EXHIBIT 10.1
CONFIDENTIAL
STOCK PURCHASE AGREEMENT
BY AND AMONG
MIRKAEI TIKSHORET LTD.,
AMERICAN PUBLISHING HOLDINGS, INC.
AND
XXXXXXXXX INTERNATIONAL INC.
DATED AS OF NOVEMBER 16, 2004
TABLE OF CONTENTS
PAGE
----
ARTICLE I DEFINITIONS................................................................... 2
Section 1.1 Defined Terms................................................................. 2
ARTICLE II DEPOSIT; PURCHASE AND SALE OF SHARES; PURCHASE PRICE.......................... 4
Section 2.1 Deposit....................................................................... 4
Section 2.2 Sale and Purchase of Shares................................................... 4
Section 2.3 Sale and Purchase of Capital Note............................................. 4
Section 2.4 Sale and Purchase of Inter-company Receivables................................ 5
Section 2.5 Closing; Closing Date......................................................... 5
Section 2.6 Deliveries and Actions at Closing............................................. 5
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE SELLER AND XXXXXXXXX.................... 6
Section 3.1 Title......................................................................... 6
Section 3.2 Due Incorporation and Authority of the Seller and Xxxxxxxxx................... 6
Section 3.3 Enforceability................................................................ 6
Section 3.4 No Conflicts.................................................................. 6
Section 3.5 Due Incorporation of the Company.............................................. 6
Section 3.6 Subsidiaries.................................................................. 7
Section 3.7 Capitalization................................................................ 7
Section 3.8 Brokers....................................................................... 7
Section 3.9 Related Parties............................................................... 8
Section 3.10 Prohibited Actions............................................................ 8
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE BUYER................................... 8
Section 4.1 Due Incorporation and Authority............................................... 8
Section 4.2 Enforceability................................................................ 8
Section 4.3 Brokers....................................................................... 8
Section 4.4 Purchase for Investment....................................................... 8
Section 4.5 Financial Ability............................................................. 8
Section 4.6 Independent Investigation..................................................... 8
ARTICLE V COVENANTS AND AGREEMENTS...................................................... 9
Section 5.1 Conduct of Business........................................................... 9
Section 5.2 Elimination of Inter-Company Arrangements & Accounts.......................... 10
Section 5.3 Expenses...................................................................... 11
Section 5.4 Publicity..................................................................... 11
Section 5.5 Preservation of Records....................................................... 11
Section 5.6 Further Assurances............................................................ 11
Section 5.7 Board of Directors............................................................ 11
Section 5.8 Offer to Purchase Shares...................................................... 12
i
PAGE
----
Section 5.9 Access........................................................................ 12
Section 5.10 Confidentiality............................................................... 12
ARTICLE VI CONDITIONS PRECEDENT TO THE OBLIGATION OF THE BUYER TO CLOSE.................. 12
Section 6.1 Antitrust Filings............................................................. 12
Section 6.2 No Orders..................................................................... 13
Section 6.3 Additional Documents.......................................................... 13
ARTICLE VII CONDITIONS PRECEDENT TO THE OBLIGATION OF THE SELLER TO CLOSE................ 13
Section 7.1 Antitrust Filings............................................................. 13
Section 7.2 No Orders..................................................................... 13
ARTICLE VIII SURVIVAL...................................................................... 13
ARTICLE IX TERMINATION................................................................... 13
Section 9.1 Termination................................................................... 13
Section 9.2 Survival After Termination.................................................... 14
ARTICLE X MISCELLANEOUS................................................................. 14
Section 10.1 Consent to Jurisdiction; Service of Process; Waiver of Jury Trial............. 14
Section 10.2 Notices....................................................................... 15
Section 10.3 Entire Agreement.............................................................. 17
Section 10.4 Waivers and Amendments........................................................ 17
Section 10.5 Governing Law................................................................. 17
Section 10.6 Binding Effect; Assignment.................................................... 17
Section 10.7 Usage......................................................................... 17
Section 10.8 Articles and Sections......................................................... 17
Section 10.9 Interpretation................................................................ 18
Section 10.10 Severability of Provisions.................................................... 18
Section 10.11 No Personal Liability......................................................... 18
Section 10.12 No Third Party Beneficiaries.................................................. 18
Section 10.13 Counterparts.................................................................. 18
ii
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "AGREEMENT") is made and entered
into as of November 16, 2004, by and among Mirkaei Tikshoret Ltd., an Israeli
corporation (the "BUYER"), American Publishing Holdings, Inc., a Delaware
corporation (the "SELLER"), and Xxxxxxxxx International Inc., a Delaware
corporation ("XXXXXXXXX"), for the purchase and sale of shares of, as well as a
certain capital note and certain inter-company indebtedness owed to the Seller
by, The Palestine Post Limited, an Israeli corporation (the "COMPANY").
RECITALS
(a) The Seller is the beneficial and record owner of 999 ordinary
shares, nominal value NIS 100.05 per share, of the Company (the "SHARES"), which
together with the one ordinary share, nominal value NIS 100.05, of the Company
that is owned by Jerusalem Post Employees Holdings (1983) Ltd., an Israeli
corporation, comprise all of the issued and outstanding shares of the Company.
(b) One ordinary share, nominal value NIS 100.05, of the Company is
held by Jerusalem Post Employees Holdings (1983) Ltd., an Israeli corporation
that has been struck from the Israeli Companies Register. This share of the
Company may be acquired by the Buyer under Sections 341 and 342 of the Israeli
Companies Law.
(c) The Seller is the beneficial owner of, and the sole creditor
under, the Capital Note (as defined below).
(d) The Seller is the beneficial owner of, and the sole creditor
under, the Inter-company Receivables (as defined below).
(e) The Seller wishes to sell to the Buyer, and the Buyer wishes to
purchase from the Seller, all of the Shares upon the terms and subject to the
conditions set forth in this Agreement (the "STOCK PURCHASE").
