Agreement of Purchase and Sale - Ottaway Newspapers of Pennsylvania LP, Ottaway Newspapers Inc., The Mail Tribune Inc. and Newspaper Holdings Inc.
EXECUTION COPY
AGREEMENT OF PURCHASE AND SALE
AMONG
OTTAWAY NEWSPAPERS OF PENNSYLVANIA, L.P.,
OTTAWAY NEWSPAPERS, INC.,
THE MAIL TRIBUNE, INC.
AND
NEWSPAPER HOLDINGS, INC.
Dated as of February 20, 2002
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AGREEMENT OF PURCHASE AND SALE, dated as of February 20,
2002 (the "Agreement"), among Ottaway Newspapers of Pennsylvania, L.P.,
a Pennsylvania limited partnership, Ottaway Newspapers, Inc.
("Parent"), The Mail Tribune, Inc., a Delaware corporation ("MTI") and
Newspaper Holdings, Inc., a Delaware corporation (the "Buyer").
WHEREAS, the Seller desires to sell to the Buyer, and the
Buyer desires to buy from the Seller, the Seller Assets (as defined
below) and the publishing business of Seller carried on by or with
respect to such Seller Assets (the "Business");
WHEREAS, MTI desires to sell to the Buyer, and the Buyer
desires to buy from MTI, the MTI Assets (as defined below);
In consideration of the mutual covenants,
representations, warranties and agreements hereinafter set forth, and
intending to be legally bound hereby, the parties hereto agree that,
subject to the conditions herein contained:
ARTICLE I
SALE OF ASSETS AND TERMS OF PAYMENT
1.1. The Sale.
(a)(i) Upon the terms and subject to the conditions
of this Agreement, on the Closing Date (as defined below), the Seller
shall sell, convey, transfer, assign and deliver to the Buyer, and the
Buyer shall purchase and acquire from the Seller, all of the Seller's
right, title and interest in and to the Seller Assets (as defined
below), as the same may exist on the Closing Date. As used in this
Agreement, the term "Seller Assets" means all of the Seller's assets
(other than Excluded Assets) (defined below)), including:
(A) Each of the publications referred to in Schedule
1.1(a)(i)(A) and all Seller's rights to prepare, publish, sell and
distribute such publications and any other publications, extensions or
spinoffs derived from such publications or related thereto in all
languages (collectively, the "Publications").
(B) All inventories (including, without limitation,
inventories of back and current issues of the Publications); editorial
material, work in process, finished goods, manuscripts, notes and
drafts, graphic artwork, cuts, photographs and negatives owned by the
Seller; promotional materials, inserts, and direct mail materials owned
by the Seller; stationery, supplies, purchase orders, forms, labels,
shipping materials and catalogs owned by the Seller, and all lists
owned by the Seller of contributors, authors, correspondents,
reviewers, photographers, illustrators and editors who contribute or
have contributed to any of the Publications.
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(C) All circulation, delivery and mailing lists and
carrier routes maintained by or for the Seller relating to any of the
Publications, all data related to such lists, all circulation
readership studies, audience surveys and research owned by the Seller,
and all other mailing lists, together with all records, reports and
tapes of computer data owned by the Seller relating to any of the
Publications.
(D) All copyrights owned by the Seller in all material
used in any of the Publications, including all copyrights covering each
issue of each of the Publications, and the contents and components
thereof, and all copyright registrations pertaining thereto and all
rights of the Seller to obtain renewals and extensions of such
copyrights (the "Copyrights").
(E) All lists of, files, books and records of the Seller
relating to the advertisers of, for or in any of the Publications,
including, but not limited to, rate cards, verification cards,
advertising insertion orders, specimen copies of all advertisements
carried in any of the Publications, and copies of current price lists,
discount lists, catalogs, public relations materials, sales
correspondence, call reports, call books and sales promotion lists.
(F) All of the advertising contracts, space reservations
and insertion orders relating to the placement of advertising in any of
the Publications with respect to all issues to be published after the
Closing Date.
(G) All subscriptions and orders for any of the
Publications.
(H) All accounts and other amounts receivable and all
Seller's other rights to payment (including employee receivables),
causes of action, claims and rights of recovery, whether arising or
accruing prior to, on or after the Closing Date, whether in respect of
advertising, subscriptions, mailing lists or newsstand orders or
otherwise, together with the proceeds thereof.
(I) All fixed and tangible personal property as
identified in Schedule 1.1(a)(i)(I).
(J) All leaseholds, identified in Schedule 1.1(a)(i)(J).
(K) All licenses, permits, variances, franchises,
certifications, approvals, permits and authorizations issued by any
administrative body or licensing authority or governmental or
regulatory agency to the Seller, together with any renewals, extensions
or modifications thereof and additions thereto (the "Licenses"), to the
extent transferable.
(L) All contracts, agreements and leases to which the
Seller is a party (hereinafter collectively, the "Contracts").
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(M) All other books, financial and personnel records,
invoices, shipping records, supplier lists and other documents,
records, data files and service manuals owned by the Seller, but
excluding the Seller's corporate minute books and stockholder records.
(N) All computer software and programs and any rights
thereto owned by the Seller, but, if not owned by the Seller, then to
the extent that such software, programs or rights are assignable.
(O) All claims, causes of action, rights of recovery and
rights of set-off of any kind (including, without limitation, rights
under and pursuant to all warranties, representations and guarantees
made by suppliers of products, materials or equipment, or components
thereof) owned by the Seller.
(P) The goodwill of or pertaining to the Business, the
Seller Assets, and the Publications.
(Q) The real property identified on Schedule
1.1(a)(i)(Q) (the "Property").
(ii) Upon the terms and subject to the conditions of
this Agreement, on the Closing Date, MTI shall sell, convey, transfer,
assign and deliver to the Buyer, and the Buyer shall purchase and
acquire from MTI all of MTI's right, title and interest in and to the
MTI Assets (as defined below), as the same may exist on the Closing
Date. As used in this Agreement, the term "MTI Assets" means:
(A) All trademarks, service marks, logos, trademark
registrations, service mark registrations, trade names, domain names
and brand names used in connection with any of the Publications
identified on Schedule 3.11 (collectively, the "Intellectual Property")
and the goodwill related thereto.
(B) The names and addresses of all subscribers to any of
the Publications, all data related to such subscribers, and all rights
to own, manage, use and rent the names and addresses of all subscribers
to any of the Publications.
(C) All lists of, files, books and records of MTI
relating to the advertisers of, for or in any of the Publications,
including, prospect lists for advertising in any of the Publications.
(D) The goodwill of or pertaining to the MTI Assets.
(iii) Notwithstanding anything in this Agreement to
the contrary, specifically excluded from the Assets are the assets set
forth in Schedule 1.1(a)(iii) (collectively, the "Excluded Assets").
(iv) As used herein, the term Assets shall include
the Seller Assets and the MTI Assets.
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(b)(i) Upon the terms and subject to the conditions
of this Agreement, on the Closing Date, the Buyer shall execute and
deliver to the Seller an Obligations Undertaking substantially in the
form of Exhibit 1.1(c) (the "Obligations Undertaking") pursuant to
which the Buyer shall assume and become responsible for all debts,
commitments, obligations and liabilities (whether absolute, contingent,
accrued, unaccrued, due or to become due) of the Seller, or of MTI
relating primarily to the Business (collectively, excluding the
Excluded Liabilities (defined below)) the "Assumed Liabilities"),
except for the liabilities expressly set forth in the Obligations
Undertaking (collectively, the "Excluded Liabilities").
(ii) The Buyer shall pay, perform and discharge when
due each Assumed Liability in accordance with the terms thereof.
(iii) The Buyer agrees that, effective upon the
Closing, the Buyer shall indemnify the Seller, MTI and the Parent and
their respective affiliates and hold each of them harmless against any
claims, losses, liabilities, damages, judgments, costs and expenses
(including, attorneys' fees and expenses) incurred or suffered by any
of them arising out of the Assumed Liabilities after the Closing Date.
1.2. Purchase Price. (a) Upon the terms and subject to
the conditions contained in this Agreement, and in consideration of the
aforesaid sale, assignment, transfer and delivery of the Assets, on the
Closing Date the Buyer will pay or cause to be paid: (i) to the Seller
in cash the sum of (x) Twenty Five Million Six Hundred Eighty Eight
Thousand Twenty Three Dollars ($25,688,023), plus (y) the amount, if
any, by which Estimated Closing Adjusted Net Working Capital (as
defined below) exceeds Zero Dollars ($0) or minus (z) the amount, if
any, by which Estimated Closing Adjusted Net Working Capital is less
than Zero Dollars ($0) (the "Estimated Purchase Price") and (ii) to MTI
in cash Zero Dollars ($0) (the "MTI Purchase Price"). As additional
consideration for the purchase of the Assets, the Buyer shall assume
the Assumed Liabilities. The Buyer shall deliver to the Seller the
Estimated Purchase Price, and to MTI the MTI Purchase Price, by wire
transfer of immediately available funds to accounts designated by the
Seller, and MTI, respectively, in writing at least two (2) business
days prior to the Closing Date.
(b) As used in this Agreement, the term "Closing
Adjusted Net Working Capital" means the amount of the difference
between (i) the aggregate value of the current assets of the Seller
(excluding cash) as of the Closing (the "Current Assets"), and (ii) the
aggregate amount of the current liabilities of the Seller (excluding
liabilities for taxes and other Excluded Liabilities) as of the Closing
(the "Current Liabilities"), in each case computed in a manner
consistent with the Seller's accounting practices. If Current Assets
exceed Current Liabilities, the Closing Adjusted Net Working Capital
shall be deemed to be a positive amount. If Current Liabilities exceed
Current Assets, the Closing Adjusted Net Working Capital shall be
deemed to be a negative amount.
