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SHAREHOLDERS' AGREEMENT
THE XXXXXXXXX FAMILY VOTING TRUST AGREEMENT,
FOR AFFILIATED NEWSPAPERS INVESTMENTS, INC.,
THE XXXXXXXXX SHAREHOLDERS,
THE XXXXXXX FAMILY VOTING TRUST AGREEMENT,
FOR AFFILIATED NEWSPAPERS INVESTMENTS, INC.,
THE XXXXXXX SHAREHOLDERS,
AND
AFFILIATED NEWSPAPERS INVESTMENTS, INC.
MAY 20, 1994
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SHAREHOLDERS' AGREEMENT
May 20, 1994
Table of Contents
Section Page
1. PROPOSED ACTIVITIES OF ANI . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.01 Newspaper Publishing Business. . . . . . . . . . . . . . . . . . . . . . . 3
2. RESTRICTIONS UPON SALE OR TRANSFER OF STOCK . . . . . . . . . . . . . . . . . . . 3
2.01 Generally. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.02 Additional Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.03 Tag-Along Restrictions/Rights. . . . . . . . . . . . . . . . . . . . . . . 3
3. PERMITTED TRANSFERS AMONG RELATED PARTIES . . . . . . . . . . . . . . . . . . . . 5
3.01 Permitted Transfers. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.02 Agreement of the Trustees. . . . . . . . . . . . . . . . . . . . . . . . . 6
4. TRANSFER OF STOCK BY CONSENT OF PARTIES . . . . . . . . . . . . . . . . . . . . . 6
4.01 Transfer By Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5. COMPANY'S AND SHAREHOLDERS' OPTIONS TO PURCHASE STOCK . . . . . . . . . . . . . . 6
5.01 Option to Purchase. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5.02 Required Notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
5.03 Scope and Priority of Company's and Remaining Shareholders' Options. . . . 7
5.04 Purchase Price. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.05 Failure To Exercise. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
5.06 Payment of Purchase Price. . . . . . . . . . . . . . . . . . . . . . . . . 10
6. RESTRICTIVE LEGEND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
6.01 Form of Legend. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
7. GENERAL COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
7.01 Applicability of Covenants. . . . . . . . . . . . . . . . . . . . . . . . 13
7.02 Negative Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
8. NO RIGHTS FOR CLASS B COMMON STOCK . . . . . . . . . . . . . . . . . . . . . . . 14
8.01 No Rights for Class B Common Stock. . . . . . . . . . . . . . . . . . . . 14
9. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
9.01 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
9.02 Equitable Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
9.03 Entire Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
9.04 Successors and Assigns. . . . . . . . . . . . . . . . . . . . . . . . . . 16
9.05 Brokerage and Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . 16
9.06 Waivers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
9.07 Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
9.08 Announcement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
9.09 Captions and Pronouns. . . . . . . . . . . . . . . . . . . . . . . . . . . 17
9.10 Choice of Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
9.11 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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EXHIBITS
The Xxxxxxx Family Voting Trust Agreement
for Affiliated Newspapers Investments, Inc. . . . . . . . . . Exhibit A
The Xxxxxxxxx Family Voting Trust Agreement
for Affiliated Newspapers Investments, Inc. . . . . . . . . . Exhibit B
The Amended and Restated Certificate of
Incorporation of Affiliated Newspapers
Investments, Inc. . . . . . . . . . . . . . . . . . . . . . . Exhibit C
The Restated By-Laws of Affiliated Newspapers
Investments, Inc. . . . . . . . . . . . . . . . . . . . . . . Exhibit D
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SHAREHOLDERS' AGREEMENT
AGREEMENT, made as of this 20th day of May 1994, by and among The
Xxxxxxxxx Family Voting Trust Agreement for Affiliated Newspapers Investments,
Inc. (the "Xxxxxxxxx XXX Trust"), by Xxxxxx X. Xxxxx Xx., Trustee (the
"Xxxxxxxxx XXX Trust Trustee"), The Xxxxxxxxx Family Irrevocable Trust by
Xxxxxx X. Xxxxx, Xx. and Xxxxxxxx Xxxxxxxx, Trustees, The Xxxxxxxxx Family
Revocable Trust by Xxxxxxx Xxxx Xxxxxxxxx and Xxxxxx X. Xxxxx, Xx., Trustees
(The Xxxxxxxxx Family Irrevocable Trust and the Xxxxxxxxx Family Revocable
Trust are sometimes collectively referred to herein as the "Xxxxxxxxx
Shareholders"), The Xxxxxxx Family Voting Trust Agreement for Affiliated
Newspapers Investments, Inc. (the "Xxxxxxx XXX Trust") by Xxxx X. Xxxxxxx,
Trustee (the "Xxxxxxx XXX Trust Trustee"), Xxxxxxx Xxxxxxx individually, Xxxx
X. Xxxxxxx individually, Xxxxxxx Xxxxxx as custodian for her children,
Xxxxxxxxx X. Xxxxxx as custodian for her children, Xxxxxxxxx X. Xxxxxx
individually and Xxxx X. Xxxxxxx as Trustee (the "Xxxxxxx Family Trustee") for
the Xxxxxxx Family 1987 Trust (Xxxxxxx Xxxxxxx individually, Xxxx Xxxxxxx
individually, Xxxxxxx Xxxxxx as custodian for her children, Xxxxxxxxx X. Xxxxxx
individually and as custodian for her children and Xxxx X. Xxxxxxx as the
Xxxxxxx Family Trustee are sometimes collectively referred to herein as the
"Xxxxxxx Shareholders"), and Affiliated Newspapers Investments, Inc., a
Delaware corporation ("ANI" or the "Company"). The Xxxxxxxxx XXX Trust and the
Xxxxxxxxx Shareholders are sometimes collectively referred to herein as
"Xxxxxxxxx," Messrs. Xxxxxxxxx and Xxxxx, in their capacities as trustees of
the Xxxxxxxxx XXX Trust are sometimes collectively referred to herein as the
"Xxxxxxxxx Trustee," and the Xxxxxxx XXX Trust and the Xxxxxxx Shareholders are
sometimes collectively referred to herein as "Xxxxxxx".
