Exhibit 10.1
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SEPARATION AND DISTRIBUTION AGREEMENT
BY AND BETWEEN
XXXX TELEVISION, INC.
AND
TRIPLE CROWN MEDIA, INC.
AUGUST 2, 2005
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Exhibit 10.1
TABLE OF CONTENTS
PAGE
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SECTION 1 SEPARATION..................................................... 3
1.1. Transfer of Membership Interests and Assets...................... 3
1.2. Retained Assets.................................................. 3
1.3. Assumed Liabilities.............................................. 3
1.4. Termination of Existing Intercompany Agreements.................. 4
SECTION 2 SEPARATION CLOSING MATTERS..................................... 4
2.1. Separation Date.................................................. 4
2.2. Closing of Transactions.......................................... 4
2.3. Documents to be Delivered by Xxxx................................ 4
2.4. Documents to be Delivered by TCM................................. 5
2.5. Approvals and Required Consents.................................. 5
SECTION 3 THE DISTRIBUTION............................................... 5
3.1. Share Distribution............................................... 5
3.2. Actions Prior to the Distribution................................ 6
3.3. Conditions to Distribution....................................... 7
3.4. Modification..................................................... 10
SECTION 4 EMPLOYEES AND EMPLOYEE BENEFIT MATTERS......................... 10
4.1. Employees........................................................ 10
4.2. Prior Service Credit............................................. 11
4.3. 401(k) Plan...................................................... 11
4.4. Pension Plan..................................................... 11
4.5. Welfare Plans.................................................... 11
4.6. Section 125 Plan................................................. 12
4.7. Accrued Vacation................................................. 12
4.8. Stock Option Plan................................................ 12
4.9. Workers' Compensation............................................ 12
4.10. WARN Act......................................................... 13
4.11. Information to be Provided....................................... 13
4.12. No Right to Employment........................................... 13
SECTION 5 INSURANCE MATTERS.............................................. 13
5.1. Insurance Prior to the Distribution Date......................... 13
5.2. Ownership of Existing Policies and Programs...................... 13
5.3. Naming of TCM as Additional Insured.............................. 14
5.4. TCM Insurance Policies........................................... 14
5.5. TCM Directors' and Officers' Insurance........................... 14
5.6. Post-Distribution Insurance Claims Administration................ 15
5.7. Non-Waiver of Rights to Coverage................................. 15
5.8. Scope of Affected Policies of Insurance.......................... 15
SECTION 6 CERTAIN COVENANTS.............................................. 16
6.1. Further Instruments; Consents.................................... 16
6.2. Exchange of Information.......................................... 16
6.3. Privileged Matters............................................... 18
6.4. Certain Business Matters......................................... 19
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6.5. Payment Obligations.............................................. 19
6.6. Reimbursement Obligations........................................ 19
SECTION 7 INDEMNIFICATION................................................ 19
7.1. Indemnification by Xxxx.......................................... 19
7.2. Indemnification by TCM........................................... 19
7.3. Procedure for Indemnification.................................... 19
7.4. Direct Claims.................................................... 21
7.5. Adjustment of Indemnifiable Losses............................... 21
7.6. No Third Party Beneficiaries..................................... 22
SECTION 8 DISPUTE RESOLUTION............................................. 22
8.1. General.......................................................... 22
8.2. Negotiation...................................................... 22
8.3. Non-Binding Mediation............................................ 22
8.4. Proceedings...................................................... 22
8.5. Pay and Dispute.................................................. 23
SECTION 9 MISCELLANEOUS.................................................. 23
9.1. Representations and Warranties of Xxxx........................... 23
9.2. LIMITATION OF LIABILITY.......................................... 23
9.3. Survival......................................................... 24
9.4. Expenses......................................................... 24
9.5. Entire Agreement................................................. 24
9.6. Amendment........................................................ 24
9.7. No Third-Party Beneficiaries..................................... 24
9.8. Governing Law.................................................... 24
9.9. Termination...................................................... 24
9.10. Notices.......................................................... 24
9.11. Counterparts..................................................... 25
9.12. Binding Effect and Assignment.................................... 25
9.13. Severability..................................................... 25
9.14. Failure and Remedies............................................. 25
9.15. Authority........................................................ 25
9.16. Interpretation................................................... 25
9.17. Conflicting Agreements........................................... 25
9.18. Definitions...................................................... 25
EXHIBITS
Exhibit A - Certificate of the Secretary of Xxxx
Exhibit B - Assignment and Assumption Agreement
Exhibit C - Tax Sharing Agreement
Exhibit D - Real Property Lease
Exhibit E - Contribution Agreement
Exhibit F - Certificate of the Secretary of TCM
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SEPARATION AND DISTRIBUTION AGREEMENT
This Separation and Distribution Agreement (this "Agreement") is
entered into as of August 2, 2005, by and between Xxxx Television, Inc., a
Georgia corporation ("Xxxx"), and Triple Crown Media, Inc., a Delaware
corporation ("TCM"). Capitalized terms used in this Agreement and not otherwise
defined shall have the meanings ascribed to such terms in Section 9.18.
RECITALS
X. Xxxx owns all of the membership interests of Xxxx Publishing, LLC,
a Delaware limited liability company ("Xxxx Publishing").
X. Xxxx through Xxxx Publishing operates six regional publications
comprising five daily newspapers and an advertising shopper (the "Newspaper
Publishing Business").
X. Xxxx Publishing owns all of the membership interests of Graylink,
LLC, a Delaware limited liability company ("Graylink").
D. Graylink is a provider of wireless services, primarily paging
services, in non-major metropolitan areas in Alabama, Florida, and Georgia and
also owns and operates 14 retail locations in Alabama, Florida and Georgia (the
"Graylink Wireless Business").
E. The Board of Directors of Xxxx has determined that it would be
advisable and in the best interests of Xxxx and its shareholders for Xxxx to
transfer to TCM all of the membership interests of Xxxx Publishing.
X. Xxxx has agreed to convey, assign and transfer to TCM all of the
membership interests of Xxxx Publishing (collectively, the "Separation").
G. The Board of Directors of Xxxx has determined that it would be
advisable and in the best interests of Xxxx and its shareholders for Xxxx to
distribute on a pro-rata basis to the holders of record of Xxxx Class A common
stock, no par value ("Xxxx Class A Common Stock"), and Xxxx common stock, no par
value ("Xxxx Common Stock" and with the Xxxx Class A Common Stock, the "Xxxx
Stock"), without any consideration being paid by such holders, all of the
outstanding shares of TCM common stock, par value $.001 per share (the "TCM
Common Stock") owned by Xxxx (the "Distribution"), and this Agreement has been
approved by the Board of Directors of Xxxx.
H. In reaching its decision to approve the Separation and
Distribution, the Board of Directors of Xxxx considered a variety of factors
including the following:
- as a result of the Separation and Distribution, Xxxx and TCM will
be better able to focus financial and operational resources on
its own business and executing its own strategic plan;
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- as a result of the Separation and Distribution, Xxxx and TCM are
expected to have greater strategic and financial flexibility to
support future growth opportunities;
- each business is in a different stage of development and
therefore attracts different types of investors;
- two separate public companies will enable financial markets to
evaluate Xxxx and TCM more effectively, which is expected to
maximize shareholder value over the long term for both Xxxx and
TCM;
- the Separation and Distribution will allow Xxxx and TCM to
develop incentive programs for management and other professionals
that are tailored to its own business and are tied to the market
performance of its own common stock;
- after the Separation and Distribution, Xxxx and TCM should have
greater capital planning flexibility and the Newspaper Publishing
Business and Graylink Wireless Business will no longer have to
compete with Xxxx'x television broadcasting business to secure
funding for investments; and
- that TCM would possess sufficient scale and business fundamentals
to operate as a stand-alone entity.
I. This Agreement and the Separation and Distribution have been
approved by the special committee of the Board of Directors of TCM.
J. This Agreement and the Separation and Distribution have been
approved by the Board of Directors of TCM, consistent with the approval and
recommendation of the special committee of the Board of Directors of TCM.
K. For U.S. federal income tax purposes, the Separation and
Distribution are intended to qualify as a divisive reorganization described in
Sections 355 and 368(a)(1)(D) of the Code.
L. The Board of Directors has determined that conversion price
relating to the Series C preferred stock of Xxxx should be adjusted upon the
consummation of the Distribution.
M. The parties desire to set forth the principal corporate
transactions required to effect the Separation and the Distribution and certain
other agreements that will govern the relationship of Xxxx and TCM following the
Distribution.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth below, the parties agree as follows:
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SECTION 1
SEPARATION
1.1. Transfer of Membership Interests and Assets. Subject to the terms
and conditions of this Agreement, on the Separation Date, Xxxx shall convey,
assign and transfer to TCM, and TCM shall accept and receive, all right, title,
and interest of Xxxx in and to the following:
(a) all of the membership interests of Xxxx Publishing;
(b) all of the contracts, agreements and arrangements listed on
Schedule 1.1(b) (collectively, the "Assigned Contracts"); and
(c) all right, title and interest in or to the improved and
unimproved land listed or described on Schedule 1.1(c), and all buildings,
structures, erections, improvements, appurtenances, and fixtures situated on or
forming part of such land, together with all privileges, easements and
rights-of-way related thereto (the "Assigned Real Property").
1.2. Retained Assets. Immediately prior to the Separation Date, Xxxx
shall cause Xxxx Publishing to convey, assign, transfer, contribute, and set
over, or cause to be conveyed, assigned, transferred, contributed, and set over
to Xxxx the following assets (the "Retained Assets"), and Xxxx shall assume the
Retained Assets:
(a) Cash. All cash and cash equivalents.
(b) Tax Refunds. Any right, title, or interest in any tax refund,
credit, or benefit to which Xxxx or any of its Subsidiaries is entitled in
accordance with the terms of this Agreement or of the Tax Sharing Agreement.
(c) Intercompany Assets. Any right, title, or interest in the
intercompany assets set forth on Schedule 1.2(c).
(d) Contracts. Xxxx Publishing's or any of its subsidiaries'
rights under any agreement, commitment or order as to which consent to
assignment is required but has not been obtained, subject to the provisions of
Section 6.1(b);
1.3. Assumed Liabilities.
(a) Immediately prior to the Separation Date, Xxxx shall cause
Xxxx Publishing, to convey, assign, transfer, contribute, and set over, or cause
to be conveyed, assigned, transferred, contributed, and set over to Xxxx the
following liabilities (the "Assumed Liabilities"), and Xxxx shall assume the
Assumed Liabilities:
(i) Taxes. Any liability or obligation of Xxxx Publishing or
Graylink, as applicable to pay taxes, as set forth in the Tax Sharing Agreement.