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(c) Two (2) business days prior to the Closing, the
Buyer and the Seller shall jointly agree in writing upon an estimate of
the Closing Adjusted Net Working Capital as of the Closing Date (the
"Estimated Closing Adjusted Net Working Capital") and such Estimated
Closing Adjusted Net Working Capital shall be used to determine the
amount of the Estimated Purchase Price payable to the Seller at the
Closing as set forth in clause (a) of this Section 1.2.
(d) As soon as practicable after the Closing (but in
any event within sixty (60) business days thereof), the Buyer shall
calculate the actual Closing Adjusted Net Working Capital and deliver
such calculation, as well as the balance sheet used to derive such
calculation and all back-up materials necessary for Seller's
understanding of such calculation, to the Seller. The Seller must
within thirty (30) business days of receipt of same (the "Receipt
Date") confirm whether or not it agrees with the calculation of Closing
Adjusted Net Working Capital and, if it does not agree with such
calculation, Seller will specify within sixty (60) business days of the
Receipt Date in reasonable detail the points of disagreement. The
Buyer and its accountants will provide the Seller's accountants with
reasonable access to the necessary books, records and working papers.
The parties shall then seek to resolve the points of disagreement and
agree upon the Closing Adjusted Net Working Capital. If either the
Seller agrees upon the Closing Adjusted Net Working Capital or the
Buyer and the Seller agree upon the same (with such further adjustments
as they may agree) within ninety (90) business days of the Receipt
Date, the amount so agreed upon shall be the Closing Adjusted Net
Working Capital. If the Buyer and the Seller do not agree upon the
Closing Adjusted Net Working Capital pursuant to the procedures set
forth above, the Buyer and the Seller shall mutually agree (and such
agreement shall not be unreasonably withheld) to the appointment of a
firm of independent public accountants from the "Big Five" accounting
firms to act as an arbitrator (the "Arbitrator") to determine the
Closing Adjusted Net Working Capital within one hundred twenty (120)
business days of the Receipt Date or as soon thereafter as is
practicable. If the parties fail to agree on the Arbitrator by the
100th business day after the Receipt Date, the parties shall request
that the American Arbitration Association select one of the "Big Five"
accounting firms with no material relationship with Seller or Buyer to
act as the Arbitrator. All determinations made by the Arbitrator shall
be final, conclusive and binding with respect to the Closing Adjusted
Net Working Capital. Fees and expenses of the Arbitrator shall be
shared equally by the Buyer, on the one hand, and the Seller, on the
other.
(e) To the extent that the actual amount of the
Closing Adjusted Net Working Capital (determined in accordance with the
procedure set forth in clause (d) of this Section 1.2), is greater than
the Estimated Closing Adjusted Net Working Capital, the Buyer shall pay
to the Seller within five business days of the date of such
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determination the amount of such excess by wire transfer of immediately
available funds to an account designated in writing for such purpose by
the Seller at least one (1) business day prior to the date of payment
(the "Additional Purchase Price"). To the extent that the Estimated
Closing Adjusted Net Working Capital is greater than the Closing
Adjusted Net Working Capital (determined in accordance with the
procedure set forth in clause (d) of this Section 1.2), the Seller
shall pay to the Buyer within five business days of the date of such
determination the amount of such excess by wire transfer of immediately
available funds to an account designated in writing for such purpose by
the Buyer at least one (1) business day prior to the date of payment
(the "Excess Purchase Price"). The MTI Purchase Price and the Estimated
Purchase Price plus the Additional Purchase Price or less the Excess
Purchase Price, as the case may be, is referred to herein as the
"Purchase Price".
1.3. Allocation. The Buyer, the Seller and MTI agree to
allocate the Purchase Price among the Assets for all purposes
(including financial accounting and tax purposes) in accordance with
the allocation on Schedule 1.3.
1.4 Procedures for Assets Not Transferable. If any of
the Contracts or any other property or rights included in the Seller
Assets are not assignable or transferable either by virtue of the
provisions thereof or under applicable law without the consent of some
other party or parties (a "Required Consent"), Seller shall use all
commercially reasonable efforts to obtain such consents prior to the
Closing Date and shall notify Buyer on or prior to the Closing Date of
any consents not so obtained; provided, that Seller shall not be
required to make any payments or to incur any obligations to third
parties in connection with the obtaining of any such consent. If any
Required Consent cannot be obtained prior to Closing, Seller shall use
all commercially reasonable efforts to obtain any consents not
previously obtained as soon as possible after the Closing Date or
otherwise obtain for Buyer the practical benefit of such property or
rights.
1.5 The Indemnification Agreement. In connection with
the transactions contemplated by this Agreement, the Buyer and the
Parent are entering into an indemnification agreement dated
simultaneously with the date hereof (the "Indemnification Agreement").
ARTICLE II
THE CLOSING
2.1. Time and Place of Closing. Upon the terms and
subject to the conditions contained in this Agreement, the closing of
the transactions contemplated by this Agreement (the "Closing") will
take place at the offices of Dow Jones & Company, Inc. at 10:00 A.M.
(local time) on the later of (i) March 29, 2002 or (ii) as
soon as practicable, but in any event within three business days,
following the date on which all of the conditions to each party's
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obligations hereunder have been satisfied or waived; or at such other
place or time or both as the parties may agree. The date on which the
Closing actually occurs and the transactions contemplated hereby become
effective is hereinafter referred to as the "Closing Date."
2.2. Deliveries by the Seller and MTI. At the Closing
(or as soon thereafter as reasonably practicable with respect to
Trademarks), the Seller and MTI, as applicable, will deliver or cause
to be delivered to the Buyer duly executed instruments of transfer and
assignment of the Assets in form reasonably satisfactory to the Buyer,
subject only to Permitted Liens (as defined below), sufficient to vest
in the Buyer the interests in the Assets to be conveyed at the Closing
in accordance with the terms of this Agreement. In addition, at the
Closing, the Seller, MTI and the Parent shall deliver to Buyer:
(i) the originals (or if not in existence copies) of
all Contracts and the originals of all books, records and files
included in the Assets;
(ii) copies of corporate and stockholder resolutions
of each of the general partner of the Seller, MTI and the Parent
authorizing the execution and delivery of this Agreement and, with
respect to the Parent, the Indemnification Agreement, and each Exhibit
hereto to which each is a party and the consummation of the
transactions contemplated hereby and thereby, certified by an executive
officer of the general partner of the Seller, MTI and the Parent, as
the case may be;
(iii) executed counterparts reasonably satisfactory
in form and substance to the Buyer of all consents necessary to the
assignment to the Buyer of the Contracts listed on Schedule 2.2 (the
"Consents"); and
(iv) all other documents required by the terms of
this Agreement to be delivered by the Seller to the Buyer at the
Closing.
2.3. Deliveries by the Buyer. At the Closing, the Buyer
will deliver to the Seller the Obligations Undertaking. In addition,
at the Closing, the Buyer shall deliver:
(i) the Estimated Purchase Price and the MTI
Purchase Price;
(ii) copies of corporate and stockholder resolutions
of the Buyer authorizing the execution and delivery of this Agreement
and the Indemnification Agreement and each Exhibit hereto to which the
Buyer is a party and the consummation of the transactions contemplated
hereby and thereby, certified by an executive officer of the Buyer; and
(iii) all other documents required by the terms of
this Agreement to be delivered by the Buyer to the Seller at the
Closing.
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REPRESENTATIONS AND WARRANTIES
WITH RESPECT TO THE SELLER, MTI AND THE PARENT
Except as set forth in the schedules being delivered
by the Seller to the Buyer (the "Seller Schedules," and each, a "Seller
Schedule"), the Seller, with respect to itself, the Business, and the
Seller Assets; MTI, with respect to itself and the MTI Assets, and only
as set forth in Sections 3.1, 3.2, 3.3, 3.6, 3.8, 3.11 and 3.16; and
the Parent, with respect to itself and only as set forth in Sections
3.1, 3.2, 3.3, 3.8 and 3.16, represent and warrant to the Buyer as
follows:
3.1 Organization. Each of the Seller, MTI and the
Parent is a corporation (or in the case of Seller, a limited
partnership) duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation (or in the case
of Seller, of its formation), except where the failure to be so
existing and in good standing would not have a Business Material
Adverse Effect. A "Business Material Adverse Effect" means a material
adverse effect on the operations or financial condition of the Business
(other than any effect arising from or related to general economic,
securities markets, or industry conditions) or on the ability of the
Seller, MTI and the Parent to consummate the transactions contemplated
hereby without material delay. The Seller has all requisite corporate
power and authority to own, lease and operate the Seller Assets and to
carry on the Business as now being conducted, except where the failure
to have such power and authority would not have a Business Material
Adverse Effect. MTI has all requisite corporate power and authority to
own, lease and operate the MTI Assets, except where the failure to have
such power and authority would not have a Business Material Adverse
Effect.
