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EXHIBIT 2
VOTING AND TENDER AGREEMENT
Voting and Tender Agreement (the "AGREEMENT" or "VOTING AND TENDER
AGREEMENT") dated as of June 28, 2000 among the Xxxxxx X. Xxxxxxx Trust (the
"TRUST"), Gannett Co., Inc., a Delaware corporation ("PARENT"), and Pacific and
Southern Indiana Corp., an Indiana corporation ("Merger Subsidiary").
WHEREAS, Central Newspapers, Inc. (the "COMPANY"), Parent and Merger
Subsidiary, immediately after the execution and delivery of this Agreement, are
entering into an Agreement and Plan of Merger (the "MERGER AGREEMENT") pursuant
to which Parent, among other things, has agreed to commence a cash tender offer
to purchase shares of Company Stock as described in the Merger Agreement,
followed by the merger of Merger Subsidiary with and into the Company on the
terms and conditions set forth therein; and
WHEREAS, as a condition to Parent entering into the Merger Agreement and
in order to induce Parent to enter into the Merger Agreement, Parent has
requested the Trust, and the Trust has agreed, to enter into this Agreement with
respect to all shares of common stock of the Company that the Trust beneficially
owns.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises, representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound hereby, agree as
follows:
SECTION 1. Definitions. Capitalized terms used and not defined herein
shall have the meaning assigned to such terms in the Merger Agreement.
SECTION 2. Agreement to Vote. The Trust agrees to vote all Shares (as
defined below) at any meeting of stockholders of the Company (a) in favor of the
adoption of the Merger Agreement and the transactions contemplated by the Merger
Agreement and (b) against (i) any proposal made in opposition to or in
competition with the Merger and the transactions contemplated by the Merger
Agreement, (ii) any merger, reorganization, consolidation, share exchange,
business combination, sale of assets or other similar transaction with or
involving the Company and any party other than Parent and Merger Subsidiary, or
(iii) any other action the consummation of which would reasonably be expected to
prevent or delay consummation of the transactions contemplated by the Merger
Agreement.
SECTION 3. (a) Tender of Shares. The Trust agrees that it shall tender
(or cause the holder to tender), pursuant to and in accordance with the terms of
the Offer, all of the Shares to Merger Subsidiary at the Class B Offer Price.
Subject
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to applicable law and SEC regulations, the Trust agrees that it will not
withdraw Shares tendered pursuant to the Offer.
(b) Grant of Option. The Trust hereby grants to Parent and Merger
Subsidiary an irrevocable option (the "Option") to purchase the Shares at a
price in cash per Share (the "Option Price") equal to the Class B Offer Price or
any higher price paid by Parent or Merger Subsidiary for Company Class B Stock
pursuant to the Offer or the Merger (but excluding any price paid to any
shareholder who exercises dissenters', appraisal or similar rights in connection
with the Merger).
(c) Exercise of Option. The Option (i) shall become exercisable, in
whole but not in part, for all Shares (less any Shares which Merger Subsidiary
has accepted for payment or paid for in the Offer) immediately after the
expiration of the Offer or, if later, the date on which (x) all waiting periods
under the HSR Act or other applicable law shall have expired or been waived and
(y) there shall not be in effect any preliminary or final injunction or other
order issued by any court or governmental, administrative, or regulatory agency
or authority prohibiting the exercise of the Option, if, but only if, Merger
Subsidiary has accepted for payment all shares of Company Stock tendered and not
withdrawn in the Offer, and (ii) shall remain exercisable for a period of thirty
(30) days after the first such date on which the Option becomes exercisable. If
the Option does not become exercisable due to (a) the withdrawal of the Offer
prior to the Expiration Date, or (b) the failure of Merger Subsidiary to accept
for payment all shares of Company Stock tendered and not withdrawn in the Offer,
it shall be deemed to have expired. In the event that Parent or Merger
Subsidiary wishes to exercise the Option, Parent or Merger Subsidiary, prior to
the expiration of the Option, shall send a written notice to the Trust
identifying the time and place for the closing of such purchase at least three
(3) Business Days prior to such closing, which notice may be given prior to the
Option becoming exercisable and shall be considered irrevocable.