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(ii) Intercompany Debt. Any liability or obligation of Xxxx
Publishing or Graylink, as applicable, in respect of the intercompany debt set
forth on Schedule 1.2(c).
(b) Subject to the terms and conditions of this Agreement, TCM
shall assume, on the Separation Date, and pay, comply with, and discharge all
contractual and other liabilities of Xxxx arising out of or relating to the
Assigned Contracts and Assigned Real Property (all of such liabilities being
hereinafter referred to as the "TCM Assumed Liabilities").
1.4. Termination of Existing Intercompany Agreements. Except as
otherwise contemplated by this Agreement, all agreements between Xxxx or its
Subsidiaries on one hand and Xxxx Publishing or its subsidiaries on the other
hand relating primarily to the Newspaper Publishing Business and Graylink
Wireless Business, whether or not in writing and whether or not binding, in
effect immediately prior to the Distribution Date, shall be terminated and be of
no further force and effect from and after the Distribution Date.
SECTION 2
SEPARATION CLOSING MATTERS
2.1. Separation Date. The effective time and date of the conveyance,
assignment, and transfer of the membership interests of Xxxx Publishing in
connection with the Separation shall be such date and time as shall be fixed by
the Board of Directors of Xxxx (the "Separation Date").
2.2. Closing of Transactions. The closing of the transactions
contemplated by this Agreement shall take place at the offices of Proskauer Rose
LLP, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
2.3. Documents to be Delivered by Xxxx. On the Separation Date, Xxxx
will deliver, or will cause its appropriate Subsidiaries to deliver, to TCM all
of the following items and agreements (collectively, together with all
agreements and documents contemplated by such agreements, the "Ancillary
Agreements"):
(a) Secretary's Certificate. A certificate executed by the
Secretary of Xxxx substantially in the form attached to this Agreement as
Exhibit A;
(b) Assignment and Assumption Agreement. A duly executed
Assignment and Assumption Agreement substantially in the form attached hereto as
Exhibit B (the "Assignment and Assumption Agreement");
(c) Tax Sharing Agreement. A duly executed Tax Sharing Agreement
substantially in the form attached hereto as Exhibit C (the "Tax Sharing
Agreement");
(d) Real Property Lease. A duly executed Real Property lease
Agreement substantially in the form attached hereto as Exhibit D (the "Real
Property Lease");
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(e) Contribution Agreement. A duly executed contribution
Agreement substantially in the form attached to this Agreement as Exhibit E (the
"Contribution Agreement");
(f) Officer Resignations. Resignations of each person who is an
officer of Xxxx Publishing, Graylink or any of their respective subsidiaries,
immediately prior to the Separation Date, and who will not be an employee of TCM
from and after the Separation Date; and
(g) Other Agreements. Such other agreements, documents, or
instruments as the parties may agree are necessary or desirable in order to
achieve the purposes hereof, including, without limitation, those documents
referred to in Section 6.1.
2.4. Documents to be Delivered by TCM. On the Separation Date, TCM
will deliver, or will cause its appropriate Subsidiaries to deliver, to Xxxx all
of the following items and agreements:
(a) Secretary's Certificate. A certificate executed by the
Secretary of TCM substantially in the form attached to this Agreement as Exhibit
F;
(b) Assignment and Assumption Agreement. A duly executed
Assignment and Assumption Agreement;
(c) Tax Sharing Agreement. A duly executed Tax Sharing Agreement;
(d) Real Property Lease. A duly executed Real Property Lease;
(e) Contribution Agreement. A duly executed Contribution
Agreement; and
(f) Other Agreements. Such other agreements, documents, or
instruments as the parties may agree are necessary or desirable in order to
achieve the purposes hereof, including, without limitation, those documents
referred to in Section 6.1.
2.5. Approvals and Required Consents. To the extent that the
Separation requires any Governmental Approvals or other consents, the parties
will use their commercially reasonable efforts to obtain any such Governmental
Approvals or consents.
SECTION 3
THE DISTRIBUTION
3.1. Share Distribution.
(a) Delivery of Shares for Distribution. Prior to the
Distribution Date, Xxxx shall deliver to TCM the certificate for 100 shares of
TCM Common Stock held by Xxxx and representing all of the outstanding TCM Common
Stock, and TCM shall cancel such certificate and issue and deliver to Xxxx in
exchange therefor an omnibus stock certificate
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representing that number of shares of TCM Common Stock equal to the total number
of shares distributable pursuant to Section 3.1(b). Xxxx shall then deliver such
omnibus certificate to the Distribution Agent.
(b) Distribution of Shares. Xxxx shall instruct the Distribution
Agent to distribute, beginning on the Distribution Date, to holders of Xxxx
Stock on the Record Date, the number of shares of TCM Common Stock equal to the
number of shares of Xxxx Stock owned by such holder on the Distribution Date,
multiplied by 0.10, and as soon thereafter as reasonably practicable, cash, if
applicable, in lieu of fractional shares of TCM Common Stock obtained in the
manner provided in Section 3.1(c) hereof. TCM agrees to provide to the
Distribution Agent sufficient certificates in such denominations as the
Distribution Agent may request in order to effect the Distribution. All of the
shares of TCM Common Stock issued in the Distribution shall be fully paid,
nonassessable, and free of preemptive rights. Xxxx shareholders shall not be
required to pay cash or other consideration for the TCM Common Stock received in
the Distribution.
(c) Fractional Shares. No certificate or scrip representing
fractional shares of TCM Common Stock shall be issued as part of the
Distribution. In lieu of receiving fractional shares, each holder of Xxxx Stock
who would otherwise be entitled to receive a fractional share of TCM Common
Stock pursuant to the Distribution will receive cash for such fractional share.
Xxxx shall instruct the Distribution Agent to determine the number of whole
shares and fractional shares of TCM Common Stock allocable to each holder of
record or beneficial owner of Xxxx Stock on the Distribution Date, to aggregate
all such fractional shares into whole shares, to sell the whole shares obtained
thereby in the open market at then prevailing prices on behalf of holders of
record or beneficial owners who otherwise would be entitled to receive
fractional shares of TCM Common Stock, and to distribute to each such holder or
for the benefit of each such beneficial owner such holder's or owner's ratable
share of the total proceeds (net of total selling expenses) of such sale;
provided, however, that the Distribution Agent shall have sole discretion to
determine when, how, through which broker-dealer, and at what price to make its
sales; provided, further, that the broker-dealer shall not be an affiliate of
Xxxx or TCM.
(d) Obligation to Provide Information. Xxxx and TCM, as the case
may be, will provide to the Distribution Agent all share certificates and any
information required in order to complete the Distribution on the basis
specified in Section 3.1.
3.2. Actions Prior to the Distribution. On or before the Distribution
Date, Xxxx and TCM shall use their commercially reasonable efforts to do and
accomplish the following:
(a) SEC Filings. Xxxx and TCM shall prepare, and Xxxx shall mail,
prior to the Distribution Date, to the holders of Xxxx Common Stock, a proxy
statement/prospectus/information statement containing such information
concerning TCM, the Newspaper Publishing Business and Graylink Wireless Business
and the Separation and the Distribution and such other matters as Xxxx and TCM
shall reasonably determine are necessary and as may be required by law. Xxxx and
TCM shall prepare, and TCM shall file with the Securities and Exchange
Commission (the "SEC") a registration statement on Form S-4 to register the
shares of TCM Common Stock to be issued in the Distribution under the Securities
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Act. Xxxx and TCM shall use all commercially reasonable efforts to respond to
any comments of the SEC and to cause such registration statement to be declared
effective under the Securities Act as promptly as practicable after such
registration statement is filed with the SEC. TCM shall prepare and file with
the SEC a registration statement on Form 8-A to register the shares of TCM
Common Stock under the Exchange Act.
(b) Blue Sky. Xxxx and TCM shall take and shall cause any of
their Subsidiaries to take all such actions as may be necessary or appropriate
under the securities or blue sky laws of any applicable states in connection
with the Distribution.
(c) Nasdaq National Market. TCM shall prepare and file, and shall
use its commercially reasonable efforts to have approved, an application for
listing of the TCM Common Stock to be issued in the Distribution on the Nasdaq
National Market, subject to official notice of issuance.
(d) Advisors. Xxxx and TCM shall participate in the preparation
of materials and presentations as their respective advisors shall deem necessary
or desirable.
(e) Satisfaction of Conditions. Xxxx and TCM shall take and shall
cause all of their respective Subsidiaries to take all reasonable steps
necessary and appropriate to cause the conditions set forth in Section 3.3 to be
satisfied and to effect the Distribution on the Distribution Date.
(f) Termination of Letter Agreement. Xxxx and TCM shall use their
commercially reasonable efforts to cause the Letter Agreement, dated July 20,
2004, by and between Xxxx Television, Inc. and Xxxxxx Xxxxxx to be terminated.
3.3. Conditions to Distribution. The following are conditions to the
consummation of the Distribution. The conditions are for the sole benefit of
Xxxx and can be waived by Xxxx, but shall not give rise to or create any duty on
the part of Xxxx or the Board of Directors of Xxxx to waive or not waive any
such condition or in any way limit Xxxx'x right to terminate this Agreement.
(a) Filing and Effectiveness of Registration Statement; No Stop
Order. A registration statement on Form S-4 and Form 8-A covering the TCM Common
Stock to be issued in the Distribution shall have been filed with the SEC and
shall be effective, and no stop order suspending the effectiveness of such
registration statements shall have been initiated or, to the knowledge of either
TCM or Xxxx, threatened by the SEC.
(b) Dissemination of Information to Xxxx Shareholders. Prior to
the Distribution Date, the parties shall have prepared, and Xxxx shall have
mailed to the holders of Xxxx Stock a proxy statement/prospectus/information
statement containing such information concerning TCM, the Newspaper Publishing
Business and Graylink Wireless Business and, the Separation and the
Distribution, and such other matters as Xxxx and TCM shall reasonably determine
are necessary and as may be required by law.
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(c) Nasdaq National Market. The shares of TCM Common Stock to be
issued in the Distribution shall have been authorized for listing on the Nasdaq
National Market, upon official notice of issuance.