WHEREAS, the current equitable ownership of the Class D Common Stock,
Class G Common Stock and Class N Common Stock of ANI is as follows:
COMMON STOCK OWNERSHIP
Xxxxxxxxx Family 738,045 shares of Class G Common Stock
Revocable Trust
Xxxxxxxxx Family 332,225 shares of Class D Common Stock
Irrevocable Trust 115 shares of Class N Common Stock
Xxxx Xxxxxxx, 83,056.25 shares of Class D Common Stock
individually 184,511.25 shares of Class G Common Stock
28.75 shares of Class N Common Stock
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Xxxxxxx Xxxxxxx, 83,056.25 shares of Class D Common Stock
individually 184,511.25 shares of Class G Common Stock
28.75 shares of Class N Common Stock
Xxxx Xxxxxxx, as 166,112.5 shares of Class D Common Stock
Trustee for the
Xxxxxxx Family
1987 Trust
Xxxxxxxxx X. Xxxxxx, 61,503.75 shares of Class G Common Stock
individually 9.58 shares of Class N Common Stock
Xxxxxxxxx X. Xxxxxx, 123,007.5 shares of Class G Common Stock
as custodian for 19.17 shares of Class N Common Stock
her children
Xxxxxxx Xxxxxx, 184,511.25 shares of Class G Common Stock
as custodian for 28.75 shares of Class N Common Stock
her children
As of the date hereof, there are no shares of Class A Common Stock and 173,576
shares of Class B Common Stock outstanding.
WHEREAS, the Xxxxxxx Shareholders and the Xxxxxxxxx Shareholders now
own, legally and beneficially, all of the issued and outstanding shares of the
Class D, Class G and Class N Common Stock of ANI consisting of 664,450 shares of
its Class D Common Stock, no par value, 1,476,090 shares of its Class G Common
Stock, no par value, and 230 shares of its Class N Common Stock, no par value
(the Class A, Class D, Class G and Class N Common Stock are sometimes
collectively referred to herein as the "Stock"); and,
WHEREAS, concurrent with the execution of this Agreement (i) the
Xxxxxxx Shareholders are entering into the Xxxxxxx XXX Trust and (ii) the
Xxxxxxxxx Shareholders are entering into the Xxxxxxxxx XXX Trust; and
WHEREAS, ANI now owns all of the outstanding common stock of Garden
State Newspapers, Inc. and 60% (on a fully diluted basis) of the common stock
of Denver Newspapers, Inc.; and
WHEREAS, the Xxxxxxxxx XXX Trustee, the Xxxxxxxxx Shareholders, the
Xxxxxxx XXX Trustee, the Xxxxxxx Shareholders and ANI desire to enter into this
Shareholders' Agreement in order to provide a continuing framework for their
relationship as the legal
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and beneficial owners of all of the outstanding capital stock of ANI and to
further define their mutual obligations.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants herein contained, the parties hereto mutually agree as follows:
1. PROPOSED ACTIVITIES OF ANI
1.01 Newspaper Publishing Business. ANI will engage only in the
business of owning and holding the securities of companies that are in the
business of publishing and distributing newspapers.
2. RESTRICTIONS UPON SALE OR TRANSFER OF STOCK
2.01 Generally.
At any time during the term of this Agreement none of the
Xxxxxxxxx XXX Trust, any of the Xxxxxxxxx Shareholders, the Xxxxxxx XXX Trust
nor any of the Xxxxxxx Shareholders shall sell, transfer, assign, pledge, give
away or otherwise dispose of, alienate, or encumber in any manner any interest
in any shares of, or interest in any voting trust certificates relating to, any
class, now or hereafter authorized, of the Common Stock of ANI (any Common
Stock of ANI or interest in any voting trust certificate relating thereto being
hereinafter referred to as the "Stock") beneficially owned by any of them,
other than as hereinafter expressly provided in Sections 3, 4 or 5 of this
Agreement, and any attempt to sell, transfer, assign, pledge, give away or
otherwise dispose of or alienate or encumber any interest in any of the Stock
in violation of this Agreement shall be void and of no effect and shall not be
recognized or recorded in the stock transfer books of ANI.
2.02 Additional Restrictions.. Until the earlier of (i) the date
on which all of the then outstanding shares of Class B Common Stock, Class D
Common Stock, Class G Common Stock and Class N Common Stock are automatically
converted into shares of Class A Common Stock pursuant to the terms of the
Amended and Restated Certificate of Incorporation of the Company, or (ii) the
date on which the Leverage Ratio of ANI (as such term is defined in the
Indenture dated May 15, 1994 between ANI and the Bank of New York as Trustee)
is less than 3:1, and except as otherwise provided in Section 3 or 4 hereof,
none of the Xxxxxxxxx XXX Trust, the Xxxxxxxxx Shareholders, the Xxxxxxx XXX
Trust or the Xxxxxxx Shareholders shall sell, transfer, assign, pledge, give
away or otherwise dispose of, alienate, or encumber in any manner whatsoever
(each, as "Transfer") any shares or interest in any shares of any class, now or
hereafter authorized, of the Stock beneficially owned by any of them unless all
shares of Stock then
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outstanding are Transferred by the holders thereof in a single transaction or
series of related transactions on substantially the same terms.
