Exhibit 8
- 10 -
NEWY1:2003586:1:6/11/01
28507-20
WARRANT PURCHASE AGREEMENT
WARRANT PURCHASE AGREEMENT, dated as of April 19, 2001, by and between
X.X. Xxxxx Investment Banking Corp., a Delaware corporation having a principal
place of business at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000 ("Seller") and
Xxxxx X. Xxxxxxxxxxx, an individual residing at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, 00000 ("Buyer").
WHEREAS, Seller is, in connection with a revolving loan agreement,
entitled to options to purchase shares of Common Stock of News Communications,
Inc. ("NCI") at an exercise price of $1.00 per share (the "Options"); and
WHEREAS, the Options are not presently exercisable for freely tradable
registered shares of Common Stock of NCI; and
WHEREAS, Buyer desires to purchase half of the Options (the "Purchase
Options") from Seller, and Seller desires to sell the Purchase Options to Buyer,
upon the terms, and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties, intending to be legally bound hereby, agree as follows:
ARTICLE I
PURCHASE AND SALE OF PURCHASE OPTIONS
Section 1.01 Purchase and Sale of Purchase Options. Upon the terms and
subject to the conditions set forth herein, Seller hereby sells, transfers and
delivers to Buyer, and Buyer hereby purchases, acquires and accepts from Seller,
the Purchase Options, for the consideration set forth in Section 1.02 hereof.
Section 1.02 Consideration. The consideration (the "Consideration")
for the Purchase Options is $.0l per Purchase Option payable by cash or check
from Buyer to Seller simultaneously with the issuance of the Options to Seller
by NCI. Seller shall thereupon seek to transfer record ownership of the Purchase
Options to Buyer.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyer that:
Section 2.01 Ownership of Purchase Options. The Purchase Options are
owned by Seller free and clear of all liens, mortgages, charges, securities,
interest, encumbrances (including, but not limited to adverse claims) or other
restrictions or limitation of any kind whatsoever (individually and
collectively, "Liens" other than those relating to federal and state securities
laws). Upon delivery of and payment for the Purchase Options as provided for in
this Agreement, Buyer will acquire good and marketable title to the Purchase
Options, free and clear of all Liens.
Section 2.02 Authorization, Etc. Seller has the power and capacity to
enter into this Agreement, and this Agreement is a valid and binding obligation
of Seller enforceable against Seller in accordance with its terms.
Section 2.03 No Consent. Neither the execution, delivery or
performance by Seller of this Agreement nor the consummation by Seller of the
transactions contemplated hereby, will require any permit, authorization,
consent, waiver, approval, license or other order or action of, or notice to, or
declaration, filing or registration with, any third party or any governmental
body, or other regulatory or administrative authority, agency, bureau or
commission, domestic or foreign ("Government Agency").
Section 2.04 No Violation. Neither the execution, delivery or
performance by Seller of this Agreement nor the consummation of the transactions
contemplated hereby will (i) violate, breach or be in conflict with, or
constitute a default (or an event which, notice or lapse of time or both, would
constitute a default) under, or permit the termination of, or accelerate the
performance required by, or cause the acceleration of the maturity of any debt
or obligation of Seller or result in the creation or imposition of any Liens
upon any property or assets of Seller, or (ii) violate any order, writ,
injunction, decree, judgment, ruling, law, statute, rule or regulation of any
governmental, judicial, legislative, executive, administrative or regulatory
authority of the United States, or of any governmental, judicial, legislative,
executive, administrative or regulatory authority of the United States, or of
any state, local or foreign government or any subdivision thereof, or of any
Governmental Agency (collectively, "Laws"), applicable to Seller or by which any
of Seller's property or assets are bound.
Section 2.05 Disclosure. No representations or warranties by Seller
contained in this Agreement and no statement contained in any document,
certificate, or other writing furnished by Seller to Buyer pursuant to the
provisions of this Agreement contains any untrue statement of material fact or
omits to state any material fact necessary, in light of the circumstances under
which it was made, in order to make the statements herein not misleading.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller that Buyer is acquiring the
option for his own account and not with a view to or for sale in connection with
any distribution thereof, and that Buyer is an "accredited investor" as that
term is defined under the rules and regulations promulgated under the Securities
Act of 1933, as amended.