(f) The Seller wishes to sell and assign to the Buyer, and the Buyer
wishes to purchase and assume from the Seller, the Capital Note upon the terms
and subject to the conditions set forth in this Agreement (the "CAPITAL NOTE
PURCHASE").
(g) The Seller wishes to sell and assign to the Buyer, and the Buyer
wishes to purchase and assume from the Seller, the Inter-company Receivables
upon the terms and subject to the conditions set forth in this Agreement (the
"INTER-COMPANY RECEIVABLES PURCHASE" and together with the Stock Purchase and
the Capital Note Purchase, the "PURCHASE").
(h) The parties to this Agreement desire to make certain
representations, warranties, covenants and agreements in connection with the
Purchase and also to prescribe certain conditions to the Purchase.
2
(i) The Seller is an indirect wholly-owned subsidiary of Xxxxxxxxx.
Accordingly, in consideration of the mutual representations,
warranties, covenants and agreements contained in this Agreement, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties to this Agreement agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Defined Terms.
(a) For all purposes of this Agreement, the terms set forth below
shall have the respective meanings set forth in this Section 1.1:
"AFFILIATE" means, with respect to any Person, any other Person
controlling, controlled by or under common control with such Person. The term
"control" (including, with correlative meaning, the terms "controlled by" and
"under common control with"), as applied to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting
or other securities, by contract or otherwise.
"ANTITRUST LAWS" means the Israeli Restrictive Trade Practices Law
5748-1988, the regulations promulgated thereunder and any case law relevant
thereto.
"BUSINESS" means publishing, producing and distributing The
Jerusalem Post and The Jerusalem Report in print and other media and related
activities.
"BUSINESS DAY" means a day other than Saturday, Sunday or any day on
which banks located in Xxx Xxxx, Xxx Xxxx, Xxxxxxx, Xxxxxxx, Xxxxxx or Tel Aviv,
Israel are authorized or obligated by law to close.
"CAPITAL NOTE" means the Capital Note issued by the Company as of
the date of this Agreement to the Seller in principal amount of $17,948,307.
"CONFIDENTIAL INFORMATION" means any confidential or proprietary
information concerning the business and affairs of the Company and the
Subsidiaries.
"CONFIDENTIALITY AGREEMENT" means the Confidentiality Agreement,
dated June 18, 2004, by and between Xxxxxxxxx and the Buyer.
"DISCLOSURE MATERIAL" means (i) all the information disclosed in
this Agreement and the Seller's Disclosure Schedules and (ii) all other
information made available to the Buyer in the virtual data room prior to the
date of this Agreement.
3
"GOVERNMENTAL BODIES" means any Israeli or foreign governmental,
regulatory or administrative body, authority, agency, court or tribunal.
"XXXXXXXXX GROUP" means Xxxxxxxxx and all of its direct and indirect
subsidiaries, other than the Company and the Subsidiaries.
"INTER-COMPANY RECEIVABLES" means all inter-company receivables owed
by the Company to the Seller, which total $22,239,111 as of September 30, 2004,
but which, for the avoidance of doubt, will also include any such inter-company
receivables that arise between September 30, 2004 and the Closing.
"LAWS" means any law, statute, rule, regulation or code issued,
enacted, promulgated or implemented by any Governmental Bodies.
"LEGAL PROCEEDINGS" means any action, suit, complaint, investigation
or other civil, criminal or administrative proceeding.
"LIEN" means any lien, pledge, mortgage, security interest, charge,
option, transfer restriction or other similar encumbrance.
"ORDERS" means any order, judgment, injunction, award, decree or
writ handed down, adopted or imposed by any Governmental Bodies.
"PERSON" means any individual, corporation, partnership, limited
liability company, limited liability partnership, firm, joint venture,
association, trust, unincorporated organization or other entity.
(b) The following capitalized terms are defined in the following
Sections of this Agreement:
Term Section
---- -------
Agreement....................................................................... Preamble
Buyer........................................................................... Preamble
Buyer's Advisors................................................................ Section 5.9
Capital Note Purchase........................................................... Recitals
Closing......................................................................... Section 2.5
Closing Date.................................................................... Section 2.5
Company......................................................................... Preamble
Company Group................................................................... Section 5.2(a)
Company Ordinary Shares......................................................... Section 3.7(a)
Deposit......................................................................... Section 2.1
Enforceability Exceptions....................................................... Section 3.3
Xxxxxxxxx....................................................................... Preamble
Inter-company Receivables Purchase.............................................. Recitals
NIS............................................................................. Section 10.7
Note Purchase Price............................................................. Section 2.3
Purchase........................................................................ Recitals
4
Purchase Price.................................................................. Section 2.4
Receivables Purchase Price...................................................... Section 2.4
Refund Reason................................................................... Section 2.1
Seller.......................................................................... Preamble
Seller's Disclosure Schedule.................................................... ARTICLE III
Shares.......................................................................... Recitals
Shares Purchase Price........................................................... Section 2.2
Stock Purchase.................................................................. Recitals
Subsidiaries.................................................................... Section 3.6(a)
ARTICLE II.
DEPOSIT; PURCHASE AND SALE OF SHARES; PURCHASE PRICE
Section 2.1 Deposit. Concurrently with the execution of this
Agreement, the Buyer has delivered to the Seller the amount of $1,000,000 (the
"DEPOSIT") by wire transfer of immediately available funds. If the Purchase is
consummated, then the Deposit shall be applied as partial payment of the
Purchase Price. If this Agreement is terminated for any reason other than a
Refund Reason, then the Deposit shall be retained by the Seller as liquidated
damages. The parties to this Agreement agree that (a) it would be impractical
and extremely difficult to ascertain the actual damages suffered by the Seller
as a result of the failure of the Purchase to be consummated and (b) under the
circumstances existing on the date of this Agreement, the liquidated damages
provided for in this Section 2.1 represent a reasonable estimate of the damages
that the Seller would incur as a result of such failure; provided that this
provision shall not limit the Seller's rights to recover any additional damages.
