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EXHIBIT 10.3
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement, dated as of August 8, 1997 (this
"Agreement"), is entered into by and among (i) The Times Mirror Company, a
Delaware corporation ("TMC"), (ii) Xxxxxxxxx Xxxxxxx Xxxxxxx, Xxxxx Xxxxxxxx,
Xxxxxxx Xxxxxxxxx, Xx., Xxxxxx X. Xxxxxxxxxx, Xxxxxxx Xxxxxxxx Xxxxx, Xxxxxxx
Xxxxxx and Xxxx X. Xxxx, as trustees of Xxxxxxxx Trust No. 2 under Trust
Agreement dated June 26, 1935 ("Trust No. 2"), and (iii) the other stockholders
of Chandis Securities Company, all of which are listed on the signature pages
hereof (the "Other Stockholders" and, collectively with Trust No. 2, the
"Stockholders").
RECITALS
A. TMC, Chandis Acquisition Corporation, a Delaware corporation and a
wholly-owned subsidiary of TMC ("Acquisition Sub"), the Stockholders and Chandis
Securities Company, a California corporation ("Chandis"), have entered into that
certain Agreement and Plan of Merger dated as of an even date herewith (the
"Merger Agreement"), pursuant to which Chandis will merge with and into
Acquisition Sub (the "Merger").
B. Subject to the terms and conditions of the Merger Agreement, upon the
Effective Time (as defined therein), the Stockholders shall receive such shares
of (i) Series A Common Stock, par value $1.00 per share, of TMC ("Series A
Common Stock"), (ii) Series C Common Stock, par value $1.00 per share, of TMC
("Series C Common Stock" and together with the Series A Common Stock, the
"Common Stock"), (iii) Series C-1 Preferred Stock of TMC ("Series C-1 Preferred
Stock") and (iv) Series C-2 Preferred Stock of TMC ("Series C-2 Preferred Stock"
and together with the Series C-1 Preferred Stock, the "Series C Preferred
Stock") as are set forth on Exhibit C to the Merger Agreement. The Common Stock
and the Series C Preferred Stock received by the Stockholders in the Merger are
sometimes referred to collectively herein as the "TMC Merger Shares".
C. As a condition precedent to the consummation of the Merger, TMC has
agreed to grant the Stockholders certain registration rights, as set forth
herein, with respect to certain of the TMC Merger Shares, as well as certain
other shares into which certain of the TMC Merger Shares may be converted.
Specifically, the registration rights are being granted with respect to (i) the
Series A Common Stock issued in the Merger, (ii) the Series A Common Stock that
may be received by the Stockholders upon conversion of the Series C Common Stock
issued in the Merger (collectively with the Series A Common Stock referenced in
clause (i) of this Recital C, the "Common Stock"), and (iii) the Series C
Preferred Stock issued in the Merger, together with any Shares of Series A
Common Stock into which such shares may be converted (the "Preferred Stock").
The Common Stock and the Preferred Stock are collectively referred to herein as
the "Registrable Shares".
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AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and covenants and
promises contained herein and for other good and valuable consideration the
receipt and adequacy of which are hereby acknowledged, the parties hereto agree
as follows:
ARTICLE 1
REGISTRATION RIGHTS
1.1 Demand Registration Rights of Trust No. 2.
(a) On not more than six occasions, TMC shall promptly prepare and file,
and thereafter use its best efforts to cause to become effective, a registration
statement (a "Trust No. 2 Registration Statement") under and complying with the
Securities Act of 1933, as amended (the "Securities Act"), covering such number
of Registrable Shares as shall be specified in a request (a "Trust No. 2
Request") signed by "Trust No. 2 Stockholders" (as defined below) holding the
required amount of Registrable Shares (as set forth below). For purposes hereof,
"Trust No. 2 Stockholders" means Trust No. 2, any sub-trust thereof, or, after a
termination of Trust No. 2 or any sub-trust thereof in accordance with its
terms, beneficiaries of Trust No. 2 or such sub-trust.
(b) If any Trust No. 2 Request relates, in whole or in part, to Common
Stock, it must be signed by Trust No. 2 Stockholders holding at least 1,600,000
shares (subject to adjustments for any stock splits, reverse stock splits or
similar events) of Common Stock.
(c) If any Trust No. 2 Request relates, in whole or in part, to
Preferred Stock, it must be signed by Trust No. 2 Stockholders holding at least
60,000 shares (subject to adjustments for any stock splits, reverse stock splits
or similar events) of Preferred Stock. For the purposes of the previous
sentence, if a Trust No. 2 Request hereunder includes Series A Common Stock that
was received upon conversion of Series C Preferred Stock, such shares shall be
counted (in order to determine whether the threshold stated in this Section
1.1(c) has been met) as if they had not been so converted.