ARTICLE IV
SURVIVAL OF REPRESENTATIONS
Each of the representations and warranties contained in Articles II
and III hereof shall survive the purchase and sale of the Purchase Options and
the consummation of the other transactions contemplated hereby, and shall remain
in full force and effect until 30 days after the expiration of the statute of
limitations (including any extension thereof) applicable to any claim arising in
respect of matters covered by such representations and warranties, and shall be
effective with respect to any inaccuracy contained in or breach of such
representations and warranties, notice of which is duly given in accordance with
Section 6.02 hereof within such period.
ARTICLE V
INDEMNIFICATION
Section 5.01 Indemnification. Subject to the terms and limitations set
forth in Section 5.02 hereof:
(a) Seller shall indemnify, defend and hold harmless Buyer
and each of his successors and assigns, from and against any and all claims,
penalties, fines, sanctions, demands, suits, losses, liabilities, damages,
obligations, payments, costs and expenses, paid or incurred, whether or not
relating to, resulting from or arising out of any Third Party Claim or any
Direct Claim (each as defined in Section 5.02 hereof)(including, without
limitation, the reasonable costs and expenses of any and all actions, suits,
proceedings, demands, assessments, judgments, settlements and compromises
relating thereto and reasonable attorneys' fees in connection therewith)
(individually and collectively "Indemnifiable Losses") relating to, resulting
from or arising out of any breach of any of the representations, warranties or
covenants of Seller contained in this Agreement or any of the transactions
contemplated thereby.
(b) Buyer shall indemnify, defend and hold harmless Seller
and each of his successors and assigns, from and against any and all
Indemnifiable Losses relating to, resulting from or arising out of any breach of
any of the representations, warranties or covenants of Buyer contained in this
Agreement or any of the transactions contemplated hereby.
(c) For purposes of this Agreement, "Indemnity Payment" shall
mean any amounts of Indemnifiable Losses required to be paid pursuant to this
Section 5.01.
(d) For purposes of this Agreement, "Indemnitee" shall mean
any person, entity or group entitled to indemnification under this Agreement.
(e) For purposes of this Agreement, "Indemnifying Party"
shall mean any person, entity or group required to provide indemnification under
this Agreement.
Section 5.02 Defense of Claims.
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(a) If an Indemnitee receives notice of the assertion of any
claim or of the commencement of any action or proceeding by any person, entity
or group (a "Third Party Claim") against such Indemnitee, with respect to which
an Indemnifying Party is obligated to provide indemnification under Section 5.01
of this Agreement, the Indemnitee shall give such Indemnifying Party reasonably
prompt written notice thereof, but in any event not later than 30 calendar days
after receipt of such notice of such Third Party Claim. Such notice shall
describe the Third Party Claim in reasonable detail, and shall indicate the
estimated amount, if practicable, of the Indemnifiable Loss that has been or may
be sustained by the Indemnitee. The Indemnifying Party shall have the right to
participate in or, by giving written notice to the Indemnitee, to elect to
assume the defense of any Third Party Claim at such Indemnifying Party's own
expense and by such Indemnifying Party's own counsel (reasonably satisfactory to
the Indemnitee), and the Indemnitee shall cooperate in good faith in such
defense.
(b) If within 10 calendar days after an Indemnitee receives
written notice from an Indemnifying Party that such Indemnifying Party has
elected to assume the defense of any Third Party Claim as provided in the last
sentence of Section 5.02(a) hereof, the Indemnifying Party shall not be liable
for any legal expenses subsequently incurred by the Indemnitee in connection
with the defense thereof; provided, however, that if the Indemnifying Party
fails to take reasonable steps necessary to defend diligently such Third Party
Claim within 10 calendar days after receiving notice from the Indemnitee that
the Indemnitee believes the Indemnifying Party has failed to take such steps,
the Indemnitee may assume its own defense, and the Indemnifying Party shall be
liable for any reasonable expenses therefor. Without the prior written consent
of the Indemnitee, the Indemnifying Party shall not enter into any settlement of
the Third Party Claim which would lead to liability or create any financial or
other obligation on the part of the Indemnitee for which the Indemnitee is not
entitled to reimbursement hereunder.
(c) Any claim by an Indemnitee on account of any
Indemnifiable Loss which does not result from a Third Party Claim (a "Direct
Claim") shall be asserted by giving the Indemnifying Party reasonably prompt
written notice thereof, but in any event not later than 30 calendar days after
the Indemnitee becomes aware of such Direct Claim, and the Indemnifying Party
shall have a period of 30 calendar days within which to respond to such Direct
Claim. If the Indemnifying Party does not so respond within such 30 calendar day
period, the Indemnifying Party shall be deemed to have rejected such claim, in
which event the Indemnitee shall be free to pursue such remedies as may be
available to the Indemnitee under any applicable Laws, subject to the terms of
this Agreement, including, without limitation, the enforcement of the
Indemnitee's rights under this Agreement.