If this Agreement is terminated because of a Refund Reason, then the Seller
shall return the Deposit to the Buyer promptly following such termination. For
purposes of this Agreement, "REFUND REASON" means the termination of this
Agreement by the Buyer pursuant to Section 9.1(b) of this Agreement.
Section 2.2 Sale and Purchase of Shares. At the Closing provided for
in Section 2.5, and upon the terms and subject to the conditions set forth in
this Agreement, the Seller shall, and Xxxxxxxxx shall cause the Seller to, sell
to the Buyer, and the Buyer shall purchase from the Seller, all of the Shares
for an aggregate purchase price of $999 (the "SHARES PURCHASE PRICE"), to be
paid in accordance with Section 2.6.
Section 2.3 Sale and Purchase of Capital Note. At the Closing
provided for in Section 2.5, and upon the terms and subject to the conditions
set forth in this Agreement, the Seller shall, and Xxxxxxxxx shall cause the
Seller to, sell and assign to the Buyer, and the Buyer shall purchase and assume
from the Seller, the Capital Note for a purchase price of $1,000 (the "NOTE
PURCHASE PRICE"), to be paid in accordance with Section 2.6.
5
Section 2.4 Sale and Purchase of Inter-company Receivables. At the
Closing provided for in Section 2.5, and upon the terms and subject to the
conditions set forth in this Agreement, the Seller shall, and Xxxxxxxxx shall
cause the Seller to, sell and assign to the Buyer, and the Buyer shall purchase
and assume from the Seller, the Inter-company Receivables for a purchase price
of $13,198,001 (the "RECEIVABLES PURCHASE PRICE" and together with the Share
Purchase Price and the Note Purchase Price, the "PURCHASE PRICE"), to be paid in
accordance with Section 2.6.
Section 2.5 Closing; Closing Date. The closing of the Purchase (the
"CLOSING") shall take place at the offices of Xxxxxx Fox & Xxxxxx, Xxxx Xxxxx, 0
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxxxxx at 10:00 a.m. local time, on December 23, 2004,
subject to the conditions to closing set forth in Article VI and Article VII
having been satisfied, or if later, two Business Days after the satisfaction on
such conditions, or on such other time or date as the parties to this Agreement
may mutually agree in writing. The date upon which the Closing occurs is
referred to as the "CLOSING DATE".
Section 2.6 Deliveries and Actions at Closing.
(a) At the Closing, the Buyer shall deliver to the Seller an amount
equal to the Purchase Price less the Deposit, in cash, by wire transfer of
immediately available funds to the bank account designated in Section 2.6(a) of
the Seller's Disclosure Schedule.
(b) At the Closing, the Seller shall, and Xxxxxxxxx shall cause the
Seller to, deliver to the Buyer:
(i) a share transfer form for the Shares duly executed by the
Seller in favor of the Buyer (or as it shall otherwise in writing direct)
accompanied by its share certificate;
(ii) a duly executed assignment of the Capital Note;
(iii) such waivers, consents or other documents as may be
required to provide title to the Shares and to enable the Buyer or its nominees
to become their registered holders;
(iv) a release, substantially in the form of Exhibit A, signed
by Xxxx Xxxxx; and
(v) resignation letters signed by each of the directors of the
Company effective as of the Closing Date.
(c) At the Closing, the Seller shall cause the Company: (i) to
record the transfer of the Shares to the Buyer on the Company's shareholders
register; (ii) to deliver to the Buyer the Capital Note registered in the name
of the Buyer; and (iii) to acknowledge the transfer of the Inter-company
Receivables to the Buyer.
6
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE SELLER AND XXXXXXXXX
Except as set forth in the disclosure schedule prepared by the
Seller which is being delivered to the Buyer concurrently herewith (the
"SELLER'S DISCLOSURE SCHEDULE") or, with respect to Sections 3.5, 3.6, 3.7, 3.8
and 3.9 only, in the Disclosure Material, the Seller and Xxxxxxxxx, jointly and
severally, represent and warrant to the Buyer as follows:
Section 3.1 Title. The Seller owns beneficially and of record, free
and clear of any Liens, and has full power and authority to convey free and
clear of any Liens, the Shares. The Seller owns beneficially and of record, free
and clear of any Liens, and has full power and authority to convey free and
clear of any Liens, the Capital Note and the Inter-company Receivables. One
ordinary share, nominal value NIS 100.05, of the Company, which represents the
only outstanding share of the Company other than the Shares, is held by
Jerusalem Post Employees Holdings (1983) Ltd., an Israeli corporation that has
been struck from the Israeli Companies Register.
Section 3.2 Due Incorporation and Authority of the Seller and
Xxxxxxxxx. The Seller and Xxxxxxxxx are each corporations, duly incorporated,
validly existing and in good standing under the laws of the State of Delaware.
The Seller and Xxxxxxxxx each have all requisite corporate power and authority,
and have taken all corporate actions required, to execute and deliver this
Agreement and to perform its obligations hereunder. The execution and delivery
of this Agreement by the Seller and Xxxxxxxxx and the consummation by the Seller
and Xxxxxxxxx of the transactions contemplated hereby have been duly approved by
the board of directors of the Seller and the Corporate Review Committee of the
board of directors of Xxxxxxxxx.
Section 3.3 Enforceability. This Agreement constitutes the legal,
valid and binding obligation of the Seller and Xxxxxxxxx and is enforceable
against the Seller and Xxxxxxxxx in accordance with its terms, subject to (i)
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or
similar laws, (ii) laws of general applicability relating to or affecting
creditors' rights and (iii) general equity principles (collectively, the
"ENFORCEABILITY EXCEPTIONS").
