EXHIBIT 1
STOCKHOLDERS VOTING AGREEMENT
STOCKHOLDERS VOTING AGREEMENT (this "Agreement") dated as of November
26, 1997, among XXXXXX MEDIA COMPANY, a Delaware corporation ("Xxxxxx"), on the
one hand, and certain stockholders of MCCLATCHY NEWSPAPERS, INC., a Delaware
corporation ("McClatchy"), listed on Schedule A hereto (each a "Stockholder"
and, collectively, the "Stockholders"), on the other hand.
WHEREAS, this Agreement was originally executed on November 13, 1997
and as a result of the need to amend Section 5 hereof, this Agreement is being
amended and restated in its entirety as provided herein;
WHEREAS, Xxxxxx and McClatchy propose to enter into an Agreement and
Plan of Reorganization dated as of the date hereof (as the same may be amended
or supplemented, the "Merger Agreement"; capitalized terms used but not defined
herein shall have the meanings set forth in the Merger Agreement) providing that
a wholly owned subsidiary of McClatchy ("Newco Holding") will acquire all of the
stock of each of McClatchy and Xxxxxx through mergers of wholly owned
subsidiaries of Newco Holding with and into each of McClatchy and Xxxxxx (the
"Reorganization"), upon the terms and subject to the conditions set forth in the
Merger Agreement;
WHEREAS, each Stockholder owns of record the number of shares of Class
B Common Stock, par value $.01 per share, of McClatchy (the "Class B Common
Stock") set forth opposite its name on Schedule A attached hereto (the "Subject
Shares");
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Xxxxxx has required that each Stockholder enter into this Agreement.
NOW, THEREFORE, to induce Xxxxxx to enter into, and in consideration of
its entering into, the Merger Agreement, and in consideration of the premises
and the representations, warranties and agreements contained herein, the parties
agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF EACH STOCKHOLDER. Each Stockholder
hereby, severally and not jointly, represents and warrants to Xxxxxx as of the
date hereof in respect of itself as follows:
(a) AUTHORITY. The Stockholder has all requisite power and authority to
enter into this Agreement and to consummate the transactions contemplated
hereby. This Agreement has been duly authorized, executed and delivered by the
Stockholder (or in the case of a Stockholder which is a trust, by trustees on
behalf of such trust) and constitutes a valid and binding obligation of the
Stockholder enforceable in accordance with its terms, except that such
enforceability (i) may be limited by bankruptcy, insolvency, moratorium or other
similar
laws affecting or relating to the enforcement of creditors' rights generally and
(ii) is subject to general principles of equity. The execution and delivery of
this Agreement does not, and the consummation of the transactions contemplated
hereby and compliance with the terms hereof will not, conflict with, or result
in any violation of, or default (with or without notice or lapse of time or
both) under any provision of, any trust agreement, loan or credit agreement,
note, bond, mortgage, indenture, lease or other agreement, instrument, permit,
concession, franchise, license, judgment, order, notice, decree, statute, law,
ordinance, rule or regulation applicable to the Stockholder or to the
Stockholder's property or assets the effect of which, in any case, would be
material and adverse to the ability of the Stockholder to consummate the
transactions contemplated hereby or to comply with the terms hereof.
(b) THE SUBJECT SHARES. The Stockholder (except as set forth on
Schedule A attached hereto) is the record and beneficial owner of and has the
sole or shared right to vote the Subject Shares set forth opposite such
Stockholder's name on Schedule A attached hereto. Except for the Stockholders'
Agreement among the holders of the Class B Common Stock of McClatchy dated
September 17, 1987, none of such Subject Shares is subject to any voting trust
or other agreement, arrangement or restriction, except as contemplated by this
Agreement.
2. COVENANTS OF EACH STOCKHOLDER. Until the termination of this
Agreement in accordance with Section 7, each Stockholder, severally and not
jointly, agrees as follows:
(a) VOTE FOR THE REORGANIZATION. At any meeting of stockholders of
McClatchy called to vote upon the Reorganization and the Merger Agreement or at
any adjournment thereof or in any other circumstances upon which a vote, consent
or other approval (including by written consent) with respect to the
Reorganization and the Merger Agreement is sought, the Stockholder shall vote
(or cause to be voted), or execute a written consent in respect of, the Subject
Shares in favor of the Reorganization, the adoption by McClatchy of the Merger
Agreement and the approval of the terms thereof and each of the other
transactions contemplated by the Merger Agreement.
