or other account existing as of the date of the Interim Statements except as a result of events occurring after the date thereof and, in such event, only in a manner consistent with the past practices of the Seller.

 

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF SELLER

 

 

12

Seller hereby represents and warrants to Buyer as follows:

 

Section 3.01     Organization . Seller is a Delaware corporation, duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has the corporate power and authority to enable it to own, lease or otherwise hold the Transferred Assets owned, leased or held by it, and to conduct the Acquired Businesses as currently conducted by it.

 

Section 3.02     Authorization . Seller has the requisite corporate power and authority to execute and deliver this Agreement, the other Transaction Agreements and all other agreements, certificates and documents hereby executed and delivered by Seller and to consummate the transactions contemplated hereby and thereby. Seller has taken all corporate action required by applicable Law, its certificate of incorporation and by-laws to authorize the execution and delivery of this Agreement, the other Transaction Agreements to which Seller is a party and all other agreements, certificates and documents executed and delivered by Seller and to authorize the consummation of the transactions contemplated hereby and thereby. This Agreement has been duly and validly executed and delivered by Seller and is a legal, valid and binding obligation of Seller, enforceable against it in accordance with its terms, except as may be limited by any bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights generally or by general principles of equity (whether considered in a proceeding in equity or at law). The other Transaction Agreements and all other agreements hereby executed and delivered by Seller have been duly and validly executed by Seller and are legal, valid and binding obligations of Seller, enforceable against it in accordance with their respective terms, except as may be limited by any bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights generally or by general principles of equity (whether considered in a proceeding in equity or at law).

 

Section 3.03     No Conflicts or Violations; No Consents or Approvals Required .

 

(a) Except as set forth on Schedule 3.03(a) , neither the execution and delivery of this Agreement nor any other Transaction Agreement, nor the consummation of the transactions contemplated hereby or thereby will (i) conflict with or violate any provision of the certificate of incorporation or by-laws of Seller, (ii) conflict with or violate in any respect material to the Acquired Businesses or the Transferred Assets, any Law applicable to Seller, the Acquired Businesses or any of the Transferred Assets, or (iii) result in the creation or imposition of any mortgage, pledge, lien, security interest, or other similar encumbrance (collectively, “ Liens ”) on any material Transferred Assets other than Permitted Liens or Liens caused by Buyer.

 

(b) No consent, approval or authorization of, or registration, declaration or filing with, any Governmental Entity is required to be obtained or made by or with respect to Seller in connection with the execution, delivery and performance of this Agreement by Seller or the consummation by Seller of the transactions contemplated hereby, other than (A) as listed on Schedule 3.03(b) , or (B) those that may be required solely by reason of Buyer’s (as opposed to any other third party’s) participation in the transactions contemplated by this Agreement and the agreements contemplated hereby.

 

13

Section 3.04     Financial Statements .

 

(a) Schedule 3.04(a) contains copies of the following financial statements (collectively, the “ Seller Statements ”): (i) the unaudited balance sheets and related statements of income of Seller for the fiscal year ended January 2, 2005 and (ii) the unaudited balance sheet and related statements of income and cash flows of Seller as of and for the nine month period ended October 2, 2005. The Seller Statements are in accordance with the books and records of Seller, and such books and records of Seller are true and complete. Each of the balance sheets included in the Seller Statements fairly presents the financial position of Seller as of its date, and each of the related statements of income and cash flows included within the Seller Statements fairly presents the results of operations and cash flows of each of the Acquired Businesses as an integral part of Seller as of its date (except that such Seller Statements do not reflect Taxes or interest on debt). All Seller Statements have been prepared in conformity with GAAP, consistently applied; provided however, that the Seller Statements lack footnotes and other presentation items and are subject to year end adjustments (which will be consistent with historical practice).