(d) Promptly after receiving a Trust No. 2 Request, TMC shall provide
written notice of the Trust No. 2 Request to the Trust No. 2 Stockholders who
did not sign such Trust No. 2 Request, who will have 15 business days after the
receipt of such notice in which to inform TMC in writing of their intention to
have Registrable Shares included in the Trust No. 2 Registration Statement.
1.2 Demand Registration Rights of the Other Stockholders. On not more
than one occasion, on request by any Other Stockholder (the "Shelf Request"),
TMC shall promptly prepare and file, and thereafter use its best efforts to
cause to become effective, and maintain the effectiveness thereof until August
8, 1998, a registration statement under and complying with the Securities Act
covering all of the Registrable Shares held by the Other Stockholders for an
offering to be made on a delayed on continuous basis pursuant to Rule 415 under
the Securities Act (the "Shelf Registration Statement").
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1.3 Certain Procedures and Limitations
(a) TMC shall not be obligated to file the Shelf Registration Statement
or any Trust Xx. 0 Xxxxxxxxxxxx Xxxxxxxxx (each, a "Demand Registration
Statement") within 90 days of the closing of an underwritten primary offering by
TMC of any class or series of its equity securities.
(b) Each Demand Registration Statement shall be on the Securities and
Exchange Commission (the "Commission") registration statement form selected by
TMC and which TMC shall then be eligible to use to effect the Demand
Registrations.
(c) Any Trust No. 2 Request or Shelf Request (each, a "Request") shall
specify the intended method(s) of distribution of the Registrable Shares. If an
underwritten offering is contemplated, TMC and the "Selling Shareholders" (as
defined in the next sentence) shall enter into such customary underwriting
agreements as the managing underwriter shall reasonably request. With respect to
any given Demand Registration Statement, the "Selling Shareholders" shall
consist of all Stockholders (i) which request such Demand Registration
Statement; (ii) which, in the case of a Trust Xx. 0 Xxxxxxxxxxxx Xxxxxxxxx,
notify the Company pursuant to Section 1.1(d) that such Stockholders wish to
include Registrable Shares therein; or (iii) which, in the event of a Shelf
Registration, sell or intend to sell Registrable Shares pursuant thereto.
(d) TMC may delay the filing of any Demand Registration Statement, or,
by notice to the Selling Stockholders, prohibit sales under the Shelf
Registration Statement or any other effective Demand Registration Statement (an
"Effective Registration Statement"), for a reasonable period not to exceed 90
days if, in the good faith judgment of the Board of Directors of TMC (i) TMC
would be required to include in such Demand Registration Statement or any
prospectus contained therein material business information that at that time
cannot be publicly disclosed without material disruption of a major corporate
development or transaction then pending or in progress or without other material
adverse consequence or (ii) the filing of any Demand Registration Statement or
sales under any Effective Registration Statement would have a material adverse
effect on a significant financing transaction, business combination or
acquisition or other significant matter that is pending or proposed, in
connection with which TMC is or is expected to be a party; provided, however,
that TMC shall promptly make such filing, or notify the Other Shareholders that
sales under the Effective Registration Statement may resume, after the earlier
of (x) the end of such 90-day period and (y) the date as of which the conditions
that caused TMC to delay such filing or to prohibit such sales no longer exist.
In the event of any delay in the filing of a Demand Registration Statement, the
Requesting Stockholders shall have the right to withdraw their request for
registration if all Requesting Stockholders who requested such registration join
in such withdrawal; such withdrawn request shall not be considered a Demand
Registration pursuant to Section 1.1(a) or Section 1.2 (as applicable).
(e) If (i) the effective date of any Demand Registration Statement would
otherwise be at least 45 calendar days, but fewer than 90 calendar days, after
the end of TMC's fiscal year, and (ii) the Securities Act requires TMC to
include audited financials as of the end of such fiscal year or the Securities
Act permits the use of, and the Selling Stockholders have requested that such
Demand Registration Statement include, audited financials as of the end of such
fiscal year,
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TMC may delay the filing of such Demand Registration Statement for such period
as is reasonably necessary to include therein its audited financial statements
for such fiscal year.
(f) TMC shall have no obligation to register any Preferred Stock
hereunder on or before August 8, 2000.
(g) TMC shall have no obligation to include, in any given Demand
Registration Statement, any shares of Preferred Stock or Common Stock if , at
anytime prior to the time that such Demand Registration Statement becomes
effective, TMC provides any Selling Stockholder that sought to include such
shares in the Demand Registration Statement with an opinion of counsel,
reasonably acceptable to such Selling Stockholder, to the effect that all of the
shares that such Selling Stockholder sought to include in the Demand
Registration Statement can be sold by such Selling Stockholder without
registration, pursuant to Rule 144 under the Securities Act.
