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EXHIBIT 1.02
XXXXXXXXX INTERNATIONAL PUBLISHING INC.
(a Delaware corporation)
XXXXXXXXX INTERNATIONAL INC.
(a Delaware corporation)
$290,000,000
9 1/4% Senior Subordinated Notes due 2007
PURCHASE AGREEMENT
March 12, 1997
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
XXXXXXXXX, LUFKIN & XXXXXXXX SECURITIES CORPORATION
BEAR, XXXXXXX & CO. INC.
CIBC WOOD GUNDY SECURITIES CORP.
TD SECURITIES (USA) INC.
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxxx Xxxxx World Headquarters
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Xxxxxxxxx International Publishing Inc., a Delaware corporation
("Publishing"), and Xxxxxxxxx International Inc., a Delaware corporation (the
"Guarantor"), confirm their agreement with Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated ("Xxxxxxx Xxxxx"), Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation ("DLJ"), TD Securities (USA) Inc. ("TD"), Bear, Xxxxxxx & Co. Inc.
("Bear Xxxxxxx") and CIBC Wood Gundy Securities Corp. ("CIBC") (collectively,
the "Underwriters", which term shall also include any underwriter substituted
as hereinafter provided in Section 10), with respect to the sale by Publishing
and the purchase by the Underwriters, acting severally and not jointly, of
$290,000,000 (all dollar references herein are in U.S. dollars unless otherwise
specifically indicated) aggregate principal amount of Publishing's 9 1/4%
Senior Subordinated Notes due 2007 (the
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"Securities"). The Notes will be guaranteed by the Guarantor on a senior
subordinated basis.
The aforesaid $290,000,000 aggregate principal amount of Securities are to
be issued pursuant to an Indenture to be dated as of March 18, 1997, as
amended, (the "Senior Subordinated Indenture"), among Publishing, the Guarantor
and Fleet National Bank of Connecticut, as trustee (the "Trustee").
The interest rate and certain other terms of the Securities and the purchase
price of the Securities to be paid by the Underwriters shall be agreed upon by
Publishing, the Guarantor and the Underwriters and such agreement shall be set
forth in a separate written instrument substantially in the form of Exhibit I
hereto (the "Price Determination Agreement"). The Price Determination
Agreement may take the form of an exchange of any standard form of written
telecommunication among Publishing, the Guarantor and the Underwriters and
shall specify such applicable information as is indicated in Exhibit A hereto.
The offering of the Securities will be governed by this Agreement, as
supplemented by the Price Determination Agreement. From and after the date of
the execution and delivery of the Price Determination Agreement, this Agreement
shall be deemed to incorporate, and all references herein to "this Agreement"
or "herein" shall be deemed to include, the Price Determination Agreement.
Concurrently with the execution of this Agreement, Publishing, the Guarantor
and Xxxxxxx Xxxxx, CIBC, Scotia Capital Markets (USA) Inc. ("Scotia") and TD
are entering into a senior note purchase agreement (the "Senior Note Purchase
Agreement") pursuant to which Publishing will issue and sell to Xxxxxxx Xxxxx,
CIBC, Scotia and TD $260,000,000 aggregate principal amount of Publishing's
8-5/8% Senior Notes due 2005 (the "Senior Notes"). The pricing terms for the
Senior Notes to be sold pursuant to the Senior Notes Purchase Agreement shall
be set forth in a separate agreement (the "Senior Notes Price Determination
Agreement"), the form of which will be attached to the Senior Notes Purchase
Agreement.
Publishing and the Guarantor have prepared and filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3
(No. 333-17113) and a related preliminary prospectus for the registration of
the Securities under the Securities Act of 1933 (the "1933 Act"), have filed
such amendments thereto, if any, and such amended preliminary prospectuses as
may have been required to the date hereof, and will file such additional
amendments thereto and such amended prospectuses as may hereafter be required.
The term "Registration Statement" as used in this Agreement means the
registration statement (including all financial schedules and exhibits), as
amended at the time it becomes effective, and as thereafter amended by
post-effective amendment, and any registration statement and any amendments
thereto filed
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pursuant to Rule 462(b) of the 1933 Act relating to the offering covered by the
initial registration statement (the "Rule 462(b) Registration Statement"). The
term "Prospectuses" as used in this Agreement means the prospectuses in the
forms included in the Registration Statement, or, if the prospectuses included
in the Registration Statement omit information in reliance on Rule 430A under
the 1933 Act and such information is included in prospectuses filed with the
Commission pursuant to Rule 424(b) under the 1933 Act, the term "Prospectuses"
as used in this Agreement means the prospectuses in the forms included in the
Registration Statement as supplemented by the addition of the Rule 430A
information contained in the prospectuses filed with the Commission pursuant to
Rule 424(b).
Publishing and the Guarantor understand that the Underwriters propose to
make a public offering of the Securities as soon as the Underwriters deem
advisable after the Registration Statement becomes effective and the Price
Determination Agreement has been executed and delivered.
Publishing hereby confirms its engagement of Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated as, and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
hereby confirms its agreement with the Company to render services as, a
"qualified independent underwriter" within the meaning of Rule 2720 of the
By-laws of the National Association of Securities Dealers, Inc. with respect to
the offering and sale of the Securities. Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, solely in its capacity as qualified independent underwriter and
not otherwise is referred to herein as the "Independent Underwriter".
SECTION 1. Representations and Warranties. (a) Publishing and the
Guarantor jointly and severally represent and warrant to the Underwriters as of
the date hereof and as of the date of the Price Determination Agreement (such
latter date being hereinafter referred to as the "Representation Date") as
follows:
(i) The Registration Statement in the form in which it became or becomes
effective and also in such form as it may be when any post-effective
amendment thereto or any Rule 462(b) Registration Statement or amendment
thereto shall become effective and the Prospectus and any supplement or
amendment thereto when filed with the Commission under Rule 424(b) under the
1933 Act, complied or will comply in all material respects with the
provisions of the 1933 Act and did not or will not at any such times contain
an untrue statement of a material fact or omit to state a
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material fact required to be stated therein or necessary to make the
statements therein not misleading, except that this representation and
warranty does not apply to statements in or omissions from the Registration
Statement or the Prospectus made in reliance upon and in conformity with
information relating to the Underwriters furnished to Publishing and the
Guarantor in writing by or on behalf of the Underwriters through you
expressly for use therein.
(ii) All the outstanding shares of common stock of Publishing and the
Guarantor have been duly authorized and validly issued, are fully paid and
nonassessable and are free of any preemptive or similar rights; and the
authorized capital stock of Publishing and the Guarantor conforms to the
description thereof in the Registration Statement and the Prospectus. Except
as described in the Prospectus, there are no outstanding options, warrants or
other rights issued by Publishing or the Guarantor calling for the issuance
of, nor any written agreement entered into by Publishing or the Guarantor or
oral commitments of Publishing or the Guarantor to issue, any shares of
capital stock or any other security of Publishing or the Guarantor or any
security convertible into or exchangeable or exercisable for capital stock or
any other security of Publishing or the Guarantor.
(iii) Publishing and the Guarantor are corporations duly incorporated and
validly existing in good standing under the laws of the State of Delaware
with corporate power and authority to own, lease and operate their properties
and to conduct their business as described in the Registration Statement and
the Prospectus.
(iv) The only significant subsidiaries (as defined in the 0000 Xxx) of
Publishing and the Guarantor are the subsidiaries listed in Schedule II
hereto (each a "Subsidiary" and collectively the "Subsidiaries"). Each
Subsidiary is a corporation duly incorporated, validly existing and in good
standing in the jurisdiction of its incorporation, with corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the Prospectus, and
is duly qualified as a foreign corporation for the transaction of business in
and is in good standing under the laws of each other jurisdiction where the
nature of its properties or the conduct of its business requires such
qualification, except where the failure so to qualify does not have a
material adverse effect on the condition (financial or other), business,
properties,
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net worth or results of operations of such Subsidiary; all the outstanding
shares of capital stock of each of the Subsidiaries have been duly authorized
and validly issued, are fully paid and nonassessable, and all shares of the
capital stock of the Subsidiaries that are owned directly or indirectly by
Publishing or the Guarantor are owned free and clear of any lien, adverse
claim, security interest, equity, or other encumbrance, except, to the extent
set forth or described in the Registration Statement and the Prospectus,
currently existing liens, claims and security interests of creditors and
liens, claims and security interests pursuant to the terms of the FDTH Credit
Facility, the Publishing Credit Facility and the contemplated New Bank Credit
Facility (as defined).