 

(b) Schedule 3.04(b) contains copies of the following financial statements: (collectively, the “ Unaudited Statements ”) (i) the unaudited statement of income of the Acquired Businesses for the fiscal year ended January 2, 2005, and (ii) the unaudited balance sheet and related statement of income of the Acquired Businesses as of and for the nine month period ended October 2, 2005 (the “ Interim Statements ”).

 

(c) Schedule 3.04(c) sets forth a reconciliation between the Seller Statements and the Unaudited Statements with respect to intercompany charges and accounts.

 

Section 3.05     Accounts Receivable . All accounts receivable which are included in the Transferred Assets will be reflected properly on the Working Capital Statement and are valid obligations arising from bona fide sales actually made or services actually performed in the ordinary course of business of the applicable Acquired Business. Schedule 3.05 contains a complete and accurate list of all such accounts receivable as of October 1, 2005, which list sets forth the aging of each such account receivable.

 

Section 3.06     Title to Certain Assets . Seller has good and valid title to, or a valid leasehold interest in, the Transferred Assets, in each case, free and clear of any Liens other than Permitted Liens. As used herein, the term “ Permitted Liens ” means and includes (i) Liens for Taxes, assessments or governmental charges or levies not yet due and delinquent or being diligently contested in good faith, or (ii) Liens set forth on Schedule 3.06(ii) .

 

Section 3.07     Contracts .

 

(a) Schedule 3.07(a) sets forth a list of the following Transferred Contracts (which list does not include all Transferred Contracts nor does it include license agreements relating to Licensed-In Intellectual Property which is addressed in Section 3.11) as of the date hereof:

 

14

(i) Contracts for the purchase by Seller of any materials, supplies, equipment, products or furnishing or receipt of services, the performance of which will extend over a period of more than one year and having a value or consideration of more than $50,000 per year;

 

(ii) Contracts for the sale of any publication, product or service, the performance of which will extend over a period of more than one year and having a value or consideration of more than $50,000 per year;

 

(iii) Contracts for the purchase or improvement of any fixed or capital assets for more than $50,000 in the aggregate;

 

(iv) Any royalty or license agreement from an Acquired Business to a third party;

 

(v) Any agreement limiting the freedom of Buyer to engage in the Acquired Businesses or to compete in such business with any other Person;

 

(vi) Any publisher agreement having a value or consideration of more than $50,000 per year;

 

(vii) Any agreement regarding a partnership or joint venture;

 

(viii) Any Contract that compensates any person, other than Business Employees, based on sales;

 

(ix) Employment, consulting or similar agreements involving the payment of more than $100,000 in any calendar year and all severance agreements (excluding any severance policy or practice);

 

(x) Any lease for real property;

 

(xi) Any agreement with an Affiliate;

 

(xii) Any lease for personal property to or from any Person providing for lease payments in excess of $50,000 per annum; and

 

(xiii) Other Contracts not otherwise required to be listed in any other Schedule to this Agreement and obligating Seller to pay more than $100,000 in remaining payment obligations or containing material non-monetary obligations of, or restrictions applicable to, the Acquired Businesses.

 

(b) Seller has made available to Buyer true, correct and complete copies of all Transferred Contracts listed above. Except as set forth in Schedule 3.07(b) , (i) each Transferred Contract is a valid and binding obligation of Seller, enforceable in accordance with its terms except as may be limited by any bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights generally or by general principles of equity (whether

 

15

considered in a proceeding in equity or at law), and is in full force and effect; (ii) neither Seller nor, to the Knowledge of Seller, any other party to any of the Transferred Contracts is (with or without the lapse of time or the giving of notice, or both, but without giving effect to the transactions contemplated by this Agreement) in material violation thereof or material default thereunder, (iii) to the Knowledge of Seller, Seller has not received any notice of termination or cancellation in whole or in part of any Transferred Contracts or any services to be delivered thereunder, and (iv) all of Seller’s rights to and interest in the Transferred Contracts are held free and clear of all Liens other than Permitted Liens.