(d) Compliance with State and Foreign Securities and Blue Sky
Laws. Xxxx and TCM shall have taken all such action as may be necessary or
appropriate under state and foreign securities and blue sky laws in connection
with the Distribution.
(e) Consents.
(i) Governmental Approvals. Any material governmental
approvals and consents required to permit the valid consummation of the
Distribution shall have been obtained without any conditions being imposed that
would have a Material Adverse Effect on Xxxx or TCM.
(ii) Consents. Xxxx shall have obtained the consent,
approval, or waiver of each Person set forth on Schedule 3.3(e)(ii).
(f) No Actions. No Actions shall have been instituted or
threatened by or before any Governmental Authority to restrain, enjoin, or
otherwise prevent the Distribution or the other transactions contemplated by
this Agreement, and no order, injunction, judgment, ruling, or decree issued by
any Governmental Authority of competent jurisdiction shall be in effect
restraining the Distribution or such other transactions.
(g) Tax Opinion regarding the Separation and Distribution. Xxxx
and Bull Run shall have received an opinion of King & Spalding LLP, special tax
counsel to Xxxx, to the effect that the Separation and Distribution will qualify
as a divisive reorganization described in Sections 368(a)(1)(D) and 355 of the
Code.
(h) Consummation of Separation. The Separation transactions
contemplated by this Agreement shall have been consummated in all material
respects.
(i) Approval by the Special Committee of the Board of Directors
of Xxxx of the Merger Agreement and the Merger. The Merger Agreement and the
Merger shall have been approved by the special committee of the Board of
Directors of Xxxx in accordance with applicable law and the articles of
incorporation and bylaws of Xxxx.
(j) Approval by the Board of Directors of Xxxx of the Merger
Agreement and the Merger. The Merger Agreement and the Merger shall have been
approved by the Board of Directors of Xxxx, consistent with the approval and
recommendation of the special committee of the Board of Directors of Xxxx, and
in accordance with applicable law and the articles of incorporation and bylaws
of Xxxx.
(k) Approval by the Special Committee of the Board of Directors
of TCM of the Merger Agreement and the Merger. The Merger Agreement and the
Merger shall have been approved by the special committee of the Board of
Directors of TCM in accordance with applicable law and the certificate of
incorporation and bylaws of TCM.
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(l) Approval by the Board of Directors of TCM of the Merger
Agreement and the Merger. The Merger Agreement and the Merger shall have been
approved by the Board of Directors of TCM, consistent with the approval and
recommendation of the special committee of the Board of Directors of TCM, and in
accordance with applicable law and the certificate of incorporation and bylaws
of TCM.
(m) Approval by the Special Committee of the Board of Directors
of Bull Run of the Merger Agreement and the Merger. The Merger Agreement and the
Merger shall have been approved by the special committee of the Board of
Directors of Bull Run in accordance with applicable law and the articles of
incorporation and bylaws of Bull Run.
(n) Approval by the Board of Directors of Bull Run of the Merger
Agreement and the Merger. The Merger Agreement and the Merger shall have been
approved by the Board of Directors of Bull Run, consistent with the approval and
recommendation of the special committee of the Board of Directors of Bull Run,
and in accordance with applicable law and the articles of incorporation and
bylaws of Bull Run.
(o) Approval by the Shareholders of Bull Run of the Merger
Agreement and the Merger. The shareholders of Bull Run shall have approved the
Merger Agreement and the Merger in accordance with applicable law and the
articles of incorporation and bylaws of Bull Run.
(p) Opinion of Financial Advisor to the Special Committee of the
Board of Directors of TCM. Each of the Boards of Directors of Xxxx and TCM and
the special committees of the Boards of Directors of Xxxx and TCM shall have
received the opinion of Xxxxxxxx Xxxxx Xxxxxx & Xxxxx Capital, Inc., the
financial advisor of the special committee of the Board of Directors of TCM, to
the effect that as of the date of such opinion, based upon and subject to the
assumptions and limitations set forth in such opinion, (A) the Distribution is
fair, from a financial point of view, to the holders (other than J. Xxxx
Xxxxxxxx or any of his affiliates) of the Xxxx Class A Common Stock and the Xxxx
Common Stock that receive TCM Common Stock in the Distribution, (B) the
allocation of the consideration in the Distribution between the Xxxx Common
Stock and the Xxxx Class A Common Stock is fair, from a financial point of view,
to the holders (other than J. Xxxx Xxxxxxxx or any of his affiliates) of each
such class of common stock and (C) the consideration to be paid to the
shareholders of Bull Run in the Merger is fair, from a financial point of view,
to TCM.
(q) Opinion of a Nationally Recognized Independent Valuation
Firm. Each of the Boards of Directors of Xxxx and TCM and the special committee
of the Boards of Directors of Xxxx and TCM shall have received the opinion of a
nationally recognized independent valuation firm that, as of the date of such
opinion, based upon and subject to the assumptions, factors and limitations set
forth in such opinion, assuming the Transaction and Refinancing have been
consummated as proposed, immediately after giving effect to the Transaction and
the Refinancing, and on a pro forma basis: (A) the fair value and present
saleable value of TCM's assets would exceed TCM's stated liabilities and
identified contingent liabilities, (B) TCM should be able to pay its debts as
they become absolute and mature and (C) the capital remaining in TCM would not
be unreasonably small for the business in which TCM
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is engaged, as management has indicated it is proposed to be conducted following
the consummation of the Transaction and the Refinancing.
(r) Opinion of Financial Advisor to the Special Committee of the
Board of Directors of Bull Run. The Board of Directors of Bull Run and the
special committee of the Board of Directors of Bull Run shall have received the
written opinion of SunTrust Xxxxxxxx Xxxxxxxx that, as of the date of such
opinion and based upon and subject to certain matters stated therein, the
exchange ratio to be received by the common stockholders (other than J. Xxxx
Xxxxxxxx, the majority stockholder, and other affiliated stockholders) of Bull
Run is fair, from a financial point of view, to such holders.
(s) Tax Opinion rendered to TCM regarding the Merger. TCM shall
have received an opinion of King & Spalding LLP, special tax counsel to TCM, to
the effect that the Merger will qualify as a reorganization under Section 368(a)
of the Code.
(t) Tax Opinion rendered to Bull Run regarding the Merger. Bull
Run shall have received an opinion of Xxxxxxxx Xxxxxxx LLP, special tax counsel
to Bull Run, to the effect that the Merger will qualify as a reorganization
under Section 368(a) of the Code.
(u) Other Events. No other events or developments shall have
occurred subsequent to the date of this Agreement that, in the judgment of the
Board of Directors of Xxxx or the special committee of the Board of Directors of
Xxxx, would result in the Distribution having a Material Adverse Effect on Xxxx
or a material adverse effect on the shareholders of Xxxx.
3.4. Modification. Xxxx shall, in its sole and absolute discretion,
determine the date of the consummation of the Distribution. In addition, at any
time and from time to time until the completion of the Distribution, Xxxx with
the consent of the special committee of the Board of Directors of TCM may modify
or change the terms of the Distribution.
SECTION 4
EMPLOYEES AND EMPLOYEE BENEFIT MATTERS
4.1. Employees. Immediately prior to, and subject to the Separation,
Xxxx shall transfer to TCM each employee of the Newspaper Publishing Business
and Graylink Wireless Business (the "Transferred Employees") so that no such
employee who becomes employed by TCM experiences any termination or other
interruption in employment and Xxxx shall cause all such Transferred Employees
to resign from all positions as officers or employees of Xxxx and its
Subsidiaries. Except as otherwise provided herein, TCM shall be liable for all
obligations relating to all Transferred Employees for all periods, whether
arising prior to, on or after the Separation Date. All employees of Xxxx and its
Subsidiaries as of the Separation Date who are not Transferred Employees shall
be retained by Xxxx and its Subsidiaries (the "Retained Employees") and Xxxx
shall be liable for all obligations relating to all Retained Employees for all
periods, whether arising prior to, on or after the Separation Date. TCM and Xxxx
(and their respective Subsidiaries) shall use commercially reasonable efforts to
accomplish any transfers of employment required by this Section 4.1 in a timely
manner.
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4.2. Prior Service Credit. TCM shall give each Transferred Employee
credit for years of service with Xxxx or its Subsidiaries as if they were years
of service with TCM. TCM shall recognize such service for purposes of satisfying
any waiting period, evidence of insurability requirements or the application of
any preexisting condition limitation. TCM shall also give Transferred Employees
credit for amounts paid under a corresponding Xxxx plan during the same period
for purposes of applying deductibles, copayments and out-of-pocket maximums as
though such amounts had been paid in accordance with the terms and conditions of
the benefit plan sponsored or maintained by TCM.
4.3. 401(k) Plan. Immediately prior to, and subject to, the
Separation, Xxxx shall cause a "spin off" of the assets and liabilities of the
Xxxx Television, Inc. Capital Accumulation Plan (the "Xxxx 401(k) Plan")
resulting in the division of the Xxxx 401(k) Plan into two separate, identical,
component plans and trusts, in accordance with applicable law (including,
without limitation, Section 414(l) of the Code), covering, respectively, (i) the
Transferred Employees (and their beneficiaries) (the "TCM 401(k) Plan") and (ii)
all other Xxxx 401(k) Plan participants (and their beneficiaries). Immediately
prior to, and subject to, the Separation, Xxxx shall cause the TCM 401(k) Plan
to be transferred to TCM but shall retain the Xxxx 401(k) Plan. Prior to the
Separation, Xxxx shall draft the appropriate documents and use its commercially
reasonable efforts to take all actions necessary, to the extent possible, to
effectuate the intent of this Section 4.3.
4.4. Pension Plan. Xxxx shall retain all liabilities and obligations
in respect of benefits accrued by Transferred Employees who participate in the
Xxxx Communications Systems, Inc. Retirement Plan (the "Retirement Plan").
Benefit accruals in respect of Transferred Employees shall cease as of the
Separation Date and the Transferred Employees participating therein shall be
considered to have terminated employment for purposes of such plan. Xxxx shall
fully vest the accrued benefits of the Transferred Employees under the
Retirement Plan as of the Separation Date. No assets under the Retirement Plan
shall be transferred to TCM or to any plan of TCM.