(v) There are no legal or governmental proceedings pending or, to the
knowledge of Publishing or the Guarantor, threatened, against Publishing or
the Guarantor or any of the Subsidiaries, or to which Publishing or the
Guarantor or any of the Subsidiaries, or to which any of their respective
properties is subject, that are required to be described in the Registration
Statement or the Prospectus but are not described as required, or which might
have a material adverse effect on the condition (financial or other),
business, properties, net worth or results of operation of Publishing, the
Guarantor and their subsidiaries considered as one enterprise, or which might
materially and adversely affect the properties or assets thereof or which
might materially and adversely affect the consummation of this Agreement; all
pending legal or governmental proceedings to which Publishing or the
Guarantor or any of the Subsidiaries is a party or of which any of their
respective property or assets is the subject which are not described in the
Registration Statement, including ordinary routine litigation incidental to
the business, are, considered in the aggregate, not material; and there are
no agreements, contracts, indentures, leases or other instruments that are
required to be described in the Registration Statement or the Prospectus or
to be filed as an exhibit to the Registration Statement that are not
described or filed as required by the 1933 Act.
(vi) Except as set forth in the Prospectus, neither Publishing, the
Guarantor nor any of the Subsidiaries (A) is in violation of its certificate
or articles of incorporation or by-laws, or other organizational documents,
(B) is in violation of any law, ordinance, administrative or governmental
rule or regulation applicable to Publishing or the Guarantor or
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any of the Subsidiaries or of any decree of any court or governmental agency
or body having jurisdiction over Publishing or the Guarantor or any of the
Subsidiaries, or (C) is in default in any material respect in the performance
of any obligation, agreement or condition contained in any bond, debenture,
note or any other evidence of indebtedness or in any material agreement,
indenture, lease or other instrument to which Publishing or the Guarantor or
any of the Subsidiaries is a party or by which any of them or any of their
respective properties may be bound, except, in the case of clause (B) with
respect to the Subsidiaries, where such violation does not have a material
effect on the condition (financial or other), business, properties, net worth
or results of operations of Publishing, the Guarantor and their subsidiaries
considered as one enterprise.
(vii) Neither the issuance and sale of the Securities, the execution,
delivery or performance of this Agreement and the Price Determination
Agreement by Publishing or the Guarantor, nor the consummation by Publishing
or the Guarantor of the transactions contemplated hereby (A) requires any
consent, approval, authorization or other order of or registration or filing
with, any court, regulatory body, administrative agency or other governmental
body, agency or official (except such as may be required for the registration
of the Securities under the 1933 Act and the Securities Exchange Act of 1934
(the "Exchange Act") and compliance with the securities or Blue Sky laws of
various jurisdictions, both of which have been or will be effected in
accordance with this Agreement) or violates or will violate the certificate
or articles of incorporation or by-laws, or other organizational documents,
of Publishing or the Guarantor or any of the Subsidiaries or (B) constitutes
or will constitute a breach of, or a default under, any material agreement,
indenture, lease or other instrument to which Publishing or the Guarantor or
any of the Subsidiaries is a party or by which any of them or any of their
respective properties may be bound (except where consents or waivers as to
such default have been obtained prior to the time of the execution of the
Price Determination Agreement (the "Pricing Time")), or violates or will
violate any statute, law, regulation or judgment, injunction, order or decree
applicable to Publishing or the Guarantor or any of the Subsidiaries or any
of their respective properties, or will result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of Publishing
or the Guarantor or any of the Subsidiaries pursuant to
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the terms of any agreement or instrument to which any of them is a party or
by which any of them may be bound or to which any of the property or assets
of any of them is subject.
(viii) KPMG Peat Marwick LLP, who have certified or shall certify certain
of the financial statements included in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), are independent public
accountants as required by the Act.
(ix) The consolidated financial information for the Guarantor and the
Restricted Group, together with related notes, included in the Registration
Statement and the Prospectus (and any amendment or supplement thereto), (A)
in the case of the historical financial statements present fairly the
consolidated financial position and results of operations of the Guarantor
and of the Restricted Group, and (B) in the case of the pro forma financial
statements present fairly, on a pro forma basis, the pro forma supplemental
consolidated financial position and results of operations of Publishing and
its subsidiaries, including The Telegraph Group Limited ("The Telegraph") and
Southam Inc. ("Southam"), in each case on the basis stated in the
Registration Statement at the respective dates or for the respective periods
to which they apply. Such financial statements, pro forma financial
statements and related notes have been prepared in accordance with U.S.
generally accepted accounting principles consistently applied throughout the
periods involved, except as disclosed therein; and the other financial and
statistical information and data included in the Registration Statement and
the Prospectus (and any amendment or supplement thereto) are accurately
presented in all material respects and prepared on a basis consistent with
such financial statements and the books and records of the Guarantor,
Publishing and their subsidiaries.
(x) The execution and delivery of, and the performance by Publishing and
the Guarantor of their obligations under, this Agreement and the Price
Determination Agreement have been duly and validly authorized by Publishing
and the Guarantor, and this Agreement and the Price Determination Agreement
have been duly executed and delivered by Publishing and the Guarantor.
(xi) Except as disclosed in the Registration Statement and the Prospectus (or
any amendment or
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supplement thereto), subsequent to the respective dates as of which such
information is given in the Registration Statement and the Prospectus (or any
amendment or supplement thereto), neither Publishing nor the Guarantor nor
any of the Subsidiaries has incurred any liability or obligation, direct or
contingent, or entered into any transaction, not in the ordinary course of
business, that is material to the Publishing, the Guarantor and their
subsidiaries considered as one enterprise, and there has not been any change
in the capital stock, or material increase in the short-term debt or
long-term debt, of Publishing or the Guarantor or any of the Subsidiaries, or
any material adverse change, or any development involving, or which may
reasonably be expected to involve, a prospective material adverse change, in
the condition (financial or other), business, net worth or results of
operations of Publishing, the Guarantor and their subsidiaries considered as
one enterprise.
(xii) Each of Publishing, the Guarantor and the Subsidiaries has good and
marketable title to all property (real and personal) described in the
Prospectus as being owned by them (excluding properties owned by West Ferry
Printers, Trafford Park Printers, or Southam), free and clear of all liens,
claims, security interests or other encumbrances except to the extent set
forth or described in the Registration Statement and the Prospectus or in a
document filed as an exhibit to the Registration Statement or are not
material to the business of Publishing, the Guarantor and their subsidiaries
considered as one enterprise and all the property described in the Prospectus
as being held under lease by each of Publishing, the Guarantor and the
Subsidiaries is held by it under valid, subsisting and enforceable leases
with such exceptions as are not material to the business of Publishing, the
Guarantor and their subsidiaries considered as one enterprise and do not
interfere with the use made and proposed to be made of such properties by
Publishing and the Guarantor and their subsidiaries.
(xiii) Neither Publishing nor the Guarantor has distributed and, prior to
the later to occur of (i) the Closing Date and (ii) completion of the
distribution of the Securities, neither will distribute any offering material
in connection with the offering and sale of the Securities other than the
Registration Statement, the Prospectus or other materials, if any, permitted
by the Act.
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(xiv) Publishing, the Guarantor and each of the Subsidiaries has such
governmental authorizations, approvals, orders, licenses, certificates,
franchises and permits of and from all governmental or regulatory officials
and bodies ("permits") as are necessary to own its respective properties and
to conduct its business in the manner described in the Prospectus, with such
exceptions as are not material to the business of Publishing, the Guarantor
and the Subsidiaries considered as one enterprise and do not interfere with
the use made and proposed to be made of such properties by Publishing, the
Guarantor and the Subsidiaries or are otherwise disclosed; Publishing, the
Guarantor and each of the Subsidiaries has fulfilled and performed all its
material obligations with respect to such permits and no event has occurred
which allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of the rights
of the holder of any such permit, with such exceptions as are not material to
the business of Publishing and the Guarantor and their subsidiaries
considered as one enterprise and do not interfere with the use made and
proposed to be made of such properties by Publishing and the Guarantor and
the Subsidiaries or are otherwise disclosed; and, except as described in the
Prospectus, none of such permits contains any restriction that is materially
burdensome to Publishing and the Guarantor and their subsidiaries considered
as one enterprise.