Section 3.4 No Conflicts. The execution and delivery by the Seller
and Xxxxxxxxx of this Agreement, and the performance by the Seller and Xxxxxxxxx
of their respective obligations hereunder, will not: (a) conflict with or
violate the organizational documents of the Seller or Xxxxxxxxx; (b) conflict
with or violate any applicable Laws; or (c) require the Seller, Xxxxxxxxx, the
Company or any of the Subsidiaries to obtain any consents of, or make any
filings with, any Governmental Bodies, other than as set forth in Section 3.4 of
the Seller's Disclosure Schedule.
Section 3.5 Due Incorporation of the Company. The Company is a
corporation duly incorporated and validly existing under the laws of the State
of Israel.
7
The Company has all requisite corporate power and authority to own, lease and
operate its properties and to carry on its business as now being conducted.
Section 3.6 Subsidiaries.
(a) Section 3.6(a) of the Seller's Disclosure Schedule sets forth
the name and jurisdiction of incorporation of each corporation in which the
Company directly or indirectly owns, or has the power to vote shares of, any
capital stock having the voting power to elect a majority of the directors of
such corporation (collectively, the "SUBSIDIARIES"). Except for the
Subsidiaries, the Company does not, directly or indirectly, own any capital
stock or other ownership interest of any other Person.
(b) Except as set forth in Section 3.6(b) of the Seller's Disclosure
Schedule, each of the Subsidiaries is a corporation duly incorporated and
validly existing under the laws of the State of Israel. Each of the Subsidiaries
has all requisite corporate power and authority to own, lease and operate its
properties and to carry on its business as now being conducted.
Section 3.7 Capitalization.
(a) The Company is authorized to issue only 1,000 ordinary shares,
nominal value NIS 100.50 per share, of the Company ("COMPANY ORDINARY SHARES"),
of which 1,000 Company Ordinary Shares, 999 of which constitute the Shares, are
issued and outstanding. All of the Shares are duly authorized, validly issued,
fully paid and nonassessable. No other class or series of capital stock of the
Company is authorized or outstanding. Neither the Company nor the Seller is a
party to or bound by any outstanding subscriptions, options, warrants, calls or
other similar commitments providing for the purchase or issuance of (i) any
Company Ordinary Shares or other capital stock of the Company or (ii) any
securities representing the right to purchase any Company Ordinary Shares or
other capital stock of the Company.
(b) The authorized and outstanding shares of capital stock of each
of the Subsidiaries are as set forth in Section 3.7(b) of the Seller's
Disclosure Schedule. All of the outstanding shares of capital stock of the
Subsidiaries are duly authorized, validly issued, fully paid and nonassessable.
All shares of capital stock of each Subsidiary that are shown in Section 3.7(b)
of the Seller's Disclosure Schedule as issued and outstanding are owned by the
Company or another Subsidiary free and clear of any Liens. None of the
Subsidiaries is a party to or bound by any outstanding subscriptions, options,
warrants, calls or other similar commitments providing for the purchase or
issuance of (i) any shares of capital stock of any Subsidiary or (ii) any
securities representing the right to purchase any shares of capital stock of any
Subsidiary.
Section 3.8 Brokers. Except for fees and commissions that will be
paid by or on behalf of the Seller, no Person retained by or on behalf of the
Seller or any of its Affiliates is entitled to any brokerage commissions,
finders' fees or similar compensation in connection with the transactions
contemplated hereby.
8
Section 3.9 Related Parties. Except with respect to any
inter-company payables, receivables and contracts and arrangements to be
eliminated or terminated pursuant to Section 5.2 or with respect to the Capital
Note and the Inter-company Receivables, no member of the Xxxxxxxxx Group (a) has
any interest in any property used in or pertaining to the Business or (b) is a
party to any Contract with, or has any claim or right against, any member of the
Company Group.
Section 3.10 Prohibited Actions. Since September 30, 2004, neither
the Company nor any Subsidiary has taken any action that would have been
prohibited by Section 5.1(b) had such action been taken on or after the date
hereof.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF THE BUYER
The Buyer represents and warrants to the Seller as follows:
Section 4.1 Due Incorporation and Authority. The Buyer is a
corporation duly incorporated, validly existing and in good standing under the
laws of its jurisdiction of incorporation. The Buyer has all requisite power and
authority, and has taken all corporate actions required, to execute and deliver
this Agreement and to perform its obligations hereunder.
Section 4.2 Enforceability. This Agreement constitutes the legal,
valid and binding obligation of the Buyer and is enforceable against the Buyer
in accordance with its terms, subject to the Enforceability Exceptions.
Section 4.3 Brokers. Except for fees and commissions that will be
paid by the Buyer, no Person retained by or on behalf of the Buyer or any of its
Affiliates is entitled to any brokerage commissions, finders' fees or similar
compensation in connection with the transactions contemplated hereby.
Section 4.4 Purchase for Investment. The Buyer is purchasing the
Shares, the Capital Note and the Inter-company Receivables for its own account
for investment and not for resale or distribution in any transaction that would
be in violation of the securities laws of the United States of America, any
state thereof or the State of Israel. The Buyer is an "accredited investor" as
defined in Rule 501 of Regulation D promulgated under the Securities Act of
1933, as amended.
Section 4.5 Financial Ability. As of the date of this Agreement, the
Buyer has, and as of the Closing Date, will have, sufficient cash in immediately
available funds to pay the Purchase Price and all of its fees and expenses in
order to consummate the transactions contemplated by this Agreement.
