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Exhibit 2(n)
DOCUMENT ESCROW AGREEMENT
Michiana News Service, Inc.
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This agreement is made and entered into as of October 21, 1996, among
United Magazine Company, an Ohio corporation ("UNIMAG"), Michiana News Service,
Inc., a Michigan corporation ("MICHIANA"), all of Michiana's shareholders
(individually, a "MICHIANA SHAREHOLDER" and collectively, the "MICHIANA
SHAREHOLDERS"), and Xxxxx & Xxxxxxxxx ("ESCROW AGENT").
BACKGROUND INFORMATION
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A. Unimag, Michiana, and the Michiana Shareholders are parties to a
Stock Transfer and Exchange Agreement (the "EXCHANGE AGREEMENT") dated July 30,
1996, and certain other documents executed in connection with the transactions
contemplated by the Exchange Agreement (the "ADDITIONAL DOCUMENTS").
B. Unimag, Michiana, and the Michiana Shareholders desire to consummate
the Exchange (defined in the Exchange Agreement) and the other transactions
contemplated by the Exchange Agreement upon the satisfaction of certain
conditions (as described in Section 6.5 of the Exchange Agreement and as also
described more fully in this agreement).
C. Unimag, Michiana, and the Michiana Shareholders desire to deposit
the Additional Documents into escrow with the Escrow Agent, to be held by the
Escrow Agent upon the terms and subject to the conditions of this agreement. Any
and all agreements, instruments, and other documents delivered to Escrow Agent
to be held by it pursuant to the terms and subject to the conditions of this
agreement are sometimes referred to hereinafter, collectively, as the "CLOSING
DOCUMENTS".
D. Escrow Agent is willing to serve as the escrow agent upon the terms
and subject to the conditions of this agreement.
STATEMENT OF AGREEMENT
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The parties to this Agreement (each a "PARTY," and collectively, the
"PARTIES") hereby acknowledge the accuracy of the above Background Information
and, in consideration of the mutual covenants and agreements set forth in this
agreement, the Parties agree as follows:
Section 1. Unless otherwise defined in this agreement, all capitalized
words and phrases in this agreement shall have the same meanings as set forth in
the Exchange Agreement.
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Section 2. Unimag, Michiana, and/or the Michiana Shareholders have
executed and/or delivered to Escrow Agent and Escrow Agent hereby acknowledges
receipt of the agreements and documents described on Exhibit A.
Section 3. Unimag has executed and/or delivered to Escrow Agent and
Escrow Agent hereby acknowledges receipt of the documents and instruments
described on Exhibit B.
Section 4. Michiana has executed and/or delivered to Escrow Agent and
Escrow Agent hereby acknowledges receipt of the documents and instruments
described on Exhibit C.
Section 5. The Michiana Shareholders have executed and/or delivered to
Escrow Agent and Escrow Agent hereby acknowledges receipt of the documents and
instruments described on Exhibit D.
Section 6. Unimag, Michiana, and/or the Michiana Shareholders, as the
case may be, may hereafter deliver to Escrow Agent various other agreements,
instruments, and other documents to be held upon the terms and subject to the
conditions of this agreement. Upon delivery of such items to Escrow Agent, they
shall become Closing Documents under this agreement.
Section 7. Promptly following the Escrow Closing and the escrow
closings for the other acquisitions, the Escrow Agent shall take all necessary
action to file or record the documents listed as item 1 of Exhibit B and item 2
of Exhibit C in such offices as may be required to properly perfect in favor of
the trustee under the Debenture Agreement the security interests granted by item
1 of Exhibit B and item 1 of Exhibit C.