(xv) Publishing and the Guarantor maintain a system of internal accounting
controls sufficient to provide reasonable assurances that (i) transactions
are executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (iii) access
to assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
(xvi) To Publishing's or the Guarantor's knowledge, neither Publishing nor
the Guarantor nor any of the Subsidiaries nor any employee or agent of
Publishing, the Guarantor or any Subsidiary has made any payment of funds of
Publishing, the Guarantor or any Subsidiary or received or retained any funds
in violation of any law, rule or regulation, which payment, receipt or
retention
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of funds is of a character required to be disclosed in the Prospectus.
(xvii) Except as described in the Registration Statement and the
Prospectus, Publishing, the Guarantor and each of the Subsidiaries have filed
all tax returns required to be filed, which returns are complete and correct,
and neither Publishing, the Guarantor nor any Subsidiary is in default in the
payment of any taxes which were payable pursuant to said returns or any
assessments with respect thereto, with such exceptions as are not material to
the financial position of Publishing, the Guarantor and their subsidiaries
considered as one enterprise.
(xviii) Publishing, the Guarantor and the Subsidiaries own, or possess
adequate rights to use, all patents, trademarks, service marks, trade names,
copyrights, licenses, and rights described in the Prospectus as being owned
by them or any of them or necessary for the conduct of their respective
businesses, and neither Publishing nor the Guarantor is aware of any claim to
the contrary or any challenge by any other person to the rights of
Publishing, the Guarantor and the Subsidiaries with respect to the foregoing.
(xix) Neither Publishing nor the Guarantor is now, and after sale of the
Securities to be sold by it hereunder and application of the net proceeds
from such sale as described in the Prospectus under the caption "Use of
Proceeds" will not be, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(xx) Publishing and the Guarantor have complied with all provisions of
Florida Statutes, Section 517.075, relating to issuers doing business with
Cuba.
(xxi) The Indenture has been duly authorized by Publishing and the
Guarantor, will be substantially in the form heretofore delivered to the
Underwriters and, when duly executed and delivered by Publishing, the
Guarantor and the Trustee, will have been duly qualified under the 1939 Act
and will constitute a valid and binding obligation of Publishing and the
Guarantor, enforceable against Publishing and the Guarantor in accordance
with its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, moratorium, fraudulent conveyance, reorganization or other
similar laws affecting enforcement of creditors' rights generally and except
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as enforcement thereof is subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at law);
the Indenture conforms to the description thereof contained in the
Prospectus; the Indenture and the form and issuance of the Securities
thereunder comply with the provisions of the 0000 Xxx.
(xxii) The Securities have been duly authorized by Publishing and the
Guarantor and, when executed, authenticated, issued and delivered in the
manner provided for in the Indenture and sold and paid for as provided in
this Agreement, the Securities will constitute valid and binding obligations
of the Publishing and the Guarantor enforceable against Publishing and the
Guarantor in accordance with their terms, except as enforcement thereof may
be limited by bankruptcy, insolvency, moratorium, fraudulent conveyance,
reorganization or other similar laws affecting enforcement of creditors'
rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law); the holders thereof will be entitled to the
benefits of the Indenture; and the Indenture and the Securities conform to
the descriptions thereof contained in the Prospectus.
(xxiii) No holder of any security of Publishing or the Guarantor nor any
other person has any right, contractual or otherwise, to have any securities
included in the Registration Statement or the right, because of the filing of
the Registration Statement or consummation of the transactions contemplated
by this Agreement, to require registration of any security of Publishing or
the Guarantor under the Act.
(xxiv) Except as set forth in the Prospectus, no labor dispute with the
employees of Publishing or the Guarantor or any of the Subsidiaries exists
or, to the knowledge of Publishing or the Guarantor, is imminent, which might
be expected to result in a material adverse effect on the condition
(financial or other), business, properties, net worth or results of
operations of Publishing, the Guarantor and their subsidiaries considered as
one enterprise.
(xxv) Except as set forth in the Registration Statement and except as would
not result in a material effect on the condition (financial or other),
business, properties, net worth or results of operations of Publishing, the
Guarantor and their subsidiaries
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considered as one enterprise and which would not materially and adversely
affect the consummation of this Agreement, (i) to the knowledge of Publishing
and the Guarantor after reasonable inquiry, neither Publishing nor the
Guarantor is in violation of any applicable Federal, foreign, state or local
environmental law or any applicable order of any governmental authority with
respect thereto; (ii) neither Publishing nor the Guarantor is in violation of
or subject to any existing, or pending or, to Publishing's and the
Guarantor's knowledge, threatened action, suit, investigation, inquiry or
proceeding by any governmental authority nor is Publishing or the Guarantor
subject to any environmental claim by any citizens' group or to remedial
obligations under any applicable Federal, foreign, state or local
environmental law; (iii) Publishing, the Guarantor and the subsidiaries are
in compliance with all permits or similar authorizations, if any, required to
be obtained or filed in connection with their operations including, without
limitation, emissions, discharges, treatment, storage, disposal or release of
a Hazardous Material into the environment except where any noncompliance
could not reasonably be expected to have a material adverse effect on the
operations of Publishing, the Guarantor and the Subsidiaries; and (iv) to the
knowledge of Publishing and the Guarantor after reasonable inquiry, no
Hazardous Materials have been disposed of or released by Publishing or the
Guarantor or the Subsidiaries at, under or on any property currently or
formerly owned or operated by Publishing, the Guarantor or the Subsidiaries,
except in accordance with applicable environmental laws. The term "Hazardous
Material" means any oil (including petroleum products, crude oil and any
fraction thereof), chemical, contaminant, pollutant, solid or hazardous waste
or material, or Hazardous Substance (as defined in Section 101(14) of the
Comprehensive Environmental Response, Compensation and Liability Act and
regulations thereunder), that is regulated as toxic or hazardous to human
health or the environment under any Federal, foreign, state or local
environmental law.
(xxvi) Publishing and the Guarantor and each other person or entity that,
together with Publishing and the Guarantor, is treated as a single employer
under Section 414 of the Internal Revenue Code of 1986, as amended (the
"Code") (each such person or entity being an "ERISA Affiliate"), complies in
all material respects with the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), and the Code with
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respect to each pension plan (as defined in Section 3(2) of ERISA) maintained
by Publishing, the Guarantor or such ERISA Affiliate, and none of Publishing,
the Guarantor or any of its ERISA Affiliates has incurred any material
liability to any pension plan or to the Pension Benefit Guaranty Corporation
that has not been fully paid as of the date hereof except as disclosed in the
Registration Statement or Prospectus (or any amendment or supplement
thereto).
(xxvii) Publishing and the Guarantor will apply the protion of the net
proceeds of the Offering deposited in escrow for the purpose of redeeming, in
each case at the first redemption date occurring in 1997, the DTH and FDTH
Preference Shares held by third parties as described in the Prospectus, and
for no other purpose.
(b) Any certificate signed by an officer of Publishing or the Guarantor and
delivered to the Underwriters or to counsel for the Underwriters shall be
deemed a representation and warranty by Publishing and the Guarantor to the
Underwriters as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing. (a) On the basis
of the representations and warranties herein contained, and subject to the
terms and conditions herein set forth, Publishing agrees to sell to the
Underwriters, and the Underwriters agree to purchase from Publishing, at the
purchase price set forth in the Price Determination Agreement, the Securities.
(b) If Publishing has elected not to rely upon Rule 430A under the 1933 Act
Regulations, the initial public offering price and the purchase price to be
paid by the Underwriters shall be agreed upon and set forth in the Price
Determination Agreement, dated the date hereof, and an amendment to the
Registration Statement containing such information will be filed with the
Commission, before the Registration Statement becomes effective.
(c) If Publishing has elected to rely upon Rule 430A under the 1933 Act
Regulations, the initial public offering price and the purchase price to be
paid by the Underwriters shall be agreed upon and set forth in the Price
Determination Agreement. In the event that the Price Determination Agreement
has not been executed by the close of business on the fourth business day
following the date on which the Registration Statement becomes effective, this
Agreement shall terminate forthwith, without liability of
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any party to any other party except that Sections 6, 7 and 8 shall remain in
effect.