Section 4.6 Independent Investigation. The Buyer acknowledges that,
prior to the date of this Agreement, the Buyer and its advisors have conducted a
thorough
9
business, financial, operational, legal, accounting, tax and environmental due
diligence investigation with respect to the Company and the Subsidiaries and
have carefully reviewed the Disclosure Material. The Buyer hereby acknowledges
and affirms that: (a) it has made all such investigation and inspections of the
condition, business, results of operations, properties, assets, liabilities and
prospects of the Company and the Subsidiaries as it has deemed necessary or
appropriate; (b) it has had the opportunity to request all information it has
deemed relevant to the foregoing from the Company or the Seller and has received
responses it deems adequate and sufficient to all such requests; (c) in making
its decision to enter into this Agreement and to consummate the transactions
contemplated hereby it has relied solely on (i) its own investigation,
inspections, analyses and evaluation of the Company and the Subsidiaries and
(ii) the representations, warranties, covenants and agreements of the Seller
contained in this Agreement; and (d) the Seller is making no representations or
warranties as to the accuracy or completeness of the Disclosure Material or as
to any other matter not explicitly set forth in this Agreement.
ARTICLE V
COVENANTS AND AGREEMENTS
Section 5.1 Conduct of Business. The Seller and Xxxxxxxxx agree
that:
(a) Between the date of this Agreement and the Closing Date, except
as (i) contemplated by this Agreement, (ii) set forth on Section 5.1(a) of the
Seller's Disclosure Schedule or (iii) otherwise agreed by the Buyer (which
agrees to respond promptly to any request for such agreement and not to
unreasonably withhold or condition such agreement), the Seller and Xxxxxxxxx
shall cause the Company and the Subsidiaries to operate in the ordinary course
of business consistent with past practice (including by paying all of their
liabilities as they come due).
(b) Between the date of this Agreement and the Closing Date, except
as otherwise agreed by the Buyer (which agrees to respond promptly to any
request for such agreement and not to unreasonably withhold or condition such
agreement), the Seller and Xxxxxxxxx shall:
(i) not permit the Company or any of the Subsidiaries to amend
their articles of association;
(ii) not permit the Company or any of the Subsidiaries to
incur any indebtedness for borrowed money, other than from the Seller or any of
the Seller's Affiliates consistent with past practice and provided such
indebtedness is incorporated into the Inter-company Receivables or, if
immaterial in amount, eliminated immediately prior to Closing;
(iii) not permit the Company or any of the Subsidiaries to
issue, sell or pledge (A) any shares of capital stock or any other ownership
interests or (B) any
10
securities convertible or exchangeable into, or subscriptions, options,
warrants, calls or other similar commitments to acquire, any such capital stock
or other ownership interests;
(iv) not permit the Company or any of the Subsidiaries to
declare, set aside or pay any dividend or distribution with respect to any
shares of capital stock;
(v) not permit the Company or any of the Subsidiaries to sell
or convey any of its material assets, including any printing press;
(vi) not permit the Company, and not require the Company, to
repay any portion of the Capital Note or any other indebtedness or obligation to
any member of the Xxxxxxxxx Group;
(vii) not permit the Company or any of the Subsidiaries to (A)
adopt, terminate or amend any of its employee benefit plans or (B) grant any
material increase (other than increases required by applicable Laws, under any
applicable contracts or consistent with past practice) in the compensation of
employees of the Company or the Subsidiaries;
(viii) not amend any material existing employment agreement or
service agreement to which the Company or any of the Subsidiaries is a party;
(ix) not enter into, or amend, any collective bargaining
agreement to which the Company or any of the Subsidiaries is a party; or
(x) not enter into any agreement, commit or otherwise become
obligated to do any of the foregoing.
(c) Nothing contained in this Agreement shall give the Buyer,
directly or indirectly, rights to control or direct the operations of the
Company or any of the Subsidiaries prior to the Closing. Prior to the Closing,
the Company shall exercise, consistent with the terms and conditions of this
Agreement, complete control and supervision of the operations of the Company and
the Subsidiaries.
Section 5.2 Elimination of Inter-Company Arrangements & Accounts.
(a) With the exception of the Capital Note and the Inter-company
Receivables, Xxxxxxxxx shall cause all inter-company receivables, payables and
loans then existing between the Company and the Subsidiaries (together, the
"COMPANY GROUP"), on the one hand, and the Xxxxxxxxx Group, on the other hand,
to be eliminated effective immediately prior to the Closing.
(b) All contracts and arrangements for services between any member
of the Company Group, on the one hand, and the Xxxxxxxxx Group, on the other
hand, shall be terminated without cost or obligation to the Company Group or the
Buyer immediately prior to the Closing.
11
Section 5.3 Expenses. Except as otherwise specifically provided in
this Agreement, the Buyer and the Seller shall bear their respective costs, fees
and expenses incurred in connection with the preparation, execution and
performance of this Agreement and the transactions contemplated hereby,
including all costs, fees and expenses of agents, representatives, counsel and
accountants. For the avoidance of doubt, the Seller shall bear (a) the cost of
any income or capital gains taxes triggered by its sale of the Shares, the
Capital Note and the Inter-company Receivables and (b) all legal costs, fees and
expenses incurred by the Company in connection with the preparation, execution
and performance of this Agreement and the transactions contemplated hereby. The
Buyer shall be responsible for the payment of any stamp taxes in connection with
the transactions contemplated hereby.
Section 5.4 Publicity. Except as may be required by applicable Laws
or the applicable rules of any stock exchange or listing authority, the parties
to this Agreement agree that no public announcement concerning this Agreement or
the transactions contemplated hereby shall be made without advance approval
thereof by both the Buyer and the Seller. If any public announcement is required
by applicable Laws or the applicable rules of any stock exchange or listing
authority to be made by any party to this Agreement, then prior to making such
public announcement, such party will deliver a draft of such public announcement
to the other party and shall afford the other party a reasonable opportunity to
comment thereon.
Section 5.5 Preservation of Records. The Buyer, at its own expense,
shall preserve and keep records held by the Company or the Subsidiaries relating
to the Seller for a period of seven years from the Closing Date, during which
time the Buyer shall make such records available to the Seller as the Seller may
reasonably require.