3.2. Authority Relative to this Agreement and the
Indemnification Agreement. Each of the Seller, MTI and the Parent has
full corporate (or in the case of Seller, limited partnership) power
and authority to execute and deliver this Agreement (and, with respect
to the Parent, the Indemnification Agreement) and to consummate the
transactions contemplated hereby (and, with respect to the Parent, by
the Indemnification Agreement). The execution and delivery of this
Agreement by the Seller, MTI and the Parent (and, with respect to the
Parent, of the Indemnification Agreement) and the consummation of the
transactions contemplated hereby by the Seller, MTI and the Parent
(and, with respect to the Parent, by the Indemnification Agreement)
have been duly and validly authorized by all necessary corporate (or in
the case of Seller, limited partnership) action on the part of the
Seller, MTI and the Parent and no other corporate (or in the case of
Seller, limitedpartnership) proceedings on the part of the Seller, MTI
or the Parent are necessary to authorize this Agreement (or, with
respect to the Parent, the Indemnification Agreement) or to consummate
the transactions contemplated hereby (or, with respect to the Parent,
by the Indemnification Agreement). This Agreement (and, with respect to
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the Parent, the Indemnification Agreement) has been duly and validly
executed and delivered by the Seller, MTI and the Parent and, assuming
the due authorization, execution and delivery by the other parties
hereto, constitute a legal, valid and binding obligation of the Seller,
MTI and the Parent, enforceable against each such party in accordance
with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or other similar laws
affecting creditors' rights generally and by general equitable
principles (regardless of whether enforceability is considered in a
proceeding in equity or at law).
3.3. Consents and Approvals; No Violation. Except for
the applicable requirements of the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended and the rules and regulations
thereunder (the "HSR Act"), to the knowledge of each of the Seller, the
Parent and MTI, respectively, there is no requirement applicable to the
Seller, the Parent or MTI to make any filing with, or to obtain any
permit, authorization, consent or approval of, any governmental or
regulatory authority as a condition to (i) the lawful consummation by
the Seller, the Parent or MTI of the transactions contemplated by this
Agreement or (ii) the lawful consummation by the Parent of the
transactions contemplated by the Indemnification Agreement. Except as
set forth in Schedule 3.3, neither the execution and delivery of this
Agreement by the Seller, the Parent and MTI (and of the Indemnification
Agreement by the Parent) nor the consummation by the Seller, the Parent
and MTI of the transactions contemplated hereby (and by the Parent of
the transactions contemplated by the Indemnification Agreement) nor
compliance by the Seller, the Parent and MTI with any of the provisions
hereof (and by the Parent with any of the provisions of the
Indemnification Agreement) will (i) conflict with or result in any
breach of the certificate of limited partnership or the limited
partnership agreement of the Seller or the Certificate of Incorporation
or By-laws of the Seller or MTI, as the case may be, (ii) to the
knowledge of the Seller, the Parent or MTI result in a breach of or
default, or give rise to any right of termination, cancellation or
acceleration under, any material note, bond, mortgage, indenture,
license, agreement, lease or other similar instrument or obligation to
which the Seller the Parent or MTI is a party or by which any of its
properties or assets may be bound, except for such breaches or defaults
(or, rights of termination cancellation or acceleration) as to which
requisite waivers or consents have been obtained, or (iii) assuming
compliance with the HSR Act, to the knowledge of the Seller and MTI,
violate any material order, judgment, writ, injunction, decree,
statute, rule or regulation applicable to the Seller, the Parent MTI,
the Business or any of the Assets, excluding from the foregoing clauses
(ii) and (iii) such breaches, defaults, rights of termination,
cancellation or acceleration and violations which would not have a
Business Material Adverse Effect.
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3.4. Financial Statements. Attached as Schedule 3.4 are
(i) the statements of income of the Seller for the years ending
December 31, 2000 and 2001, (ii) the statement of income of the Seller
for the one-month period ended January 31, 2002 (the "January Income
Statement"), (iii) the balance sheets of the Seller as of December 31,
2000 and 2001 and (iv) the balance sheet of the Seller as of January
31], 2002 (the "January Balance Sheet" and, together with the January
Income Statement, the "January Financial Statements" and all above
referenced financial information collectively, the "Financial
Statements"). The Financial Statements (including the notes thereto)
fairly present in all material respects the financial position of the
Business and the results of operations of the Business as at and for
the periods covered thereby and have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis,
except as otherwise noted therein, and except for footnotes and for
year-end adjustments the effect of which in the aggregate is not
expected to be material.
3.5. Absence of Certain Changes or Events. Except as
set forth in Schedule 3.5 and except as otherwise contemplated by this
Agreement, since January 31, 2002, the Business has not (a) suffered
any damage, destruction or casualty loss to its physical properties
which has had a Business Material Adverse Effect; (b) incurred or
discharged any obligation or liability or entered into any other
transaction except in the ordinary course of business and except that
have not had a Business Material Adverse Effect; (c) suffered any
change in its relationship with its suppliers, customers, distributors,
lessors, licensors, or licensees other than changes which have not had
a Business Material Adverse Effect; (d) other than with respect to
agreements for which the Buyer will have no liability after Closing,
increased the rate or terms of compensation or benefits payable to or
to become payable by it to its directors, officers, or key employees or
increased the rate or terms of any bonus, pension or other employee
benefit plan covering any of its directors, officers or key employees,
except in each case increases occurring in the ordinary course of
business in accordance with its customary practice (including normal
periodic performance reviews and related compensation and benefits
increases) or as required by any pre-existing commitment; (e) incurred
any indebtedness for borrowed money; (f) forgiven or canceled any
indebtedness owing to it or waived any claims or rights of material
value, in each case except in the ordinary course of business; (g)
sold, leased, licensed or otherwise disposed of any of its material
assets other than sales of inventory and sales of obsolete assets in
the ordinary course of business; or (h) committed pursuant to a legally
binding agreement to do any of the things set forth in clause (b) and
clauses (d) through (g) above.
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3.6. Title to Assets. Each of the Seller and MTI has
good title to all of the Assets which it purports to own (except for
Assets sold, consumed or otherwise disposed of in the ordinary course
of business since the date of the January Balance Sheet), free and
clear of all liens, pledges, charges, mortgages, security interests,
restrictions, easements, liabilities, claims, encumbrances or rights of
others of every kind and description (collectively, "Liens"), except
Permitted Liens. Except as specified in Schedule 3.6, the Assets
include all material assets and properties used in the operation and
conduct of the Business as currently conducted by the Seller, and are
in good working order, reasonable wear and tear excepted.
3.7. Certain Contracts. Schedule 3.7 lists all
contracts or agreements to which the Seller is a party, as of the date
hereof, other than (i) contracts for the purchase or sale of goods or
services entered into in the ordinary course of business, (ii)
contracts that terminate or are terminable without penalty within one
(1) year after the date hereof, and (iii) contracts that involve an
annual obligation of less than $10,000 on the part of the Business
(collectively, the "Material Contracts"). Except as set forth in
Schedule 3.7, to the knowledge of the Seller, there is not, under any
of the Material Contracts, any existing default or event of default
which, with or without due notice or lapse of time or both, would
constitute a default or event of default on the part of the Seller,
except such defaults, events of default and other events which would
not have a Business Material Adverse Effect. Except as set forth in
Schedule 3.7, each Material Contract is a valid and binding obligation
of the Seller to the knowledge of the Seller, the other party thereto,
is enforceable against the Seller in accordance with its terms, in all
cases except as such enforceability may be limited by the effect of
bankruptcy, insolvency or similar laws affecting creditors' rights
generally or by general principles of equity, and is in full force and
effect as of the date hereof.
3.8. Legal Proceedings, etc. Except as set forth on
Schedule 3.8, as of the date hereof, there are no legal,
administrative, arbitration or other proceedings or governmental
investigations pending or, to the knowledge of the Seller, threatened
in writing against the Seller, or against MTI or the Parent relating to
the Business, other than those which would not have a Business Material
Adverse Effect.
3.9. Employee Benefit Plans. The Seller has made
available to the Buyer each written plan, policy, commitment and
agreement that provides material compensation or employee benefits to
the Transferred Employees (including, without limitation, any "employee
benefit plan" as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA")), maintained by the
Seller or any of its affiliates.
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3.10. Taxes. All material returns of income Taxes (as
defined in the following sentence) and all returns of other Taxes
required to be filed with respect to the Business have been filed
(taking into account any extension of time to file), and all material
Taxes required to be paid in connection therewith have been paid,
except where failure to file such Tax returns or to pay such Taxes
would not have a Material Adverse Effect. For purposes of this Section
3.10, "Taxes" shall mean all taxes, charges, fees, levies, or other
assessments, including, without limitation, income, excise, property,
sales and franchise taxes, imposed by the United States or any state,
county, local or foreign government or subdivision or agency thereof,
and including any interest, penalties or additions attributable
thereto.
3.11. Intellectual Property. Schedule 3.11 sets forth a
list of all of the Intellectual Property. Except as set forth on
Schedule 3.11, the Seller and MTI own or, to the knowledge of the
Seller and MTI, have a valid right to use the Intellectual Property
included in the Seller Assets and the MTI Assets, respectively, and the
Seller owns the Copyrights, in each case free and clear of all Liens
(other than Permitted Liens), except for such Liens or absence of
rights as would not have a Business Material Adverse Effect. Each of
the Seller and MTI has the power and authority to transfer or license
to the Buyer all of such rights owned by such party to be transferred
or licensed to the Buyer under this Agreement with respect to the
Intellectual Property and the Copyrights. Except as set forth in
Schedule 3.11, as of the date hereof, there is no claim or litigation
pending or, to the knowledge of the Seller or MTI, threatened in
writing against the Seller or MTI contesting the right of the Seller or
MTI to sell or the right of the Seller or MTI to use any of the
Intellectual Property or the Copyrights.