(d) Publishing will deliver the Securities to the Underwriters, at the
offices of Cravath, Swaine & Xxxxx, 000 Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000, or
at such other place as shall be agreed upon by Publishing, the Guarantor and
the Underwriters, against payment of the gross purchase price by wire transfer
to Publishing in U.S. dollars, in funds immediately available to Publishing, at
10:00 a.m. either (i) on the third business day following the date upon which
the Publishing and the Guarantor shall have fulfilled all requirements which
under the 1933 Act must be fulfilled to qualify the Securities for distribution
and the Registration Statement shall have become effective or (ii) if
Publishing has elected to rely upon Rule 430A under the 1933 Act Regulations,
on the third business day after execution of the Price Determination Agreement,
or at such other time not later than ten full business days thereafter as the
Underwriters and Publishing determine (such time being herein referred to as
the "Closing Date"). The Securities so to be delivered will be in definitive,
fully registered form in such denominations ($1,000 principal amount or an
integral multiple thereof) and registered in such names as the Underwriters
shall request in writing at least two full business days prior to the Closing
Date, and will be made available for checking and packaging at the office of
the Trustee, not later than 10:00 a.m. on the business day prior to the Closing
Date. Concurrently with the payment by the Underwriters of the gross purchase
price for the Securities in the manner described in this Section 2(d),
Publishing will pay to the Underwriters by certified or official bank check or
checks in U.S. dollars, in funds available the next succeeding business day
drawn to the order of Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, North
Tower, World Financial Center, New York, New York 10281-1305, for the account
of the Underwriters, an amount equal to the underwriting commission applicable
to the Securities as described in the Price Determination Agreement.
SECTION 3. Covenants of Publishing and the Guarantor. Publishing and the
Guarantor, jointly and severally, covenant with the Underwriters as follows:
(a) Publishing will notify the Underwriters immediately, and confirm the
notice in writing, (i) of the effectiveness of the Registration Statement and
any amendment thereto (including any posteffective amendment), (ii) of the
receipt of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to
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the Prospectus or for additional information, and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose. Publishing
will make every reasonable effort to prevent the issuance of any stop order
and, if any stop order is issued, to obtain the lifting thereof at the earliest
possible moment.
(b) Publishing will furnish to the Underwriters, without charge, five true
and correct copies of the Registration Statement as originally filed with the
Commission and of each amendment thereto, including financial statements and
all exhibits to the Registration Statement, and of any Rule 462(b) Registration
Statement and any amendment thereto, and will also furnish to you, without
charge, such number of conformed copies of the Registration Statement as
originally filed and of each amendment thereto, but without exhibits, and of
any Rule 462(b) Registration Statement and any amendment thereto, as you may
reasonably request.
(c) Publishing will not (i) file any amendment to the Registration
Statement, any Rule 462(b) Registration Statement or amendment thereto, or make
any amendment or supplement to the Prospectuses of which you shall not
previously have been advised or to which you shall reasonably object in writing
after being so advised or (ii) so long as, in the written opinion of counsel
for the Underwriters (a copy of which shall be delivered to Publishing), a
Prospectus is required to be delivered in connection with sales by any
Underwriters or dealer, file any information, documents or reports pursuant to
the Exchange Act, without delivering a copy of such information, documents or
reports to you prior to such filing.
(d) Publishing will furnish to the Underwriters, from time to time during
the period when the Prospectus is required to be delivered under the 1933 Act
or the Securities Exchange Act of 1934 (the "1934 Act"), such number of copies
of the Prospectus (as amended or supplemented) as the Underwriters may
reasonably request for the purposes contemplated by the 1933 Act or the 1934
Act or the respective applicable rules and regulations of the Commission
thereunder.
(e) If any event shall occur as a result of which it is necessary, in the
opinion of counsel for the Underwriters, to amend or supplement the Prospectus
in order to make the Prospectus not misleading, in the light of the
circumstances existing at the time it is delivered to a purchaser, Publishing
will forthwith amend or supplement the Prospectus (in form and substance
satisfactory to counsel
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for the Underwriters so that, as so amended or supplemented, the Prospectus
will not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances existing at the time it is delivered to a purchaser, not
misleading), and Publishing will furnish to the Underwriters a reasonable
number of copies of such amendment or supplement.
(f) Publishing will endeavor, in cooperation with the Underwriters, to
qualify the Securities for offering and sale under the applicable securities
laws of such states and other jurisdictions of the United States as the
Underwriters may designate; provided, however, that Publishing shall not be
obligated to qualify as a foreign corporation in any jurisdiction in which it
is not so qualified. In each jurisdiction in which the Securities have been so
qualified Publishing will file such statements and reports as may be required
by the laws of such jurisdiction to continue such qualification in effect for a
period of not less than one year from the effective date of the Registration
Statement.
(g) Publishing will make generally available to its security holders as
soon as practicable, but not later than 60 days after the close of the period
covered thereby, an earnings statement (in form complying with the provisions
of Rule 158 of the 1933 Act Regulations) covering a 12-month period beginning
not later than the first day of Publishing's fiscal quarter next following the
"effective date" (as defined in said Rule 158) of the Registration Statement.
(h) Publishing will use the net proceeds received by it from the sale of
the Securities in the manner specified in the Prospectus under "Use of
Proceeds".
(i) If, at the time that the Registration Statement becomes effective, any
information shall have been omitted therefrom in reliance upon Rule 430A of the
1933 Act Regulations, then immediately following the execution of the Price
Determination Agreement, Publishing will prepare, and file or transmit for
filing with the Commission in accordance with such Rule 430A and Rule 424(b) of
the 1933 Act Regulations, copies of an amended Prospectus, or, if required by
such Rule 430A, a post-effective amendment of the Registration Statement
(including an amended Prospectus), containing all information so omitted.
(j) Except as provided in this Agreement, Publishing will not directly or
indirectly, offer, sell, grant any option to purchase or otherwise dispose of,
any debt security of Publishing which is publicly offered or
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sold pursuant to Rule 144A of the 1933 Act Regulations for a period of 180 days
after the date of the Prospectus, without the prior written consent of Xxxxxxx
Xxxxx.
(k) For a period of three years after the Closing Date the Guarantor will
furnish to the Underwriters copies of all reports and communications delivered
to the Guarantor's stockholders or to holders of the Securities as a class and
will also furnish copies of all reports (excluding exhibits) filed with the
Commission on Form 8-K, 10-Q and 10-K, and all other reports and information
furnished to its stockholders generally, at the time such reports are furnished
to stockholders generally. For such period of time, the Guarantor will file
with the Commission such documents required to be filed with the Commission
pursuant to Sections 13(a) and 15(d) of the 1934 Act, whether or not the
Guarantor or Publishing has a class of securities registered under the 1934
Act.
(l) The Company will use reasonable efforts to effect the listing of the
Securities on the New York Stock Exchange on the date of the Price
Determination Agreement.
SECTION 4. Payment of Expenses. Publishing will pay all expenses incident
to the performance of its obligations under this Agreement, including (i) the
printing and filing of the Registration Statement as originally filed, and of
each amendment thereto, (ii) the printing of this Agreement, the Price
Determination Agreement, the Indenture and any Legal Investment Survey, (iii)
the preparation, issuance and delivery of the certificates for the Securities
to the Underwriters, (iv) the fees and disbursements of Publishing's and the
Guarantor's counsel and accountants, (v) the qualification of the Securities
under securities laws in accordance with the provisions of Section 3(f),
including filing fees and the fee and the disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation of
the Blue Sky Survey, (vi) the printing and delivery to the Underwriters of
copies of the Registration Statement as originally filed and of each amendment
thereto, of the preliminary prospectus, and of the Prospectus and any
amendments or supplements thereto, (vii) the printing and delivery to the
Underwriters of copies of the Blue Sky Survey, (viii) the filing fee of the
National Association of Securities Dealers, Inc., (ix) the fees and expenses of
the Trustee, including the fees and disbursements of counsel for the Trustee,
in connection with the Indenture and the Securities, and (x) any fees charged
by investment-rating agencies for the rating of the Securities.