(b) TRANSFER OF SUBJECT SHARES. Except with respect to that number of
Subject Shares set forth next to such Stockholder's name in Schedule B which is
in excess of the number of Subject Shares set forth on Schedule B necessary to
approve the Reorganization and Merger Agreement (taking into account any and all
other Transfers, as defined below, of Subject Shares by any other Stockholder),
the Stockholder agrees not to (i) convert, transfer, sell, pledge, assign or
otherwise dispose of (including by gift) (collectively, "Transfer"), or enter
into any contract, option or other arrangement (including any profit sharing
arrangement) with respect to the Transfer of, any of the Subject Shares to any
person other than pursuant to the terms of the Reorganization or (ii) enter into
any voting arrangement, whether by proxy, power-of-attorney, voting agreement,
voting trust or otherwise.
3. FURTHER ASSURANCES. Each Stockholder will, from time to time,
execute and deliver, or cause to be executed and delivered, such additional or
further consents, documents
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and other instruments as Xxxxxx may reasonably request for the purpose of
effectively carrying out the transactions contemplated by this Agreement.
4. ASSIGNMENT. Except as provided herein, neither this Agreement nor
any of the rights, interests or obligations hereunder shall be assigned by any
of the parties without the prior written consent of the other parties. Subject
to the preceding sentence, this Agreement will be binding upon, inure to the
benefit of and be enforceable by the parties and their respective successors and
assigns.
5. TERMINATION. This Agreement shall terminate upon the earlier of (a)
the 18 month anniversary of the termination of the Merger Agreement (for any
reason, including any termination pursuant to Section 8.01 thereof) and (b) the
Effective Time of the Reorganization.
6. GENERAL PROVISIONS.
(a) AMENDMENTS. This Agreement may not be amended except by an
instrument in writing signed by each of the parties hereto.
(b) NOTICE. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally, telecopied (which is
confirmed) or sent by overnight courier (providing proof of delivery) to Xxxxxx
in accordance with the notification provision contained in the Merger Agreement
and to the Stockholders at their respective addresses set forth on the books of
McClatchy (or at such other address for a party as shall be specified by like
notice).
(c) INTERPRETATION. When a reference is made in this Agreement to
Sections, such reference shall be to a Section to this Agreement unless
otherwise indicated. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Wherever the words "include", "includes" or "including" are used
in this Agreement, they shall be deemed to be followed by the words "without
limitation".
(d) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more of the counterparts have been signed by
each of the parties hereto and delivered to the other parties, it being
understood that each party need not sign the same counterpart.
(e) ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This Agreement
(including the documents and instruments referred to herein) (i) constitutes the
entire agreement and supersedes all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof
and (ii) is not intended to confer upon any person other than the parties
hereto, any rights or remedies hereunder.
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(f) GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware regardless of the laws
that might otherwise govern under applicable principles of conflicts of law
thereof.
(g) SEVERABILITY. If any term, provision, covenant or restriction
herein, or the application thereof to any circumstance, shall, to any extent, be
held by a court of competent jurisdiction to be invalid, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions herein and
the application thereof to any other circumstances, shall remain in full force
and effect, shall not in any way be affected, impaired or invalidated, and shall
be enforced to the fullest extent permitted by law, and the parties hereto shall
reasonably negotiate in good faith a substitute term or provision that comes as
close as possible to the invalidated and unenforceable term or provision, and
that puts each party in a position as nearly comparable as possible to the
position each such party would have been in but for the finding of invalidity or
unenforceability, while remaining valid and enforceable.
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7. STOCKHOLDER REPRESENTATIVES. Each Stockholder signs solely in its
capacity as the record holder and/or beneficial owner of such Stockholder's
Subject Shares and nothing contained herein shall limit or affect any actions
taken by any officer, director, partner, trustee, affiliate or representative of
a Stockholder who is or becomes an officer or a director of McClatchy in his or
her capacity as an officer or director of McClatchy and none of such actions in
such capacity shall be deemed to constitute a breach of this Agreement.