Section 5.6 Further Assurances.
(a) Subject to the terms and conditions of this Agreement, prior to
the Closing, each of the parties to this Agreement agrees to use its reasonable
efforts to take or cause to be taken all action, and to do or cause to be done
all things, reasonably necessary, proper or advisable to consummate the
transactions contemplated by this Agreement promptly, including: (i) preparing
and making any filings required under Antitrust Laws; (ii) contesting any Legal
Proceedings relating to the transactions contemplated hereby; and (iii)
executing any additional instruments necessary to consummate the transactions
contemplated hereby.
(b) From time to time after the Closing, the Seller shall, at the
cost and expense of the Buyer, execute and deliver such other instruments
related hereto and take such other action as may be reasonably required to
consummate the transactions contemplated hereby and to give effect to the
intention of the parties hereunder.
Section 5.7 Board of Directors. The Seller shall procure that a
meeting of the board of directors of the Company be held at the Closing Date, at
which: (a) there shall be submitted and accepted the resignations of the
outgoing directors; (b) the transfers of the Shares shall be approved for
registration and new share certificates issued
12
in favor of the Buyer or its nominees; and (c) new signatory rights of the
Company, as approved by the Buyer, shall be adopted.
Section 5.8 Offer to Purchase Shares. The Seller agrees to consent
to, within seven days of its receipt of, any written offer by the Buyer to
purchase Company Ordinary Shares submitted, in accordance with Section 341 of
the Israeli Companies Law, 5759-1999, on or after the execution of this
Agreement.
Section 5.9 Access. Between the date of this Agreement and the
Closing Date, the Seller and Xxxxxxxxx will, and will cause the Company and the
Subsidiaries to, (a) afford the Buyer and its representatives (collectively,
"BUYER'S ADVISORS") reasonable access, at reasonable times and with advance
notice, and in a manner so as not to unreasonably interfere with the normal
business operations of the Company and the Subsidiaries, to the Company's and
each Subsidiary's personnel, properties, contracts, books and records, and other
documents and data, and (b) furnish the Buyer and Buyer's Advisors with copies
of any such contracts, books and records, and other existing documents and data
as Buyer may reasonably request.
Section 5.10 Confidentiality. From the Closing Date until the first
anniversary of the Closing Date, no member of Xxxxxxxxx Group nor any of their
respective employees, agents or representatives will disclose to any third party
any Confidential Information concerning the Business that such Person acquired
prior to the Closing Date. Notwithstanding the foregoing, any Person may
disclose any such Confidential Information as follows: (i) to such Person's
Affiliates and its or its Affiliates' employees, lenders, counsel or accountants
provided that Xxxxxxxxx and the Seller shall cause such other Persons to
maintain the confidentiality of the Confidential Information; (ii) to comply
with any applicable Law or Order, provided that prior to making any such
disclosure, the Person making the disclosure notifies the Buyer of any action of
which it is aware which may result in disclosure and uses its commercially
reasonable efforts to limit or prevent such disclosure (subject to being
reimbursed therefor by the Buyer); (iii) to the extent that the Confidential
Information is or becomes generally available to the public through no fault of
the Person or its Affiliates making such disclosure; or (iv) in order to comply
with any U.S. securities laws that may apply to such Person and/or its
Affiliates.
ARTICLE VI
CONDITIONS PRECEDENT TO THE OBLIGATION OF THE BUYER TO
CLOSE
The obligation of the Buyer to enter into and complete the Closing
is subject to the fulfillment on or prior to the Closing Date of the following
conditions, any one or more of which may be waived by the Buyer:
Section 6.1 Antitrust Filings. Any approvals required under the
Antitrust Laws in connection with the transactions contemplated hereby shall
have been obtained.
13
Section 6.2 No Orders. No Order shall have been issued or Legal
Proceedings initiated by any Governmental Body to restrain or prohibit, or to
obtain damages or a discovery order in respect of, this Agreement or the
consummation of the transactions contemplated hereby.
Section 6.3 Additional Documents. The Seller shall have delivered
(or stand ready to deliver) each of the documents required to be delivered by
Seller pursuant to Section 2.6(b).
ARTICLE VII
CONDITIONS PRECEDENT TO THE OBLIGATION
OF THE SELLER TO CLOSE
The obligation of the Seller to enter into and complete the Closing
is subject to the fulfillment on or prior to the Closing Date of the following
conditions, any one or more of which may be waived by the Seller:
Section 7.1 Antitrust Filings. Any approvals required under the
Antitrust Laws in connection with the transactions contemplated hereby shall
have been obtained.
Section 7.2 No Orders. No Order shall have been issued or Legal
Proceedings initiated by any Governmental Body to restrain or prohibit, or to
obtain damages or a discovery order in respect of, this Agreement or the
consummation of the transactions contemplated hereby.
ARTICLE VIII
SURVIVAL
All representations and warranties in this Agreement will survive
the Closing for a period of six months from the Closing Date, except that the
representations and warranties in Sections 3.1, 3.2, 3.3 and 3.4 shall survive
the Closing for a period of six years from the Closing Date.
ARTICLE IX
TERMINATION
Section 9.1 Termination. This Agreement may not be terminated prior
to the Closing, except:
(a) by mutual agreement of the Buyer and the Seller;
(b) at the election of the Buyer, if the Seller has materially
breached any of its material obligations contained in this Agreement, which
breach has not been
14
cured by the Seller within 30 days after the Seller's receipt of written notice
of such breach from the Buyer;
(c) at the election of the Seller, if the Buyer has materially
breached any of its material obligations contained in this Agreement, which
breach has not been cured by the Buyer within 30 days after the Buyer's receipt
of written notice of such breach from the Seller;
(d) at the election of either the Buyer or the Seller upon prior
written notice, if any Governmental Body shall have issued an Order or taken any
other final action restraining or prohibiting consummation of the transactions
contemplated hereby and such Order is or shall have become non-appealable; or
(e) at the election of either the Buyer or the Seller upon prior
written notice, if any of the conditions set forth in Article VI or Article VII,
respectively, has not been fulfilled as of the close of business on May 31,
2005; provided, however, that the party whose conduct substantially results in
the failure of such condition to be fulfilled may not be the terminating party.