(d) A failure to give timely notice as provided in this
Section 5.02 shall not affect the rights or obligations of any party hereunder
except and only to the extent that, as a result of such failure, any party which
was entitled to receive such notice was deprived of its right to recover any
payment under its applicable insurance coverage or incurred an obligation or
liability which otherwise would have been avoided.
(e) Upon making any Indemnity Payment the Indemnifying Party
shall, to the extent of such Indemnity Payment, be subrogated to all rights of
the Indemnitee against any third party in respect of the Indemnifiable Loss to
which the lndemnity Payment related; provided, however, that (i) the
Indemnifying Party shall then be in compliance with its obligations under this
Agreement in respect of such Indemnifiable Loss, and (ii) until the Indemnitee
recovers full payment of its Indemnifiable Loss, any and all claims of the
Indemnifying Party against any such third party on account of said Indemnity
Party is hereby made expressly subordinated and subjected in right of payment to
the Indemnitee's rights against such third party. Without limiting the
generality of any other provision hereof, each such Indemnitee and Indemnifying
Party shall duly execute upon request all instruments reasonably necessary to
evidence and perfect the above-described subrogation and subordination rights.
ARTICLE VI
MISCELLANEOUS
Section 6.01 Headings. The descriptive headings of the several
Articles of this Agreement are inserted for convenience of reference only and do
not constitute a part of this Agreement.
Section 6.02 Notices. Any notices or other communications required or
permitted hereunder shall be given in writing and shall be delivered or sent by
personal delivery or certified or registered mail, postage prepaid, or by telex,
cable, or facsimile transmission, addressed to either party at his or its
address first above written or to such other address as shall be furnished in
writing by such party, and any such notice or communication shall be effective
and be deemed to have been given as of the date so dispatched, delivered or
mailed; provided, that, any notice or communications changing any of the
addresses set forth above shall be effective and deemed given only upon its
receipt.
Section 6.03 Successors. This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns.
Section 6.04 Further Assurances. Each of the parties hereto agrees
that, from and after the date hereof, upon the reasonable request of any other
party hereto and without further consideration, such party will execute and
deliver to such other party such documents and further assurances and will take
such other actions (without cost to such party) as such other party may
reasonably request in order to carry out the purpose and intention of this
Agreement, including but not limited to the effective consummation of the
transactions contemplated under such provisions of this Agreement, the vesting
in Buyer of title to the Purchase Options in accordance with such terms of this
Agreement, and the correction of errors and defects.
Section 6.05 Entire Agreement. This Agreement constitutes the sole and
entire agreement between the parties hereto with respect to the subject matter
hereof, and supersede all prior arrangements or understandings with respect
thereto; and there are no express or implied restrictions, agreements, promises,
representations, warranties, covenants or undertakings other than those
expressly set forth herein.
Section 6.06 Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void, unenforceable or against its regulatory
policy, the remainder of the terms, provisions, covenants and restrictions of
this Agreement shall remain full force and effect and shall in no way be
affected, impaired or invalidated.
Section 6.07 Counterparts. This Agreement may be executed in two or
more counterparts all of which shall be considered one and the same agreement
and each of which shall be deemed an original.
Section 6.08 Governing Law; Consent to Jurisdiction. This Agreement
shall be governed by the laws of the State of New York (regardless of the laws
that might be applicable under principles of conflict of laws) as to all
matters, including, but not limited to, matters of validity, construction,
effect or performance. Each of the parties hereto agrees that any legal action
or proceeding arising under or related to this Agreement or any of the
transactions contemplated hereby may be brought in the courts of the State of
New York, or of the United States of America for the Southern District of New
York, and hereby irrevocably consents to the service of process outside the
territorial jurisdiction of said courts by mailing copies thereof by registered
mail, postage prepaid, pursuant to Section 6.02 hereof.
Section 6.09 Amendments, Etc. This Agreement may not be modified,
amended, altered or supplemented, and no provision hereof may be waived by any
party hereto, except upon the execution and delivery of a written instrument
executed by the parties hereto or the party making any such waiver. No consent
of any third party shall be required to modify, alter, amend, supplement or
waive any of the provisions of this Agreement.
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as of the day and year first above written.
X.X. XXXXX INVESTMENT BANKING CORP.
By:
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J. XXXXXX XXXXX
Chairman
XXXXX X. XXXXXXXXXXX