Section 8. Unless Unimag, Michiana, and the Michiana Shareholders all
otherwise agree and collectively instruct Escrow Agent in writing accordingly,
the delivery of the Closing Documents out of escrow shall be subject to the
fulfillment of the following conditions:
(a) Unimag shall have consummated the escrow closings of the
Xxxxx Acquisition, all of the Xxxxxxx Companies Acquisitions (except
for Northern), and the acquisition of The Xxxxxx X. Xxxxx News Co.,
Central News Co., and Newspaper Sales, Inc. (collectively, the "XXXXX
COMPANIES"). Such escrow closings shall have been completed no later
than November 15, 1996, and shall be upon terms and conditions
substantially similar to the Escrow Closing under the Exchange
Agreement and this agreement (hereinafter referred to as this "ESCROW
CLOSING"). Unimag and Michiana hereby acknowledge that the escrow
closing for Northern has been completed prior to this Escrow Closing
and that such escrow closing was upon terms and conditions
substantially similar to this Escrow Closing. This condition shall be
satisfied by delivery to Escrow Agent of certificates executed by
Unimag and by Xxxxx, by each of Ohio Periodical Distributors, Inc., The
Xxxxxxx Companies, Wholesalers Leasing Corp., and Read-mor Book Stores,
Inc. (collectively, the "XXXXXXX COMPANIES"), and by each of the Xxxxx
Companies, respectively (for the Xxxxx Acquisition, each of the
respective Xxxxxxx Companies Acquisitions (except for Northern), and
each of the respective Xxxxx Companies acquisitions), in the form
attached hereto as Exhibit E, certifying that the escrow closing for
the Xxxxx Acquisition, each of the respective Xxxxxxx Companies
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Acquisitions (except for Northern), and each of the respective Xxxxx
Companies acquisitions has been completed, the date completed, and that
such escrow closing was upon terms and conditions substantially similar
to this Escrow Closing. Each certificate shall also be executed by
Michiana for the purpose of evidencing Michiana's acknowledgement and
agreement to the certifications set forth in that certificate.
(b) The Exchange, the Xxxxx Acquisition, the Xxxxxxx Companies
Acquisitions (except for the acquisition of Read-mor Book Stores,
Inc.), and each of the respective Xxxxx Companies acquisitions shall
have been approved by the affirmative vote of the shareholders of
Unimag entitled to exercise voting power over at least a majority of
the outstanding common shares, without par value, of Unimag. This
condition shall be satisfied by delivery to Escrow Agent of a
certificate executed by the inspector of elections for this
shareholders' meeting, in the form attached hereto as Exhibit F,
certifying that the Exchange, the Xxxxx Acquisition, the Xxxxxxx
Companies Acquisitions (except for the acquisition of Read-mor Book
Stores, Inc.), and each of the respective Xxxxx Companies acquisitions
were approved by the affirmative vote of shareholders entitled to
exercise voting power over at least a majority of the outstanding
common shares of Unimag.
(c) A 1 for 10 reverse stock split of the outstanding common
shares, without par value, of Unimag shall have been effected. This
condition shall be satisfied by delivery to Escrow Agent of a
certificate from the Ohio Secretary of State certifying the
effectiveness of an amendment to Unimag's articles of incorporation,
which has a provision providing for such reverse stock split.
Section 9. Upon the satisfaction of the conditions set forth in Section
8 by Escrow Agent's receipt of all of the certificates described in Section 8,
the Parties will attend the Closing (as contemplated by the Exchange Agreement)
and Escrow Agent will distribute (a) the Debenture Agreement counterpart
signature pages list on Exhibit A and the Shareholder Voting Agreement
counterpart signature pages listed as item 1 on Exhibit D to the trustee under
the Debenture Agreement with instructions to distribute fully executed copies of
the Debenture Agreement and the Shareholder Voting Agreement (once all of the
closings have been completed) to (i) Xxxxxxxx X. Xxxxxxx (who shall represent
Michiana and its shareholders for purposes of receipt of such documents), (ii)
Xxxxxxx Xxxxx, Xx. (who shall represent Xxxxx and its shareholders for purposes
of receipt of such documents), (iii) Xxxxxx X. Xxxxxxx (who shall represent the
Xxxxxxx Companies and their shareholders for purposes of receipt of such
documents), and (iv) Xxxxxx X. Xxxxx (who shall represent the Xxxxx Companies
and their shareholders for purposes of receipt of such documents); (b) the
documents listed as item 1 of Exhibit B and items 1 and 2 of Exhibit C to the
trustee under the Debenture Agreement; (c) the remaining documents listed in
Exhibit B to Xxxxxxxx X. Xxxxxxx (who shall represent Michiana and all of the
Michiana Shareholders for purposes of receipt of such documents); (d) the
remaining documents listed in Exhibit C to an officer of Unimag; and (e) the
certificates (and stock powers) for the Michiana Shares and HOCAB Shares listed
on Exhibit D to an officer of Unimag. If instructed to do so by a Party entitled
to receive documents, the Escrow Agent may deliver such documents to another
person or entity. Unimag, Michiana, and the Michiana Shareholders hereby
acknowledge that the closings for the Xxxxx Acquisition, the remaining Xxxxxxx
Companies Acquisitions, and the Xxxxx Companies acquisitions will be held
shortly after the Closing.