Section 9.2 Survival After Termination. If this Agreement is
terminated pursuant to Section 9.1 and the transactions contemplated hereby are
not consummated, then:
(a) this Agreement shall become null and void and have no further
force or effect, except that any such termination shall be without prejudice to
the rights of any party on account of the non-satisfaction of the conditions set
forth in Articles VI and VII resulting from the intentional or willful breach or
violation of the covenants or agreements of another party under this Agreement;
(b) notwithstanding anything in this Agreement to the contrary, the
provisions of Section 2.1, Section 5.3, Section 5.4, this Section 9.2 and
Article X shall survive any termination of this Agreement; and
(c) the Buyer shall promptly return to the Seller all books and
records and all other information furnished by the Seller, its agents, employees
or representatives (including all copies, if any) and shall not use or disclose
the information contained in such books and records for any purpose or make such
information available to any other Person.
ARTICLE X
MISCELLANEOUS
Section 10.1 Consent to Jurisdiction; Service of Process; Waiver of
Jury Trial.
(a) Any controversy or claim arising out of or relating to this
Agreement shall be finally settled by arbitration, before a single arbitrator,
administered
15
by the American Arbitration Association in accordance with its Commercial
Arbitration Rules. Any award or portion thereof rendered by the arbitrator in
accordance with this Section 10.1 shall be final and binding on the parties to
this Agreement, who hereby waive all rights of appeal or challenge to such to
the extent they are permitted to do so. The parties to this Agreement further
agree that any judgment or award hereunder shall be entered in a court of
competent jurisdiction and application may be made to such court or to any court
of competent jurisdiction wherever situated for enforcement of any judgment or
award and the entry of whatever orders that are necessary for such enforcement.
The place of arbitration shall be New York, New York. The language of the
arbitration shall be English. This Section 10.1 shall be treated and construed
as an arbitration agreement for purposes of the Israeli Arbitration Law,
5728-1968.
(b) Any and all service of process and any other notice in any such
claim shall be effective against any party to this Agreement if given personally
or by registered or certified mail, return receipt requested, or by any other
means of mail that requires a signed receipt, postage prepaid, mailed to such
party as provided in Section 10.2. Nothing herein contained shall be deemed to
affect the right of any party to serve process in any manner permitted by law.
(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY
ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES
ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY.
(d) EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE WAIVER IN SECTION 10.1(c), (ii) SUCH PARTY UNDERSTANDS AND HAS
CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (iii) SUCH PARTY MAKES SUCH WAIVER
VOLUNTARILY AND (iv) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS, AGREEMENTS AND CERTIFICATIONS IN
SECTION 10.1(c) AND THIS SECTION 10.1(d).
Section 10.2 Notices. Any notice or other communication required or
permitted hereunder shall be in writing and shall be deemed to have been duly
given (i) on the day of delivery if delivered in person, or if delivered by
facsimile upon confirmation of receipt, (ii) on the first Business Day following
the date of dispatch if delivered by an internationally recognized express
courier service, or (iii) on the tenth Business Day following the date of
mailing if delivered by registered or certified mail, return receipt requested,
postage prepaid. All notices hereunder shall be delivered as set forth below, or
pursuant to such other instructions as may be designated by notice given in
accordance with this Section 10.2 by the party to receive such notice:
16
(a) if to the Buyer, to:
Mirkaei Tikshoret Ltd.
00 Xxxxxxxxx Xxxxxx
Xxx Xxxx 00000
Israel
Attention: Xxxx Xxxxx
Facsimile: x000-0-000-0000
with a copy to:
Danziger, Klagsbald, Xxxxx & Co., Law Offices
Gibor Sport Building, 24th Floor
7 Xxxxxxxx Xxxxx Street
Ramat Gan 52521
Israel
Attention: Xxx Xxxxx, Adv.
Facsimile: x000-0-000-0000
and
Xxxx Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxx Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
(b) if to the Seller or Xxxxxxxxx, to:
Xxxxxxxxx International Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Paris
Facsimile: (000) 000-0000
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
and
17
Xxxxxx Xxx & Xxxxxx
Xxxx Xxxxx, 0 Xxxxxxxx Xxxxxx
Xxx Xxxx 00000
Israel
Attention: Xxxx Xxxxx, Adv.
Facsimile: x000-0-000-0000
Section 10.3 Entire Agreement. This Agreement, together with the
Confidentiality Agreement and any other collateral agreements executed in
connection with the consummation of the transactions contemplated hereby,
contain the entire agreement among the parties with respect to the Purchase and
supersede all prior agreements, written or oral, with respect thereto.
Section 10.4 Waivers and Amendments. This Agreement may be amended,
superseded, canceled, renewed or extended, and the terms hereof may be waived,
only by a written instrument signed by the Buyer, the Seller and Xxxxxxxxx or,
in the case of a waiver, by the party waiving compliance. No delay on the part
of any party in exercising any right, power or privilege hereunder shall operate
as a waiver thereof, nor shall any waiver on the part of any party of any such
right, power or privilege, nor any single or partial exercise of any such right,
power or privilege, preclude any further exercise thereof or the exercise of any
other such right, power or privilege.
Section 10.5 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Israel without regard to
any conflict of laws rules thereof that might indicate the application of the
laws of any other jurisdiction.