(h) Until the earlier of (i) 90 days after the effective date of any
Trust No. 2 Registration Statement, or (ii) the period necessary to complete the
marketing of Registrable Shares after the effective date of a Trust Xx. 0
Xxxxxxxxxxxx Xxxxxxxxx, TMC shall not register under the Securities Act an
offering of shares of Common Stock, Preferred Stock or other equity securities
for sale to the public for the account of TMC and/or third parties, except for
registrations (i) on Commission Form S-8 or Form S-4 (or the then equivalent
forms) or (ii) pursuant to (A) the Registration Rights Agreement dated as of
April 15, 1997 between TMC and Xxxxxxx Xxxxx & Co. (entered into in connection
with TMC's issuance of convertible Liquid Yield Option Notes due 2017) or (B)
Section 8.03 (Registration Rights) of the Agreement and Plan of Merger dated as
of July 24, 1996 among TMC, a subsidiary thereof, Apartment Search, Inc., and
certain shareholders thereof.
1.4 Preparation and Filing Pursuant to Demand. So long as TMC is under
an obligation pursuant to the provisions of Section 1.1 or 1.2, TMC shall:
(a) prepare and file with the Commission such amendments and supplements
to any Demand Registration Statement and the prospectus used in connection
therewith as may be necessary to keep such Demand Registration Statement
effective for such period as shall be necessary to complete the marketing of
Registrable Shares included therein, but in no event (i) in the case of a Trust
Xx. 0 Xxxxxxxxxxxx Xxxxxxxxx, for more than 90 consecutive days after the
effective date thereof; or (ii) in the case of the Shelf Registration Statement,
beyond the first anniversary of the date hereof;
(b) upon the request of any Selling Stockholder (i) use its best efforts
to provide copies of the Demand Registration Statement, the prospectus used in
connection therewith, and all amendments and supplements thereto at least three
business days prior to the filing of the same with the Commission; and (ii)
provide such number of copies of a prospectus, including, without limitation, a
preliminary prospectus, in conformity with the requirements of the Securities
Act, and such other documents as the Selling Stockholders may reasonably request
in order to facilitate the public sale or other disposition of such Registrable
Shares;
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(c) use its best efforts to register or qualify Registrable Shares
covered by any Demand Registration Statement under the securities or blue sky
laws of such jurisdictions within the United States as the Selling Stockholders
may reasonably request (provided, however, that TMC shall not be required to
consent to general service of process for all purposes in any jurisdiction where
it is not then qualified or to qualify in any jurisdiction in which it is not
then qualified) and to do any and all other acts or things that may be necessary
or advisable to enable the Selling Stockholders to consummate the public sale or
other disposition in such jurisdiction of Registrable Shares; and
(d) promptly notify the Selling Stockholders, at any time when a
prospectus relating to Registrable Shares being distributed is required to be
delivered under the Securities Act, of the happening of any event as a result of
which the prospectus included in any Demand Registration Statements as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing and, at
the request of the Selling Stockholders, promptly prepare, file with the
Commission and furnish to the Selling Stockholders a reasonable number of copies
of a supplement to, or an amendment of, such prospectus as may be necessary so
that, as thereafter delivered to the purchasers of Registrable Shares, such
prospectus shall not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
1.5 Standstill Obligations of the Stockholders. Each Stockholder shall
agree, if requested by the managing underwriter of a Demand Registration, in
order to facilitate the distribution of Registrable Shares proposed to be sold
pursuant thereto, not to sell or otherwise transfer any shares of TMC capital
stock (including any Registrable Shares) held by such Stockholder in the public
market for a period not to exceed 180 days after the effective date of such
Demand Registration Statement.
1.6 Expenses. In connection with any Demand Registration Statement, all
expenses incurred by TMC in complying with its obligation hereunder including,
without limitation, all registration and filing fees, fees and expenses of
complying with securities and blue sky laws, listing fees, printing expenses and
fees and disbursements of accountants and counsel shall be paid by TMC; provided
however, that the Selling Stockholders shall pay all underwriting discounts and
selling commissions. The reasonable fees and expenses of one special counsel
(reasonably satisfactory to TMC) to the Selling Stockholders shall also be paid
by TMC.
