DAMAGES CONTRIBUTION AGREEMENTContribution Agreement |
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Exhibit 2.2
DAMAGES CONTRIBUTION AGREEMENT
Damages Contribution Agreement, dated as of November 16, 2006 (this “Damages Contribution Agreement”), between Ripplewood Partners II, L.P., a Delaware limited partnership (the “Loss Payor”), and The Reader’s Digest Association, Inc., a Delaware corporation (the “Loss Payee”). Any terms used but not defined herein have the meaning assigned to those terms in the Merger Agreement (as defined below).
1. Damages Contribution Agreement. To induce the Loss Payee to enter into an Agreement and Plan of Merger, dated as of November 16, 2006 (as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with its terms, the “Merger Agreement”), by and among Doctor Acquisition Holding Co., a Delaware corporation (“Parent”), and Doctor Acquisition Co., a Delaware corporation (“Sub” and, together with Parent, the “Merger Cos”), and the Loss Payee, pursuant to which Sub will merge with and into the Loss Payee, the Loss Payor hereby unconditionally and irrevocably commits to the Loss Payee, on the terms and conditions set forth herein, to make an equity contribution to Parent in cash to the extent of the payment obligations of the Merger Cos under the Merger Agreement, including any Parent obligation to pay liquidated damages for a breach by Parent or Sub of the Merger Agreement pursuant to Section 6.07(d) of the Merger Agreement (the “Obligations”); provided, that the maximum amount payable by the Loss Payor hereunder shall not exceed $25,000,000 plus all the Company’s out-of-pocket expenses, including attorneys’ fees, actually incurred in connection with the Merger Agreement, the Merger and the other Transactions in an aggregate amount not to exceed $5,000,000 (the “Cap”; the Obligations, as limited by the Cap, the “Covered Obligations”), it being understood that the Loss Payee will not seek to enforce this Damages Contribution Agreement without giving effect to the Cap. It is understood and agreed that, in lieu of requiring the Loss Payor to make an equity contribution to Parent in cash, at the election of the Loss Payee in its sole discretion, the Loss Payor will be required to pay directly to the Loss Payee the full amount of the Covered Obligations that is due and payable hereunder, in which event such payments shall be credited and applied towards the Covered Obligations and the obligations of the Loss Payor under this Damages Contribution Agreement (and of the Merger Cos under the Merger Agreement) shall be deemed satisfied to the extent of such payments. This Damages Contribution Agreement is an unconditional promise to contribute or to pay up to a specified amount on the terms and conditions set forth herein and is not a guarantee of payment or collection.
2. Nature of Damages Contribution Agreement. The Loss Payee shall not be obligated to file any claim relating to the Obligations in the event that any Merger Co becomes subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Loss Payee to so file shall not affect the Loss Payor’s obligations hereunder. In the event that any payment to the Loss Payee in respect of the Obligations is rescinded or must otherwise be returned for any reason whatsoever, the Loss Payor shall remain liable hereunder with respect to its Covered Obligations as if such payment had not been made; provided, however, that the aggregate payment hereunder by Loss Payor to any person shall not in any event exceed the Cap.