2.03 Tag-Along Restrictions/Rights.
(a) No shareholder (a "Selling Shareholder") shall,
individually or collectively, in any one transaction or series of transactions,
directly or indirectly, Transfer rights to all or any part of the Selling
Shareholder's Stock in a transaction not otherwise permitted under Section 3 or
Section 4 hereof, to any person (other than a Permitted Transferee) (a "Third
Party") unless the terms and conditions of such Transfer to such Third Party
shall include an offer to each other shareholder (each, for purposes of the
Section 2.03, a "Tag Along Offeree") to include at the option of each Tag Along
Offeree, in the sale or other disposition to the Third Party such number of
shares owned by each such Tag Along Offeree at the time of such Transfer
determined in accordance with this Section 2.03. The Selling Shareholder
proposing to effect such Transfer (the "Transferor") shall send a written
notice (the "Tag-Along Notice") to each of the Tag Along Offerees setting forth
the maximum number of shares of Stock the Third Party is willing to purchase or
otherwise acquire. At any time within 45 days after its receipt of the
Tag-Along Notice, each of the Tag-Along Offerees may exercise its option to
sell a number of shares of Stock owned by such Tag- Along Offeree determined in
accordance with the provisions of Section (b) of this Section 2.03 by
furnishing written notice of such exercise (the "Exercise Notice") to the
Transferor, which Exercise Notice shall set forth the maximum and minimum
number of shares of Stock that such Tag-Along Offeree wishes to Transfer to the
Third Party.
(b) If the proposed sale or other disposition to the
Third Party by the Transferor is consummated, each Tag-Along Offeree shall have
the right to sell to the Third Party as part of such proposed Transfer the same
percentage of the total number of shares of Stock then owned by such Tag-Along
Offeree as the percentage of the total number of shares of Stock then owned by
the Selling Shareholder to be Transferred to the Third Party; provided,
however, that, in the event that the total number of shares of Stock proposed
to be Transferred of by the Transferor and all Tag- Along Offerees as set forth
in their respective Exercise Notices exceeds the maximum number of shares of
Stock that the Third Party is willing to purchase or otherwise acquire, then
the number of shares of Stock to be Transferred by the Transferor and the
Tag-Along Offerees who have given Exercise Notices shall be allocated among the
Transferor and such Tag-Along Offerees (with rounding to avoid fractional
shares) in proportion to the number of shares of Stock that each of them
originally proposed to Transfer of to the Third Party; provided that if such
allocation would result in any such Tag-Along Offeree Transferring less than
the minimum number of shares of Stock set forth in such Tag-Along Offeree's
Exercise Notice, such Exercise Notice shall be deemed revoked and the shares of
Stock which such Tag-Along Offeree would otherwise have been entitled to
Transfer to the
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Third Party shall be allocated among the Transferor and the other Tag-Along
Offerees who gave Exercise Notices in accordance with the foregoing provisions
of this sentence. All calculations pursuant to this paragraph Section 2.03
shall exclude and ignore any unissued shares of Stock issuable pursuant to
stock options, warrants and other rights to acquire shares of Stock.
(c) Each of the Transferor and the Third Party shall have
the right, in its sole discretion, at all times prior to consummation of the
proposed Transfer giving rise to the tag along right granted by this Section
2.03, to abandon, rescind, annul, withdraw or otherwise terminate such Transfer
whereupon all tag along rights in respect of such sale or other disposition
pursuant to this Section 2.03 shall become null and void, and neither the
Transferor nor the Third Party shall have any liability or obligation to any
Tag-Along Offeree with respect thereto by virtue of such abandonment,
rescission, annulment, withdrawal or termination.
(d) The purchase from the Tag-Along Offerees pursuant to
this Section 2.03 shall be on the same terms and conditions, including but not
limited to the per share price and the date of sale or other disposition, as
are applicable to the Transferor which shall be as stated in the Tag-Along
Notice provided to the Tag-Along Offerees by the Transferor.
(f) If within 45 days after receipt of the Tag-Along
Notice, any Tag-Along Offeree has not delivered an Exercise Notice, such
Tag-Along Offeree will be deemed to have waived any and all of its rights with
respect to the Transfer described in the Tag-Along Notice and the Transferor
shall have 90 days after the expiration of such 45 day period in which to
Transfer not more than the number of shares of Stock described in the Tag-Along
Notice (minus the number of shares of Stock Transferred to the Third Party by
Tag-Along Offerees) on terms not more favorable to the Transferor than were set
forth in the Tag-Along Notice. If, at the end of 90 days following the receipt
of the Tag-Along Notice, the Transferor has not completed the Transfer of Stock
of the Transferor in accordance with the terms described in the Tag-Along
Notice, all the restrictions on Transfer contained in this Agreement with
respect to Stock owned by the Transferor shall again be in effect.