 

Section 3.08     Absence of Certain Changes . Since the date of the Interim Statements, (i) the Acquired Businesses have been conducted, in all material respects, in the ordinary course consistent with past practice and there has not been any event, occurrence, development or state of circumstances or facts which, individually or in the aggregate, has had a Business Material Adverse Effect, (ii) Seller has no Knowledge of any labor union organizing activity, nor any threatened employee strikes, work stoppages, slowdowns or lockouts, or any material change in its relations with its employees, agents, customers or suppliers, (iii) Seller has not sold, assigned or otherwise transferred, or mortgaged, pledged or subjected to any Lien (other than Permitted Liens), any of the Transferred Assets other than in the ordinary course of business, and (iv) there has not been any material damage, destruction or other material casualty loss (whether or not covered by insurance) to any Transferred Asset.

 

Section 3.09     Compliance with Law and Permit s. The Acquired Businesses have been conducted in compliance in all material respects with all Laws applicable to the Acquired Businesses or the Transferred Assets. All Permits for the Acquired Businesses are in full force and effect and no proceedings are pending or, to Seller’s Knowledge, threatened that could be reasonably expected to result in the revocation, cancellation or suspension thereof. This Section shall not apply to Taxes, as such matters are the subject of Section 3.12, environmental matters, as such matters are the subject of Section 3.15, or intellectual property matters as such matters are the subject of Section 3.11.

 

Section 3.10     Litigation . Schedule 3.10 lists as of the date of this Agreement each pending action, suit or proceeding against Seller or, to Seller’s Knowledge, threatened against Seller, in each case, which relates to the Acquired Businesses or the Transferred Assets and pursuant to which a party seeks (a) more than $50,000 from Seller or (b) injunctive relief. Except as set forth in Schedule 3.10 , Seller is not a party or subject to any judgment or order that is applicable to the Transferred Assets or the conduct of the Acquired Businesses.

 

Section 3.11     Transferred Intellectual Property .

 

(a) Seller owns free and clear of all Liens, or has the right to use pursuant to a legal, valid, binding and enforceable license, sublicense, agreement or permission, all Transferred Intellectual Property under the terms represented in the licenses thereto. There are no settlements, forbearances to sue, consents or orders or similar obligations which (i) restrict the rights of Seller to use any Transferred Intellectual Property or (ii) permit third parties to use any Transferred Intellectual Property. With the exception of the third party software licenses which are either non-assignable or retained by Seller

 

16

identified on Schedule 3.11(a)(i) and except as otherwise set forth in this Agreement, the Transferred Intellectual Property and the Licensed-In Intellectual Property identified on Schedule 3.11(a)(ii) , include all material Intellectual Property rights utilized in or necessary for the operation of the Acquired Businesses as currently conducted. Seller has delivered to Buyer correct, accurate and complete copies of all licenses, including all amendments thereto. Seller make no representation regarding permissions or licenses entered into, obtained or required to be obtained by the Acquired Businesses subsequent to Closing, specifically including any microform or Coursepacks created and shipped or otherwise released by Buyer after the Closing Date.

 

(b) Schedule 3.11(b) identifies each: (i) trademark or copyright (whether foreign or domestic) which has been issued to or registered in the name of Seller or any related entity or person with respect to the Transferred Intellectual Property (with registration numbers, as applicable); (ii) pending trademark or copyright application or application for registration (whether foreign or domestic) which Seller or any related entity or person has made with respect to the Transferred Intellectual Property; (iii) material unregistered copyright or trademark, with respect to the Transferred Intellectual Property; (iv) material trade name, domain name, fictitious or d/b/a name, logo, symbol or other identifier used by Seller in connection with the XanEdu Business; and (v) any and all phone numbers used by Seller in the XanEdu Business, including without limitation any 800- or 888- prefix phone numbers. Seller has delivered to Buyer correct and complete copies of all trademarks, copyrights, registrations, applications, licenses, agreements, and permissions (as amended to date) itemized in Schedule 3.11(b) . Seller does not hold and has not applied for any patents.