8. ENFORCEMENT. The parties agree that irreparable damage would occur
in the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any court of the United States
located in the State of Delaware or in a Delaware state court, this being in
addition to any other remedy to which they are entitled at law or in equity. In
addition, each of the parties hereto (i) consents to submit such party to the
personal jurisdiction of any Federal court located in the State of Delaware or
any Delaware state court in the event any dispute arises out of this Agreement
or any of the transactions contemplated hereby, (ii) agrees that such party will
not attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from any such court, (iii) agrees that such party will not
bring any action relating to this Agreement or the transactions contemplated
hereby in any court other than a Federal court sitting in the state of Delaware
or a Delaware state court, (iv) waives any right to trial by jury with respect
to any claim or proceeding related to or arising out of this Agreement or any of
the transactions contemplated hereby, and (v) appoints The Corporation Trust
Company as such party's agent for service of process in the state of Delaware.
IN WITNESS WHEREOF, this Agreement has been executed and delivered as
of the date first written above.
XXXXXX MEDIA COMPANY
By /s/ Xxxxx X. Xxxxx
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Title: Vice President and Chief Financial
Officer
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STOCKHOLDERS:
/s/ XXXXX XXXXX
--------------------------------------------
XXXXX XXXXX, as Trustee of the
Trusts set forth on
Schedule B
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/s/ XXXXX X. XXXXXXXXX
--------------------------------------------
XXXXX X. XXXXXXXXX, individually
and as trustee of the Trusts
set forth on Schedule B
/s/ XXXXXXX X. XXXXXXXX
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XXXXXXX X. XXXXXXXX, as Trustee
of the Trusts set forth on
Schedule B
/s/ XXXXXXX XXXXXX MCCLATCHY
--------------------------------------------
XXXXXXX XXXXXX MCCLATCHY, as Trustee
of the Trusts set forth on
Schedule B
/s/ XXXXXXX X. XXXX
--------------------------------------------
XXXXXXX X. XXXX, as Trustee of the
Trusts set forth on Schedule B
/s/ XXXXX XXXXXXX XXXXXXXXXXX
--------------------------------------------
XXXXX XXXXXXX XXXXXXXXXXX
/s/ XXXXX XXX XXXXXXX
--------------------------------------------
XXXXX XXX XXXXXXX
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SCHEDULE A
LIST OF STOCKHOLDERS
Shares of Class B
Common Stock Owned
NAME OF RECORD
---- ---------
Xxxxx X XxXxxxxxx 14,945,472(1)
Xxxxxxx X. Xxxxxxxx 12,500,000(1)
Xxxxxxx Xxxxxx McClatchy 12,500,000(1)
Xxxxx Xxxxx 12,500,000(1)
Xxxxxxx X. Xxxx 12,500,000(1)
Xxxxx Xxxxxxx Xxxxxxxxxxx 3,812,500
Xxxxx Xxx Xxxxxxx 1,850,000
(1) Includes or consists of 12,500,000 shares of Class B Common Stock
held under five separate trusts with 2,500,000 shares and different income
beneficiaries. Xxxxx X. XxXxxxxxx, Xxxxxxx Xxxxxx McClatchy, Xxxxxxx X.
Xxxxxxxx, Xxxxxxx X. Xxxx and Xxxxx Xxxxx, co-trustees, share joint voting and
investment control with respect to these trusts. Each of (i) Xxxxx X. XxXxxxxxx,
(ii) Xxxxxxx Xxxxxx McClatchy, (iii) Xxxxxxx XxXxxxxxx, Xxxxx XxXxxxxxx and
Xxxxx XxXxxxxxx, (iv) Xxx Xxxxxxx Xxxxxx and (v) Xxxxx Xxxxxxx have a present
income interest in one of the five trusts. Messrs. Xxxxxxxx, Xxxx and Xxxxx
disclaim beneficial ownership of these shares.
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SCHEDULE B
1. Trust for the Primary Benefit of Xxxxxxx X. XxXxxxxxx dated
November 15, 1974;
2. Trust for the Primary Benefit of Xxxxx X. XxXxxxxxx dated
November 15, 1974;
3. Trust for the Primary Benefit of Xxxxxxx Xxxxxx McClatchy dated
November 15, 1974;.
4. Trust for the Primary Benefit of Xxxxxx X. and Xxxxx Xxxxxxx dated
November 15, 1974; and
5. Trust for the Primary Benefit of Xxx Xxxxxx dated November 15, 1974.
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