1.7 Provision of Information. In connection with any Demand
Registration, each Selling Stockholder shall furnish to TMC in writing such
information regarding such Selling Stockholder, its holdings of Registrable
Shares and the facts regarding the proposed sale or distribution of Registrable
Shares and such documents as TMC shall reasonably request and as shall be
required in connection with the actions to be taken by TMC pursuant to this
Article 1.
1.8 Suspension of Sales. If TMC gives any notice to the Selling
Stockholders pursuant to Sections 1.3(d) or 1.4(d) hereof, the Selling
Stockholders shall not effect sales of
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Registrable Securities pursuant to any Demand Registration Statement until such
time as TMC has either notified the Selling Stockholders pursuant to Section
1.3(d) that sales may resume or notified the Selling Stockholders that the
corrective action required by Section 1.4(d) has been taken, as applicable.
1.9 Underwritten Offerings. In connection with any underwritten offering
to be effected pursuant to a Demand Registration Statement,
(i) Selling Stockholders holding a majority of the Registrable Shares to
be included therein may designate one or more of the Selling Stockholders to
manage the offering, including to select the managing underwriter(s), and to
determine the timing, offering price, underwriting discounts and selling
commissions, the terms of the underwriting agreement, special counsel to the
Selling Stockholders, and any administrative matters relating to such offering.
The selection of the managing underwriter(s) and the terms of the underwriting
agreement shall be subject to the reasonable approval of the Company.
(ii) If the managing underwriters determine, in their sole discretion,
that the number of Registrable Shares which are to be included in the offering
should be limited due to market conditions or marketing considerations, then the
Selling Stockholders shall participate in such offering as they shall agree, or
failing such agreement, pro rata, according to the number of Registrable Shares
that each Selling Stockholder sought to include therein.
(iii) Upon request of the managing underwriter(s), TMC shall use its
best efforts to furnish an opinion of legal counsel to TMC (covering such
matters as are typically covered by opinions of issuer's counsel in underwritten
offerings under the Securities Act and similar in form and substance to those
furnished in connection with prior offerings of Common Stock or Preferred
Stock), as the managing underwriter(s) may reasonably request.
(iv) Upon request by TMC or the managing underwriter(s), the Selling
Stockholders shall use their best efforts to furnish one or more opinions of
counsel (covering such matters as are typically covered by opinions of counsel
to selling stockholders in underwritten offerings under the Securities Act) as
TMC or the managing underwriter(s) may reasonably request.
ARTICLE 2
OTHER MATTERS
2.1 Legend. Each certificate representing TMC Merger Shares shall bear a
legend to the following effect:
"THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON
TRANSFER UNDER APPLICABLE SECURITIES LAWS AND ARE TRANSFERABLE ONLY IN
ACCORDANCE THEREWITH."
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2.2 Further Assurances. Each of the parties hereto shall execute such
documents and other instruments and take such further actions as may be
reasonably required or desirable to carry out the provisions hereof and to
consummate the transactions contemplated hereby.
ARTICLE 3
INDEMNIFICATION
3.1 Indemnification by TMC.
TMC shall indemnify and hold the Selling Stockholders and their
respective officers, directors, stockholders, trustees, beneficiaries,
affiliates, bankers, attorneys or other agents (collectively, the
"Representatives") harmless from and against all claims, costs, losses,
liabilities, damages or expenses (including attorneys' fees and any income taxes
payable as a result of the indemnification provided hereunder), joint or
several, to the fullest extent provided, and subject to the limitations imposed,
by applicable Delaware law, which any of them may incur or be alleged to have
incurred under the Securities Act or the Securities Exchange Act or 1934, as
amended (the "Exchange Act") or otherwise, insofar as such losses, costs,
claims, damages, expenses or liabilities (or actions in respect thereof) arise
out of any filing with the Commission pursuant to Article 1 hereof; provided,
however, that TMC shall not be obligated to indemnify the Selling Stockholders
or any Representative pursuant to this Section 3.1 if such losses, costs,
claims, damages, expenses or liabilities (or actions in respect thereof) arise
out of or are based upon (a) any untrue statement of a material fact furnished
by or on behalf of a Selling Stockholder contained in any such filing that was
known by such Selling Stockholder to be untrue when made, or (b) the knowing
omission or alleged knowing omission by a Selling Stockholder to advise TMC with
respect to a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading. Without limiting the foregoing, the Company shall advance
all expenses (including attorney's fees) incurred by the Selling Stockholders
and Representatives in defending or preparing to defend any pending or
threatened civil, criminal, administrative or investigative action, suit or
proceeding as to which they may claim a right of indemnification hereunder
subject to an undertaking by each of them to repay such amounts in the event of
a final nonappealable judicial determination that such Selling Stockholder or
Representative is not entitled to indemnification hereunder. In the absence of
such a determination, the Selling Stockholders and the Representatives shall
conclusively be presumed to be entitled to such expense advancement without
reimbursement. The contractual rights of indemnification and advancement of
expenses provided herein shall be in addition to and independent of any and all
other rights to indemnification or advancement of expenses otherwise available
to any of the Selling Stockholders and Representatives in any of their
capacities under applicable law, the TMC's Certificate of Incorporation or
Bylaws, any other indemnification agreement or policy of insurance.