3.12. Compliance with Law; Licenses. Except as set
forth in Schedule 3.12 hereto, to the knowledge of the Seller, the
Business is in compliance in all material respects with all applicable
laws, rules and regulations, except where the failure to so comply
would not have a Business Material Adverse Effect. Except as would not
have a Business Material Adverse Effect, to the knowledge of the
Seller, the Business has all of the Licenses required for the operation
of the Business as conducted as of the date of this Agreement. (This
Section 3.12 does not relate to environmental matters, which matters
are covered instead exclusively in Section 3.18.)
3.13. Employees. (a) Schedule 3.13 is a true and
complete list of the name of each individual who is employed or who is
retained as an independent contractor or consultant (either directly or
indirectly) by the Seller on the date hereof along with his or her
current job title, compensation, and any additional employee benefits
enjoyed by such individual which are not generally available to
employees of the Seller.
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(b) The Seller has complied in all material respects
with all applicable laws, rules and regulations relating to the
employment of labor, including those relating to wages, hours,
unemployment insurance, collective bargaining and the payment and
withholding of taxes for all employees of the Seller. There is not
pending or, to the knowledge of the Seller, threatened, any material
labor dispute, strike, work stoppage or union organizing effort
involving the Business.
3.14. Undisclosed Liabilities. The Business did not have
as of the date of the January Balance Sheet any material liability or
obligation of any kind or nature (fixed or contingent) that is required
to be reflected on a balance sheet in accordance with generally
accepted accounting principles, which is not reflected, reserved
against or disclosed in the January Financial Statements or disclosed
elsewhere in the Schedules or in the documents listed in the Schedules,
other than (i) such as would not have a Business Material Adverse
Effect, (ii) Excluded Liabilities, (iii) liabilities incurred in the
ordinary course of business since the date of the January Balance
Sheet, and (iv) liabilities under contracts not required to be
disclosed on Seller's Schedules.
3.15. Schedules and Exhibits. Disclosure of any fact or
item in any Schedule or Exhibit hereto referenced by a particular
paragraph or section in this Agreement shall, should the existence of
the fact or item or its contents be relevant to any other paragraph or
section, be deemed to be disclosed with respect to that other paragraph
or section whether or not an explicit cross-reference appears.
3.16. No Implied Representation. Notwithstanding
anything contained in this Article III or any other provision of this
Agreement, it is the explicit intent of each party hereto that none of
the Seller, MTI or the Parent is making any representation or warranty
whatsoever, express or implied, beyond those expressly given in this
Agreement, including any implied warranty or representation as to
condition, merchantability or suitability as to any of the Assets or
the Business, and it is understood that subject to the representations
and warranties contained in this Agreement the Buyer takes the Assets
and the Business as is and where is and in their then present
condition, and Buyer shall rely upon its own examination thereof.
3.17. Construction of Certain Provisions. It is
understood and agreed that the specification of any dollar amount in
any provision of this Agreement or the Indemnification Agreement or the
inclusion of any specific item in the Schedules or Exhibits is not
intended to imply that such amounts or higher or lower amounts, or the
items so included or other items, are or are not material and neither
party shall use the fact of the setting of such amounts or the fact of
the inclusion of any such item in the Schedules in any dispute or
controversy between the parties as to whether any obligation, item or
matter not described herein or included in a Schedule or Exhibit is or
is not material for purposes of this Agreement or the Indemnification
Agreement.
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3.18. Environmental Matters.
(a) Except as set forth in Schedule 3.18(a), to the
knowledge of the Seller, (i) the Business is in compliance in all
material respects with all applicable Environmental Laws, except for
such noncompliance as would not have a Business Material Adverse
Effect; (ii) the Seller has obtained and is in material compliance with
all terms and conditions of all Environmental Permits, except for such
noncompliance as would not have a Business Material Adverse Effect; and
(iii) neither the Seller, nor the Parent has received any written
notice that the Business is in violation of any Environmental Laws or
Environmental Permits.
(b) Except as set forth in Schedule 3.18(b) or except as
otherwise permitted by applicable Environmental Laws, the Seller has no
knowledge of the release or discharge of any Hazardous Materials by the
Seller into the environment at, on or from the premises of the Seller,
that would be reasonably likely to form the basis of any claim or
action under any Environmental Laws and that would have a Business
Material Adverse Effect.
(c) For purposes of this Agreement: (i) "Environmental
Laws" means all federal, state, local and foreign statutes, laws,
rules, regulations and ordinances relating to Environmental Matters, as
enacted and in effect on or prior to the date hereof; (ii)
"Environmental Matters" means any matter arising out of or relating to
health and safety, or pollution or protection of the environment or
workplace, any of the foregoing relating to the presence, use,
production, generation, handling, transport, treatment, storage,
disposal, distribution, discharge, release, control or cleanup of any
Hazardous Materials; (iii) "Environmental Permits" means all licenses,
permits and other governmental authorizations required pursuant to
applicable Environmental Laws for the operation of the Business as
conducted as of the date of this Agreement; and (iv) "Hazardous
Materials" means, collectively, any material defined as, or considered
to be, a "hazardous waste," "hazardous substance," pollutant or
contaminant under any Environmental Law including, the Comprehensive
Environmental Response Compensation and Liability Act (42 U.S.C. Section 9601
et. seq.) and/or the Resource Conservation and Recovery Act (42 U.S.C.
Section 6901 et. seq.).
3.19 Real Property.
(a) Schedule 1.1(a)(i)(Q) lists all real property owned by
Seller included in the Seller Assets. Seller does not own or lease any
real property in connection with the businesses of the Publications
other than the Property and the Leasehold Property (as defined below).
At the Closing, Seller will transfer to Buyer good and marketable fee
simple title to all Property free and clear of all Liens (other than
Permitted Liens).
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(b) Schedule 1.1(a)(i)(J) lists all real property leases
where Seller is lessee ("Facility Leases") included in the Seller
Assets. Other than the Facility Leases set forth on Schedule
1.1(a)(i)(J) or other leases set forth on Schedule 1.1(a)(i)(L), there
are no leases, subleases, licenses or other agreements or arrangements
granting to any person the right to purchase, use or occupy any
facility or any real property owned or leased by Seller.
(c) With respect to each Facility Lease, Seller has and
will transfer to Buyer at the Closing, subject to any required consent
and to Section 1.4 hereof, an unencumbered interest in the leasehold
estate. Seller enjoys peaceful and undisturbed possession of the
property subject to each Facility Lease, subject to the rights of the
fee owners.
(d) No zoning or similar land use restrictions are
presently in effect or, to Seller's knowledge, proposed, by any
governmental authority that would impair the use, occupancy, or
enjoyment of the Property for the purposes for which such Property is
currently being used, and Seller's use of the Property is in compliance
with all applicable building, zoning, land use, health or other codes,
ordinances, laws or regulations relating to the use thereof except as
would not have a Business Material Adverse Effect. No condemnation or
taking by eminent domain of the Property has occurred, is pending or,
to the knowledge of Seller, is threatened.
(e) The Property is served by or has access to public
streets and rights of way, rights of ingress and egress, public sewage
(both storm and sanitary), gas, electric and telephone utility services
that are adequate for the operation of the Publications as currently
conducted.
3.20 Circulation. Schedule 3.20 sets forth the paid
circulation of each of the Publications as of the most recent date
reported by the Audit Bureau of Circulation and as of the most recent
date reported in the Publisher's Unaudited Statement to the Audit
Bureau of Circulation. There has been no material decline in paid
circulation for the Publications since the most recent date reported in
the Publisher's Unaudited Statement to the Audit Bureau of Circulation.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE BUYER
Except as set forth in the schedules being delivered
by the Buyer to the Seller (the "Buyer Schedules" and, each, a "Buyer
Schedule"), the Buyer represents and warrants to the Seller, MTI and
the Parent as follows:
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4.1. Organization. The Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its formation and has all requisite corporate power and
authority to own, lease and operate its properties and to carry on its
business as now being conducted, except where the failure to be so
existing and in good standing or to have such power and authority would
not have a Buyer Material Adverse Effect. A "Buyer Material Adverse
Effect" mans a material adverse effect on the operations or financial
condition of the Buyer (other than any effect arising from or related
to general economic, securities markets, or industry conditions) or on
the ability of the Buyer to consummate the transactions contemplated
hereby without material delay.
4.2. Authority Relative to this Agreement. The Buyer
has full corporate power and authority to execute and deliver this
Agreement, the Indemnification Agreement and the Obligations
Undertaking and to consummate the transactions contemplated hereby and
thereby. The execution and delivery of this Agreement, the
Indemnification Agreement and the Obligations Undertaking by the Buyer
and the consummation of the transactions contemplated hereby and
thereby by the Buyer have been duly and validly authorized by all
necessary corporate action on the part of the Buyer and no other
proceedings on the part of the Buyer are necessary to authorize this
Agreement, the Indemnification Agreement or the Obligations Undertaking
or to consummate the transactions contemplated hereby or thereby. This
Agreement, the Indemnification Agreement and the Obligations
Undertaking have been duly and validly executed and delivered by the
Buyer and, assuming the due authorization, execution and delivery by
the other parties hereto, constitute a legal, valid and binding
obligation of the Buyer, enforceable against the Buyer in accordance
with their terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or other similar laws
affecting creditors' rights generally and by general equitable
principles (regardless of whether enforceability is considered in a
proceeding in equity or at law).