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3. PERMITTED TRANSFERS AMONG RELATED PARTIES
3.01 Permitted Transfers. At any time during the term of this
Agreement the Xxxxxxxxx XXX Trust, the Xxxxxxxxx Shareholders, the Xxxxxxx XXX
Trust or any member of the Xxxxxxx Shareholders may at any time sell, transfer,
or assign by inter vivos gift, testamentary bequest, or otherwise, for such
consideration, if any, as such person or entity shall, in its or his sole
discretion, determine appropriate (and without the prior consent of any other
shareholder or party to this Agreement), all or a portion of his interest in
shares of the Stock to members of his family (spouse, parents, siblings,
children, any descendants of the foregoing or any spouses of any of the
foregoing) or to a trust for the benefit of such family member(s) or in the
case of a trust, to its grantor or to its beneficiaries, (all such permitted
transferees sometimes being hereafter referred to as "Permitted Transferees"),
provided that the person or trustee of any trust to whom such shares are
transferred shall, together with his successors, assigns, distributees,
legatees, personal representatives, any receiver or trustee in bankruptcy or
trust beneficiaries, shall take such Stock subject to and bound by all of the
terms and conditions of this Agreement, including, without limitation, the
provisions of this Section 3 and of Sections 2, 4, 5, 6 and 7 hereof, and
further provided that the transferee shall execute and deliver to ANI a written
acknowledgment of the foregoing, whereupon a new certificate shall be issued to
it or him, representing the shares of Stock transferred to him bearing the
restrictive legend set forth in Paragraph 6.01 hereof.
3.02 Agreement of the Trustees. Each of the Xxxxxxxxx XXX Trustee
and the Xxxxxxx XXX Trust Trustee acknowledges that he has only bare legal
title to the Stock beneficially owned by the Xxxxxxxxx Shareholders and the
Xxxxxxx Shareholders, respectively, and he agrees with all parties hereto that
he shall promptly take all action necessary and appropriate to effect the
transfer of title to any Stock that is permitted or required to be transferred
by the Xxxxxxxxx Shareholders or the Xxxxxxx Shareholders, as the case may be,
pursuant to the provisions of this Section 3 or under Sections 4 or 5. Each
such Trustee further agrees that he shall not have the power to transfer title
to any of the Stock owned of record by him except pursuant to a transfer
permitted or required to be made by the Xxxxxxxxx Shareholders or Xxxxxxx
Shareholders under this Section 3 or under Sections 4 or 5. All of the
provisions of this Section 3.02 shall be binding upon all successors and
assigns of each such Trustee.
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4. TRANSFER OF STOCK BY CONSENT OF PARTIES
4.01 Transfer By Consent. At any time during the term of this
Agreement any shareholder may Transfer, with or without consideration, all or
any part of its Stock free and clear of any restrictions or limitations in this
Agreement, but only with the express prior written consent of all of the other
parties to this Agreement, which consent may be granted or withheld in the sole
and absolute discretion of each of such parties. In the event such prior
written consent is obtained, this Agreement shall not apply to the Stock to
which the consent relates, so long as the Transfer is made in accordance with
all the terms and conditions of such consent.
5. COMPANY'S AND SHAREHOLDERS' OPTIONS TO PURCHASE STOCK
5.01 Option to Purchase. Subject to the restrictions set forth in
Sections 2.02 and 2.03 hereof, should any shareholder (for purposes of this
Section 5, a "Selling Shareholder") desire to Transfer rights in all or any
part of the Selling Shareholder's Stock in a transaction not otherwise
permitted under Section 3 or 4 hereof, whether the Selling Shareholder desires
to initiate a Transfer or is responding affirmatively to an offer to Transfer,
before doing so the Selling Shareholder shall first permit (i) the Company and
thereafter (ii) the other Shareholders (the "Remaining Shareholders") to
exercise an option to purchase the shares of Stock which the Selling
Shareholder desires to Transfer in accordance with the provisions of this
Section.
(a) Subject to the restrictions set forth in Section 2.01(b),
a Shareholder may solicit third parties to purchase its Stock prior to offering
the same to the Company and the Remaining Shareholders, but no Transfer to a
third party may be consummated until such Stock has been offered to (i) the
Company and thereafter, (ii) the Remaining Shareholders in accordance with this
Agreement.
5.02 Required Notice. Upon deciding to Transfer all or any rights
in all or any part of his Stock, whether the Selling Shareholder desires to
initiate a Transfer, or is responding affirmatively to an offer to purchase,
except for Transfers expressly authorized pursuant to Sections 3 and 4 of this
Agreement, the Selling Shareholder shall simultaneously notify the Company and
the Remaining Shareholders of the intended Transfer. Such notice (the "Transfer
Notice") shall contain a complete description of the proposed transaction,
including the identity of any proposed transferee, the "Purchase Price" (as such
term is defined in Section 5.04 hereof) offered by the Selling Shareholder or
proposed by a bona fide third party transferee and all other
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material terms of such disposition. The Transfer Notice shall also specify
whether the Selling Shareholder is only willing to Transfer all of his Stock,
or is willing to Transfer only a portion thereof, and such specifications shall
control the scope of any option to purchase thereunder.
5.03 Scope and Priority of Company's and Remaining Shareholders'
Options.
(a) Upon receipt of a Transfer Notice from a Selling
Shareholder pursuant to Section 5.02, the Company shall thereupon have the
first option to purchase all (but not less than all) of such shares of Stock
tendered at the Purchase Price. Such option to purchase must be exercised by
the Company within thirty (30) days after receipt of the Transfer Notice. Any
exercise of such option to purchase Stock by the Company shall be made by
notice in writing to the Selling Shareholder, with copy to all other
Shareholders, mailed within such thirty-day period. If the Company elects not
to exercise such option to purchase it shall so notify in writing the Selling
Shareholder, with copy to all other Shareholders, (the "Non-Exercise Notice")
mailed within such thirty-day period.