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Section 10. If all of the conditions set forth in Section 8 have not
been satisfied by December 31, 1996, or such later date as Unimag and Michiana
may agree to and so instruct Escrow Agent in writing, provided that they also
obtain the written consent of 1st Source Bank to such later date, then Escrow
Agent shall (a) destroy the Closing Documents described in Exhibit A, (b) return
the Closing Documents described in Exhibit B to Unimag, except for items 2, 3,
4, 11, 12, and 16, all of which the Escrow Agent shall destroy, (c) return the
Closing Documents described in Exhibit C to Michiana, except for items 9, 12,
13, and 16, all of which Escrow Agent shall destroy, and (d) return the Closing
Documents described in Exhibit D to the Michiana Shareholders (via Xxxxxxxx X.
Xxxxxxx as their attorney-in-fact), except for the Voting Agreement, which the
Escrow Agent shall destroy; and all of the Closing Documents shall be deemed
void and of no further force and effect. Notwithstanding the foregoing, the
Exchange Agreement shall be deemed terminated and each of Unimag, Michiana, and
the Michiana Shareholders shall remain responsible for its or their costs and
expenses associated with the transactions contemplated by the Exchange Agreement
in accordance with the provisions of Section 9.10 of the Exchange Agreement.
Section 11. In the event of any dispute between or among any of the
Parties relating to distribution of the Closing Documents by Escrow Agent or any
other matter, Escrow Agent may submit the matter to any court of competent
jurisdiction in an interpleader or similar action. Any and all costs incurred by
Escrow Agent in connection therewith, including reasonable attorneys' fees and
costs, shall be shared equally by Unimag and the Michiana Shareholders. Escrow
Agent shall perform any acts ordered by any court of competent jurisdiction
without any liability or obligation to any other Party by reason of such act.
Section 12. Escrow Agent shall have no liability to any other Party, or
such Party's successor or assigns, or to any person or entity claiming under or
in the right of any other Party, based upon or on account of any action taken or
omitted by Escrow Agent, unless such action or omission shall have been the
result of Escrow Agent's gross negligence or intentional misconduct.
Notwithstanding the foregoing to the contrary, in no event shall the Escrow
Agent be liable to any party for acting upon any notice, request, consent,
certificate, order, affidavit, letter, telegram, facsimile transmission or other
paper or document believed by Escrow Agent to be genuine and correct and to have
been signed or sent by the proper person or persons. Unimag, Michiana, and the
Michiana Shareholders shall, jointly and severally, hold harmless and indemnify
Escrow Agent from and against any and all losses, liabilities, damages, claims,
suits, actions, costs, and expenses (including attorneys' fees) which may be
asserted against or incurred by Escrow Agent as a result of it serving as escrow
agent under this agreement.
Section 13. Instructions to Escrow Agent shall be addressed to:
Xxxxx & Xxxxxxxxx
00 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxx 00000
Attention: Xxxx Xxxxxxxx, Esq.
and shall be deemed to have been delivered to the Escrow Agent when delivered
personally, by facsimile (which is confirmed), mailed by registered or certified
mail (return receipt requested),
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or delivered to Federal Express, United Parcel Service, or any other nationally
recognized express delivery service.