3.2 Indemnification by the Selling Stockholders. Each Selling
Stockholder, severally and not jointly, shall indemnify, defend and hold
harmless TMC, each of its officers and directors and each other person, if any,
who controls any of the foregoing within the meaning of the Exchange Act against
any losses, costs, claims, damages, expenses or liabilities, joint or
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several, to which any of the foregoing may become subject under the Securities
Act or the Exchange Act or otherwise, insofar as such losses, costs, claims,
damages, expenses or liabilities (or actions in respect thereof) arise primarily
out of or are based primarily upon (a) any untrue statement of a material fact
furnished by or on behalf of a Selling Stockholder contained in any filing with
the Commission pursuant to Article 1 known by the Selling Stockholder to be
untrue when made, or (b) the knowing omission or alleged knowing omission by a
Selling Stockholder to advise TMC with respect to a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, provided that such
Selling Stockholder was primarily responsible for such intentional
misrepresentation or intentional omission, and the Selling Stockholder shall
reimburse TMC and each such officer, director and controlling person for any
legal or any other expenses reasonably incurred by any of them in connection
with defending or preparing to defend any such loss, claim, damage, liability or
action.
3.3 Notification of Claims; Actions by the Selling Stockholders. For the
purpose of this Article 3, the term "Indemnifying Party" shall mean the party
having an obligation hereunder to indemnify the other party pursuant to this
Article 3, and the term "Indemnified Party" shall mean the party having the
right to be indemnified pursuant to this Article 3. Whenever any claim shall
arise for indemnification under this Article 3, the Indemnified Party shall
promptly notify the Indemnifying Party in writing of such claim and, when known,
the facts constituting the basis for such claim (in reasonable detail). Failure
by the Indemnified Party to so notify the Indemnifying Party shall not relieve
the Indemnifying Party of any liability hereunder unless such failure materially
prejudices the Indemnifying Party.
3.4 Indemnification Procedure. After receipt of the notice required by
Section 3.3, if the Indemnifying Party undertakes to defend any such claim, then
the Indemnifying Party shall be entitled, if it so elects, to take control of
the defense and investigation with respect to such claim and to employ and
engage attorneys of its own choice to handle and defend the same, at the
Indemnifying Party's cost, risk and expense, upon written notice to the
Indemnified Party of such election, which notice acknowledges the Indemnifying
Party's obligation to provide indemnification hereunder. The Indemnifying Party
shall not settle any third-party claim that is the subject of indemnification
without the written consent of the Indemnified Party, which consent shall not be
unreasonably withheld; provided, however, that the Indemnifying Party may settle
a claim without the Indemnified Party's consent if such settlement (i) makes no
admission or acknowledgment of liability or culpability with respect to the
Indemnified Party, (ii) includes a complete release of the Indemnified Party and
(iii) does not require the Indemnified Party to make any payment or forego,
relinquish or take any action or right. The Indemnified Party, subject to
reimbursement of expenses as required hereby, shall cooperate in all reasonable
respects with the Indemnifying Party and its attorneys in the investigation,
trial and defense of any lawsuit or action with respect to such claim and any
appeal arising therefrom (including the filing in the Indemnified Party's name
of appropriate cross claims and counterclaims). The Indemnified Party may, at
its own cost, participate in any investigation, trial and defense of such
lawsuit or action controlled by the Indemnifying Party and any appeal arising
therefrom. If, after receipt of a claim notice pursuant to Section 3.3, the
Indemnifying Party does not undertake to defend any such claim the Indemnified
Party may, but shall have no obligation to, contest any
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lawsuit or action with respect to such claim and the Indemnifying Party shall be
bound by the result obtained with respect thereto by the Indemnified Party
(including, without limitation, the settlement thereof without the consent of
the Indemnifying Party). If the Indemnified Party reasonably believes that there
are one or more legal defenses available to the Indemnified Party that conflict
or may conflict with those available to the Indemnifying Party, or if the
interest of the Stockholders may not be entirely coextensive or identical with
those of TMC, the Indemnified Party shall have the right, at the expense of the
Indemnifying Party, to select its own counsel and assume the defense of the
lawsuit or action; provided, however, that the Indemnified Party may not settle
such lawsuit or action without the consent of the Indemnifying Party, which
consent shall not be unreasonably withheld. At any time after the commencement
of defense of any lawsuit or action, the Indemnifying Party may request the
Indemnified Party to agree in writing to the abandonment of such contest or to
the payment or compromise by the Indemnifying Party of such claim, whereupon
such action shall be taken unless the Indemnified Party determines that the
contest should be continued and so notifies the Indemnifying Party in writing
within 15 days of such request from the Indemnifying Party. If the Indemnified
Party determines that the contest should be continued, the Indemnifying Party
shall be liable hereunder only to the extent of the lesser of (i) the amount
which the other party(ies) to the contested claim had agreed to accept in
payment or compromise as of the time the Indemnifying Party made its request
therefor to the Indemnified Party or (ii) such amount for which the Indemnifying
Party would otherwise be liable with respect to such claim by reason of the
provisions hereof.