(b) If the Company fails to exercise its option to
purchase all of the Selling Shareholder's Stock in accordance with Section
5.03(a) above, then upon receipt of a notice (the "Second Transfer Notice")
from a Selling Shareholder that the Company has failed to exercise its option
to purchase pursuant to Section 5.03(a) above, or that the Company has notified
the Selling Shareholder that it has elected not to exercise such option to
purchase, the Remaining Shareholder(s) shall thereupon have an option to
purchase all of such shares tendered at the Purchase Price. This option to
purchase must be exercised by the Remaining Shareholder(s) within ten (10) days
after receipt by the Remaining Shareholders of the Second Transfer Notice. If
any Remaining Shareholder fails to exercise his option to purchase shares, or
exercises such option to purchase less than all the shares available to him,
then the other Remaining Shareholders shall have a period of ten (10) days
following the initial thirty day period to acquire all or any part of such
offered shares which are left. Any exercise of such option to purchase Stock
by the Remaining Shareholder(s) shall be made by notice in writing to the
Selling Shareholder, with copy to all other Shareholders, mailed within such
ten (10) day period (or, if not all shares of the Selling Shareholder are
acquired during such first period, then by notice mailed within the ten-day
period following).
(c) Any notice given pursuant to this Section 4 shall be given
as provided in Section 8.01 of this Agreement.
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5.04 Purchase Price.
(a) If the purchase price (the "Purchase Price") set
forth in the Transfer Notice is a bona fide all cash offer, then the Purchase
Price shall be such all cash offer.
(b) If all or any part of the Purchase Price set forth in
the Transfer Notice is non-cash consideration, then the Fair Market Value (as
such term is defined herein) of such non-cash consideration shall be determined
pursuant to the provisions of Section 5.05 hereof. The time periods for
exercise of options to purchase set forth in Section 5.03(a) and (b) hereof
shall be tolled until such time as the Fair Market Value of a non-cash offer
has been determined in accordance with the provisions of Section 5.05 hereof.
(c) As used in this Agreement, "Fair Market Value" shall
mean the amount that would be paid for all of the outstanding shares of capital
stock of the Company as a going concern, on a consolidated basis with its
subsidiaries, by a willing buyer to a willing seller, both knowledgeable in the
newspaper publishing industry.
5.05 Determination of Fair Market Value.
(a) If all or any part of the Purchase Price specified in
the Transfer Notice is a non-cash offer, then the Selling Shareholder and the
Company may mutually agree as to the Fair Market Value of the non-cash offer.
If the Selling Shareholder and the Company are unable to agree on such value
within ten (10) days after the Company and the Remaining Shareholders receive
the Transfer Notice, then in such event, Fair Market Value shall be established
as hereinafter provided by two independent qualified appraisers knowledgeable
in the newspaper publishing industry, one to be appointed by the Selling
Shareholder and the other to be appointed by majority vote of the Remaining
Shareholders (irrespective of whether the Company shall exercise the option
granted to it under Section 5.03 of this Agreement).
(b) The two independent appraisers shall be appointed
within twenty (20) business days after receipt by the Company and the Remaining
Shareholders of the Transfer Notice; if either the Selling Shareholder or the
Remaining Shareholders fails to appoint an appraiser within this time period,
then its right to do so shall lapse, and the appraisal made by the one
independent appraiser who is timely appointed shall be the Fair Market Value.
If two appraisals are made, and if the higher appraisal does not exceed 110% of
the lower, Fair Market Value will be the average of the two. If the two
appraisals are further apart, a third appraiser
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will be selected within ten (10) days by the first two appraisers, and the Fair
Market Value will be deemed to be the average of the third appraisal and the
one of the first two appraisals which is closer to the third. All appraisals
shall be made within thirty (30) days of appointment of an appraiser and
written notice of the results of such appraisal shall be given to the parties
within such time. The Fair Market Value of ANI will be determined in its
entirety as a going concern, with the Selling Shareholder to receive a
proportionate part of the total value based on the number of shares being sold
by it. In making any appraisal hereunder all debts and liabilities shall be
taken into account and there shall be no discount made on account of the
Selling Shareholder's interest being a minority interest, and no premium
imposed on account of the Selling Shareholder's interest being a majority
interest. The Selling Shareholder shall pay the fee of the appraiser selected
by it, and the Remaining Shareholders (irrespective of whether the Company
shall exercise the option granted to it under Section 5.03 of this Agreement)
shall pay the fee of the appraiser selected by them (in proportion to their
respective ownership interests in the Company), with the fee of any third
appraiser to be divided equally among the Selling Shareholder and the Remaining
Shareholders.
5.05 Failure To Exercise. If the Remaining Shareholder(s) fails to
exercise its/their option to purchase the Selling Shareholder's Stock, the
Selling Shareholder shall be free to dispose of such Stock within a ninety day
period after the expiration of the Remaining Shareholder(s) option, but not
below the Purchase Price offered to the Remaining Shareholders, and not to a
different transferee than specified in the Transfer Notice (if any transferee
was so specified), or in a materially different manner or on materially
different terms. If the Stock is not disposed of within such ninety-day period
then this right shall lapse and the Selling Shareholder must thereafter
recommence the offering process to the Company and the Remaining Shareholder(s)
if he subsequently wishes to dispose of his shares. For purposes of this
Section, a sale shall be deemed made when closing has occurred, and the
transfer agent (or if no transfer agent has been appointed, the Secretary of
ANI) has been requested to record the transfer of Stock in the stock transfer
records of ANI. Any person to whom the shares of the Selling Shareholder are
transferred, following the Remaining Shareholder(s)' failure to exercise
its/their option to purchase, shall take such shares subject to all the terms
and conditions and restrictions imposed by this Agreement.