SECTION 4. Representations and Warranties of the Trust. The Trust hereby
represents and warrants to Parent that:
(a) Ownership of Shares. The Trust is the record and beneficial owner of
45,815,000 shares (the "SHARES") of Class B common stock, no par value, of the
Company, free and clear of any Lien and, subject to applicable law, free of any
other limitation or restriction (including any restriction on the right to vote
or otherwise dispose of the Shares). None of the Shares is subject to any voting
trust or other agreement or arrangement with respect to the voting of such
Shares. Except for the Shares, the Trust does not beneficially own any (i)
shares of capital stock or voting securities of the Company, (ii) securities of
the Company
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convertible into or exchangeable for shares of capital stock or voting
securities of the Company or (iii) options or other rights to acquire from the
Company any capital stock, voting securities or securities convertible into or
exchangeable for capital stock or voting securities of the Company. Upon tender
of Shares by the Trust pursuant to the Offer and acceptance for payment and
payment for the Shares by Merger Subsidiary or sale of Shares pursuant to the
Option, Merger Subsidiary shall be the owner of the Shares owned or held by the
Trust free and clear of any Lien other than any Lien created by Parent or Merger
Subsidiary or their affiliates. The execution and delivery of this Voting and
Tender Agreement by the Trust does not and the performance of this Voting and
Tender Agreement by the Trust shall not require any consent, approval,
authorization or permit of, or filing with or notification to, any court or
arbitrator or any governmental body, agency or official except for applicable
requirements, if any, of the 1934 Act, and except where the failure to obtain
such consents, approvals, authorizations or permits, or to make such filings or
notifications, would not prevent or delay the performance by the Trust of its
obligations under this Voting and Tender Agreement.
(b) Authorization. The execution, delivery and performance by the Trust
of this Agreement and the consummation by the Trust of the transactions
contemplated hereby are within the Trust's powers and have been duly authorized
by all necessary action on the part of the Trust, its trustees and its
beneficiaries. This Agreement constitutes a valid and binding Agreement of the
Trust enforceable against the Trust in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to equitable principles.
(c) Non-Contravention. The execution, delivery and performance by the
Trust of this Agreement and the consummation by the Trust of the transactions
contemplated hereby do not and will not (i) contravene, conflict with, or result
in any violation or breach of any provision of the indenture creating the Trust,
(ii) contravene, conflict with, or result in any violation or breach of any
applicable law, rule, regulation, judgment, injunction, order or decree, (iii)
require any consent that has not been obtained or other action that has not been
taken by any Person under, constitute a default under, or cause or permit the
termination, cancellation or acceleration or other change of any right or
obligation or the loss of any benefit to which the Trust is entitled under any
provision of any agreement or other instrument binding on the Trust, except in
the case of clauses (ii) and (iii) for such matters as would not impair the
Trust's ability to perform its obligations under this Agreement.
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SECTION 5. Covenants. During the period commencing on the date hereof
and continuing until the earlier of (x) the consummation of the Merger and (y)
the termination of this Voting and Tender Agreement, the Trust agrees as
follows: (i) the Trust will not convert the Shares into Class A Common Stock,
and will agree to the placement of a restrictive legend on certificates for, and
will request the imposition of stop transfer instructions with respect to, the
Shares; (ii) the Trust will cooperate fully with Parent and Merger Subsidiary in
connection with the Merger Agreement and this Voting and Tender Agreement; (iii)
the Trust will use its best efforts to consummate the transactions contemplated
by this Voting and Tender Agreement; (iv) the Trust waives all appraisal,
dissenters or similar rights in connection with the Merger; and (v) any and all
Company shares issuable as dividends on or upon stock splits, recapitalization
or any other similar events involving the Shares shall hereby automatically
become subject to this Voting and Tender Agreement.