3.5 Remedies. If any Indemnifying Party were to deny any request for
indemnification or advancement of expenses hereunder, or otherwise failed to
advance any expenses due pursuant to such a request in a timely manner, such
party acknowledges and agrees that the Indemnified Parties shall have an
inadequate remedy at law and that, accordingly, the Indemnified Parties shall be
entitled, in addition to any other available remedy, to seek immediate
enforcement of this Agreement by way of an action to compel such performance
and, if such Indemnifying Party's denial or failure to perform any request for
indemnification or advancement of expenses hereunder is found in such an action
to have been improper or a breach of this Agreement, the Indemnified Parties
shall be entitled to receive all reasonable fees and expenses incurred by them
in securing performance of this Agreement.
3.6 Contribution. If the Indemnification provided for in Section 3.1 or
3.2 hereof shall for any reason or to any extent be unavailable to the
Indemnified Party (other than by reason of the exceptions provided for therein)
in respect of any loss, claim, damage, expense, cost or liability, or action
referred to herein, or any portion thereof, then the Indemnifying Party shall,
in lieu of indemnifying the Indemnified Party, contribute to the amount paid or
payable by the Indemnified Party as a result of such loss, claim, damage,
expense, cost or liability, or action in respect thereof or any such portion, in
such proportion as is appropriate to reflect the relative fault of the
Indemnifying Party on the one hand and the Indemnified Party on the other with
respect to the actions, conduct, statements or omissions that resulted in such
loss, claim, damage, expense, cost or liability, or action in respect thereof,
as well as any other relevant equitable considerations. The relative fault shall
be determined by reference to whether the untrue or alleged untrue statement or
omission of a material fact relates to information supplied by the Indemnifying
Party on the one hand or the Indemnified Party on the other, the intent of the
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parties and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid or payable by the
Indemnified Party as a result of the loss, claim, damage, expense or liability,
or action in respect thereof, referred to above in this paragraph shall be
deemed to include, for purposes of this paragraph, any legal or other expenses
reasonably incurred by the Indemnified Party in connection with investigating or
defending any such action or claim. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
ARTICLE 4
MISCELLANEOUS
4.1 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given when delivered in person, by
telecopy, or by registered or certified mail (postage prepaid, return receipt
requested) to the respective parties at the addresses set forth in the Merger
Agreement, or to such other address as the party to whom notice is given may
have previously furnished to the others in writing in the manner set forth
above. Any notice or communication delivered in person shall be deemed effective
on delivery. Any notice or communication sent by telecopy shall be deemed
effective on the first business day at the place of which such notice or
communication is received following the day on which such notice or
communication was sent. Any notice or communication sent by registered or
certified mail shall be deemed effective on the fifth business day at the place
from which such notice or communication was mailed following the day in which
such notice or communication was mailed.
4.2 Governing Law; Forum; Consent to Jurisdiction. This Agreement shall
be construed, interpreted and the rights of the parties determined in accordance
with the internal laws of the State of California without regard to the conflict
of law principles thereof. The parties hereto agree that all actions or
proceedings arising in connection with this Agreement shall be tried and
litigated exclusively in the State and Federal courts located in the County of
Los Angeles, State of California. The aforementioned choice of venue is intended
by the parties to be mandatory and not permissive in nature, thereby precluding
the possibility of litigation between the parties with respect to or arising out
of this Agreement in any jurisdiction other than that specified in this
paragraph. Each party hereby waives any right it may have to assert the doctrine
of forum non conveniens or similar doctrine or to object to venue with respect
to any proceeding brought in accordance with this paragraph, and stipulates that
the State and Federal courts located in the County of Los Angeles, State of
California shall have in personal jurisdiction and venue over each of them for
the purpose of litigating any dispute, controversy, or proceeding arising out of
or related to this Agreement. Each party hereby authorizes and accepts service
of process sufficient for personal jurisdiction in any action against it as
contemplated by this paragraph by registered or certified mail, return receipt
requested, postage prepaid, to its address for the giving of notices as set
forth in this Agreement.