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5.06 Payment of Purchase Price.
(a) The purchaser of any Stock under this Section 5 shall
have the option to pay the Purchase Price in one of two methods. The first
method, called Option 1, shall consist of full payment of the Purchase Price by
a wire transfer of immediately available federal funds to a bank account
designated by the Selling Shareholder upon a date mutually selected by the
Selling Shareholder and the purchaser which is not more than ninety (90) days
after the determination of the Purchase Price as hereinbefore provided (such
date being herein referred to as the "Closing Date").
Upon receipt of the Purchase Price on the Closing Date, all
interest of the Selling Shareholder in the Stock being sold shall terminate, and
the Selling Shareholder shall cease to have any further rights as a shareholder
in the Stock being sold.
At the closing on the Closing Date, the Selling Shareholder
shall deliver to the purchaser a certificate or certificates duly endorsed for
transfer representing all of the Stock being sold on that date by the Selling
Shareholder.
(b) The second method of payment for Stock called Option 2
shall consist of paying not less than ten percent (10%) of the total Purchase
Price in cash on the Closing Date, and by giving the Selling Stockholder the
purchaser's promissory note for the balance of the Purchase Price in not more
than 120 equal monthly installments of principal.
Simple interest on the unpaid principal balance of the
Purchase Price shall accrue from the Closing Date and shall be payable monthly
at the base rate of interest established by Bankers Trust Company, as such rate
may change from time to time, but in no event less than the minimum rate of
interest that is required under the Internal Revenue Code and the regulations
thereunder to avoid the imputation of a higher rate. The first installment of
principal and interest shall be due on the first day of the first calendar month
following the Closing Date, and such installments shall continue on the first
day of each month thereafter until the entire principal balance together with
interest thereon have been paid, but in any case for a period of not more than
ten (10) years from the date of the first installment.
The purchaser's promissory note shall provide that such note
shall be payable in full (i) upon the sale of all or substantially all of the
assets used by ANI or its direct or indirect subsidiaries in the operation of
their business, (ii) upon the sale of 50% or more of the then outstanding Stock
of ANI within
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any 180-day period, or (iii) upon the offering of any equity securities by ANI
or any subsidiary of ANI for sale to the public after the date hereof. As used
in this paragraph, the term "sale" includes an exchange of assets or Stock for
assets or stock, whether or not gain or loss attributable to such transaction
is recognized for federal income tax purposes. However, the term "sale" shall
not include any transaction by which the Stock or assets of ANI become owned by
any parties to this Agreement or any transferee permitted under Section 3
hereof or any corporation or other entity that is wholly owned by one or more
of the parties to this Agreement.
If the purchaser elects Option 2, in order to secure the
performance by the purchaser of the obligations under his or its promissory
note, the purchaser shall place the stock certificate or certificates
representing the Stock purchased in escrow with the law firm of Verner,
Liipfert, Bernhard, XxXxxxxxx & Hand, 000 00xx Xxxxxx, X.X., Xxxxx 000,
Xxxxxxxxxx, X.X. 00000-0000, or such other person or entity as shall be mutually
acceptable to the purchaser and seller, as escrow agent (the "Escrow Agent"),
with stock powers duly endorsed in blank, as security for the payment of the
unpaid principal balance and interest on the purchaser's promissory note. The
Escrow Agent may require the purchaser and seller to execute and deliver an
escrow agreement more fully outlining the obligations of the Escrow Agent and
otherwise containing terms and conditions typically found in escrow agreements
in commercial transactions and not inconsistent with this Agreement. The
promissory note given by each purchaser shall provide that upon default in
payment of any installment of principal or interest if such default shall
continue for more than thirty (30) days after written notice of default has been
given to the purchaser by the holder of the note, the holder of the note at that
time may inform the Escrow Agent in writing of the default, and thereupon, the
Escrow Agent shall deliver the stock certificates and accompanying stock powers
to the holder of the promissory note. Upon such delivery (1) all obligations of
the Escrow Agent to all of the parties hereunder shall cease and (2) the holder
of the promissory note shall be entitled to pursue whatever remedies it may have
in law or equity against the purchaser.
Voting and dividend rights (other than the rights to any
liquidating dividend) with respect to the pledged Stock shall be vested in the
purchaser while such Stock is held in escrow and until there has been a default
in payment of interest or principal with respect to the promissory note.
All Stock pledged hereunder and all the accompanying stock
powers shall be returned to the purchaser upon full satisfaction of the
promissory note.
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In addition to the provisions for payment contained above in
this Section, the purchaser, at its sole option, may prepay any amount of
principal or interest due on the purchaser's promissory note at any time,
without penalty. Any prepayment shall be applied against the remaining
principal installments due under the note to the Selling Shareholder in the
inverse order in which such installments fall due. Any prepayment shall be
applied first to pay any interest that is in arrears, and then shall be applied
to reduce the entire principal balance before any prepayment is applied to
interest that is not in arrears.
6. RESTRICTIVE LEGEND
6.01 Form of Legend. All certificates for the shares of the Stock
shall bear the legend set forth below.
"Sale, transfer, assignment, pledge, gift or any other disposition,
alienation or encumbrance of the shares represented by this
certificate is restricted by the terms of a Shareholders' Agreement
dated as of May 20, 1994, among certain Shareholders and the Company,
which may be examined at the office of the Company, and such shares
may be sold, transferred, assigned, pledged, given or otherwise
disposed of, alienated or encumbered only upon compliance with the
terms of that Agreement, which is incorporated herein by reference."