3. Changes in Obligations, Certain Waivers. The Loss Payor agrees that the Loss Payee may at any time and from time to time, without notice to or further consent of the Loss Payor, extend the time of payment of any of the Obligations, and may also make any
agreement with a Merger Co for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Loss Payee and any Merger Co without in any way impairing or affecting the Loss Payor’s obligations under this Damages Contribution Agreement. The Loss Payor agrees that the obligations of the Loss Payor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (a) the failure of the Loss Payee to assert any claim or demand or to enforce any right or remedy against any Merger Co or any other person interested in the transactions contemplated by the Merger Agreement; (b) any change in the time, place or manner of payment of any of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations (including the Equity Commitment Agreements); (c) the addition, substitution or release of any entity or other person interested in the transactions contemplated by the Merger Agreement; (d) any change in the corporate existence, structure or ownership of any Merger Co or any other person interested in the transactions contemplated by the Merger Agreement; (e) any insolvency, bankruptcy, reorganization or other similar proceeding affecting any Merger Co or any other person interested in the transactions contemplated by the Merger Agreement; (f) the existence of any claim, set-off or other right which the Loss Payor may have at any time against any Merger Co or the Loss Payee, whether in connection with the Obligations or otherwise; or (g) the adequacy of any other means the Loss Payee may have of obtaining payment of any of the Obligations. To the fullest extent permitted by law, the Loss Payor hereby expressly waives any and all rights or defenses arising by reason of any law which would otherwise require any election of remedies by the Loss Payee. The Loss Payor waives promptness, diligence, notice of the acceptance of this Damages Contribution Agreement and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any Obligations incurred and all other notices of any kind (except for notices to be provided to Parent and its counsel in accordance with Sections 8.01(f) and 9.02 of the Merger Agreement), all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of any Merger Co or any other person interested in the transactions contemplated by the Merger Agreement, and all suretyship defenses generally (other than fraud or willful misconduct by the Loss Payee or any of its subsidiaries or Controlled Affiliates, defenses to the payment of the Obligations that are available to a Merger Co under the Merger Agreement or breach by the Loss Payee of this Damages Contribution Agreement). The Loss Payor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Merger Agreement and that the waivers set forth in this Damages Contribution Agreement are knowingly made in contemplation of such benefits.
For purposes of this Damages Contribution Agreement, “Controlled Affiliate” of any person means any affiliate that such person directly or indirectly controls (within the meaning of Rule 12b-2 of the Exchange Act) and, for purposes of this Damages Contribution Agreement, includes the directors and officers of such person.
The Loss Payor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Sub that arise from the existence, payment, performance, or enforcement of the Loss Payor’s Covered Obligations under or in respect of this Damages Contribution Agreement or any other
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agreement in connection therewith, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Loss Payee against Parent or Sub, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including the right to take or receive from Parent or Sub, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Covered Obligations shall have been paid in full in cash. If any amount shall be paid to the Loss Payor in violation of the immediately preceding sentence at any time prior to the payment in full in cash of the Covered Obligations, such amount shall be received and held in trust for the benefit of the Loss Payee, shall be segregated from other property and funds of the Loss Payor and shall forthwith be paid or delivered to the Loss Payee in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Covered Obligations, in accordance with the terms of the Merger Agreement, whether matured or unmatured, or to be held as collateral for any Covered Obligations thereafter arising. Notwithstanding anything to the contrary contained in this Damages Contribution Agreement, the Loss Payee hereby agrees that to the extent Parent and Sub are relieved by the parties to the Merger Agreement (including the Loss Payee) of any of their obligations under the Merger Agreement, the Loss Payor shall be similarly relieved of its obligations under this Damages Contribution Agreement.
4. No Waiver; Cumulative Rights. No failure on the part of the Loss Payee to exercise, and no delay in exercising, any right, remedy or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise by the Loss Payee of any right, remedy or power hereunder preclude any other or future exercise of any right, remedy or power. Each and every right, remedy and power hereby granted to the Loss Payee or allowed it by law or other agreement shall be cumulative and not exclusive of any other, and may be exercised by the Loss Payee at any time or from time to time.
5. Representations and Warranties. The Loss Payor hereby represents and warrants that:
(a) the execution, delivery and performance by the Loss Payor of this Damages Contribution Agreement have been duly authorized by all necessary action on the part of the Loss Payor and does not conflict with any provision of (i) the Loss Payor’s partnership agreement or similar organizational documents, (ii) any Contract to which the Loss Payor is a party or by which any of its properties or assets is bound or (iii) any Judgment or Law applicable to the Loss Payor or its properties or assets, other than, in the case of clauses (ii) and (iii) above, any such items that, individually or in the aggregate, could not reasonably be expected to have a material adverse effect on the ability of the Loss Payor to perform its obligations under this Damages Contribution Agreement;
(b) no Consent of, or registration, declaration or filing with, any Governmental Entity is required to be obtained or made by or with respect to the Loss Payor in connection with the execution, delivery and performance of this Damages Contribu