 

(c) With respect to each item of Transferred Intellectual Property and except as set forth in the Trademark License Agreement and the Software License Agreement:

 

(i) Seller possesses all right, title, and interest in and to, or has the right to use, without payment to any Person, the item, free and clear of any Lien, including without limitation all rights to the name(s) “UMI,” “XanEdu,” and “Utopia of the Mind”;

 

(ii) each application, registration or grant is valid, subsisting, in proper form and enforceable, and has been duly maintained;

 

(iii) Seller currently is listed in the records of the appropriate United States, state or foreign governmental body as the sole owner of record of each application, registration and grant;

 

(iv) Seller has not received any written notice of a claim within the past two (2) years and, to Seller’s Knowledge, there is no threatened claim, against Seller asserting that any of the Transferred Intellectual Property infringes or violates the rights of any Person, Seller’s Mark (as defined in the Trademark License Agreement) does not infringe on or violate the rights of any person, and Seller has not within the last two (2) years given any notice to any Person

 

17

asserting infringement by such Person of any of the Transferred Intellectual Property; and

 

(v) Seller has not agreed to indemnify any person for or against any interference, infringement, misappropriation, or other conflict with respect to the item.

 

(d) Schedule 3.11(d) lists and identifies correctly all titles and publishers in the Periodicals Microform Business with corresponding royalty rates (as extracted from the Royalty Accounting System), a breakdown of the top fifty (50) Periodical publishers by royalty, including the identity of the parties thereto, the date of the agreement, whether the agreement is exclusive or non-exclusive, the term of the agreement, and whether the agreement is assignable. With respect to licenses and sublicenses pertaining to Intellectual Property owned by third parties and used in the Acquired Businesses (the “ Licensed-In Intellectual Property ”):

 

(i) the license, sublicense, agreement, or permission covering the item is, with respect to Seller, legal, valid, binding, enforceable, and in full force and effect in all material respects and, with respect to the other party or parties thereto, is, to the knowledge of Seller, legal, valid, binding, enforceable, and in full force and effect in all material respects;

 

(ii) no party to the license, sublicense, agreement, or permission is in material breach or default, and, to the Knowledge of Seller, no event has occurred which with notice or lapse of time would constitute a material breach, default, permit termination, or modification, or materially affect Buyer’s continued use thereof (other than with respect to any consent which is required but not obtained); and

 

(iii) to the Knowledge of Seller, the use of the Licensed-In Intellectual Property by the Acquired Businesses complies with the terms of each license or sublicense thereof in all material respects. Seller has delivered or made available to Buyer correct and complete copies of the top fifty (50) licenses and sublicenses by royalty constituting the Licensed-In Intellectual Property, including all amendments thereto.

 

(e) To the Knowledge of Seller, each person from whom Seller has acquired products and goods utilized in the Acquired Businesses (i) obtained, made and/or sold such products and goods without violation of the Intellectual Property or other rights of any person, (ii) has all rights and permissions necessary to distribute such products and goods to Seller, and (iii) has all rights and permissions necessary to grant to Seller the right to redistribute such products and goods and or incorporate such products and goods into the products of the Acquired Businesses.

 

(f) Seller shall, prior to the expiration of the Transitional Services Agreement, deliver to Buyer a true, accurate and complete copy of all available source and/or object code (as applicable) in its possession for the XIP and related website software, the

 

18

ColdSeal software, and any and all customizations, modifications, and configurations made and developed by Seller to third-party software applications which are not being transferred to Buyer but which are or may be separately licensed by Buyer, to the extent Seller has the right to transfer such customizations, modifications and configurations to Buyer (collectively, the “ Seller’s Software ”), together with any and all procedure and system documentation (including programming and development notes and names and versions of development tools) in the form presently maintained by Seller. The Seller’s Software is operating materially in accordance with the specifications therefore (to the extent applicable). Except as disclosed in Schedule 3.11(f) , Seller has not disclosed or made available the source code for any part of the Seller’s Software to any Person other than Affiliates of Seller. There have been no instances since May 1, 2004, in which, for a period of 24 hours or more, failures in the Seller’s Software or the hardware that supports it, has rendered the Seller’s Software unavailable to Seller or, as applicable, the customers of the Acquired Businesses.