4.5. Welfare Plans
(a) Except as otherwise provided herein, immediately prior to,
and subject to, the Separation, Xxxx shall cause all of Xxxx'x employee welfare
benefit plans, as defined in Section 3(1) of ERISA (the "Xxxx Welfare Plans"),
to be divided into separate, identical component plans covering, respectively,
(i) the Transferred Employees (and their beneficiaries) (the "TCM Welfare
Plans") and (ii) all other Xxxx Welfare Plan participants (and their
beneficiaries), including without limitation, participants (and their
beneficiaries) who experienced a "qualifying event" for purposes of the group
health plan continuation coverage requirements of Section 4980 of the Code and
Title I, Subtitle B of ERISA prior to the Separation Date regardless of when an
election for continuation coverage is made by the participant. Immediately prior
to and subject to, the Separation, Xxxx shall cause the TCM Welfare Plans to be
transferred to TCM but shall retain the Xxxx Welfare Plans. Prior to the
Separation, Xxxx shall draft the appropriate documents and use its reasonable
best efforts to take all actions necessary, to the extent possible, to
effectuate the intent of this Section 4.5(a).
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(b) On and after the Separation Date, TCM shall pay, or cause to
be paid, all claims for health care benefits by the Transferred Employees (and
their beneficiaries), made after the Separation Date for post-Separation
periods, and shall pay, or cause to be paid, all claims for health care benefits
by the Transferred Employees (and their beneficiaries), made after the
Separation for all periods prior to the Separation Date.
(c) TCM shall be responsible for any liabilities or obligations
for severance obligations relating to employees of the Newspaper Publishing
Business and Graylink Wireless Business whose employment terminates prior to, or
on or after the Separation Date.
(d) Any Transferred Employee on short-term disability as of the
Closing Date that would have become eligible for long-term disability benefits
under the Xxxx Welfare Plans but for the consummation of the transactions
contemplated by this Agreement shall be covered by the Xxxx Welfare Plan that
provides long-term disability benefits and TCM shall have no obligation to
provide such coverage.
4.6. Section 125 Plan. Without limiting the generality of Section 4.5,
immediately prior to, and subject to, the Separation, Xxxx shall cause a "spin
off" of the assets and liabilities of the Xxxx Section 125 Plan (the "Xxxx Flex
Plan") (which contains premium, dependent care and medical health reimbursement
component parts) resulting in the division of the Xxxx Flex Plan into two,
separate, identical, component plans, in accordance with applicable law,
covering, respectively, (i) the Transferred Employees (and their beneficiaries)
(the "TCM Flex Plan") and (ii) all other Xxxx Flex Plan participants (and their
beneficiaries). Immediately prior to and subject to, the Separation, Xxxx shall
cause the TCM Flex Plan to be transferred to TCM but shall retain the Xxxx Flex
Plan. Prior to the Separation, Xxxx shall draft the appropriate documents and
use its reasonable best efforts to take all actions necessary, to the extent
possible, to effectuate the intent of this Section 4.6.
4.7. Accrued Vacation. Xxxx and TCM agree that all accrued vacation
for Transferred Employees as of the Separation Date shall be TCM's obligation.
4.8. Stock Option Plan. Immediately prior to, and subject to, the
Distribution, Xxxx shall cause each outstanding nonqualified option to purchase
shares of Xxxx Common Stock that was granted under the Xxxx 2002 Long Term
Incentive Plan on or before the Distribution Date to a Transferred Employee to
be become fully vested on the Distribution Date, and to continue to be
exercisable until the original expiration date. Prior to the Separation, Xxxx
shall prepare the appropriate documents and use its reasonable best efforts to
take all actions necessary, to the extent possible, to effectuate the intent of
this Section 4.8.
4.9. Workers' Compensation. TCM shall assume the liability for any
workers' compensation or similar workers' protection claims with respect to any
employee of the Newspaper Publishing Business and Graylink Wireless Business,
whether incurred prior to, on, or after the Distribution Date, which are the
result of an injury or illness originating prior to or on the Distribution Date.
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4.10. WARN Act. TCM and its Subsidiaries agree that they shall not, at
any time during the 90-day period following the Distribution Date, (i)
effectuate a "plant closing" as defined in the Worker Adjustment and Retraining
Notification Act of 1988 (the "WARN Act") affecting any site of employment or
operating units within any site of employment of the Newspaper Publishing
Business and Graylink Wireless Business, or (ii) take any action to precipitate
a "mass layoff" as defined in the WARN Act affecting any site of employment of
the Newspaper Publishing Business and Graylink Wireless Business, except, in
either case, after complying fully with the notice and other requirements of the
WARN Act. TCM agrees to indemnify Xxxx and its Subsidiaries and their respective
officers and directors and to defend and hold harmless Xxxx and its Subsidiaries
and their respective officers and directors from and against any and all claims,
losses, damages, expenses, obligations and liabilities (including attorney's
fees and other costs of defense) that Xxxx and its Subsidiaries and their
respective officers and directors may incur in connection with any suit or claim
of violation brought against Xxxx under the WARN Act, which relates in whole or
in part to actions taken by TCM or its Subsidiaries with regard to any site of
employment of TCM or operating units within any site of employment of the
Newspaper Publishing Business and Graylink Wireless Business.
4.11. Information to be Provided. Each party and its Subsidiaries
shall provide any information that the other party may reasonably request,
including, but not limited to, information relating to dates of termination of
employment, in order to provide benefits to any eligible employee of TCM or any
of its Subsidiaries under the terms and conditions of this Agreement or under
the applicable Xxxx Plans.
4.12. No Right to Employment. Nothing contained in this Agreement will
confer upon any Transferred Employees any rights or remedies, including, without
limitation, any right to employment for any specified period, of any nature or
kind whatsoever, under or by reason of this Agreement. Notwithstanding anything
to the contrary contained in this Agreement, any employee benefit plan or
program for the Transferred Employees established by TCM may be amended or
terminated by TCM in accordance with its terms and applicable law.
SECTION 5
INSURANCE MATTERS
5.1. Insurance Prior to the Distribution Date. Xxxx shall not have any
liability whatsoever to TCM as a result of the insurance policies and practices
of Xxxx in effect at any time at or prior to the Distribution Date, including as
a result of the level or scope of any such insurance, the creditworthiness of
any insurance carrier, the terms and conditions of any policy, and the adequacy
or timeliness of any notice to any insurance carrier with respect to any claim
or potential claim or otherwise.
5.2. Ownership of Existing Policies and Programs. Xxxx or one or more
of its Subsidiaries shall continue to own all property, casualty and liability
insurance policies and programs, including, without limitation, primary and
excess general liability, errors and omissions, automobile, workers'
compensation, property, fire, crime and surety insurance policies, in effect on
or before the Distribution Date (collectively, the "Xxxx Policies" and
individually, a "Xxxx Policy"). Xxxx shall use commercially reasonable efforts
to maintain the Xxxx Policies in full force and effect up to and including the
Distribution Date, and, subject to
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the provisions of this Agreement, Xxxx and its Subsidiaries shall retain all of
their respective rights, benefits and privileges, if any, under the Xxxx
Policies. Nothing contained in this Agreement shall be construed to be an
attempted assignment, or to change the ownership, of the Xxxx Policies.
5.3. Naming of TCM as Additional Insured. To the extent not already
provided for by the terms of a Xxxx Policy, Xxxx shall use commercially
reasonable efforts to cause TCM to be named as an additional insured under the
Xxxx Policies whose effective policy periods include the Distribution Date, in
respect of claims arising out of or relating to periods prior to the
Distribution Date.
5.4. TCM Insurance Policies. Commencing on and as of the Distribution
Date, TCM shall be responsible for establishing and maintaining separate
property, casualty and liability insurance policies and programs for activities
and claims involving TCM or any of its Subsidiaries. TCM will exercise
commercially reasonable efforts to secure liability insurance to avoid potential
gaps in coverage. TCM and each of its Subsidiaries, as appropriate, shall be
responsible for all administrative and financial matters relating to insurance
policies established and maintained by TCM and its Subsidiaries for claims
relating to any period on or after the Distribution Date involving TCM or any of
its Subsidiaries. Notwithstanding any other agreement or understanding to the
contrary, except as set forth in Section 5.6 with respect to claims
administration and financial administration of the Xxxx Policies, neither Xxxx
nor any of its Subsidiaries shall have any responsibility for or obligation to
TCM or any of its Subsidiaries relating to property and casualty insurance
matters for any period, whether prior to, on, or after the Distribution Date.
5.5. TCM Directors' and Officers' Insurance. Xxxx shall cause to be
maintained for a period of six years from the Distribution Date, Xxxx'x current
directors' and officers' insurance and indemnification policies and fiduciary
liability policies ("D&O Insurance"), provided that, Xxxx may substitute
therefor, at is election, policies or financial guarantees with the same
carriers or other reputable and financially sound carriers of at least the same
coverage and amounts containing terms and conditions which are no less
advantageous that the existing D&O Insurance, to the extent that such insurance
policies provide coverage for events occurring at or prior to the Distribution
Date for all persons who are directors and officers of TCM on the date of this
Agreement (or were such prior to the date of this Agreement), so long as the
annual premium after the date of this Agreement for such D&O Insurance during
such six-year period would not exceed 300% of the annual premium as of the date
of this Agreement. If, during such six-year period, such insurance coverage can
only be obtained for an amount in excess of 300% of the annual premium therefor
as of the date of this Agreement, Xxxx shall use commercially reasonable efforts
to cause insurance coverage at a reduced face amount to be obtained for an
amount equal to 300% of the current annual premium therefore, on terms and
conditions substantially similar to the existing D&O Insurance. Set forth in
Schedule 5.5 is the amount of the annual premium currently paid by Xxxx for its
D&O Insurance. In the event Xxxx or any of its successors or assigns (i)
consolidates with or merges into any other Person and shall not be the
continuing or surviving corporation or entity of such consolidation or merger,
or (ii) transfers or conveys all or substantially all of its properties and
assets to any Person, then, and in each such case, to the extent necessary,
proper provision shall be made so that the successors and assigns of Xxxx assume
the obligations set forth in this Section 5.5. The provisions of this
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Section 5.5 are intended to be for the benefit of, and shall be enforceable by,
each officer and director of TCM on the date of this Agreement (or prior to the
date of this Agreement) and his or her heirs and representatives.