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If this Agreement is terminated by the Underwriters in accordance with the
provisions of Section 5, Section 9(a) or Section 11, Publishing shall reimburse
the Underwriters for all of their out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of the Underwriters' Obligations. The obligations of
the Underwriters hereunder are subject to the accuracy of the representations
and warranties of Publishing and the Guarantor herein contained, to the
performance by Publishing and the Guarantor of their obligations hereunder, and
to the following further conditions:
(a) The Registration Statement shall have become effective not later than
9:30 a.m. on the date hereof, or, with the consent of the Underwriters, at a
later time and date, not later, however, than 9:30 a.m. on the first business
day following the date hereof or at such later time and date as may be approved
by the Underwriters; and at the Closing Date no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission. If
Publishing has elected to rely upon Rule 430A of the 1933 Act Regulations, the
price of the Securities and any price-related information previously omitted
from the effective Registration Statement pursuant to such Rule 430A shall have
been transmitted to the Commission for filing pursuant to Rule 424(b) of the
1933 Act Regulations within the prescribed time period, and prior to the
Closing Date Publishing shall have provided evidence satisfactory to the
Underwriters of such timely filing, or a post-effective amendment providing
such information shall have been promptly filed and declared effective in
accordance with the requirements of Rule 430A of the 1933 Act Regulations.
(b) At the Closing Date, there shall not have been, since the date hereof
or since the respective dates as of which information is given in the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of
Publishing and the Guarantor and their subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and the
Underwriters shall have received a certificate of the Chairman and Chief
Executive Officer of each of Publishing and the Guarantor and of the Vice
President of each of Publishing and the Guarantor, dated as of Closing Date, to
the effect that (i) there has been no such material adverse change, (ii) the
representations and warranties in
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Section 1(a) are true and correct with the same force and effect as though
expressly made at and as of the Closing Date, (iii) Publishing and the
Guarantor have complied with all agreements and satisfied all conditions on
their part to be performed or satisfied at or prior to the Closing Date, and
(iv) no stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been initiated or
threatened by the Commission. As used in this Section 5, the term "Prospectus"
means the Prospectus in the form first used to confirm sales of Securities.
(c) You shall have received on the Closing Date an opinion of Xxxxxxxxxxx
& Xxxxxxxx LLP, counsel for Publishing and the Guarantor, dated the Closing
Date and addressed to you, to the effect that:
(i) Publishing, the Guarantor and each of the United States Subsidiaries
(the "U.S. Subsidiaries") is a corporation duly incorporated and validly
existing in good standing under the laws of the jurisdiction of its
organization, with corporate power and authority to own, lease and operate
its properties and conduct its business as described in the Registration
Statement and the Prospectus (and any amendment or supplement thereto), and
is duly qualified as a foreign corporation for the transaction of business in
and is in good standing under the laws of each jurisdiction where the nature
of its properties or the conduct of its business requires such qualification,
except where the failure so to qualify would not have a material adverse
effect on the condition (financial or otherwise), business, properties, net
worth or results of operations of Publishing, the Guarantor and their
subsidiaries, considered as one enterprise.
(ii) All the outstanding shares of capital stock of each of the U.S.
Subsidiaries have been duly authorized and validly issued, are fully paid and
nonassessable, and are owned of record by Publishing directly, or indirectly
through one of the other U.S. Subsidiaries, and are not subject to any
perfected security interest, or, to the best knowledge of such counsel after
reasonable inquiry, any adverse claims within the meaning of the Uniform
Commercial Code, except, to the extent set forth or described in the
Registration Statement and the Prospectus, currently existing liens, claims
and security interests of creditors and liens, claims and security interests
pursuant to the terms of the FDTH Credit Facility, the Publishing Credit
Facility and the contemplated New Bank Credit Facility (as defined).
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(iii) The Registration Statement and all post-effective amendments, if any,
have become effective under the 1933 Act, the Indenture has been duly
qualified under the 1939 Act and, to the best knowledge of such counsel after
reasonable inquiry, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
are pending before or contemplated by the Commission; and any required filing
of the Prospectus pursuant to Rule 424(b) has been made in accordance with
Rule 424(b).
(iv) Publishing and the Guarantor have corporate power and authority to
enter into this Agreement and to issue, sell and deliver the Securities to
the Underwriter as provided herein, and this Agreement has been duly
authorized, executed and delivered by Publishing and the Guarantor.
(v) Neither Publishing, the Guarantor nor any of the U.S. Subsidiaries is
in violation of its certificate or articles of incorporation or its
respective by-laws or, to the best knowledge of such counsel after reasonable
inquiry, is in default in the performance of any material obligation,
agreement or condition contained in any bond, debenture, note or other
evidence of indebtedness to which the Guarantor, Publishing or any U.S.
Subsidiary is a party that is included as an exhibit to, or otherwise
described or summarized in, the Registration Statement, except as may be
disclosed in the Prospectus and except for defaults under existing
indebtedness of Publishing, the Guarantor or any U.S. Subsidiary as to which
consents or waivers have been obtained prior to the Pricing Time.
(vi) Neither the offer, sale or delivery of the Securities, the execution,
delivery or performance of this Agreement or the Indenture, compliance by
Publishing or the Guarantor with the provisions of this Agreement or the
Indenture, nor consummation by Publishing or the Guarantor of the sale of the
Securities contemplated hereby violates the certificate or articles of
incorporation or by-laws, or other organizational documents, of Publishing or
the Guarantor or any of the U.S. Subsidiaries or constitutes a breach of or
default under any agreement, indenture, lease or other instrument to which
Publishing, the Guarantor or any of the U.S. Subsidiaries is a party or by
which any of them or any of their respective properties is bound (except for
defaults under existing indebtedness of Publishing, the
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Guarantor or any U.S. subsidiary as to which consents or waivers have been
obtained prior to the Pricing Time) and that is an exhibit to the
Registration Statement, or is material and is known to such counsel after
reasonable inquiry, or will result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of Publishing, the
Guarantor or any of the U.S. Subsidiaries, nor will any such action violate
any existing law, regulation, ruling (assuming compliance with all applicable
state securities and Blue Sky laws), judgment, injunction, order or decree
known to such counsel after reasonable inquiry, that names Publishing, the
Guarantor or any of the U.S. Subsidiaries and is specifically directed to
any of them or any of their respective properties.
(vii) No consent, approval, authorization or other order of, or
registration or filing with, any court, regulatory body, administrative
agency or other governmental body, agency, or official is required on the
part of Publishing or the Guarantor (except as have been obtained under the
1933 Act, the Exchange Act, and the 1939 Act or such as may be required under
state securities or Blue Sky laws governing the purchase and distribution of
the Securities) for the valid issuance and sale of the Securities by
Publishing to the Underwriters or the consummation by Publishing and the
Guarantor of the other transactions set forth in this Agreement.
(viii) The Registration Statement and the Prospectus and any supplements or
amendments thereto (except for the financial statements and the notes thereto
and the schedules and other financial and statistical data included therein,
as to which such counsel need not express any opinion) comply as to form in
all material respects with the requirements of the 1933 Act.
(ix) Assuming that (A) Publishing and the Guarantor have all requisite
corporate power and authority to execute, deliver and perform its obligations
under the Securities and the Indenture, (B) the Securities have been duly
authorized, executed and delivered by Publishing and the Guarantor, (C) the
Indenture has been duly authorized, executed and delivered by Publishing and
the Guarantor and the Trustees and (D) the Securities have been duly
authenticated by one of the Trustees pursuant to the Indenture (which fact
such counsel need not determine by an inspection of the Securities), the
Securities and the Indenture each constitute valid and binding
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obligations of Publishing and the Guarantor, enforceable against Publishing
and the Guarantor in accordance with their respective terms, in each case
subject to applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other similar laws affecting creditors' rights
generally from time to time in effect; and the holders of the Securities are
entitled to the benefits of the Indenture. The enforceability of the
obligations of Publishing and the Guarantor is also subject to general
principles of equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law).
(x) To the best knowledge of such counsel after reasonable inquiry, (A)
other than as described or contemplated in the Prospectus (or any supplement
thereto), there are no legal or governmental proceedings pending or
threatened against Publishing, the Guarantor or any of the U.S. Subsidiaries,
or to which Publishing, the Guarantor or any of the U.S. Subsidiaries, or any
of their property, is subject, which are required to be described in the
Registration Statement or Prospectus (or any amendment or supplement
thereto), and (B) there are no material agreements, contracts, indentures,
leases or other instruments to which the Guarantor, Publishing or any U.S.