4.3. Consents and Approvals; No Violation. To the
knowledge of the Buyer, there is no requirement applicable to the Buyer
to make any filing with, or to obtain any permit, authorization,
consent or approval of, any governmental or regulatory authority as a
condition to the lawful consummation by the Buyer of the transactions
contemplated by this Agreement or by the Indemnification Agreement.
Except as set forth in Schedule 4.3, neither the execution and delivery
of this Agreement and the Indemnification Agreement by the Buyer nor
the consummation by the Buyer of the transactions contemplated hereby
or thereby nor compliance by the Buyer with any of the provisions
hereof or thereof will (i) conflict with or result in a breach of the
Certificate of Incorporation of the Buyer, (ii) to the knowledge of the
Buyer, result in a breach of or default, or give rise to any right of
termination, cancellation or acceleration under, any material note,
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bond, mortgage, indenture, license, agreement, lease or other similar
instrument or obligation to which the Buyer is a party or by which any
of the Buyer's properties or assets may be bound, except for such
breaches or defaults (or rights of termination, cancellation or
acceleration) as to which requisite waivers or consents have been
obtained, or (iii) assuming compliance with the HSR Act, to the
knowledge of the Buyer, violate any material order, judgment, writ,
injunction, decree, statute, rule or regulation applicable to the Buyer
or any of the Buyer's properties or assets, excluding from the
foregoing clauses (ii) and (iii) such breaches, defaults and violations
which, in the aggregate, would not have a Buyer Material Adverse
Effect.
4.4. Financial Capability. The Buyer has immediately
available cash sufficient to pay the Purchase Price or, if some or all
of the Purchase Price will be obtained from external financing sources,
the Buyer has delivered to the Seller executed commitments from
responsible financial institutions in form and substance satisfactory
to Seller for such funds, and the Buyer will have available as of the
Closing Date (either from its immediately available cash or from such
commitments, or a combination thereof) funds sufficient to pay the
Estimated Purchase Price and the MTI Purchase Price.
4.5. Litigation. As of the date hereof, there are no
legal, administrative, arbitration or other proceedings or government
investigations pending or, to the knowledge of the Buyer, threatened in
writing which seek to question, delay or prevent the consummation of or
would materially impair the ability of the parties hereto to consummate
the transactions contemplated hereby.
ARTICLE V
COVENANTS OF THE PARTIES
5.1. Conduct of Business. Except as contemplated by
this Agreement, during the period from the date of this Agreement to
the Closing Date, without the prior consent of the Buyer (which consent
will not be unreasonably withheld or delayed) the Seller will conduct
the Business according to its ordinary course of business consistent
with past practice. Without limiting the generality of the foregoing,
and, except as otherwise contemplated by this Agreement or disclosed on
Schedule 5.1 hereto, prior to the Closing Date, without the prior
consent of the Buyer (which consent will not be unreasonably withheld
or delayed), the Seller will not:
(a) except to the extent required by law or contractual
obligations or other understandings or arrangements existing on the
date hereof (i) increase in any material manner the compensation of any
of the directors, officers or other employees of the Business, except
such increases as are granted in the ordinary course of business in
accordance with its customary practices; (ii) pay or agree to pay any
pension, retirement allowance or other employee benefit not required or
permitted by any existing plan, agreement or arrangement to any such
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director, officer or employee, whether past or present; or (iii) commit
itself to any additional pension, profit-sharing, bonus, incentive,
deferred compensation, stock purchase, stock option, stock appreciation
right, group insurance, severance pay, retirement or other employee
benefit plan, agreement or arrangement, or to any employment agreement
or consulting agreement (arising out of prior employment) with or for
the benefit of any person, or, to amend any of such plans or any of
such agreements in existence on the date hereof;
(b) except in the ordinary course of business, sell,
transfer, mortgage, or otherwise dispose of, or agree to sell,
transfer, or otherwise dispose of, any material properties or assets of
the Business, real, personal or mixed; or
(c) enter into other material agreements, commitments or
contracts with respect to the Business, except agreements, commitments
or contracts made in the ordinary course of business.
5.2. Access to Information.
(a) Between the date of this Agreement and the Closing
Date, the Seller will (i) give the Buyer and its authorized
representatives reasonable access to all books, records, offices and
other facilities and properties of the Business, (ii) permit the Buyer
to make such inspections thereof, during regular business hours upon at
least five business days notice, as the Buyer may reasonably request
and (iii) cause its officers to furnish the Buyer with such financial
and operating data and other information with respect to the Business
as the Buyer may from time to time reasonably request; provided,
however, that any such investigation shall be conducted in such a
manner as not to interfere unreasonably with the operation of the
Business.
(b) Seller will furnish to Buyer (1) as soon as
available, and in any event within ten (10) days after it is prepared,
a copy of any report prepared from the date hereof through the Closing
Date by Seller for submission to its board of directors or to
management of the Publications relating to any material adverse effect
on the Business or on the transactions contemplated hereby arising from
or related to a change in general economic conditions; and (2) as soon
as available, and in any event within ten (10) days after it is
prepared, monthly unaudited balance sheets and income statements for
the Publications. Each of the financial statements delivered pursuant
to this Section 5.2(b) will be prepared consistent with Seller's
accounting practices.
(c) Between the date of this Agreement and the Closing
Date, the Buyer will hold and will cause its officers, directors,
employees, representatives, consultants and advisors to hold in strict
confidence in accordance with the terms of the Nondisclosure Agreement
between the Seller and the Buyer (the "Nondisclosure Agreement"), all
documents and information furnished to the Buyer by the Seller, MTI,
the Parent or any of their representatives, consultants or advisors in
connection with the transactions contemplated by this Agreement.
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(d) The Buyer agrees to hold all of the books and records
of the Business existing on the Closing Date and not to destroy or
dispose of any thereof for a period of seven (7) years from the Closing
Date or such longer time as may be required by law and at any time
thereafter prior to destroying or disposing of any such records to
notify the Seller and the Parent and afford them the opportunity to
take or to make copies of any such books and records, and following the
Closing Date to afford to the Seller, MTI, the Parent, their
accountants and counsel, during normal business hours upon reasonable
request, at any time, full access to the books, records and other data
of the Business and to the employees of the Business to the extent that
such access may be requested for any legitimate purpose at no cost to
the Seller, MTI or the Parent (other than for reasonable out-of-pocket
expenses of the Buyer); provided, however, that any such investigation
shall be conducted in such a manner as not to unreasonably interfere
with the operation of the Business by the Buyer.
5.3. Expenses. Except as otherwise specifically provided
in this Agreement, whether or not the transactions contemplated hereby
are consummated, all costs and expenses incurred by the Buyer in
connection with this Agreement and the transactions contemplated hereby
will be paid by the Buyer and all costs and expenses incurred by the
Seller, MTI and the Parent in connection with this Agreement and the
transactions contemplated hereby will be paid by the Seller, MTI and
the Parent, as the case may be.
5.4. Reasonable Efforts. Subject to the terms and
conditions of this Agreement, each of the parties hereto will use its
commercially reasonable efforts to take, or cause to be taken, all
action, and to do, or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations to consummate and make
effective the transactions contemplated by this Agreement.
5.5. Public Announcements. None of the Seller, MTI, the
Parent or the Buyer shall issue any press release or otherwise make any
public statement with respect to this Agreement and the transactions
contemplated hereby without the prior approval of the other parties
hereto, except as may be required by applicable law.
5.6. Filings. The Seller, MTI and the Buyer will use
commercially reasonable their best efforts to make or cause to be made
all such filings and submissions as may be required under applicable
laws and regulations, if any, for the consummation of the transactions
contemplated by this Agreement, including, all filings under the HSR
Act and all filings required to transfer Intellectual Property as
provided hereunder. The Buyer, MTI, Parent and the Seller will
coordinate and cooperate with one another in exchanging such
information and providing such reasonable assistance as another may
request in connection with all of the foregoing.
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5.7. Further Assurances. From time to time, without
further consideration, the Seller will, at the expense of Buyer,
execute and deliver such documents to the Buyer as the Buyer may
reasonably request in order more effectively to consummate the
transactions contemplated hereby. From time to time, without further
consideration, the Buyer will, at the expense of Seller, execute and
deliver such documents as the Seller may reasonably request in order
more effectively to consummate the transactions contemplated hereby.
In case at any time after the Closing Date any further action is
necessary or desirable to carry out the purposes of this Agreement or
the Indemnification Agreement, each party to hereto and thereto will
take or cause its proper officers and directors to take all such
necessary action.
5.8. Brokers. The Seller represents and warrants to the
Buyer that, except for Dirks, Van Essen & Murray whose fees shall be
the sole responsibility of the Seller, no broker, finder or other
person is entitled to any brokerage fees, commissions or finder's fees
from the Seller in connection with the transactions contemplated
hereby. The Seller will pay or discharge, and will indemnify and hold
the Buyer harmless from and against, any and all claims or liabilities
for all brokerage fees, commissions and finder's fees incurred by
reason of any action taken by the Seller. The Buyer represents and
warrants to the Seller that, except for Belmoro Corporate Advisors,
LLC, whose fees shall be the sole responsibility of the Buyer, no
broker, finder or other person is entitled to any brokerage fees,
commissions or finder's fees from the Buyer in connection with the
transactions contemplated hereby. The Buyer will pay or discharge, and
will indemnify and hold the Seller harmless from and against, any and
all claims or liabilities for all brokerage fees, commissions and
finder's fees incurred by reason of any action taken by the Buyer.