5.6. Post-Distribution Insurance Claims Administration. Upon
notification by TCM or one of its Subsidiaries of a claim relating to TCM or one
of its Subsidiaries under one or more of the Xxxx Policies, Xxxx shall cooperate
with TCM in asserting and pursuing coverage and payment for such claim by the
appropriate insurance carrier(s). In asserting and pursuing such coverage and
payment, Xxxx and TCM shall jointly make all decisions, determinations,
commitments and stipulations concerning any such claims on its own behalf and on
behalf of TCM and its Subsidiaries, which decisions, determinations, commitments
and stipulations shall be final and conclusive if reasonably made to maximize
the overall economic benefit of the Xxxx Policies. TCM and its Subsidiaries
shall assume responsibility for, and shall pay to the appropriate insurance
carriers or otherwise, any premiums, defense costs, indemnity payments,
deductibles, retentions or other charges (collectively, "Insurance Charges")
whenever arising, which shall become due and payable under the terms and
conditions of any applicable Xxxx Policy in respect of any claims made by TCM or
one of its Subsidiaries under the Xxxx Policies, whether the same relate to the
period prior to, on, or after the Distribution Date. To the extent that the
terms of any applicable Xxxx Policy provide that Xxxx or any of its Subsidiaries
shall have an obligation to pay or guarantee the payment of any Insurance
Charges relating to TCM or any of its Subsidiaries, Xxxx shall be entitled to
demand that TCM make such payment directly to the Person or entity entitled
thereto. In connection with any such demand, Xxxx shall submit to TCM a copy of
any invoice received by Xxxx pertaining to such Insurance Charges together with
appropriate supporting documentation, to the extent available. In the event that
TCM fails to pay any such Insurance Charges when due and payable, whether at the
request of the Person entitled to payment or upon demand by Gray, Gray and its
Subsidiaries may (but shall not be required to) pay such Insurance Charges for
and on behalf of TCM and, thereafter, TCM shall forthwith reimburse Xxxx for
such payment. Subject to the other provisions of this Section 5, the retention
by Xxxx of the Xxxx Policies and the responsibility for claims administration
and financial administration of such policies are in no way intended to limit,
inhibit or preclude any right of TCM, Xxxx or any other insured to insurance
coverage for any insured claims under the Xxxx Policies.
5.7. Non-Waiver of Rights to Coverage. An insurance carrier that would
otherwise be obligated to pay any claim shall not be relieved of the
responsibility with respect thereto, or, solely by virtue of the provisions of
this Section 5, have any subrogation rights with respect thereto, it being
expressly understood and agreed that no insurance carrier nor any third party
shall be entitled to a benefit that they would not be entitled to receive had no
Distribution occurred or in the absence of the provisions of this Section 5.
5.8. Scope of Affected Policies of Insurance. The provisions of this
Section 5 relate solely to matters involving liability, casualty and workers'
compensation insurance and shall not be construed to affect any obligation of or
impose any obligation on the parties with respect to any life, health and
accident, dental or medical insurance policies applicable to any of the
officers, directors, employees or other representatives of the parties or their
Subsidiaries.
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SECTION 6
CERTAIN COVENANTS
6.1. Further Instruments; Consents.
(a) In addition to the specific agreements, documents, and
instruments attached to this Agreement, Xxxx and TCM shall execute or cause to
be executed by the appropriate parties and deliver, as appropriate, such other
agreements, instruments and documents as may be necessary or desirable in order
to effect the purposes of this Agreement and the Ancillary Agreements. Neither
Xxxx nor TCM shall be obligated, in connection with the foregoing, to expend
money other than reasonable out-of-pocket expenses, attorneys' fees, and
recording or similar fees. Furthermore, each party, at the request of the other
party hereto, shall do and perform such other acts and things as may be
necessary or desirable for effecting completely the consummation of the
transactions contemplated by this Agreement.
(b) Xxxx shall use reasonable efforts (but Xxxx shall not be
required to make any payment), to obtain at the earliest practicable date all
consents and approvals referred to in Section 3.3(e)(ii). If, with respect to
any Assigned Contract or any agreement, lease or commitment of Xxxx Publishing
and its Subsidiaries, a required consent to the transfer of the membership
interests of Xxxx Publishing is not obtained (and, accordingly, pursuant to
section 1.2(d), the agreement, lease or commitment is excluded from the
contribution to TCM), Xxxx shall use reasonable efforts (but Xxxx shall not be
required to make any payment), to keep it in effect and give TCM the benefit of
it to the same extent as if it had been assigned, without any additional cost to
TCM in excess of the amount for which it would have been responsible had such
contract been assigned. Nothing in this Agreement shall be construed as an
attempt to assign any agreement or other instrument that is by its terms
nonassignable without the consent of the other party.
6.2. Exchange of Information.
(a) General. Each of Xxxx and TCM, for itself and on behalf of
its Subsidiaries, agrees to provide, or cause to be provided, to the other, at
any time before or after the Distribution Date, as soon as reasonably
practicable after written request therefor, any Information in the possession or
under the control of such party that the requesting party reasonably needs (i)
to comply with reporting, disclosure, filing or other requirements imposed on
the requesting party (including under applicable securities laws) by any
Governmental Authority having jurisdiction over the requesting party, (ii) for
use in any other judicial, regulatory, administrative or other proceeding or in
order to satisfy audit, accounting, claims, regulatory, litigation or other
similar requirements, (iii) to comply with its obligations under this Agreement
or any Ancillary Agreement or (iv) in connection with the ongoing businesses of
Xxxx or TCM, as the case may be; provided, however, that in the event that any
party determines that any such provision of Information could be commercially
detrimental, violate any law or agreement, or waive any attorney-client
privilege, the parties shall take all reasonable measures to permit the
compliance with such obligations in a manner that avoids any such harm or
consequence.
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(b) Internal Accounting Controls; Financial Information. After
the Separation Date, (i) each party shall maintain in effect at its own cost and
expense adequate systems and controls for its business to the extent necessary
to enable the other party to satisfy its reporting, accounting, audit and other
obligations, and (ii) each party shall provide, or cause to be provided, to the
other party and its Subsidiaries in such form as such requesting party shall
request, at no charge to the requesting party, all financial and other data and
Information as the requesting party determines necessary or advisable in order
to prepare its financial statements and reports or filings with any Governmental
Authority.
(c) Ownership of Information. Any Information owned by a party
that is provided to a requesting party pursuant to this Section 6.2 shall be
deemed to remain the property of the providing party. Unless specifically set
forth in this Agreement, nothing contained in this Agreement shall be construed
as granting or conferring rights of license or otherwise in any such
Information.
(d) Record Retention. To facilitate the possible exchange of
Information pursuant to this Section 6.2 and other provisions of this Agreement
after the Distribution Date, the parties agree to use commercially reasonable
efforts to retain all Information in their respective possession or control on
the Distribution Date in accordance with the policies of Xxxx as in effect on
the Distribution Date or such other policies as may be reasonably adopted by the
applicable party after the Distribution Date. No party will destroy, or permit
any of its affiliates to destroy, any Information which the other party may have
the right to obtain pursuant to this Agreement prior to the third anniversary of
the date of this Agreement without first using its commercially reasonable
efforts to notify the other party of the proposed destruction and giving the
other party the opportunity to take possession of such Information prior to such
destruction; provided, however, that in the case of any Information relating to
taxes, employee benefits or environmental liabilities, such period shall be
extended to the expiration of the applicable statute of limitations (giving
effect to any extensions thereof); provided further, however, that in the event
that any such Information is also subject to a retention requirement contained
in any Ancillary Agreement that is longer than the requirement set forth in this
Section 6.2, then the requirement in such Ancillary Agreement shall control.
(e) Limitation of Liability. No party shall have any liability to
any other party in the event that any Information exchanged or provided pursuant
to this Section 6.2 is found to be inaccurate, in the absence of willful
misconduct by the party providing such Information. No party shall have any
liability to any other party if any Information is destroyed or lost after
commercially reasonable efforts by such party to comply with the provisions of
Section 6.2(d).
(f) Other Agreements Providing for Exchange of Information. The
rights and obligations granted under this Section 6.2 are subject to any
specific limitations, qualifications, or additional provisions on the sharing,
exchange, or confidential treatment of Information set forth in this Agreement
and any Ancillary Agreement.
(g) Production of Witnesses; Records; Cooperation. After the
Distribution Date, except in the case of a legal or other proceeding by one
party against another party (which shall be governed by such discovery rules as
may be applicable under Section 8 or
17
otherwise), each party shall use its commercially reasonable efforts to make
available to the other party, upon written request, the former, current, and
future directors, officers, employees, other personnel, and agents of such party
as witnesses and any books, records, or other documents within its control or
which it otherwise has the ability to make available, to the extent that any
such person (giving consideration to business demands of such directors,
officers, employees, other personnel, and agents) or books, records, or other
documents may reasonably be required in connection with any legal,
administrative, or other proceeding in which the requesting party may from time
to time be involved, regardless of whether such legal, administrative, or other
proceeding is a matter with respect to which indemnification may be sought. The
requesting party shall bear all costs and expenses in connection therewith.
6.3. Privileged Matters.
(a) Preservation of Privileges. The parties each agree that they
will maintain, preserve, and assert all privileges, including, without
limitation, privileges arising under or relating to the attorney-client
relationship (which shall include, without limitation, the attorney-client and
work product privileges), that relate directly or indirectly to such party for
any period prior to the Distribution Date ("Privilege" or "Privileges"). Neither
party shall waive any Privilege that could be asserted under applicable law
without the prior written consent of the other party. The rights and obligations
created by this Section 6.3 shall apply to all Information as to which, but for
the Distribution, a party would have been entitled to assert or did assert the
protection of a Privilege ("Privileged Information"), including, but not limited
to, (i) any and all Information generated prior to the Distribution Date but
which, after the Distribution, is in the possession of the other party; (ii) all
communications subject to a Privilege occurring prior to the Distribution Date
between counsel for such party and any person who, at the time of the
communication, was an employee of such party, regardless of whether such
employee is or becomes an employee of the other party; and (iii) all Information
generated, received, or arising after the Distribution Date that refers or
relates to Privileged Information generated, received, or arising prior to the
Distribution Date.
(b) Notices. Upon receipt by a party or any of its Subsidiaries
of any subpoena, discovery, or other request that arguably calls for the
production or disclosure of Privileged Information or if such party or any of
its Subsidiaries obtains knowledge that any current or former employee of such
party or any of its Subsidiaries has received any subpoena, discovery, or other
request that arguably calls for the production or disclosure of Privileged
Information, such party shall promptly notify the other party of the existence
of the request and shall provide the other party a reasonable opportunity to
review the Information and to assert any rights it may have under this Section
6.3 or otherwise to prevent the production or disclosure of Privileged
Information. Neither party will produce or disclose any Information arguably
covered by a Privilege under this Section 6.3 unless (i) the other party has
provided its express written consent to such production or disclosure, or (ii)
unless compelled to disclose by judicial or administrative process or, in the
opinion of its independent legal counsel, by other requirements of law.