SECTION 6. No Proxies; Restrictions on Transfer. Except pursuant to the
terms of this Agreement and the Merger Agreement, the Trust shall not, without
the prior written consent of Parent, directly or indirectly (i) grant any
proxies or enter into any voting trust or other agreement or arrangement with
respect to the voting of any Shares or deposit Shares in a voting trust or (ii)
give, offer, sell, assign, transfer, pledge, encumber or otherwise dispose of
the record or beneficial ownership of, or enter into any contract, option,
commitment or other arrangement (including any profit sharing arrangement) or
understanding for the direct or indirect sale, assignment, transfer, encumbrance
or other disposition of the record or beneficial ownership of, any Shares during
the term of this Agreement, other than to a Person who becomes subject to and
bound by the terms of this Voting and Tender Agreement.
SECTION 7. No Solicitation. From the date hereof, the Trust will not,
and the Trust will cause the trustees, employees, investment bankers,
consultants or other agents of the Trust not to, directly or indirectly, (i)
solicit, initiate or encourage the submission of any Acquisition Proposal, (ii)
engage in discussions or negotiations with any Person concerning an Acquisition
Proposal, or (iii) disclose any nonpublic information relating to the Trust, the
Company or any of its Subsidiaries to any Person who, to the knowledge of the
Trust, is considering making, or has made, an Acquisition Proposal. The Trust
will notify Parent as promptly as practicable (but in no event later than 24
hours) after receipt by the Trust of any Acquisition Proposal or any request for
nonpublic information relating to the Trust, the Company or any of its
Subsidiaries by any Person who, to the knowledge of the Trust, is making, or has
made, an Acquisition Proposal. The Trust shall provide such notice orally and in
writing and shall identify the Person making, and the terms and conditions of,
any such Acquisition Proposal. The Trust shall keep Parent informed of the
status and details of any such Acquisition
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Proposal. The Trust shall, and the Trust shall cause the trustees, employees and
other agents of the Trust to, cease immediately and cause to be terminated all
activities, discussions and negotiations, if any, with any Persons other than
Parent conducted prior to the date hereof with respect to any Acquisition
Proposal.
SECTION 8. Ongoing Editorial Participation. Parent shall make
appropriate provision for Xxxxxxx X. Xxxxxxx to continue in his role as
Associate Editor (unless appointed to a more senior editorial position) and a
member of the Editorial Board of and a weekly columnist for the Indianapolis
Star until his departure by reason of retirement, death, or disability.
Following Xx. Xxxxxxx'x departure, the trustees of the Trust may designate a
successor to Xx. Xxxxxxx with respect to the Editorial Board and columnist roles
played by him, provided that such successor must be qualified by journalistic
experience (which shall be presumed if such person is then a member of the
Editorial Board of the Indianapolis Star) and is acceptable to Parent (with
Parent's acceptance not to be unreasonably withheld). Parent's obligation with
respect to Xx. Xxxxxxx shall not extend after his 70th birthday, and it shall
have no obligations under this Section 8 after the expiration of 25 years from
the Effective Time. Notwithstanding the foregoing, columns published pursuant to
this Section shall be subject to the newspaper's normal and generally applicable
editorial standards.
SECTION 9. Termination. (a) This Agreement will terminate on the earlier
to occur of: (i) the consummation of the Merger and (ii) termination of the
Merger Agreement in accordance with its terms; provided, however, that the
Trust's obligations under Section 7 of this Agreement shall survive until the
first anniversary of the termination of the Merger Agreement.
(b) The provisions of Sections 7 (to the extent stated in Section 9
(a)), 8, 10, 15 and 16 will survive any termination of this Agreement.
SECTION 10. Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including facsimile transmission) and
shall be given,
if to Parent, to:
Gannett Co., Inc.
0000 Xxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxx
Attention: Xxxxx X. Xxxxxx
Fax: (000) 000-0000
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with a copy to:
Gannett Co., Inc.
0000 Xxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxx
Attention: General Counsel
Fax: (000) 000-0000
and to:
Xxxxx Peabody LLP
000 Xxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Xx.
Fax: (000) 000-0000
if to the Trust, to:
Xxxxxx X. Xxxxxxx Trust
c/o Xxxxx Xxxxxxx
000 Xxxxx Xxxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Fax: (000) 000-0000
and
Xxxxxx, Xxxxxx & Xxxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx
Fax: (000) 000-0000
or such other address or facsimile number as such party may hereafter specify
for the purpose by notice to the other parties hereto. All such notices,
requests and other communications shall be deemed received on the date of
receipt by the recipient thereof if received prior to 5 p.m. in the place of
receipt and such day is a business day in the place of receipt. Otherwise, any
such notice, request or communication shall be deemed not to have been received
until the next succeeding business day in the place of receipt.