Section 14. The Parties hereby: (a) designate the Court of Common Pleas
of Franklin County, Ohio, as a court of proper jurisdiction and venue for any
actions or proceedings relating to this agreement; (b) irrevocably consent to
such designation, jurisdiction and venue; and (c) waive any objections or
defenses relating to jurisdiction or venue with respect to any action or
proceedings initiated in the Court of Common Pleas of Franklin County, Ohio.
Section 15. The rights and obligations of the Parties under this
agreement shall be construed and resolved in accordance with the laws of the
State of Ohio, exclusive of conflict of laws principles. This agreement shall be
binding upon, inure to the benefit of, and be enforceable by and against the
respective successors and permitted assigns of the Parties. This agreement may
be executed in one or more separate counterparts, which, when read together,
shall be as fully-effective as a single, executed counterpart and all of which
shall constitute one and the same document.
Section 16. If the Escrow Agent receives a written notice from any of
the Parties of a dispute as to completion of any of the conditions set forth in
Section 8, and such notice is received prior to the distributions from escrow
set forth in Section 9, then Escrow Agent shall, until such dispute is resolved,
either submit the documents held in escrow to another law firm selected by it to
act as successor escrow agent, or deposit such documents with a court of
competent jurisdiction or continue to retain the documents and act as Escrow
Agent. In the event of such dispute, the escrow documents shall be held by the
Escrow Agent or its successor or the court until otherwise directed in writing
by agreement of the parties or otherwise directed by a court of competent
jurisdiction. In any such event, the parties agree that Xxxxx & Xxxxxxxxx may
continue to represent Unimag in any matter, including any dispute under this
agreement, and the parties hereby waive any conflict of interest of Xxxxx &
Xxxxxxxxx in that regard.
UNITED MAGAZINE COMPANY
By /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx, Chairman
MICHIANA NEWS SERVICE, INC.
By /s/ Xxxxxxxx X. Xxxxxxx
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Xxxxxxxx X. Xxxxxxx, President
[Signatures continued on the following page.]
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THE MICHIANA SHAREHOLDERS:
/s/ Xxxxxxxx X. Xxxxxxx
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XXXXXXXX X. XXXXXXX, Trustee under
a Self-Declaration Trust dated July 6, 1990
/s/ Xxxxxxxx X. Xxxxxxx
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XXXXXXXX X. XXXXXXX, Trustee under
an Irrevocable Family Trust Agreement with
Xxxxxxxx X. Xxxxxxx, dated January 22,
1986
/s/ Xxxxxxx X. Xxxxxxx
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XXXXXXX X. XXXXXXX, Trustee under an
Irrevocable Family Trust Agreement with
Xxxxxxxx X. Xxxxxxx, dated January 22,
1986
XXXXX & XXXXXXXXX
By /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx, Partner
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EXHIBIT A
DOCUMENTS DELIVERED BY UNIMAG, MICHIANA,
AND/OR THE MICHIANA SHAREHOLDERS
1. Debenture Agreement dated as of October 9, 1996, among Unimag, the
Michiana Shareholders, and certain other parties. (Includes counterpart
signature pages for only Unimag and the Michiana Shareholders. The
remaining counterpart signature pages will be provided in connection
with the other Escrow Closings.)
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EXHIBIT B
DOCUMENTS DELIVERED BY UNIMAG
1. Two Mortgages executed by Unimag, as mortgagor. (Counterpart signature
page of Trustee to be delivered to Escrow Agent in connection with the
other Escrow Closings.)
2. Employment Agreements with Xxxxxxx Xxxxxxx, Xxxxx X. Xxxxxxx, and
Xxxxxxxx X. Xxxxxxx.
3. Agreement not to compete of Xxxxxxxx X. Xxxxxxx.
4. Real Estate Purchase Agreement dated October 21, 1996, between A. Xxxxx
Xxxxxxx and Unimag for the Fort Xxxxx facility.