 

(g) Seller has adopted a confidentiality policy as set forth in Seller’s Employee Handbook, a copy of which has been provided to Buyer, prohibiting Seller’s employees from disclosing to any unauthorized person the confidential or other classified information to which such employees have access.

 

Section 3.12     Taxes . Seller has timely filed with the appropriate Taxing Authorities all Tax returns required to be filed on or prior to the date hereof with respect to the Transferred Assets; (ii) Seller has paid all Taxes required to be paid on or prior to the date hereof shown thereon as owing, where the non-payment would result in a Lien on any Transferred Asset or would result in Buyer becoming liable or responsible therefor; and (iii) no Taxing Authority has raised in writing, or to the Knowledge of the Seller, threatened to raise, any material issues relating to Taxes which relate to the Transferred Assets for which a Lien could otherwise be imposed after the Closing Date upon any Transferred Asset. Seller has complied with all Laws relating to the payment and withholding of employment Taxes and has withheld and paid all Taxes required to have been withheld and paid in connection with amounts paid or owing to any Business Employee, independent contractor or other Person and all Forms W-2 and 1099 required with respect thereto have been properly completed and timely filed. As used herein, “ Taxes ” shall mean all taxes payable to any Taxing Authority and any interest and penalties thereon. As used herein, “ Taxing Authority ” shall mean any Governmental Entity exercising any Taxing authority or Tax regulatory authority.

 

Section 3.13     Employee Matters .

 

(a) Schedule 3.13(a) sets forth, as of the date hereof, the name, title, base salary, and the current bonus and commission arrangement of each employee who is anticipated to become a Transferred Employee (each a “ Business Employee ”). Subject to Section 2.04(a) and Section 6.02 hereof, Seller has paid in full to the Transferred Employees or accrued in full on the Working Capital Statement all wages, salaries, and benefits due and payable to such employees. The employment or engagement of each Transferred Employee is terminable at will.

 

19

(b) Except as contemplated by this Agreement or as described in Schedule 3.13(b) , no Business Employee who becomes a Transferred Employee will become entitled to or eligible to receive from Buyer any bonus, retirement, severance, job security or similar benefit or any accelerated or enhanced payment or benefit as a result of the transactions contemplated by this Agreement. To the Knowledge of the Seller, no Transferred Employee plans to terminate employment or engagement with the Seller or any of its Affiliates during the next sixty (60) days.

 

(c) Seller is not a party to any collective bargaining agreement with any labor organization covering the Business Employees. As of the date hereof, there is not pending or, to Seller’s Knowledge, threatened, any strike, lock-out, work-stoppage, union-organizing effort or other labor dispute, unfair labor practice proceeding or labor arbitration proceeding involving the Business Employees.

 

Section 3.14     Employee Benefit Plan.

 

(a) Except as set forth on Schedule 3.14 , Seller has not, with respect to the Business Employees, maintained, sponsored, adopted, made contributions to or obligated itself to make contributions to or to pay any benefits or grant rights under or with respect to any “ Employee Pension Benefit Plan ” (as defined in Section 3(2) of ERISA), “ Employee Welfare Benefit Plan ” (as defined in Section 3(1) of ERISA), “multi-employer plan” (as defined in Section 3(37) of ERISA), plan of deferred compensation, medical plan, life insurance plan, long-term disability plan, dental plan or other plan providing for the welfare of any employees or former employees or beneficiaries thereof, personnel policy, excess benefit plan, bonus or incen