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SECTION 11. Amendments; No Waivers. (a) Any provision of this Agreement
may be amended or waived if, but only if, such amendment or waiver is in writing
and is signed, in the case of an amendment, by each party to this Agreement or,
in the case of a waiver, by each party against whom the waiver is to be
effective.
(b) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 12. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, provided that no party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement
without the consent of each other party hereto.
SECTION 13. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Indiana, without regard
to the conflicts of laws rules of such state.
SECTION 14. Jurisdiction. Any suit, action or proceeding seeking to
enforce any provision of, or based on any matter arising out of or in connection
with, this Agreement or the transactions contemplated hereby may be brought in
any federal court located in the State of Indiana, and each of the parties
hereby consents to the jurisdiction of such courts (and of the appropriate
appellate courts therefrom) in any such suit, action or proceeding and
irrevocably waives, to the fullest extent permitted by law, any objection that
it may now or hereafter have to the laying of the venue of any such suit, action
or proceeding in any such court or that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum. Process in
any such suit, action or proceeding may be served on any party anywhere in the
world, whether within or without the jurisdiction of any such court. Without
limiting the foregoing, each party agrees that service of process on such party
as provided in Section 10 shall be deemed effective service of process on such
party.
SECTION 15. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
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SECTION 16. Counterparts; Effectiveness; Benefit. This Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received counterparts hereof signed by all of the other parties hereto. No
provision of this Agreement is intended to confer any rights, benefits,
remedies, obligations, or liabilities hereunder upon any Person other than the
parties hereto and their respective successors and assigns, and Xxxxxxx X.
Xxxxxxx with respect to Section 8 hereof. Execution of this Agreement may be
made by facsimile signature which, for all purposes, shall be deemed to be an
original signature.
SECTION 17. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void, or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated
so long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any party. Upon such
a determination, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the transactions contemplated
hereby be consummated as originally contemplated to the fullest extent possible.
SECTION 18. Specific Performance. The parties hereto agree that
irreparable damage would occur if any provision of this Agreement were not
performed in accordance with the terms hereof and that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
or to enforce specifically the performance of the terms and provisions hereof in
any federal court located in the State of Indiana, in addition to any other
remedy to which they are entitled at law or in equity.
SECTION 19. Miscellaneous. (a) Nothing in this Agreement will limit
or require any action by a person who is a trustee of the Trust solely insofar
as such person acts in his or her capacity as an officer or director of the
Company.
(b) The descriptive headings used herein are inserted for convenience of
reference only and are not intended to be part of or to affect the meaning or
interpretation of this Voting and Tender Agreement.
(c) References in this Voting and Tender Agreement to any gender shall
include references to all genders. Unless the context otherwise requires,
references in the singular include references in the plural and vice versa.
References to a party of this Voting and Tender Agreement or to other agreements
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described herein means those persons executing such agreements. This Voting and
Tender Agreement is the joint drafting product of the parties hereto and each
provision has been subject to negotiation and agreement and shall not be
construed for or against any party as drafter thereof.
(d) The Trust recognizes that successful consummation of the transactions
contemplated by this Voting and Tender Agreement (including the Merger) may be
dependent upon confidentiality with respect to the matters referred to herein.
In this connection, until public disclosure thereof by Parent, Merger Subsidiary
and/or Company pursuant to the terms of the Merger Agreement, the Trust hereby
agrees not to issue any press release or make any other public statements or
disclose or discuss such matters with anyone not a party to this Voting and
Tender Agreement (other than such Trust's counsel, trustees and advisors, if
any) without the prior written consent of Parent, except as required by law.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of this 28th day of June, 2000.
GANNETT CO., INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
XXXXXX X. XXXXXXX TRUST
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Trustee
By: /s/ Xxxxx X. Xxxx, III
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Name: Xxxxx X. Xxxx, III
Title: Trustee
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Trustee
PACIFIC AND SOUTHERN INDIANA CORP.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President
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