(c) Access Not a Waiver. The access to Information being granted
pursuant to Section
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6.2, the agreement to provide witnesses and individuals pursuant to Section 6.2,
and the transfer of Privileged Information pursuant to this Agreement shall not
be deemed a waiver of any Privilege that has been or may be asserted under this
Section 6.3 or otherwise.
6.4. Certain Business Matters. No party shall have any duty to refrain
from (i) engaging in the same or similar activities or lines of business as the
other party, (ii) doing business with any potential or actual supplier or
customer of the other party or (iii) engaging in, or refraining from, any other
activities whatsoever relating to any potential or actual suppliers or customers
of the other party.
6.5. Payment Obligations. On the Separation Date, TCM shall pay, or
shall cause Xxxx Publishing to pay, the balance due as of the Separation Date
under that certain promissory note dated as of December 31, 2004, by and between
Xxxx Publishing and Xxxx Television Group, Inc. (the "Promissory Note") to Xxxx
Television Group, Inc., which payment shall be in complete satisfaction of Xxxx
Publishing's obligations under the Promissory Note. In addition, on the
Separation Date, in partial consideration of the transfer of the membership
interests and other assets to TCM under Section 1.1, TCM shall distribute to
Xxxx an amount equal to the difference between (i) $40.0 million and (ii) the
amount paid to Xxxx Television Group, Inc. pursuant to the Promissory Note.
6.6. Reimbursement Obligations. Following the Distribution, TCM shall
promptly reimburse Xxxx for any amounts paid, from time to time, by Xxxx
pursuant to the terms of the Guarantee and Acknowledgment dated June 9, 2005
made by Xxxx and the special committee of the Board of Directors of Xxxx in
favor of Xxxxxxxx Xxxxx Xxxxxx & Xxxxx Capital, Inc. and its affiliates.
SECTION 7
INDEMNIFICATION
7.1. Indemnification by Xxxx. Xxxx shall indemnify, defend, and hold
harmless TCM and its Subsidiaries, and each of their respective directors,
officers, employees, counsel, and agents (the "TCM Indemnitees") from and
against any and all Indemnifiable Losses incurred or suffered by any TCM
Indemnitee in connection with any Action or threatened Action and arising out of
or due to, directly or indirectly, (i) any of the Retained Assets, (ii) any of
the Assumed Liabilities or (iii) any failure to perform, or violation of, any
provision of this Agreement or any Ancillary Agreement that is to be performed
or complied with by Xxxx or its Subsidiaries (other than TCM and its
Subsidiaries).
7.2. Indemnification by TCM. TCM shall indemnify, defend, and hold
harmless Xxxx and its Subsidiaries, and each of their respective directors,
officers, employees, counsel, and agents (the "Xxxx Indemnitees") from and
against any and all Indemnifiable Losses incurred or suffered by any Xxxx
Indemnitee in connection with any Action or threatened Action and arising out of
or due to, directly or indirectly, (i) the Newspaper Publishing Business, (ii)
Graylink Wireless Business, (iii) the Assigned Contracts, (iv) the Assigned Real
Property, or (v) any failure to perform, or violation of, any provision of this
Agreement or any Ancillary Agreement that is to be performed or complied with by
TCM or its Subsidiaries.
7.3. Procedure for Indemnification.
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(a) General. The following procedures shall apply to any claim
for indemnification made pursuant to Section 7.1 and Section 7.2 and pursuant to
any indemnities provided in any Ancillary Agreement.
(b) Notices. If a Xxxx Indemnitee or TCM Indemnitee shall receive
notice of any Action by any third party, or any fact or allegation upon which
such Action could be based (hereinafter a "Third Party Claim"), with respect to
which an Indemnifying Party is or may be obligated to make an Indemnity Payment,
it shall give the Indemnifying Party prompt notice thereof (including any
pleadings relating thereto), specifying in reasonable detail the nature of such
Third Party Claim and the amount or estimated amount thereof to the extent then
feasible (which estimate shall not be conclusive of the final amount of such
Indemnity Payment); provided, however, that the failure of an Indemnitee to give
notice as provided in this Section 7.3 shall not relieve the Indemnifying Party
of its indemnification obligations under this Section 7, except to the extent
that such Indemnifying Party is actually prejudiced by such failure to give
notice.
(c) Defense. For any Third Party Claim upon which notice is
required to be given under Section 7.3(b), the Indemnifying Party shall defend
such Third Party Claim at its sole cost and expense and through counsel employed
by the Indemnifying Party and reasonably acceptable to the Indemnitee. Within 30
days of receipt of the notice of the Third Party Claim received under Section
7.3(b), the Indemnifying Party shall give notice of its intent to defend or
objection to the claim of indemnification specifying in reasonable detail the
grounds therefor. Failure to provide such notice within such 30-day period shall
be deemed an acknowledgment by the Indemnifying Party of its indemnity
obligation for the Third Party Claim.
(d) Settlement. The Indemnifying Party's right to defend any
Third Party Claim includes the right to control, manage, and direct the defense
of the Third Party Claim and to compromise, settle, or consent to the entry of
any judgment or determination of liability concerning such Third Party Claim;
provided, however, that the Indemnifying Party shall not compromise, settle, or
consent to the entry of judgment or determination of liability against the
Indemnitee without prior written approval by the Indemnitee, which approval
shall not be unreasonably withheld or delayed; provided, however, that if the
Indemnifying Party shall seek the approval of the Indemnitee to a settlement for
monetary damages for which the Indemnifying Party accepts responsibility and if
the Indemnitee shall withhold or unreasonably delay approval of such settlement,
then the obligation of the Indemnifying Party shall be limited to the amount of
the proposed and unapproved settlement, plus attorney's fees and costs to the
date of the proposed settlement, and the Indemnitee shall be solely responsible
for any additional amount.
(e) Participation. The Indemnitee may participate in the
Indemnifying Party's defense of any Third Party Claim in which the Indemnitee
has an interest and be represented by counsel of its own choosing at the
Indemnitee's sole cost and expense.
(f) Failure to Defend. If the Indemnifying Party fails to defend
a Third Party Claim, the Indemnitee may defend and may compromise and settle or
consent to an entry of judgment or a determination of liability concerning such
Third Party Claim at the sole
20
cost and expense of the Indemnifying Party; provided, however, that the
Indemnitee shall not compromise, settle, or consent to the entry of judgment or
determination of liability against the Indemnitee without prior written approval
by the Indemnifying Party, unless such approval is unreasonably withheld or
delayed.
(g) Access to Information. Regardless of the party that defends a
Third Party Claim, the other shall make available to the Indemnifying Party all
employees, Information, books and records, communications, and documents, within
its possession or control, that are necessary, appropriate or reasonably deemed
relevant with respect to such defense, and otherwise shall reasonably cooperate
in the defense of the Third Party Claim.
(h) Release of Liability. With respect to any Third Party Claim,
no Indemnifying Party or Indemnitee shall enter into any compromise, settlement,
or consent to the entry of any judgment that does not include as an
unconditional term thereof the giving by the third party of a release of the
Indemnitee from all further liability concerning such Third Party Claim.
(i) Payment. Upon final judgment after exhaustion of all appeals,
settlement, compromise, or other final resolution of any Third Party Claim, and
unless otherwise agreed by the parties in writing, the Indemnifying Party shall
pay promptly on behalf of the Indemnitee, or to the Indemnitee in reimbursement
of any amount theretofore required to be paid by it, the amount so determined by
final judgment after exhaustion of all appeals, settlement, compromise, or final
resolution. Upon the payment in full by the Indemnifying Party of such amount,
the Indemnifying Party shall succeed to the rights of such Indemnitee, to the
extent not waived in settlement, against any third party.
7.4. Direct Claims. Any claim for indemnity pursuant to Section 7.1 or
Section 7.2 on account of an Indemnifiable Loss made directly by the Indemnitee
against the Indemnifying Party that does not result from a Third Party Claim
shall be asserted by written notice from the Indemnitee to the Indemnifying
Party. Such Indemnifying Party shall have a period of 90 days (or such shorter
time period as may be required by law as indicated by the Indemnitee in the
written notice) within which to respond thereto. If such Indemnifying Party does
not respond within such 90-day (or lesser) period, such Indemnifying Party shall
be deemed to have accepted responsibility to make payment and shall have no
further right to contest the validity of such claim. If such Indemnifying Party
does respond within such 90-day (or lesser) period and rejects such claim in
whole or in part, such Indemnitee shall be free to pursue resolution as provided
in Section 8.
7.5. Adjustment of Indemnifiable Losses. The amount that an
Indemnifying Party is required to pay to an Indemnitee pursuant to Section 7.1
or Section 7.2 shall be reduced (including, without limitation, retroactively)
by any insurance proceeds and other amounts actually recovered by such
Indemnitee in reduction of the related Indemnifiable Loss. If an Indemnitee
shall have received an Indemnity Payment in respect of an Indemnifiable Loss and
shall subsequently actually receive insurance proceeds or other amounts in
respect of such Indemnifiable Loss, then such Indemnitee shall pay to such
Indemnifying Party a sum equal to the lesser of the amount of such insurance
proceeds or other amounts actually received or the net amount of Indemnity
Payments actually received previously.
21
7.6. No Third Party Beneficiaries. Except to the extent expressly
provided otherwise in this Section 7, the indemnification provided for by this
Section 7 shall not inure to the benefit of any third party or parties and shall
not relieve any insurer or other third party that would otherwise be obligated
to pay any claim of the responsibility with respect thereto or, solely by virtue
of the indemnification provisions hereof, provide any subrogation rights with
respect thereto, and each party agrees to waive such rights against the other to
the fullest extent permitted.
SECTION 8
DISPUTE RESOLUTION
8.1. General. The resolution of any and all disputes arising from or
in connection with this Agreement, whether based on contract, tort or otherwise
(collectively, "Disputes"), shall be exclusively governed by and settled in
accordance with the provisions of this Section 8.