Subsidiary is a party, that are required to be described in the Registration
Statement or the Prospectus (or any amendment or supplement thereto) or to be
filed as an exhibit to the Registration Statement that are not described or
filed as required, as the case may be.
(xi) The statements in the Registration Statement and Prospectus, insofar
as they are descriptions or summaries of contracts, agreements or other legal
documents to which Publishing, the Guarantor or any U.S. Subsidiary is a
party, or are statements of law or legal conclusions (other than matters of
English, Canadian, Australian or Israeli law), are accurate in all material
respects and present fairly the information required to be shown.
(xii) Except as described in the Prospectus, there is no holder of any
security of Publishing or the Guarantor or, to the best knowledge of such
counsel after reasonable inquiry, any other person who has the right,
contractual or otherwise, to cause Publishing or the Guarantor to sell or
otherwise issue to them, or to permit them to underwrite the sale of, the
Securities or the right to have any securities of Publishing or the Guarantor
included in the Registration Statement or
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the right, as a result of the filing of the Registration Statement, to
require registration under the 1933 Act of any securities of Publishing or
the Guarantor.
(xiii) At the Closing Date, Southam Inc. and Xxxxxxxxx Eastern Publishing
Inc. qualify as Subsidiaries as defined in the Senior Subordinated Indenture.
(xiv) Although counsel cannot opine as to factual matters, and the
character of determinations involved in the registration process in such that
counsel cannot pass upon and assume any responsibility for the accuracy or
completeness of the information contained in the Registration Statement and
the Prospectus, counsel shall advise the Underwriters that on the basis of
its review of the Registration Statement and the Prospectus and its
participation in the preparation thereof (relying as to materiality to a
large extent upon the statements of officers and other representatives of the
Company) that counsel has no reason to believe that (A) the Registration
Statement (except for the financial statements and notes thereto and the
schedules and other financial or statistical data included therein or omitted
therefrom, as to which counsel need express no opinion), at the time the
Registration Statement became effective, contained an untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or (B) the
Prospectus (except for the financial statements and notes thereto and the
schedules and other financial or statistical data included therein or omitted
therefrom, as to which counsel need express no opinion) at the time the
Prospectus was issued, includes an untrue statement of a material fact or
omitted state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; also, that counsel has no reason to believe, based upon the
procedures described above, that either the Registration Statement or the
Prospectus (except for the financial statements and notes thereto and the
schedules and other financial or statistical data included therein or omitted
therefrom, as to which counsel need express no opinion) as of the date and
time of delivery of counsel's opinion contain an untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances in which they were made,
not misleading.
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In rendering their opinion as aforesaid, counsel may rely upon an opinion or
opinions, each dated the Closing Date, of other counsel retained by them,
Publishing or the Guarantor as to laws of any jurisdiction other than the
United States, the Commonwealth of Pennsylvania or the Delaware General
Corporation Law, provided that (1) each such local counsel is acceptable to the
Underwriters, (2) such reliance is expressly authorized by each opinion so
relied upon and a copy of each such opinion is delivered to the Underwriters
and is, in form and substance, satisfactory to the Underwriters and their
counsel, and (3) counsel shall state in their opinion that they believe that
they and the Underwriters are justified in relying thereon. Counsel may also
rely, to the extent they deem such reliance proper, as to matters of fact upon
certificates of officers of Publishing or the Guarantor and of government
officials. Copies of all such certificates shall be furnished to counsel to
the Underwriters on the Closing Date. Such opinion may state that it is
limited to the laws of the Commonwealth of Pennsylvania (excluding the conflict
of laws rules), the Delaware Business Corporation Law and the Federal
securities laws of the United States, and that such counsel expresses no
opinion as to any other laws (except with respect to the Indenture, as to which
such counsel will express certain opinions under New York law) and further that
such opinions are being given as if the Purchase Agreement was governed by
Pennsylvania law.
(d) You shall have received on the Closing Date an opinion of Xxxxxxxx
Chance, special English counsel for the Guarantor, dated the Closing Date and
addressed to you, to the effect that:
(i) Each of Publishing's subsidiaries, DT Holdings Limited ("DTH"), First
DT Holdings Limited ("FDTH") and The Telegraph, is a corporation duly
incorporated and validly existing under the laws of England, with corporate
power and authority to own or lease its properties and to conduct its
business as described in the Registration Statement and the Prospectus.
(ii) All the issued shares in the capital of DTH, FDTH and The Telegraph
have been duly authorized, validly issued and credited as fully paid.
(iii) Neither the offer, sale or delivery of the Securities, the
execution, delivery or performance of this Agreement, compliance by
Publishing or the Guarantor with the provisions of this Agreement or the
Indenture, nor consummation by Publishing or the Guarantor of the
transactions contemplated hereby
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(i) violates the memorandum or articles of association of DTH, FDTH or The
Telegraph or (ii) constitutes a breach of or default by FDTH, DTH or The
Telegraph under any agreement listed on Schedule III hereto to which DTH,
FDTH or The Telegraph is a party or by which they are bound, or is material
and is known to such counsel, or (iii) violates any existing English law,
regulation, ruling, judgment, injunction, order or decree known to such
counsel that names DTH, FDTH or The Telegraph or is specifically directed to
DTH, FDTH or The Telegraph or their properties in England and would, in the
case of this clause (iii), have a material adverse effect on the condition
(financial or other), business, properties, net worth or results of
operations of Publishing, the Guarantor and their subsidiaries considered as
one enterprise.
(iv) The statements in the Registration Statement and Prospectus with
respect to DTH, FDTH and The Telegraph and English law, insofar as they are
descriptions of agreements listed on Schedule III hereto or are statements of
law or legal conclusions with respect thereto, are accurate in all material
respects and present fairly the information required to be shown.
(v) Argsub Limited is a corporation duly incorporated and validly existing
under the laws of England, with corporate power and authority to own or lease
its properties and to conduct its business as described in the Prospectus;
all the issued preference shares in the capital of Argsub Limited of the
series issued to DTH in exchange for the FDTH Preference Shares previously
held by DTH have been duly authorized and validly issued.
In rendering their opinion as aforesaid, counsel's opinion shall be limited
to the laws of England; provided that such counsel may rely upon an opinion or
opinions, each dated the Closing Date, of other counsel retained by them or
Publishing as to laws of any jurisdiction other than England, provided that (1)
each such local counsel is acceptable to the Underwriters, (2) such reliance is
expressly authorized by each opinion so relied upon and a copy of each such
opinion is delivered to the Underwriters and is, in form and substance
satisfactory to the Underwriters and their counsel, and (3) counsel shall state
in their opinion that they believe that they and the Underwriters are justified
in relying thereon.
(d) You shall have received on the Closing Date an opinion of Tory Xxxx
XxxXxxxxxxx & Xxxxxxxxxx, ],
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special Canadian counsel for the Publishing, dated the Closing Date and
addressed to you, to the effect that:
(i) Southam Inc. is a corporation duly incorporated and validly existing
under the laws of Canada, with corporate power and authority to own or lease
its properties and to conduct its business as described in the Registration
Statement and the Prospectus.
(ii) Neither the offer, sale or delivery of the Securities, the
execution, delivery or performance of this Agreement, compliance by
Publishing or the Guarantor with the provisions of this Agreement or the
Indenture, nor consummation by Publishing or the Guarantor of the
transactions contemplated hereby (i) violates the memorandum or articles of
association of Southam Inc. or (ii) violates any existing Canadian law,
regulation, ruling, judgment, injunction, order or decree known to such
counsel that names Southam Inc. or its properties in Canada and would, in the
case of this clause (ii), have a material adverse effect on the condition
(financial or other), business, properties, net worth or results of
operations of Publishing, the Guarantor and their subsidiaries considered as
one enterprise.
In rendering their opinion as aforesaid, counsel's opinion shall be limited
to the laws of Canada; provided that such counsel may rely upon an opinion or
opinions, each dated the Closing Date, of other counsel retained by them or
Publishing as to laws of any jurisdiction other than Canada, provided that (1)
each such local counsel is acceptable to the Underwriters, (2) such reliance is
expressly authorized by each opinion so relied upon and a copy of each such
opinion is delivered to the Underwriters and is, in form and substance
satisfactory to the Underwriters and their counsel, and (3) counsel shall state
in their opinion that they believe that they and the Underwriters are justified
in relying thereon.