4.3 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same
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instrument. Upon execution of this Agreement, counterpart signature pages may be
delivered by facsimile transmission; provided, that original signature pages are
delivered within five days thereafter.
4.4 Headings. The headings of the Articles and Sections herein are
inserted for convenience of reference only and are not intended to be a part of
or to affect the meaning or interpretation of this Agreement.
4.5 Entire Agreement. This Agreement constitutes the entire agreement
among the parties with respect to the subject matter hereof and supersedes all
prior written and oral and all contemporaneous oral agreements and
understandings with respect to the subject matter hereof.
4.6 Legal Fees and Costs. If any party hereto institutes any action or
proceeding, whether before a court or arbitrator, to enforce any provision of
this Agreement, the prevailing party therein shall be entitled to received from
the losing party reasonable attorneys, fees and costs incurred in such action or
proceeding, whether or not such action or proceeding is prosecuted to judgment.
4.7 Assignment. This Agreement shall not be assignable by the
Stockholders (except, upon a termination of Trust No. 2 or any subtrust thereof
in accordance with its terms, to the beneficiaries thereof) without the written
consent of TMC.
4.8 Amendments and Waivers. The provisions of this agreement shall not
be amended, modified or waived without the written consent of (a) TMC and (b)
Stockholders holding a majority of the voting interest represented by the TMC
Merger Shares which are then held by the Stockholders (treating any Series C
Preferred Stock on an as-converted basis).
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement, or
have caused this Agreement to be duly executed on their respective behalf by
their respective officers or representatives thereunto duly authorized, as of
the day and year first above written.
TMC:
THE TIMES MIRROR COMPANY,
a Delaware corporation
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Senior Vice President and Chief
Financial Officer
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THE STOCKHOLDERS:
XXXXXXXX TRUST NO. 2
By: /s/ Xxxxxxxxx Xxxxxxx Xxxxxxx
------------------------------------------
Xxxxxxxxx Xxxxxxx Xxxxxxx, as trustee of
Xxxxxxxx Trust No. 2 under Trust Agreement
dated June 26, 1935
By: /s/ Xxxxx Xxxxxxxx
------------------------------------------
Xxxxx Xxxxxxxx, as trustee of Xxxxxxxx
Trust No. 2 under Trust Agreement dated
June 26, 1935
By: /s/ Xxxxxxx Xxxxxxxxx, Xx.
------------------------------------------
Xxxxxxx Xxxxxxxxx, Xx., as trustee of
Xxxxxxxx Trust No. 2 under Trust Agreement
dated June 26, 1935
By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------------------------
Xxxxxx X. Xxxxxxxxxx, as trustee of
Xxxxxxxx Trust No. 2 under Trust Agreement
dated June 26, 1935
By: /s/ Xxxxxxx Xxxxxxxx Frost
------------------------------------------
Xxxxxxx Xxxxxxxx Xxxxx, as trustee of
Xxxxxxxx Trust No. 2 under Trust Agreement
dated June 26, 1935
By: /s/ Xxxxxxx Xxxxxx
------------------------------------------
Xxxxxxx Xxxxxx, as trustee of Xxxxxxxx
Trust No. 2 under Trust Agreement dated
June 26, 1935
By: /s/ Xxxx X. Xxxx
------------------------------------------
Xxxx X. Xxxx, as trustee of Xxxxxxxx Trust
No. 2 under Trust Agreement dated June 26,
1935
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THE SHAREHOLDERS OF CHANDIS SECURITIES COMPANY:
Torrey Pacific Corporation, a California
corporation
By: /s/ Xxx Xxxxxx
-------------------------------------------