8.2. Negotiation. The parties shall make a good faith attempt to
resolve any Dispute through negotiation. Within 30 days after notice of a
Dispute is given by either party to the other party, each party shall select a
negotiating team comprised of two or more vice president-level employees of such
party and shall meet within 30 days after the end of the first 30-day
negotiating period to attempt to resolve the matter. During the course of
negotiations under this Section 8.2, all reasonable requests made by one party
to the other for Information, including requests for copies of relevant
documents, will be honored. The specific format for such negotiations will be
left to the discretion of the designated negotiating teams but may include the
preparation of agreed-upon statements of fact or written statements of position
furnished to the other party.
8.3. Non-Binding Mediation. In the event that any Dispute is not
settled by the parties within 30 days after the first meeting of the negotiating
teams under Section 8.2, the parties will attempt in good faith to resolve such
Dispute by non-binding mediation in accordance with the American Arbitration
Association Commercial Mediation Rules. The mediation shall be held within 60
days of the end of such 30-day negotiation period of the negotiating teams.
Except as provided below in Section 8.4, no litigation for the resolution of
such dispute may be commenced until the parties attempt in good faith to settle
the dispute by such mediation in accordance with such rules and either party has
concluded in good faith that amicable resolution through continued mediation of
the matter does not appear likely. The costs of mediation shall be shared
equally by the parties to the mediation. Any settlement reached by mediation
shall be recorded in writing, signed by the parties, and shall be binding on
them.
8.4. Proceedings. Nothing in this Agreement shall prohibit either
party from initiating litigation or other judicial or administrative proceedings
if such party would be substantially harmed by a failure to act during the time
that such good faith efforts are being made to resolve the Dispute through
negotiation or mediation. In the event that litigation is commenced under this
Section 8.4, the parties agree to continue to attempt to resolve any Dispute
according to the terms of Section 8.2 and Section 8.3 during the course of such
litigation proceedings under this Section 8.4.
22
8.5. Pay and Dispute. Except as provided in this Agreement, in the
event of any dispute regarding payment of a third-party invoice (subject to
standard verification of receipt of products or services), the party named in a
third party's invoice must make timely payment to such third party, even if the
party named in the invoice desires to pursue the dispute resolution procedures
outlined in this Section 8. If the party that paid the invoice is found pursuant
to this Section 8 to not be responsible for such payment, such paying party
shall be entitled to reimbursement, with interest accrued at a compound annual
rate of the Prime Rate, from the party found responsible for such payment.
SECTION 9
MISCELLANEOUS
9.1. Representations and Warranties of Xxxx.(a) Xxxx represents and
warrants that immediately following the Separation, TCM shall have all of the
assets (tangible and intangible) necessary for the conduct of the Newspaper
Publishing Business and Graylink Wireless Business in the manner in which it was
conducted by Xxxx on the date of this Agreement and as such businesses are
proposed to be conducted by TCM following the Distribution, except for the
assets referred to in Section 1.2.
(b) TCM acknowledges that the assets of the Newspaper Publishing
Business and Graylink Wireless Business are being transferred "as is, where is"
and that Xxxx is not, in this Agreement, the Ancillary Agreements or in any
other agreement or document contemplated by this Agreement or the Ancillary
Agreements, including without limitation, registration statement on Form S-4 and
the proxy statement/prospectus/information statement representing or warranting
in any way the value or freedom from encumbrance of, or any other matter
concerning, any assets of the Newspaper Publishing Business or Graylink Wireless
Business. TCM acknowledges that Xxxx is not in this Agreement or the Ancillary
Agreements, nor in any other agreement or document contemplated by this
Agreement or the Ancillary Agreements, including without limitation,
registration statement on Form S-4 and proxy statement/prospectus/information
statement representing or warranting in any way that the obtaining of the
consents or approvals, the execution and delivery of any amendatory agreements,
or the making of the filings contemplated by this Agreement shall satisfy the
provisions of all applicable agreements or the requirements of all applicable
laws or judgments, and except as otherwise provided in Section 6.1(b) that TCM
shall bear the economic and legal risk that any necessary consents or approvals
are not obtained or that any requirements of law or judgments are not complied
with.
9.2. LIMITATION OF LIABILITY. IN NO EVENT SHALL XXXX OR TCM BE LIABLE
TO THE OTHER PARTY FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL, OR
PUNITIVE DAMAGES OR LOST PROFITS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY
(INCLUDING NEGLIGENCE) ARISING IN ANY WAY OUT OF THIS AGREEMENT, WHETHER OR NOT
SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED,
HOWEVER, THAT THE FOREGOING LIMITATIONS SHALL NOT LIMIT EACH PARTY'S
INDEMNIFICATION OBLIGATIONS FOR LIABILITIES TO THIRD PARTIES AS SET FORTH IN
THIS AGREEMENT.
23
9.3. Survival. Except as expressly set forth in any Ancillary
Agreement, the covenants, representations and warranties contained in this
Agreement and each Ancillary Agreement, and liability for the breach of any
obligations contained in this Agreement, shall survive the Separation and
Distribution and shall remain in full force and effect.
9.4. Expenses. Except as otherwise provided in this Agreement, the
Ancillary Agreements, or any other agreement between the parties relating to the
Transaction, all costs and expenses of the parties hereto in connection with the
Transaction shall be paid by TCM (other than 50% of the fees and expenses of
Banc of America Securities, 50% of the fees and expenses of Proskauer Rose LLP,
50% of the fees and expenses of King & Spalding LLP, 34% of the printing fees
and expenses and SEC filing fees, and 50% of all incidental services related to
the Transaction, which shall be paid by Xxxx). TCM shall promptly, on or after
the Distribution Date, reimburse Xxxx for any fees and expenses paid by Xxxx, on
behalf of TCM.
9.5. Entire Agreement. This Agreement, the Ancillary Agreements, and
the Exhibits and Schedules referenced or attached hereto and thereto, constitute
the entire agreement between the parties with respect to the subject matter
hereof and shall supersede all prior written and oral and all contemporaneous
oral agreements and understandings with respect to the subject matter hereof.
9.6. Amendment. No change or amendment will be made to this Agreement
except by an instrument in writing signed on behalf of each of the parties to
this Agreement.
9.7. No Third-Party Beneficiaries. Except as specifically provided in
Section 5.5, and Section 7.1 and Section 7.2 (to the extent set forth in Section
7.6), this Agreement is solely for the benefit of the parties to this Agreement
and their respective Subsidiaries and successors, and shall not confer upon any
other Person any rights or remedies hereunder.
9.8. Governing Law. This Agreement shall be governed, construed, and
enforced in accordance with the laws of the state of Delaware as to all matters
regardless of the laws that might otherwise govern under the principles of
conflict of laws applicable thereto.
9.9. Termination. This Agreement may be terminated at any time prior
to the Distribution by and in the sole discretion of Xxxx without the approval
of TCM or the shareholders of Xxxx. After the Distribution, this Agreement may
not be terminated except by an agreement in writing signed by Xxxx and TCM. In
the event of termination pursuant to this Section 9.9, no party shall have any
liability of any kind to the other party.
9.10. Notices. Any notice, demand, offer, request or other
communication required or permitted to be given by either party pursuant to the
terms of this Agreement shall be in writing and shall be deemed effectively
given the earlier of (a) when received, (b) when delivered personally, (c) one
business day after being delivered by facsimile (with receipt of appropriate
confirmation), (d) one business day after being deposited with an overnight
courier service, or (e) four days after being deposited in the U.S. mail, First
Class with postage prepaid, and addressed to the attention of the party's Chief
Executive Officer at the address of its principal executive office or such other
address as a party may request by notifying the other in writing.
24
9.11. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original but all of which shall
constitute one and the same agreement.
9.12. Binding Effect and Assignment. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective legal
representatives and successors. This Agreement may not be assigned by any party
hereto.
9.13. Severability. If any term or other provision of this Agreement
is determined by a nonappealable decision by a court, administrative agency, or
arbitrator to be invalid, illegal, or incapable of being enforced by any rule of
law or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to either 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 so as to
effect the original intent of the parties as closely as possible in an
acceptable manner to the end that transactions contemplated hereby are fulfilled
to the fullest extent possible.
9.14. Failure and Remedies. No failure or delay on the part of either
party in the exercise of any right hereunder shall impair such right or be
construed to be a waiver of, or acquiescence in, any breach of any
representation, warranty, or agreement in this Agreement, nor shall any single
or partial exercise of any such right preclude other or further exercise thereof
or of any other right. All rights and remedies existing under this Agreement are
cumulative to, and not exclusive of, any rights or remedies otherwise available.
9.15. Authority. Each of the parties hereto represents to the other
that (a) it has the corporate power and authority to execute, deliver, and
perform this Agreement, (b) the execution, delivery, and performance of this
Agreement by it has been duly authorized by all necessary corporate actions, (c)
it has duly and validly executed and delivered this Agreement, and (d) this
Agreement is a legal, valid, and binding obligation, enforceable against it in
accordance with its terms.
9.16. Interpretation. The headings contained in this Agreement, in any
Exhibit or Schedule hereto, and in the table of contents to this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
9.17. Conflicting Agreements. In the event of conflict between this
Agreement and any Ancillary Agreement or other agreement executed in connection
herewith, the provisions of such other agreement shall prevail.
9.18. Definitions.
(a) "Action" means any action, claim, suit, arbitration, inquiry,
subpoena, discover request, proceeding, or investigation by or before any court
or grand jury, any governmental or other regulatory or administrative agency or
commission, or any arbitration tribunal.
25
(b) "Agreement" has the meaning set forth in the prelude of this
Agreement.
(c) "Ancillary Agreements" means the Assignment and Assumption
Agreement, Real Property Lease, Tax Sharing Agreement and Confidentiality
Agreement.
(d) "Assigned Contract" has the meaning set forth in Section
1.1(b).
(e) "Assigned Real Property" has the meaning set forth in Section
1.1(c).
(f) "Assignment Agreement" has the meaning set forth in Section
2.3(b).
(g) "Assumed Liabilities" has the meaning set forth in Section
1.3.
(h) "Bull Run" means Bull Run Corporation, a Georgia corporation.
(i) "Code" means the Internal Revenue Code of 1986, as amended
from time to time.
(j) "Confidentiality Agreement" means the confidentiality
agreement dated June 1, 2005 by and among Bull Run, TCM and Xxxx.
(k) "Contracts" has the meaning set forth in Section 1.1(g).
(l) "Contribution Agreement" has the meaning set forth in Section
2.3(e).
(m) "D&O Insurance" has the meaning set forth in Section 5.5.
(n) "Disputes" has the meaning set forth in Section 8.1.
(o) "Distribution" has the meaning set forth in the Recitals to
this Agreement.