(f) You shall have received letters addressed to you dated the date hereof
and the Closing Date from KPMG Peat Marwick, independent certified public
accountants for Publishing and the Guarantor, substantially in the forms
heretofore approved by you.
(g) You shall have received on the Closing Date an opinion of Cravath,
Swaine & Xxxxx, counsel for the Underwriters, dated the Closing Date and
addressed to you, the Underwriters, as to such matters as you may reasonably
request.
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(h) At the Closing Date and at each Date of Delivery, if any, counsel for
the Underwriters shall have been furnished with such documents and opinions as
they may require for the purpose of enabling them to pass upon the issuance and
sale of the Securities as herein contemplated and related actions referred to
in subparagraphs (h), (i) and (k) hereof, or in order to evidence the accuracy
of any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by Publishing and the
Guarantor in connection with the issuance and sale of the Securities as herein
contemplated shall be satisfactory in form and substance to the Underwriters
and counsel for the Underwriters.
(i) At the Closing Date, Southam Inc. and Xxxxxxxxx Eastern Publishing Inc.
shall qualify as Subsidiaries as defined in the Senior Subordinated Indenture.
(j) At the Closing Date, Publishing shall have issued a notice of
redemption with respect to each of the DTH and FDTH Preference Shares held by
third parties.
(k) At the Closing Date, Publishing shall deposit in escrow an amount
sufficient to pay the aggregate redemption price of the DTH and FDTH Preference
Shares held by third parties.
SECTION 6. Indemnification. (a) Publishing and the Guarantor agree,
jointly and severally, to indemnify and hold harmless the Underwriters and each
person, if any, who controls the Underwriters within the meaning of Section 15
of the 1933 Act to the extent and in the manner set forth in clauses (i), (ii)
and (iii) below:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including the information deemed to be part of
the Registration Statement pursuant to Rule 430A of the 1933 Act Regulations,
if applicable, and any information contained in a Rule 462(b) Registration
Statement or any amendments thereto, or the omission or alleged omission
therefrom of a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading or
arising out of any untrue statement or alleged untrue statement of a material
fact contained in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) or the omission or alleged omission
therefrom of a
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material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with the
written consent of Publishing and the Guarantor; and
(iii) against any and all expense whatsoever, as incurred (including,
subject to Section 6(c) hereof, the fees and disbursements of counsel chosen
by the Underwriters, reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid under
(i) and (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to Publishing or the
Guarantor by the Underwriters expressly for use in the Registration Statement
(or any amendment thereto) or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto); and the parties agree that the statements
set forth in the last paragraph on the cover page, the legends on the inside
cover page, and the statements in the second and fourth paragraphs (except for
the first sentence of the fourth paragraph) under the caption "Underwriting" in
the Prospectus constitute the only information so furnished.
(b) Publishing and the Guarantor also agree, jointly and severally, to
indemnify and hold harmless the Independent Underwriter and each person, if
any, who controls the Independent underwriter within the meaning of either
Section 15 of the 1993 Act or Section 20 of the 1934 Act, from and against any
and all losses, claims, damages, liabilities and judgements incurred as a
result of the Independent Underwriter's participation as a "qualified
independent underwriter" within the meaning of Schedule E to
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the By-laws of the National Association of Securities Dealers, Inc. in
connection with the offering of the Securities, except for any losses, claims,
damages, liabilities and judgments resulting from the independent Underwriter
or such controlling person's willful misconduct or gross negligence.
(c) Each Underwriter severally agrees to indemnify and hold harmless
Publishing and the Guarantor, their directors, each of their officers who
signed the Registration Statement, and each person, if any, who controls
Publishing or the Guarantor within the meaning of Section 15 of the 1933 Act
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions made in the Registration Statement (or amendment thereto) or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to Publishing or the Guarantor by the Underwriters expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) and set
forth in the last paragraph on the cover page, the stabilization legends on the
inside cover page, and the statements in the second and fourth paragraph
(except for the first sentence of the fourth paragraph) under the caption
"Underwriting" in the Prospectus.
(d) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of any
such action. In no event shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances; provided, that,
if indemnity is sought pursuant to Section 6(b), then, in addition to such
counsel for the indemnified parties, the indemnifying party shall be liable for
the reasonable fees and expenses of not more than one separate counsel (in
addition to any necessary local counsel) for the Independent underwriter in its
capacity as a "qualified independent underwriter" and
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all persons, if any, who control the Independent Underwriter within the meaning
of Section 15 of the 1993 Act or Section 20 of the 1934 Act if, in the
reasonable judgment of the Independent Underwriter there may exist a conflict
of interest between the Independent Underwriter and the other indemnified
parties. In the case of any such separate counsel for the Independent
Underwriter and such control person of the Independent Underwriter, such
counsel shall be designated in writing by the Independent Underwriter.
SECTION 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which an indemnity agreement provided for in
Section 6 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, Publishing and the Guarantor
on the one hand and the Underwriters on the other hand shall contribute to the
aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by such indemnity incurred by Publishing and the Guarantor on the
one hand and the Underwriters on the other hand, as incurred, in such
proportions that (a) the Underwriters are responsible for that portion
represented by the percentage that the underwriting commission appearing on the
cover page of the Prospectus bears to the aggregate stated principal amount
appearing thereon, and (b) Publishing and the Guarantor are responsible for the
balance; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section, each person, if
any, who controls the Underwriters within the meaning of Section 15 of the 1933
Act shall have the same rights to contribution as the Underwriters, and each
director of each of Publishing and the Guarantor, each officer of Publishing or
the Guarantor who signed the Registration Statement, and each person, if any,
who controls Publishing or the Guarantor within the meaning of Section 15 of
the 1933 Act shall have the same rights to contribution as Publishing or the
Guarantor.
Publishing, the Guarantor and the Underwriters agree that Xxxxxxx Lynch,
Pierce, Xxxxxx 7 Xxxxx Incorporated will not receive any additional benefits
hereunder for serving as the Independent Underwriter in connection with the
offering and sale of Securities.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement and
the Price Determination Agreement, or contained in certificates of officers of
Publishing or the Guarantor
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31
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriters or
controlling person, or by or on behalf of Publishing or the Guarantor, and
shall survive delivery of the Securities to the Underwriters.
SECTION 9. Termination of Agreement. (a) The Underwriters may terminate
this Agreement by notice to Publishing or the Guarantor at any time at or prior
to the Closing Date (i) if there has been, since the date of this Agreement or
since the respective date as of which information is given in the Prospectus,
any material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of Publishing, the Guarantor
and their subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business, or (ii) if there has occurred any outbreak of
hostilities or escalation thereof or other calamity or crisis, the effect of
which on the financial markets of the United States is such as to make it, in
the judgment of the Underwriters, impracticable to market the Securities or to
enforce contracts for the sale of the Securities, or (iii) if trading in the
Common Stock of the Guarantor has been suspended by the Commission, or if
trading generally on either the American Stock Exchange or the New York Stock
Exchange has been suspended, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices for securities have been required, by
either of said Exchanges or by order of the Commission or any other
governmental authority, or if a banking moratorium has been declared by either
Federal or New York authorities. Notice of such termination may be given by
telegram, telecopy or telephone and shall be subsequently confirmed by letter.
As used in this Section 10(a), the term "Prospectus" means the Prospectus in
the form first used to confirm sales of the Securities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except
as provided in Section 4. Notwithstanding any such termination, the provisions
of Sections 6 and 7 shall remain in effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail at the Closing Date to purchase the Securities that
it or they are obligated to purchase pursuant to this Agreement (the "Defaulted
Securities"), you shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon
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and upon the terms set forth in this Agreement; if, however, you have not
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
aggregate principal amount of the Securities, the nondefaulting Underwriters
shall be obligated to purchase the full amount thereof in the proportions
that their respective Securities underwriting obligation proportions bear to
the underwriting obligation proportions of all non-defaulting Underwriters,
or
(b) if the number of Defaulted Securities exceeds 10% of the aggregate
principal amount of the Securities, this Agreement shall terminate without
liability on the part of any nondefaulting Underwriters.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default that does not result in a termination of
this Agreement, either you or the Company shall have the right to postpone the
Closing Date for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or Prospectus or in any other
documents or arrangements. As used herein, the term "Underwriters" includes
any person substituted for an Underwriter under this Section 10.