Section 10.6 Binding Effect; Assignment. This Agreement shall be
binding upon and inure to the benefit of the parties and their respective
successors and assigns. This Agreement is not assignable by any party without
the prior written consent of the other party.
Section 10.7 Usage. All pronouns and any variations thereof refer to
the masculine, feminine or neuter, singular or plural, as the context may
require. All terms defined in this Agreement in their singular or plural forms
have correlative meanings when used herein in their plural or singular forms,
respectively. Unless otherwise expressly provided, the words "include,"
"includes" and "including" do not limit the preceding words or terms and shall
be deemed to be followed by the words "without limitation." Any reference in
this Agreement to "Dollars" or "$" shall mean U.S. dollars. Any reference in
this Agreement to "NIS" shall mean New Israeli Shekels.
Section 10.8 Articles and Sections. All references herein to
Articles and Sections shall be deemed references to such parts of this
Agreement, unless the context shall otherwise require. The Article and Section
headings in this Agreement are for reference only and shall not affect the
interpretation of this Agreement.
18
Section 10.9 Interpretation. The parties acknowledge and agree that
(a) each party and its counsel reviewed and negotiated the terms and provisions
of this Agreement and have contributed to its revision, (b) the rule of
construction to the effect that any ambiguities are resolved against the
drafting party shall not be employed in the interpretation of this Agreement,
and (c) the terms and provisions of this Agreement shall be construed fairly as
to all parties, regardless of which party was generally responsible for the
preparation of this Agreement. Any statute, regulation or other law defined or
referred to herein (or in any agreement or instrument that is referred to
herein) means such statute, regulation or other law as, from time to time, may
be amended, modified or supplemented, including (in the case of statutes) by
succession of comparable successor statutes. References to a Person also refer
to its predecessors and permitted successors and assigns.
Section 10.10 Severability of Provisions. If any provision or any
portion of any provision of this Agreement shall be held invalid or
unenforceable, the remaining portion of such provision and the remaining
provisions of this Agreement shall not be affected thereby. If the application
of any provision or any portion of any provision of this Agreement to any Person
or circumstance shall be held invalid or unenforceable, the application of such
provision or portion of such provision to Persons or circumstances other than
those as to which it is held invalid or unenforceable shall not be affected
thereby.
Section 10.11 No Personal Liability. This Agreement shall not create
or be deemed to create or permit any personal liability or obligation on the
part of any officer, director, employee, agent, representative or investor of
any party hereto.
Section 10.12 No Third Party Beneficiaries. No provision of this
Agreement is intended to, or shall, confer any third party beneficiary or other
rights or remedies upon any Person other than the parties hereto.
Section 10.13 Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts together shall
constitute one and the same instrument. Each counterpart may consist of a number
of copies hereof each signed by less than all, but together signed by all, of
the parties hereto.
[Remainder of page intentionally left blank]
19
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
BUYER:
MIRKAEI TIKSHORET LTD.
By: /s/ Xxxx Xxxxx
-------------------------------
Name: Xxxx Xxxxx
Title: Managing Director
SELLER:
AMERICAN PUBLISHING HOLDINGS, INC.
By: /s/ Xxxxxx X. Paris
-------------------------------
Name: Xxxxxx X. Paris
Title: President
XXXXXXXXX:
XXXXXXXXX INTERNATIONAL INC.
By: /s/ Xxxxxx X. Paris
-------------------------------
Name: Xxxxxx X. Paris
Title: President and Chief Executive Officer
EXHIBIT A
FORM OF RELEASE
This Release is made as of _____, 2004 by______ (the "undersigned"),
in favor of Mirkaei Tikshoret Ltd., an Israeli corporation ("MTL"), The
Palestine Post Limited, an Israeli corporation (the "Company"), and the
Company's subsidiaries.
The undersigned, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, and intending to be legally
bound, hereby agrees as follows:
The undersigned hereby releases and forever discharges MTL, the
Company and each of the Company's subsidiaries, and each of their respective
individual, joint or mutual, past, present and future directors, officers and
employees (individually, a "Releasee" and collectively, "Releasees") from any
and all claims, demands, actions, proceedings, causes of action, orders,
judgments, obligations, contracts, agreements, debts and liabilities whatsoever,
whether known or unknown, suspected or unsuspected, both at law and in equity,
which the undersigned now has, have ever had or may hereafter have against the
respective Releasees arising on or prior to the date hereof or on account of or
arising out of any matter, cause or event occurring on or prior to the date
hereof, including, but not limited to, any rights to indemnification or
reimbursement from the Company or any of its subsidiaries, whether pursuant to
their respective organizational documents, contract or otherwise.
The undersigned hereby irrevocably covenants to refrain from,
directly or indirectly, asserting any claim or demand, or commencing,
instituting or causing to be commenced, any proceeding of any kind against any
Releasee, based upon any matters purported to be released hereby.
Without in any way limiting any of the rights and remedies otherwise
available to any Releasee, the undersigned shall indemnify and hold harmless
each Releasee from and against any loss, liability, claim, damage (including
incidental and consequential damages) or expense (including costs of
investigation and defense and reasonable attorney's fees), whether or not
involving third party claims, arising directly or indirectly from or in
connection with the assertion by or on behalf of the undersigned of any claim or
other matter purported to be released pursuant to this Release.
If any provision of this Release is held invalid or unenforceable by
any court of competent jurisdiction, the other provisions of this Release will
remain in full force and effect. Any provision of this Release held invalid or
unenforceable only in part or degree will remain in full force and effect to the
extent not held invalid or unenforceable.
This Release may not be changed except in a writing signed by the
person(s) against whose interest such change shall operate. This release shall
be governed by and construed under the laws of the State of New York without
regard to principles of conflicts of law.
2
All words used in this Release will be construed to be of such
gender or number as the circumstances require.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Release as of this ___day of ______, 2004.
_________________________________
[Name of Releasor]