5.9. Sales and Transfer Taxes and Fees. The parties
agree that all sales, transfer, documentary, stamp, excise, recording
or other taxes and fees incurred in connection with this Agreement and
the transactions contemplated hereby (other than income taxes payable
by the Seller, MTI or the Parent) will be borne by the Buyer, and the
Buyer will, at its expense, file all necessary tax returns and other
documentation with respect to all such sales and transfer taxes and
fees.
5.10. Employee Matters.
(a) Effective as of the Closing, each employee listed on
Schedule 5.10, who is working for the Seller as of the Closing Date and
not on long-term disability shall become an employee of the Buyer on an
at-will basis commencing on the Closing Date. All such employees are
referred to herein as "Transferred Employees." The Buyer shall provide
each Transferred Employee with (i) the same base salary or wages as set
forth on Schedule 3.13 and (ii) the benefit package currently provided
by Buyer to its employees as described on Schedule 5.10(a).
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(b) Upon the Closing, the Buyer shall assume as of the
Closing Date the obligation to provide coverage under the Consolidated
Omnibus Budget Reconciliation Act of 1985, as amended, under the
Buyer's plans to each Transferred Employee who as of the Closing Date
is a "qualified beneficiary" under any plan to which Section 607 of
ERISA, and Section 4980B of the Code apply; provided that nothing in
this Section 5.10(b) shall be construed, from and after the Closing
Date, to restrict or in any manner otherwise limit or prohibit the
Buyer's exercise of its rights to amend, modify and terminate any plan
or any benefit provided thereunder or otherwise or the participation of
any individual in any such plan or benefit thereunder.
(c) To the extent that service is relevant for purposes
of eligibility or vesting under any employee benefit plan, program or
arrangement established or maintained by the Buyer for the benefit of
the Transferred Employees heretofore or in the future, the Buyer shall
cause such plan, program or arrangement to credit such Transferred
Employees for their aggregate service on and prior to the Closing Date
with the Seller and the Business. Service on and prior to the Closing
Date with the Seller and the Business shall also be credited for
purposes of determining the amount of severance pay and vacation day
accruals to which a Transferred Employee is entitled following the
Closing Date. The Buyer shall cause any plan, program or arrangement
of Seller that provides medical, health or other similar benefits to
waive any preexisting condition or waiting period limitations and shall
honor any deductible and out-of-pocket expenses incurred by the
Transferred Employees and their beneficiaries under plans, programs or
arrangements of the Business prior to the Closing Date.
(d) The Buyer agrees to provide severance pay which may
be owing to any Transferred Employee whose employment is terminated by
the Buyer, other than for cause, within six months after the Closing
Date, in an amount equal to two weeks salary (at the salary level in
effect as of the date of this Agreement) for each year of such
Transferred Employee's service with the Seller and the Business (with a
minimum of two weeks of salary) or, if more favorable to the
Transferred Employee, the amount of severance pay and benefit
entitlements determined in accordance with the severance policy of the
Buyer in effect after the Closing; provided, however, that severance
for any single employee shall not exceed six month's salary.
(e) Effective as of the Closing, the Buyer shall assume
the collective bargaining agreements covering the Transferred
Employees, each of which is set forth on Schedule 5.10(e), and all
liabilities and obligations thereunder. To the extent that the
liabilities and obligations of the Buyer under such collective
bargaining agreements are inconsistent with the liabilities and
obligations of the Buyer pursuant to this Article V, the terms of the
collective bargaining agreements shall control.
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5.11. Buyer's Knowledge. The Buyer agrees (without
prejudice to any rights which the Buyer may have under this Agreement
to decline to consummate the transactions contemplated hereby and to
terminate this Agreement) that, if the Closing occurs, then to the
extent any representation, warranty, covenant or agreement of the
Seller contained in this Agreement has, to the knowledge of the Buyer
acquired prior to the Closing, been breached, the Buyer shall be deemed
to have consented to and waived, and shall have no rights hereunder by
reason of, such breach.
ARTICLE VI
CLOSING CONDITIONS
6.1. Conditions to Each Party's Obligations to Effect
the Transactions Contemplated Hereby. The respective obligations of
each party to effect the transactions contemplated hereby shall be
subject to the fulfillment at or prior to the Closing Date of the
following conditions:
(a) There shall be no effective injunction, writ, or
preliminary restraining order of a court of competent jurisdiction
directing that the transactions provided for herein shall not be
consummated.
(b) No action, suit, proceeding or investigation by or
before any court, administrative agency or other governmental authority
shall have been instituted (i) to restrain, prohibit or invalidate the
transactions contemplated by this Agreement or the Indemnification
Agreement or (ii) which seeks material or substantial damages by
reason of completion of such transaction.
(c) The applicable waiting periods under the HSR Act
shall have expired or been terminated.
6.2. Conditions to the Obligations of the Seller, MTI
and the Parent to Effect the Transactions Contemplated Hereby. The
obligations of the Seller, MTI and the Parent to effect the
transactions contemplated hereby shall be further subject to the
fulfillment at or prior to the Closing Date of the following
conditions, any of which may be waived by the Seller, MTI and the
Parent:
(a) (i) The Buyer shall have performed and complied in
all material respects with the agreements contained in this Agreement
required to be performed and complied with by it at or prior to the
Closing Date; and (ii) the representations and warranties of the Buyer
set forth in this Agreement shall be true and correct as of the date of
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this Agreement and as of the Closing Date as though made at and as of
the Closing Date (except as otherwise contemplated by this Agreement),
except to the extent that all failures of the representations and
warranties of the Buyer set forth in this Agreement to be true and
correct, taken together, would not have a Buyer Material Adverse
Effect.
(b) The Seller shall have received a certificate to the
effect of Section 6.2(a) signed by an authorized officer of the Buyer.
6.3. Conditions to the Obligations of the Buyer to
Effect the Transactions Contemplated Hereby. The obligations of the
Buyer to effect the transactions contemplated hereby shall be further
subject to the fulfillment at or prior to the Closing Date of the
following conditions (provided that, with respect to (d) and (e) below,
Buyer has negotiated in good faith), any of which may be waived by the
Buyer:
(a) (i) The Seller and MTI shall have performed and
complied in all material respects with the agreements contained in this
Agreement required to be performed and complied with by them at or
prior to the Closing Date; and (ii) the representations and warranties
of the Seller, the Parent and MTI set forth in this Agreement shall be
true and correct as of the date of this Agreement and as of the Closing
Date as though made at and as of the Closing Date (except as otherwise
contemplated by this Agreement), except to the extent that all failures
of the representations and warranties of the Seller, the Parent and MTI
set forth in this Agreement to be true and correct would not have a
Business Material Adverse Effect.
(b) Since the date of the execution of this Agreement,
no event has occurred that will cause a Business Material Adverse
Effect.
(c) The Buyer shall have received a certificate to the
effect of clauses 6.3(a) and 6.3(b) signed by an authorized officer of
each of the general partner of the Seller and MTI.
(d) Parent, or Parent's nominee, shall have agreed to
enter into an interim, short-term, services agreement ("Services
Agreement") with Buyer pursuant to which Parent or Parent's nominee
shall perform certain administrative services for Buyer on reasonable
terms and conditions.
(e) Dow Jones & Company, Inc. shall have agreed to enter
into an interim, short-term, Commercial Printing Agreement with Buyer
substantially in the form attached hereto as Exhibit 6.3(e).
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ARTICLE VII
TERMINATION AND ABANDONMENT
7.1. Termination. This Agreement may be terminated at
any time prior to the Closing Date:
(a) by mutual consent of the Seller and the Buyer;
(b) by the Seller or the Buyer at any time after June 30,
2002; provided, however, that no party hereto shall have the right to
terminate this Agreement under this Section 7.1(b) if such party's
failure to fulfill any obligation under this Agreement shall have been
the cause of, or shall have resulted in, the failure of the Closing to
occur prior to such date;
(c) by the Buyer, if there has been a material breach by
the Seller, the Parent or MTI of its covenants, representations or
warranties contained in this Agreement as a result of which it has
become impossible for one or more of the conditions to the obligations
of the Buyer to consummate the transactions contemplated hereby to be
satisfied, and such breach has not been (i) cured, or adequate
assurance of a cure has not been given, within 20 business days
following notice of the breach from the Buyer to the Seller, or (ii)
waived by the Buyer; or
(d) by the Seller, if there has been a material breach by
the Buyer of its covenants, representations or warranties contained in
this Agreement as a result of which it has become impossible for one or
more of the conditions to the obligations of the Seller to consummate
the transactions contemplated hereby to be satisfied, and such breach
has not been (i) cured, or adequate assurance of a cure have not been
given, within 20 business days following notice of the breach from the
Seller to the Buyer, or (ii) waived by the Seller.
7.2. Procedure and Effect of Termination. In the event
of termination of this Agreement as provided in Section 7.1, this
Agreement shall terminate and the transactions contemplated hereby
shall be abandoned, without further action by any of the parties
hereto. If this Agreement is terminated as provided herein:
(a) upon request therefor, each party will redeliver all
documents, work papers and other material of any other party relating
to the transactions contemplated hereby, whether obtained before or
after the execution hereof, to the party furnishing the same;
(b) none of the information received by or on behalf of
the Buyer with respect to the Business, the Seller, MTI and the Parent
shall at any time be used for the advantage of the Buyer to the
detriment of the Business, the Seller, MTI or the Parent; and the Buyer
will use its best efforts to prevent the disclosure thereof to third
persons except as may be required by law;
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(c) no party hereto shall have any liability or further
obligation to any other party to this Agreement pursuant to this
Agreement except as stated in this Section 7.2 and in Sections 5.3,
5.5, and 5.8; provided, however, that nothing in this Section 7.2 shall
be deemed to release any party from any liability for breach by such
party of any of its covenants set forth in this Agreement which occurs
on or before the date of the termination of this Agreement; and this
Agreement will be of no further force and effect except that this
Section 7.2 and Sections 5.3, 5.5, 5.8, and Article VIII and the terms
of the Indemnification Agreement shall remain in effect; and
(d) all filings, applications, and other submissions made
pursuant to Section 5.6 shall, to the extent practicable, be withdrawn
from the agency or other person to which made.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
8.1. Amendment and Modification. Subject to applicable
law, this Agreement and the Indemnification Agreement may be amended,
modified or supplemented only by written agreement of the parties
hereto at any time prior to the Closing Date with respect to any of the
terms contained herein.