"The shares represented by this certificate have not been registered
under the Securities Act of 1933 (the 'Act') and may not be offered,
sold, or otherwise transferred, unless and until (i) a registration
statement with respect thereto is effective under the Act or (ii) in
the opinion of counsel, which opinion is reasonably satisfactory in
form and in substance to counsel for the Company, such offer, sale or
other transfer is in compliance with the Act and any applicable state
securities laws."
6.02 Stock Not Registered; Purchase for Investment. The parties
hereto expressly acknowledge and agree that the Stock is restricted as
described in the above legends; and that ANI is under absolutely no obligation
to, and has no plans to, register any of the Stock under the Securities Act of
1933, as amended.
7. GENERAL COVENANTS
7.01 Applicability of Covenants. The covenants set forth in this
Section 7 are made for the benefit of each of the Xxxxxxxxx XXX Trust, the
Xxxxxxxxx Shareholders, the Xxxxxxx XXX Trust and the Xxxxxxx Shareholders.
Such covenants shall also run in favor
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of any transferee permitted hereunder of the Stock of ANI but do not run in
favor of any of the holders of Class B Common Stock, their successors or
assigns.
7.02 Negative Covenants.
(a) From and after the date hereof, no equity securities of
ANI shall be issued, or class of securities convertible into equity securities
of ANI created, or obligations of ANI to issue additional equity securities
incurred.
(b) ANI covenants that it shall not do, take or permit any of
the following actions, unless the same shall have first been approved by the
approval of all directors then serving on ANI's Board of Directors, or by
unanimous approval of the full Executive Committee of ANI's Board of Directors,
or by the holders of not less than 75% of the shares of Stock then outstanding,
voting as a single class, and each of the Xxxxxxxxx XXX Trust, the Xxxxxxxxx
Shareholders, the Xxxxxxx XXX Trust and the Xxxxxxx Shareholders, covenant that
they shall cause ANI to refrain from such actions, unless they have been
approved in the manner provided above:
(1) Declare and pay any dividends on its common stock;
(2) Purchase or redeem any of its capital stock or make
investments in any other person or entity except as
otherwise expressly permitted herein;
(3) Adopt annual capital or annual operating budgets, or
made any single capital expenditure in excess of
$1,000,000 in any fiscal year;
(4) Except as otherwise provided in the Certificate of
Incorporation, create, establish or acquire any
subsidiary, or liquidate or dissolve itself or any
subsidiary, or merge or consolidate, or cause or
permit any subsidiary to be merged or consolidated,
with any corporation, or enter into any transaction
under which any class of its stock would be acquired
or the stock of any subsidiary would be sold, or
sell, lease, encumber, convey, transfer or otherwise
dispose of all or any substantial part of its assets
or those of any subsidiary, or amend its Certificate
of Incorporation or Bylaws, or, except as otherwise
provided in the Certificate of Incorporation, issue
any capital stock not specifically permitted herein,
or permit any subsidiary to issue capital stock to
any person other than ANI or elect any directors of
any subsidiary, or permit any subsidiary to appoint
any
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committee of its Board of Directors, or acquire or
sell any newspaper business;
(5) Incur any debt which aggregates $1,000,000 or more on
a cumulative basis in any fiscal year;
(6) Fix the level of total compensation for any employee
which would be over $175,000 per year;
(7) Enter into or acquiesce in any agreement which limits
or restricts the rights of any of the parties thereto
to comply with the provisions of this Agreement;
(8) Appoint any committee of the Board of Directors of
ANI;
(9) Appoint an appraiser or appraisers for evaluation of
any assets purchased directly or indirectly by ANI or
any subsidiary;
(10) Enter into or acquiesce in any agreement which limits
or restricts the rights of ANI, the Xxxxxxxxx XXX
Trust, the Xxxxxxxxx Shareholders, the Xxxxxxx XXX
Trust or the Xxxxxxx Shareholders, to comply with the
provisions of this Agreement;
(11) Make any material change in its management of ANI or
its subsidiaries, including, but not limited to,
hiring, replacing or discharging of the chief
executive officer of ANI; or
(12) Refinance or refund, or amend, supplement, otherwise
modify or waive any material term of, any existing
loan agreement for borrowed money.
The Xxxxxxxxx XXX Trust, the Xxxxxxxxx Shareholders, the Xxxxxxx XXX
Trust and the Xxxxxxx Shareholders acknowledge that, under the Amended and
Restated Certificate of Incorporation set forth at Exhibit A hereto, the
holders of Class B Common Stock have certain voting rights on matters affecting
the dividend, liquidation and conversion rights of the Class B Common Stock.
8. NO RIGHTS FOR CLASS B COMMON STOCK
8.01 No Rights for Class B Common Stock. This Agreement shall not
convey or create any rights to or for the benefit of the holders of Class B
Common Stock, their successors or assigns, and the violation or waiver of any
of the provisions of this Agreement
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by the parties hereto shall not convey or create any rights, nor give rise to
any claim or cause of action, on the part of the holders of Class B Common
Stock, their successors or assigns.