Title: President
------------------------------------------
Address:
c/o Xxx. Xxxxxx Xxxxxx
000 Xxxxxxxxx Xxxxx
Xxx Xxx, Xxxxxxxxxx 00000
Xxxxxxx Xxxxxxxxxxx Xxxxxx Trust U/T/A Dated
8/26/92
By: /s/ Xxxxxxx Xxxxxxxxxxx Xxxxxx
--------------------------------------------
Xxxxxxx Xxxxxxxxxxx Xxxxxx, Co-Trustee
By: /s/ Nairn Xxxxxxxxxxx Xxxxx
--------------------------------------------
Nairn Xxxxxxxxxxx Xxxxx, Co-Trustee
By: /s/ Xxxxxxxxx Xxxxxxxxxxx Chasuk
--------------------------------------------
Xxxxxxxxx Xxxxxxxxxxx Xxxxxx, Co-Trustee
By: /s/ Xxxxx Xxxxxxxxxxx Xxxxxxxx
--------------------------------------------
Xxxxx Xxxxxxxxxxx Xxxxxxxx, Co-Trustee
Address:
0000 Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
Nairn Xxxxxxxxxxx Trust U/T/A Dated 8/26/82
By: /s/ Xxxxxxx Xxxxxxxxxxx Xxxxxx
--------------------------------------------
Xxxxxxx Xxxxxxxxxxx Xxxxxx, Co-Trustee
By: /s/ Nairn Xxxxxxxxxxx Xxxxx
--------------------------------------------
Nairn Xxxxxxxxxxx Xxxxx, Co-Trustee
By: /s/ Xxxxxxxxx Xxxxxxxxxxx Chasuk
--------------------------------------------
Xxxxxxxxx Xxxxxxxxxxx Xxxxxx, Co-Trustee
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By: /s/ Xxxxx Xxxxxxxxxxx Xxxxxxxx
--------------------------------------------
Xxxxx Xxxxxxxxxxx Xxxxxxxx, Co-Trustee
Address:
0000 Xxxxxxxxxx Xxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Xxxxxxxxx Xxxxxxxxxxx Trust U/T/A Dated 8/26/82
By: /s/ Xxxxxxx Xxxxxxxxxxx Xxxxxx
--------------------------------------------
Xxxxxxx Xxxxxxxxxxx Xxxxxx, Co-Trustee
By: /s/ Nairn Xxxxxxxxxxx Xxxxx
--------------------------------------------
Nairn Xxxxxxxxxxx Xxxxx, Co-Trustee
By: /s/ Xxxxxxxxx Xxxxxxxxxxx Chasuk
--------------------------------------------
Xxxxxxxxx Xxxxxxxxxxx Xxxxxx, Co-Trustee
By: /s/ Xxxxx Xxxxxxxxxxx Xxxxxxxx
--------------------------------------------
Xxxxx Xxxxxxxxxxx Xxxxxxxx, Co-Trustee
Address:
0000 0xx Xxxxxx
Xxxx, Xxxxxxxxxx 00000
Xxxxx Xxxxxxxxxxx Xxxxxxxx Trust U/T/A Dated
8/26/82
By: /s/ Xxxxxxx Xxxxxxxxxxx Xxxxxx
--------------------------------------------
Xxxxxxx Xxxxxxxxxxx Xxxxxx, Co-Trustee
By: /s/ Nairn Xxxxxxxxxxx Xxxxx
--------------------------------------------
Nairn Xxxxxxxxxxx Xxxxx, Co-Trustee
By: /s/ Xxxxxxxxx Xxxxxxxxxxx Chasuk
--------------------------------------------
Xxxxxxxxx Xxxxxxxxxxx Xxxxxx, Co-Trustee
By: /s/ Xxxxx Xxxxxxxxxxx Xxxxxxxx
--------------------------------------------
Xxxxx Xxxxxxxxxxx Xxxxxxxx, Co-Trustee
Address:
0000 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
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Xxxxx X. Xxxxxxxxxxx Grandchildren's Irrevocable
Trust U/T/A Dated 2/24/95
By: /s/ Xxxxxxx Xxxxxxxxxxx Xxxxxx
--------------------------------------------
Xxxxxxx Xxxxxxxxxxx Xxxxxx, Co-Trustee
By: /s/ Nairn Xxxxxxxxxxx Xxxxx
--------------------------------------------
Nairn Xxxxxxxxxxx Xxxxx, Co-Trustee
By: /s/ Xxxxx Xxxxxxxxxxx Xxxxxxxx
--------------------------------------------
Xxxxx Xxxxxxxxxxx Xxxxxxxx, Co-Trustee
By: /s/ Xxxxxxxxx Xxxxxxxxxxx Chasuk
--------------------------------------------
Xxxxxxxxx Xxxxxxxxxxx Xxxxxx, Co-Trustee
Address:
Bank of America, Attn: Xx. Xxxxxxxx
P. O. Xxx 000
Xxxxxxxxxx, Xxxxxxxxxx 00000
Xxxxxxxxxxx Community Property Trust
U/T/A Dated 9/11/96
By: /s/ Xxxxx X. Xxxxxxxxxxx
--------------------------------------------
Xxxxx X. Xxxxxxxxxxx, Co-Trustee
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
--------------------------------------------
Xxxxxxx X. Xxxxxxxxxxx, Co-Trustee
Address:
0000 Xxxxxx Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
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