8.2. Waiver of Compliance. Except as otherwise provided
in this Agreement and the Indemnification Agreement, any failure of any
of the parties to comply with any obligation, covenant, agreement or
condition herein may be waived by the party or parties entitled to the
benefits thereof only by a written instrument signed by the party
granting such waiver, but such waiver or failure to insist upon strict
compliance with such obligation, covenant, agreement or condition shall
not operate as a waiver of, or estoppel with respect to, any subsequent
or other failure..
8.3 Survival of Representations and Warranties. The
representations and warranties set forth in this Agreement shall
survive the Closing and will expire 180 days from the Closing Date,
except for those representations and warranties contained in Sections
3.6, 3.10 and 3.18, which shall remain in force until the expiration of
the applicable statute of limitations. No party shall be entitled to
assert any claims against the other for misrepresentations or breaches
of representations and warranties under or pursuant to this Agreement
(or for indemnification under the Indemnification Agreement for such
misrepresentations or breaches of representations and warranties),
unless the party asserting such claim shall notify the other of such
claim with reasonable specificity and outlining the basis of alleged
liability within the survival period of the applicable representation
and warranty.
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8.4. Notices. All notices hereunder and under the
Indemnification Agreement shall be in writing and shall be deemed given
if delivered personally or mailed by registered or certified mail
(return receipt requested), postage prepaid, to the parties at the
following addresses (or at such other address for a party as shall be
specified by like notice; provided that notices of a change of address
shall be effective only upon receipt thereof):
(a) if to the Seller, MTI or the Parent:
c/o Ottaway Newspapers, Inc.
97 Route 416
PO Box 401
Campbell Hall, NY 10916
Attention: James H. Ottaway, Jr.
with a copy to:
Ottaway Newspapers, Inc.
97 Route 416
PO Box 401
Campbell Hall, NY 10916
Attention: Peter G. Stone, Esq.
with a copy to:
Dow Jones & Company, Inc.
PO Box 300
Princeton, New Jersey 08543
Attention: Richard F. Zannino
and
Attention: Legal Department
(b) if to the Buyer, to
Newspaper Holdings, Inc.
3500 Colonnade Parkway, Suite 600
Birmingham, Alabama 35243
Attention: Michael E. Reed
with a copy to
Thomas B. Henson, Esq.
6100 Fairview Road, Suite 650
Charlotte, North Carolina 28210
8.5. Assignment. This Agreement, the Indemnification
Agreement and all of the provisions hereof and thereof shall be binding
upon and inure to the benefit of the parties hereto and thereto and
their respective successors and permitted assigns, but neither this
Agreement, the Indemnification Agreement nor any of the rights,
interests or obligations hereunder or thereunder shall be assigned by
any of the parties hereto or thereto without the prior written consent
of the other parties.
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8.6. Governing Law. This Agreement and the
Indemnification Agreement shall be governed by the laws of the State of
Delaware (regardless of the laws that might otherwise govern under
applicable New York principles of conflicts of law) as to all matters,
including but not limited to matters of validity, construction, effect,
performance and remedies. All actions and proceedings arising out of
or relating to this Agreement and the Indemnification Agreement shall
be heard and determined in a Delaware state or federal court, and the
parties hereto hereby irrevocably submit to the exclusive jurisdiction
of such courts in any such action or proceeding and irrevocably waive
the defense of an inconvenient forum to the maintenance of any such
action or proceeding.
8.7. Counterparts. This Agreement and the
Indemnification Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
8.8. Interpretation. The article and section headings
contained in this Agreement and the Indemnification Agreement are
solely for the purpose of reference, are not part of the agreement of
the parties and shall not in any way affect the meaning or
interpretation of this Agreement or the Indemnification Agreement. The
parties have participated jointly in the negotiation and drafting of
this Agreement and the Indemnification Agreement. If any ambiguity or
question of intent or interpretation arises, this Agreement and the
Indemnification Agreement shall be construed as if drafted jointly by
the parties and no presumptions or burden of proof shall arise favoring
or disfavoring any party by virtue of authorship of any of the
provisions of this Agreement or the Indemnification Agreement. As used
in this Agreement, the term "person" shall mean and include an
individual, a partnership, a joint venture, a corporation, a trust, an
unincorporated organization and a government or any department or
agency thereof. As used in this Agreement, the term "Permitted Liens"
shall mean and include (i) those exceptions to title to the properties
and assets of the Seller listed in the Schedule referred to in the
applicable Section of this Agreement; (ii) Liens incurred in connection
with the purchase of properties and assets by the Seller securing all
or a portion of the purchase price therefor; (iii) statutory liens for
current taxes or assessments not yet due or delinquent or the validity
of which is being contested in good faith by appropriate proceedings;
(iv) mechanics', carriers', workers', repairers' and other similar
Liens arising or incurred in the ordinary course of business relating
to obligations as to which there is no default on the part of the
Seller which would have a Business Material Adverse Effect; and (v)
such other Liens, imperfections in title, charges, easements,
restrictions, and encumbrances which do not materially detract from the
value of or interfere with the present use of the properties subject
thereto or affected thereby. As used in this Agreement, the
"knowledge" of a party means the knowledge of any executive officer of
such party. As used in this Agreement, "including" means including
without limitation.
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8.9. Entire Agreement. The Nondisclosure Agreement, the
Indemnification Agreement and this Agreement, including the Exhibits
and Schedules hereto (which are incorporated herein by reference and
made a part hereof) and the documents, schedules, certificates and
instruments referred to herein, embody the entire agreement and
understanding of the parties hereto in respect of the transactions
contemplated by this Agreement and the Indemnification Agreement.
There are no restrictions, promises, representations, warranties,
covenants or undertakings, other than those expressly set forth or
referred to herein and therein. The Nondisclosure Agreement, the
Indemnification Agreement and this Agreement supersede all prior
agreements and understandings between the parties with respect to such
transactions.
8.10. Severability. If any term or other provision of
this Agreement or the Indemnification Agreement is invalid, illegal or
incapable of being enforced by any rule of law or public policy, all
other conditions and provisions of this Agreement and the
Indemnification Agreement shall nevertheless remain in full force and
effect so long as the economic or legal substance of the transactions
contemplated hereby and thereby is not affected in any manner adverse
to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement or the
Indemnification Agreement so as to effect the original intent of the
parties as closely as possible in a mutually acceptable manner in order
that the transactions contemplated hereby be consummated as originally
contemplated to the greatest extent possible.
8.11. Bulk Transfer Laws. The Buyer acknowledges that
the Seller will not comply with the provisions of any bulk transfer
laws of any jurisdiction in connection with the transactions
contemplated by this Agreement.
8.12 No Third Party Beneficiary. Each of this Agreement
and the Indemnification Agreement is for the sole benefit of the
parties hereto and thereto and their respective successors and
permitted assigns and nothing herein, express or implied, is intended
to or shall confer upon any other person any legal or equitable right,
benefit or remedy of any nature whatsoever under or by reason of this
Agreement or the Indemnification Agreement.
8.13 Exclusivity of Remedies. The remedies of any party
hereto for breaches by another party of any representation, warranty,
covenant or agreement hereunder, or otherwise arising out of any matter
pertaining hereto, shall be limited to the right of indemnification
provided in the Indemnification Agreement, and such right of
indemnification shall be exclusive of any and all other rights or
remedies which might be available to a party upon the occurrence of any
such breach or with respect to such other matter whether such other
right or remedy would otherwise be available at law or in equity.
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IN WITNESS WHEREOF, each of the parties hereto has
signed this Agreement or has caused this Agreement to be signed by its
duly authorized officers as of the date first above written.
OTTAWAY NEWSPAPERS OF PENNSYLVANIA, L.P.,
By: OTTAWAY NEWSPAPERS OF PENNSYLVANIA
MANAGEMENT, INC.,
its General Partner
By:/s/Joseph Richter
-------------------------------------
Name:Joseph Richter
Title:President
OTTAWAY NEWSPAPERS, INC.
By:/s/Joseph Richter
-------------------------------------
Name:Joseph Richter
Title: President
THE MAIL TRIBUNE, INC.
By:/s/Joseph Richter
-------------------------------------
Name:Joseph Richter
Title:Vice President
NEWSPAPER HOLDINGS, INC.
By:/s/Michael Reed
-------------------------------------
Name:Michael Reed
Title:President
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EXHIBIT 1.1(c)
OBLIGATIONS UNDERTAKING
OBLIGATIONS UNDERTAKING dated, as of , 2002,
by Newspaper Holdings, Inc., a Delaware corporation (the "Buyer") in
favor of Ottaway Newspapers of Pennsylvania L.P., a Pennsylvania
limited partnership (the "Seller") and The Mail Tribune, Inc., a
Delaware corporation ("MTI").