9. MISCELLANEOUS
9.01 Notices. All notices and other communications hereunder shall
be in writing and deemed to have been duly given if delivered by hand or
mailed, postage prepaid by certified mail, return receipt requested to the
following persons and addresses:
(a) To ANI: Mr. W. Xxxx Xxxxxxxxx,
Vice Chairman
Suite 525
0000 Xxxx Xxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
With Copy To: Xxxxxx X. Xxxxx, Xx., Esquire
Verner, Liipfert, Bernhard,
XxXxxxxxx & Hand
Xxxxx 000
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx X.X. 00000
(b) To the Xxxxxxx Care of:
ANI Trust or Xxxx X. Xxxxxxx
or to any Xxxxxxx XX #0 Xxx 00
Shareholders: Xxxxxxxxx, Xxxxx 00000
With Copy To: Xxxxxxxxx X. Xxxx, Esq.
Xxxxxx, Xxxx & English
00 Xxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
(c) To the Xxxxxxxxx Mr. W. Xxxx Xxxxxxxxx
ANI Trust or any Suite 525
Xxxxxxxxx 0000 Xxxx Xxxxxxx Xxxxx
Xxxxxxxxxxx Xxxxxxx, Xxxxx 00000
With Copy To: Xxxxxx X. Xxxxx, Xx., Esquire
Verner, Liipfert, Bernhard,
XxXxxxxxx & Hand
Xxxxx 000
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx X.X. 00000
or to such subsequent persons and addresses as may be specified by notice.
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9.02 Equitable Relief. The parties hereby acknowledge that
monetary damages are insufficient to adequately remedy the damages which will
accrue, or which have accrued, to a part hereto by reason of a failure to
perform any of the obligations required under this Agreement. Therefore, if any
party hereto shall institute any action or proceeding to enforce the provisions
hereof, any person (including ANI) against whom such action or proceeding is
brought hereby waives the claim or defense therein that such party or personal
representative has or have an adequate remedy at law, and such person shall not
advance in any such action or proceeding the claim or defense that such remedy
at law exists.
9.03 Entire Agreement. Except as otherwise expressly provided
herein, this Agreement contains the entire agreement among the parties and it
may not be modified, changed, or amended unless the same be in writing and
signed by all of the parties hereto, or their successors or assigns.
9.04 Successors and Assigns. All of the terms and conditions
herein contained shall bind each of the parties hereto, their successors,
assigns, distributees, legatees, heirs, executors, administrators and personal
representatives and also any receiver or trustee in bankruptcy or insolvency.
9.05 Brokerage and Expenses. The parties hereto agree to pay their
respective expenses incurred in connection with this Agreement. Each of the
parties represents that it has had no dealings in connection with this
transaction with any finder, broker or other third party who may have a claim
against any of the other parties hereto arising out of or in connection with
any of the transactions contemplated by this Agreement; and each agrees to
indemnify the others against and hold the others harmless from any and all
liabilities (including without limitation, cost of counsel) to any persons
claiming brokerage commissions or finder's fees on account of services
purported to have been rendered on behalf of, or loss of investment rights-or
opportunity caused by, the indemnifying party in connection with this Agreement
or the transactions contemplated hereby.
9.06 Waivers. The terms, covenants, representations, warranties or
conditions of this Agreement may be waived only by a written instrument
executed by the party waiving compliance. No waiver by any party of any
breach of any term, covenant, representation, condition or warranty contained
in this Agreement, whether by contract or otherwise, in any one or more
instances, shall be deemed to be or construed as a waiver of any other breach
of any other term, covenant, representation, condition or warranty contained in
this Agreement.
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9.07 Amendment. This Agreement may be amended only by a written
instrument executed by all of the parties hereto.
9.08 Announcement. Such public announcement or "release" describing
the transactions provided for herein as may be required by applicable law or
regulation shall be made by ANI. No other public announcement or release with
respect to,the transactions provided for herein shall be made by any party,
unless the same shall be approved in advance by the other parties hereto.
9.09 Captions and Pronouns. The captions appearing in this
Agreement are included solely for the convenience of the parties and shall not
be given any effect in construing this Agreement. Wherever singular pronouns
are used herein, the same shall include the plural, and vice versa, and
wherever words of any gender are used herein, such words shall include other
genders.
9.10 Choice of Law. This Agreement shall be construed and
interpreted in accordance with the internal laws of the State of Delaware
without regard to the conflict of laws provisions thereof.
9.11 Counterparts. This Agreement may be executed in one or more
counterparts and by facsimile signatures, each of which shall be deemed to be
an original, and all of which taken together shall be deemed to be one and the
same instrument.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the
date and year first shown above.
AFFILIATED NEWSPAPERS INVESTMENTS, INC.
By:
------------------------------------
XXXXXXX X. XXXXXXXXX
Its Vice Chairman
---------------------------------------
XXXX X. XXXXXXX
As Trustee for the Xxxxxxx
Family Voting Trust Agreement
for Affiliated Newspapers
Investments, Inc.
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---------------------------------------
XXXXXXX XXXXXXX
---------------------------------------
XXXXXXX XXXXXX, as
Custodian for her Children
---------------------------------------
XXXXXXXXX X. XXXXXX, as
Custodian for her Children
---------------------------------------
XXXXXXXXX X. XXXXXX
---------------------------------------
XXXX X. XXXXXXX
Individually and as the Trustee
for the Xxxxxxx Family 1987 Trust
---------------------------------------
XXXXXX X. XXXXX, XX.
As Trustee of the Xxxxxxxxx Family
Voting Trust Agreement
for Affiliated Newspapers
Investments, Inc.
---------------------------------------
XXXXXX X. XXXXX, XX.
As Trustee of the Xxxxxxxxx Family
Revocable Trust
---------------------------------------
XXXXXX X. XXXXX, XX.
As Trustee of the Xxxxxxxxx Family
Irrevocable Trust
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