(p) "Distribution Agent" means Mellon Investor Services, LLC.
(q) "Distribution Date" means such date as shall be fixed by the
Board of Directors of Xxxx for the Distribution.
(r) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(s) "Governmental Approvals" means any notices, reports, or other
filings to be made, or any consents, registrations, approvals, permits, or
authorizations to be obtained from, any Governmental Authority.
26
(t) "Governmental Authority" shall mean any federal, state,
local, foreign, or international court, government, department, commission,
board, bureau, agency, official, or other regulatory, administrative, or
governmental authority.
(u) "Xxxx" has the meaning set forth in the prelude to this
Agreement.
(v) "Xxxx 401(k) Plan" has the meaning set forth in Section 4.3.
(w) "Xxxx Class A Common Stock" has the meaning set forth in the
Recitals to this Agreement.
(x) "Xxxx Common Stock" has the meaning set forth in the Recitals
to this Agreement.
(y) "Xxxx Flex Plan" has the meaning set forth in Section 4.6.
(z) "Xxxx Indemnitee" has the meaning set forth in Section 7.2.
(aa) "Xxxx Policy" has the meaning set forth in Section 5.2.
(bb) "Xxxx Publishing" has the meaning set forth in the Recitals.
(cc) "Xxxx Stock" has the meaning set forth in the Recitals.
(dd) "Xxxx Welfare Plans" has the meaning set forth in Section
4.5(a).
(ee) "Graylink" has the meaning set forth in the Recitals.
(ff) "Graylink Wireless Business" has the meaning set forth in
the Recitals to this Agreement.
(gg) "Indemnifiable Losses" means, with respect to any claim by
an Indemnitee for indemnification authorized pursuant to Section 7, any and all
losses, liabilities, claims, damages, obligations, payments, costs, and expenses
(including, without limitation, the costs and expenses of any and all Actions,
demands, assessments, judgments, settlements, and compromises relating thereto
and reasonable attorneys' fees and expenses in connection therewith) suffered by
such Indemnitee with respect to such claim.
(hh) "Indemnifying Party" means any party who is required to pay
any other Person pursuant to Section 7.
(ii) "Indemnitee" means any party who is entitled to receive
payment from an Indemnifying Party pursuant to Section 7.
(jj) "Indemnity Payment" means the amount an Indemnifying Party
is required to pay an Indemnitee pursuant to Section 7.
(kk) "Information" means information, whether or not patentable
or copyrightable, in written, oral, electronic, or other tangible or intangible
form, stored in any
27
medium, including studies, reports, records, books, contracts, instruments,
surveys, discoveries, ideas, concepts, know-how, techniques, designs,
specifications, drawings, blueprints, diagrams, models, prototypes, samples,
flow charts, data, computer data, disks, diskettes, tapes, computer programs or
other software, marketing plans, customer names, communications by or to
attorneys (including attorney-client privileged communications), memos and other
materials prepared by attorneys or under their direction (including attorney
work product), and other technical, financial, employee, or business information
or data.
(ll) "Insurance Charges" has the meaning set forth in Section
5.6.
(mm) "Material Adverse Effect" means a material and adverse
effect on the operation of the applicable company taken as a whole; provided,
however, that the following shall not be taken into account in determining
whether there has been or would be a "Material Adverse Effect": (i) any adverse
changes or developments resulting from conditions affecting the United States
economy generally; (ii) any acts of war, insurrection, sabotage or terrorism;
and (iii) any adverse changes or developments arising primarily out of, or
resulting primarily from, actions taken by any party in connection with (but not
in breach of) this Agreement and the transactions contemplated hereunder, or
which are primarily attributable to the announcement of this Agreement and the
transactions contemplated hereby.
(nn) "Merger" means the merger of Bull Run with and into BR
Acquisition Corp. pursuant to the terms of the Merger Agreement.
(oo) "Merger Agreement" means the Agreement and Plan of Merger
dated August 2, 2005 by and among TCM, BR Acquisition Corp. and Bull Run.
(pp) "Newspaper Publishing Business" has the meaning set forth in
the Recitals to this Agreement.
(qq) "Person" means an individual, a partnership, a corporation,
a limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization, or a governmental entity or any
department, agency, or political subdivision thereof.
(rr) "Prime Rate" means the prime rate as published in the Wall
Street Journal on the date of determination.
(ss) "Privilege" has the meaning set forth in Section 6.4(a).
(tt) "Privileged Information" has the meaning set forth in
Section 6.4(a).
(uu) "Promissory Note" has the meaning set forth in Section 6.5.
(vv) "Real Property Lease" has the meaning set forth in Section
2.3(d).
28
(ww) "Record Date" means such date as shall be fixed by the Board
of Directors of Xxxx to determine the holders of Xxxx Common Stock that shall be
entitled to the Distribution.
(xx) "Refinancing" means a financing in which TCM receives gross
proceeds of at least $125.0 million.
(yy) "Retained Assets" has the meaning set forth in Section 1.2.
(zz) "Retained Employees" has the meaning set forth in Section
4.1.
(aaa) "Retirement Plan" has the meaning set forth in Section 4.4.
(bbb) "SEC" has the meaning set forth in Section 3.2(a).
(ccc) "Securities Act" means the Securities Act of 1933, as
amended.
(ddd) "Separation" has the meaning set forth in the Recitals to
this Agreement.
(eee) "Separation Date" has the meaning set forth in Section 2.1.
(fff) "Subsidiary" means with respect to any specified Person,
any corporation, any limited liability company, any partnership, or any other
legal entity of which such Person or its Subsidiaries owns, directly or
indirectly, more than 50% of the stock or other equity interest entitled to vote
on the election of the members of the board of directors or similar governing
body. Unless the context otherwise requires, reference to Xxxx and its
Subsidiaries shall not include Xxxx Publishing and its Subsidiaries, and those
subsidiaries will be treated as Subsidiaries of TCM.
(ggg) "Tax Sharing Agreement" has the meaning set forth in
Section 2.3(c).
(hhh) "TCM" has the meaning set forth in the prelude to this
Agreement
(iii) "TCM 401(k) Plan" has the meaning set forth in Section 4.3.
(jjj) "TCM Assumed Liability" has the meaning set forth in
Section 1.3(b).
(kkk) "TCM Common Stock" has the meaning set forth in the
Recitals to this Agreement.
(lll) "TCM Flex Plan" has the meaning set forth in Section 4.6.
(mmm) "TCM Indemnitee" has the meaning set forth in Section 7.1.
(nnn) "TCM Welfare Plans" has the meaning set forth in Section
4.5(a).
29
(ooo) "Third Party Claim" has the meaning set forth in Section
7.3(b).
(ppp) "Transaction" means the Separation, Distribution and
Merger.
(qqq) "Transferred Employees" has the meaning set forth in
Section 4.1.
(rrr) "WARN Act" has the meaning set forth in Section 4.10.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
30
IN WITNESS WHEREOF, the parties have executed and delivered this
Master Separation and Distribution Agreement effective as of the date first
written above.
XXXX TELEVISION, INC.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: President and Chief Operating
Officer
TRIPLE CROWN MEDIA, INC.
By: /s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx X. Xxxx
Title: Chief Financial Officer and
Secretary
SCHEDULE 1.1(B)
Total Requirement Agreement, dated as of October 1, 2001, by and between Abitibi
Consolidated Sales Corporation and Xxxx Communications Systems, Inc. (now Xxxx
Television, Inc.).
Membership Agreement, dated May 24, 2004, by and between AP and Xxxx
Communications Systems, Inc. (now Xxxx Television, Inc.), for the benefit of
Xxxxxx Citizen.
Membership Agreement by and between AP and Xxxx Communications Systems, Inc.
(now Xxxx Television, Inc.), for the benefit of Albany Herald.
Membership Agreement by and between AP and Xxxx Communications Systems, Inc.
(now Xxxx Television, Inc.), for the benefit of Rockdale Citizen.
Membership Agreement by and between AP and Xxxx Communications Systems, Inc.
(now Xxxx Television, Inc.), for the benefit of Gwinnett Daily Post.
Authorized Independent Sales Professional Agreement, dated as of February 6,
2004, by and between NPCR, Inc. and Xxxx Florida Holdings, Inc. (now Xxxx
Television Group, Inc.)
Authorized Independent Sales Professional Agreement, dated as of September 27,
2000, by and between Nextel South Corp. and Xxxx Florida Holdings, Inc. d/b/a
Porta-Phone (now Xxxx Television Group, Inc.).
Sprint Local Dealer Network Distribution Agreement, dated as of April 15, 2004,
by and between Sprint Spectrum L.P. and Xxxx Television Group, Inc. d/b/a
GrayLink.
Employment Agreement, dated as of October 1, 1996, by and between Xxxx
Communications Systems, Inc. (now Xxxx Television, Inc.), and Xxxxxx Xxxxxx.
Non-compete agreements with all employees in the paging business (the form
indicates that the Xxxx party is Xxxx Television Group, Inc.).
SCHEDULE 1.1(C)
Albany Herald office and production facility in located in Albany, GA (83,000
square feet) Offices for Rockdale Citizen located in Conyers, GA (20,000 square
feet).
Offices and production facility for Goshen News located in Goshen, IN (21,000
square feet).
SCHEDULE 1.2(C)
Xxxx Publishing and Wireless Business
Inter-company Balances
June 30, 2005
INTER-COMPANY ASSET INTER-COMPANY LIABILITY
--------------- --------- --------------- -----------
Graylink 4,607,302 Xxxx Television (4,607,302)
Xxxx Tel Group 714,000 Graylink (714,000)
Rockdale 1,931,869 Xxxx Television (1,931,869)
Albany Herald 5,561,644 Xxxx Television (5,561,644)
WIBW 222 Gwinnett (222)
Xxxx Television 1,066,911 Gwinnett (1,066,911)
Goshen 2,221,286 Xxxx Television (2,221,286)
Xxxx Publishing 350,389 Xxxx Television (350,389)
SCHEDULE 3.3(E)(II)
License Agreement dated as of May 9, 2005 by and between NEWSTEC, Inc. and Xxxx
Publishing, LLC.
Application for Service, Letter of Agency, and Agreement Choice One/US Xchange
dated March 28, 2003.
Sprint Local Dealer Network Distribution Agreement, dated as of April 15, 2004,
by and between Sprint Spectrum L.P. and Xxxx Television Group, Inc. d/b/a
GrayLink.
SCHEDULE 5.5
$223,000