WHEREAS, pursuant to an Agreement of Purchase and
Sale, dated as of February 20, 2002 (the "Agreement"), among the
Seller, MTI, Ottaway Newspapers, Inc. ("Parent") and the Buyer, the
Seller and MTI have concurrently herewith sold, assigned, transferred,
conveyed and delivered the Seller Assets (as defined in the Agreement)
and the MTI Assets (as defined in the Agreement), respectively, to
Buyer;
WHEREAS, in partial consideration therefor, the
Agreement requires Buyer to execute and deliver to the Seller and MTI
this Obligations Undertaking;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt of which by Buyer is hereby
acknowledged, Buyer hereby agrees as follows (capitalized terms used
but not defined herein having the meanings ascribed thereto in the
Agreement):
1. Subject to the limitation contained herein,
Buyer hereby assumes and agrees to perform and discharge all debts,
commitments, obligations and liabilities (whether absolute, contingent,
accrued, unaccrued, due or to become due) of Seller, or of MTI,
relating primarily to the Business, including, without limitation:
(a) those liabilities reflected in the balance
sheet delivered pursuant to Section 1.2(d) of the Agreement;
(b) the obligation of the Business to fulfill
outstanding subscriptions for the Publications incurred in the normal
and customary course of business with respect to the period commencing
on the Closing Date;
(c) the unperformed and unfulfilled obligations
of the Seller and/or MTI accruing from and after the Closing Date (with
respect to periods commencing on and after the Closing Date) under the
Contracts.
2. Notwithstanding anything to the contrary
contained herein, the Assumed Liabilities shall not include any of the
following debts, commitments, obligations or liabilities of the Seller
and MTI (herein collectively referred to as the "Excluded
Liabilities"):
i. any obligation or liability of the Seller or MTI
based upon acts or omissions of the Seller or MTI occurring after the
Closing Date;
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ii. any brokerage or finder's fee payable by the
Seller and MTI or any other costs and expenses incurred in connection
with the negotiation, execution and/or consummation of the Agreement
and/or transactions contemplated thereby;
iii. any indebtedness of, or other amounts owed by, Seller or MTI to
any of their affiliates;
iv. any liability for Taxes relating to the
operation of the Business assessed, accrued for or attributable to any
period up to and including the Closing Date.
v. any and all liabilities and obligations with
respect to legal, administrative, arbitration or other proceedings or
governmental investigations pending, or arising out of events
occurring, on or prior to the Closing Date;
vi. any and all liabilities and obligations based
on or arising from the presence, use, disposal or treatment on or prior
to the Closing Date of any asbestos or any Hazardous Materials on or
about any of the Property or any discharge or release of a Hazardous
Material on or prior to the Closing Date or failure to obtain any
license or permit required in connection with any Hazardous Material or
arising out of any non-compliance with any Environmental Law on or
prior to the Closing Date;
vii. any and all debts, liability or obligation
of the Seller and MTI with respect to any of the Excluded Assets; or
viii. any and all liabilities or obligations to or as a guarantor, co-
obligor or surety of any affiliate of the Seller or MTI.
5. No person, firm or corporation other than the
Seller and MTI shall have any rights under or by reason of this
Obligations Undertaking or the provisions contained herein.
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be
signed by its duly authorized officer as of the date first above
written.
NEWSPAPER HOLDINGS, INC.
By:/s/Michael Reed
-------------------------------------
Name:Michael Reed
Title:President
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EXHIBIT 6.3(e)
COMMERCIAL PRINTING AGREEMENT, dated as of March
29, 2002 (the "Agreement"), between Dow Jones & Company, Inc. ("Dow
Jones"), and Newspaper Holdings, Inc., a Delaware corporation (the
"Buyer").
WHEREAS, pursuant to that certain Agreement of
Purchase and Sale (the "Purchase Agreement"), dated as of February 20,
2002, among Ottaway Newspapers of Pennsylvania, L.P., a Pennsylvania
limited partnership (the "Seller"), Ottaway Newspapers, Inc., The Mail
Tribune, Inc., a Delaware corporation, and the Buyer, Buyer has agreed
to purchase from the Seller, certain of Seller's assets in connection
with the publication of the Sharon Herald newspaper (the "Paper"),
among other assets;
WHEREAS, Dow Jones currently prints the Paper at its
printing plant located in [West Middlesex, Pennsylvania] (the "Plant");
WHEREAS, the Buyer desires, for an interim period
after the consummation of the transactions contemplated in the Purchase
Agreement, to continue to print the Paper at the Plant;
WHEREAS, Dow Jones desires, for such interim period,
to print the Paper at the Plant;
NOW THEREFORE, in consideration of the mutual
covenants, representations, warranties and agreements set forth herein,
and intending to be legally bound hereby, the parties hereto agree
that, subject to the conditions herein contained:
1. Printing Services. (a) Except as otherwise set
forth herein, from and after the Closing Date (as defined in the
Purchase Agreement), Dow Jones shall use commercially reasonable
efforts to continue to print the Paper at the Plant under the same
terms and condition as it prints the Paper at the Plant for the Seller
immediately prior to the Closing Date (the "Printing Services").
Without limiting the foregoing, unless agreed to by Dow Jones, after
the Closing Date there shall not be any material change in (i) the
printing schedule of the Paper, (ii) the method, format or schedule for
delivery by Buyer to Dow Jones, at the Plant, of fully composed pages
of the Paper for printing, (iii) the average size (number of pages),
format or color composition of the Paper, (iv) the type, quality or
size of newsprint used for the Paper, or (v) the average pressrun
(number of copies) for the Paper.
(b) The parties understand and agree that, without
limiting the foregoing, the printing of The Wall Street Journal and
other Dow Jones publications ("Dow Jones Publications") at the Plant
shall take precedence over the printing of the Paper at the Plant. If
the printing schedules of the Dow Jones Publications conflict with the
printing schedule of the Paper (i) there may be a delay in printing the
Paper and (ii) Dow Jones will use commercially reasonable efforts to
print the Paper as close to the current printing schedule as
practicable.
(c) Buyer will pick up the Paper at the Plant's loading dock each day
on the same terms and conditions, and on the same schedule that Seller
currently picks up the Paper at the Plant.
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2. Fees. (a) From and after the Closing Date,
the Buyer agrees to pay to Dow Jones a monthly fee (the "Fee") equal to
Dow Jones' aggregate costs (including fixed and variable costs)
associated with the provision of the Printing Services or otherwise
incurred in connection with this agreement ("Costs") during the month.
Without limiting the foregoing, the parties understand and agree that
Dow Jones may retain employees to perform the Printing Services for the
entire Initial Term and Extension Period (as defined below) and the
total Fee to be paid by Buyer to Dow Jones hereunder shall include Dow
Jones' cost of labor for the entire Initial Term and Extension Period.
(b) Dow Jones will send to Buyer an invoice within
15 days after the end of each month (or the date on which this
Agreement expires pursuant to Section 3(b) below), setting forth the
Fee payable with respect to such month. The amount of the Fee set
forth on each invoice will be due and payable within 15 days after the
date of such invoice. The calculation of the Costs and the format of
the invoices shall be based on Dow Jones' current billing formulas and
format relating to the printing of the Paper.
3. Term. (a) The initial term of this agreement
shall commence on the date hereof and continue for 90 days thereafter
(the "Initial Term").
(b) Buyer may extend the term of this agreement for
an additional period of either 30, 60 or 90 days, at Buyer's option
(the "Extension Period"), by giving notice to Dow Jones not later than
45 days prior to the end of the Initial Term.
4. Miscellaneous. (a) Buyer shall indemnify Dow
Jones against any claim, suit or action and all expenses (including
reasonable attorney's fees) and damages arising out of or based upon
any claim that the Paper, or any information or materials contained
therein, are defamatory or infringe the patent, copyright, trademark,
right of privacy or publicity or other intellectual property right of
any third party.
(b) Neither party shall be deemed in default of this
Agreement to the extent that performance of its obligations or attempts
to cure any breach are delayed or prevented by reason of any fire,
flood, explosion, war, strikes, threatened strikes, stoppage of work,
slowdowns, picketing, boycotts, embargoes, requirements imposed by
governmental regulations, civil or military authorities, acts of God,
or other causes that are beyond the reasonable control and without the
fault of negligence of the Party unable to perform.
(c) All notices hereunder shall be sent registered or
certified mail to the addresses below (or to such other addresses as
may be specified in writing by a party) and shall be deemed to be given
on the date they are actually received:
If to Dow Jones:
Mr. Nick Barbosa
Production Manager
The Wall Street Journal
P.O. Box 267
2908 Mercer-West Middlesex Road
West Middlesex, PA 16159
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with a copy to:
Dow Jones & Company, Inc.
Legal Department
P.O. Box 300
Princeton, NJ 08543-0300
If to Buyer:
Newspaper Holdings, Inc.
3500 Colonnade Parkway, Suite 600
Birmingham, Alabama 35243
Attention: Michael E. Reed
With a copy to:
Thomas B. Henson, Esq.
6100 Fairview Road, Suite 650
Charlotte, North Carolina 28210
(d) This Agreement shall be governed by and
interpreted according to the laws of the State of New York.
IN WITNESS WHEREOF, each of the parties hereto has
signed this Agreement or has caused this Agreement to be signed by its
duly authorized officers as of the date first above written.
DOW JONES & COMPANY, INC.
By:
-------------------------------------
Name:
Title:
NEWSPAPER HOLDINGS, INC.
By:
-------------------------------------
Name:
Title:
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