SECTION 11. Default by Publishing. If Publishing shall fail at the Closing
Date or at the Date of Delivery to sell and deliver the number of Securities
which it is obligated to sell hereunder, then this Agreement shall terminate
without any liability on the part of any non-defaulting party.
No action taken pursuant to this Section shall relieve Publishing from
liability, if any, in respect of such default.
SECTION 12. Notices. Unless otherwise specifically indicated herein, all
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed to Xxxxxxx
Xxxxx at Xxxxxxx Xxxxx World Headquarters, North Tower, World Financial Center,
New York, New York 10281, attention of Syndicate Operations; notices to
Publishing shall be directed to it at
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000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, attention of President or
Secretary; and notices to the Guarantor shall be directed to it at 000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, attention of President or Secretary.
SECTION 13. Parties. This Agreement and the Price Determination Agreement
shall each inure to the benefit of and be binding upon the Underwriters and
Publishing and the Guarantor and their respective successors, heirs and legal
representatives. Nothing expressed or mentioned in this Agreement or the Price
Determination Agreement is intended or shall be construed to give any person,
firm or corporation, other than the Underwriters and Publishing and the
Guarantor and their respective successors, heirs and legal representatives, and
the controlling persons and officers and directors referred to in Sections 6
and 7 hereof and their heirs and legal representatives, any legal or equitable
right, remedy or claim under or in respect of this Agreement or the Price
Determination Agreement or any provision herein or therein contained. This
Agreement and the Price Determination Agreement and all conditions and
provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the Underwriters, Publishing and the Guarantor and their respective
successors, heirs and legal representatives and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities
from the Underwriters shall be deemed to be a successor by reason merely of
such purchase.
SECTION 14. Governing Law and Time. This Agreement and the Price
Determination Agreement shall be governed by and construed in accordance with
the laws of the State of New York applicable to agreements made and to be
performed in said State. Specified times of day refer to New York City time.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to Publishing and the Guarantor a counterpart hereof,
whereupon
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34
this instrument, along with all counterparts, will become a binding agreement
among the Underwriters, Publishing and the Guarantor in accordance with its
terms.
Very truly yours,
XXXXXXXXX INTERNATIONAL PUBLISHING INC.
by
___________________________________
Xxxxxxx X. Xxxxxx
Vice President and
Secretary
XXXXXXXXX INTERNATIONAL INC.
by
___________________________________
Xxxxxxx X. Xxxxxx
Vice President and
Secretary
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35
Confirmed and accepted as of
the date first above written:
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
TD SECURITIES (USA) INC.
BEAR, XXXXXXX & CO. INC.
CIBC WOOD GUNDY SECURITIES CORP.
By: XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated
by ___________________________
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Exhibit A
XXXXXXXXX INTERNATIONAL
PUBLISHING INC.
(a Delaware corporation)
XXXXXXXXX INTERNATIONAL INC.
(a Delaware corporation)
$290,000,000
9-1/4% Senior Subordinated Notes due 2007
PRICE DETERMINATION AGREEMENT
March 12, 1997
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
XXXXXXXXX, LUFKIN & XXXXXXXX SECURITIES
CORPORATION
TD SECURITIES (USA) INC.
BEAR, XXXXXXX & CO. INC.
CIBC WOOD GUNDY SECURITIES INC.
x/x XXXXXXX XXXXX & XX.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx World Headquarters
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Reference is made to the Purchase Agreement dated March 12, 1997 (the
"Purchase Agreement") among Xxxxxxxxx International Publishing Inc., a Delaware
corporation ("Publishing"), Xxxxxxxxx International Inc. (the "Guarantor") and
Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce,
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2
Xxxxxx & Xxxxx Incorporated, Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation, TD Securities (USA) Inc., Bear, Xxxxxxx & Co. Inc. and CIBC Wood
Gundy Securities Corp. (the "Underwriters"). The Purchase Agreement provides
for the purchase by the Underwriters from Publishing, subject to the terms and
conditions set forth therein, of $290,000,000 aggregate principal amount of
Publishing's 9-1/4% Senior Subordinated Notes due 2007 (the "Securities").
This Agreement is the Price Determination Agreement referred to in the Purchase
Agreement.
Pursuant to Section 2 of the Purchase Agreement, the undersigned agrees with
the Underwriters as follows:
1. The initial public offering price of the Securities shall be 96.358%
of the aggregate stated principal amount thereof, plus accrued interest from
March 18, 1997 to the Closing Time.
2. The purchase price of the Securities to be paid by the several
Underwriters shall be 96.608% of the aggregate stated principal amount
thereof, plus accrued interest from March 18, 1997 to the Closing Time.
3. The interest rate to be borne by the Securities shall be 9-1/4% per
annum.
4. The Securities will mature on March 15, 2007.
5. The optional redemption prices (to be supplied on page S-41 of the
Prospectus (and correspondingly in the Indenture)) shall be equal to the
percentage of the principal amount set forth below if redeemed during the
12-month period beginning March 12, 1997 for the years indicated:
Redemption
Year Price
---- ---------
2002 104.625%
2003 103.083%
2004 101.541%
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and thereafter at 100% of the principal amount, together in the case of any
such redemption with accrued and unpaid interest to the redemption date.
Publishing and the Guarantor represent and warrant to each of the
Underwriters that the representations and warranties of Publishing and the
Guarantor set forth in Section 1(a) of the Purchase Agreement are accurate as
though expressly made at and as of the date hereof.
THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to Publishing and the Guarantor a counterpart hereof,
whereupon this instrument along with all counterparts and together with the
Purchase Agreement shall be a binding agreement among the Underwriters and
Publishing and the Guarantor in accordance with its terms and the terms of the
Purchase Agreement.
Very truly yours,
XXXXXXXXX INTERNATIONAL PUBLISHING INC.
By____________________________
Xxxxxxx X. Xxxxxx
Vice President and
Secretary
XXXXXXXXX INTERNATIONAL INC.
By____________________________
Xxxxxxx X. Xxxxxx
Vice President and
Secretary
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4
Confirmed and accepted as of
the date first above written:
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
TD SECURITIES (USA) INC.
BEAR, XXXXXXX & CO. INC.
CIBC WOOD GUNDY SECURITIES CORP.
By: XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By______________________________________
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SCHEDULE I
Principal Amount
of Securities
Underwriters to Be Purchased
------------ ----------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated . . . . $145,000,000
Donaldson, Lufkin, Xxxxxxxx
Securities Corporation . . . . . . . . . . . . . . . . . 43,500,000
TD Securities
(USA) Inc. . . . . . . . . . . . . . . . . . . . . . . . 43,500,000
Bear, Xxxxxxx & Co. Inc. . . . . . . . . . . . . . . . . . 29,000,000
CIBC Wood Gundy Securities Corp.. . . . . . . . . . . . . . 29,000,000
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . $290,000,000
============
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SCHEDULE II
Significant Subsidiaries of Xxxxxxxxx International Inc.
and Xxxxxxxxx International Publishing Inc.
1. Xxxxxxxxx International Publishing Inc. is incorporated in Delaware and
is a wholly owned subsidiary of Xxxxxxxxx International Inc.
2. The Sun-Times Company is incorporated in Delaware and is a wholly owned
subsidiary of Xxxxxxxxx International Publishing Inc.
3. Chicago Sun-Times, Inc. is incorporated in Delaware and is a wholly owned
subsidiary of The Sun-Times Company.
4. American Publishing Company is incorporated in Delaware and is a wholly
owned subsidiary of Xxxxxxxxx International Publishing Inc.
5. American Publishing (1991) Inc. is incorporated in Delaware and is a
subsidiary of American Publishing Company.
6. American Publishing Holdings Inc. is incorporated in Delaware and is a
wholly owned subsidiary of American Publishing Company.
7. APAC-95 Inc. is incorporated in Delaware and is a wholly owned subsidiary of
American Publishing Company.
8. TelHoldco Inc. is incorporated in Delaware and is a wholly owned subsidiary
of Xxxxxxxxx International Publishing Inc.
9. DT Holdings Limited is an English company and is a wholly owned subsidiary
(excluding preference shares) of Xxxxxxxxx International Publishing Inc.
10. First DT Holdings Limited is an English company and is a wholly owned
subsidiary (excluding preference shares) of DT Holdings Limited.
11. Telegraph Group Limited plc is an English company and a subsidiary of
First DT Holdings Limited.
12. Southam Inc.