5. Certified articles of incorporation of Unimag.
6. Good standing certificate of Unimag.
7. Certified code of regulations of Unimag.
8. Incumbency certificate of Unimag.
9. Certificate of president of Unimag.
10. Certified board of directors resolutions.
11. Supply Agreement dated October 21, 1996, between Unimag and HOCAB.
12. Asset Purchase Agreement dated October 21, 1996, between Xxxxx Trucking
and Unimag. (Schedules to be revised by parties as provided in the
Agreement.)
13. Letters from shareholders of Unimag entitled to vote more than 50% of
Unimag common shares indicating they will vote in favor of the
Exchange.
14. Letter or copy of federal register notice from Federal Trade Commission
terminating HSR Act waiting period for the acquisition of Ohio
Periodical Distributors, Inc.
15. Letter of Xxxxxx Xxxxxxxx LLP with respect to tax effect on Unimag of
the Section 351 exchange.
16. Opinion letter of Xxxxx & Xxxxxxxxx.
17. Irrevocable instruction letter to Unimag's transfer agent for the
issuance of Unimag Shares to the Michiana Shareholders as required by
the Exchange.
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18. Nine Senior Debentures to be issued to the Michiana Shareholders (or
their designee) under the Debenture Agreement.
19. Nine Subordinated Debentures to be issued to the Michiana Shareholders
(or their designee) under the Debenture Agreement.
20. Resolutions of Unimag as the sole shareholder of Michiana electing new
directors and officers of Michiana (to be effective at the Closing).
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EXHIBIT C
DOCUMENTS DELIVERED BY MICHIANA
1. Two Security Agreements between Michiana and the Trustee granting to
the Trustee (for the benefit of the Debenture Holders) a security
interest in all tangible personal property of Michiana. [Includes
counterpart signature page for Michiana only. Signature page of Trustee
to be delivered to Escrow Agent in connection with the other Escrow
Closings.]
2. Six UCC-1 financing statements executed by Michiana, as debtor. (Name
of Trustee, as secured party, and execution by Trustee, to be provided
to Escrow Agent in connection with the other Escrow Closings.)
3. Certified articles of incorporation of Michiana.
4. Good standing certificate of Michiana.
5. Certified By-laws of Michiana.
6. Incumbency certificate of Michiana.
7. Certificate of president of Michiana.
8. Written actions of board of directors and shareholders.
9. Lease Agreement dated October 21, 1996, between A. Xxxxx Xxxxxxx and
Michiana.
10. Letter from 1st Source Bank dated July 29, 1996, consenting to Michiana
entering into the Exchange Agreement.
11. Agreement of 1st Source Bank dated July 30, 1996, to release its
security interest in certain Michiana shares.
12. HOCAB Note dated October 21, 1996.
13. Stock Pledge Agreement dated October 21, 1996, among HOCAB, certain of
its shareholders, certain specified Michiana Shareholders, and Unimag
(Exhibit B to be added at Closing).
14. Agreement dated August 28, 1996, to terminate Stock Restriction
Agreement and Stock Redemption Agreement.
15. Agreement dated August 28, 1996, to terminate Retirement Income
Agreement.
16. Assignment of Executive Bonus Agreement of Xxxxx X. Xxxxxxxx.
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17. Amendment to Bonus Income Agreement of Xxx Xxxxxxxxx.
18. Opinion letter of Sperry & Xxxxxx.
19. Resignations of all of the members of Michiana's board of directors and
all of Michiana's officers (to be effective as of the Closing).
20. Michiana's minute books and other corporate records.
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EXHIBIT D
DOCUMENTS DELIVERED BY THE MICHIANA SHAREHOLDERS
1. Shareholder Voting Agreement dated October 9, 1996, among the Michiana
Shareholders and certain other parties (includes counterpart signature
pages for only the Michiana Shareholders).
2. All of the certificates for the Michiana Shares endorsed for transfer
to Unimag.
3. All of the certificates (and blank stock powers) for the HOCAB Shares
to be pledged under the Stock Pledge Agreement.
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EXHIBIT E
CERTIFICATE OF ESCROW CLOSING
[INSERT NAME OF COMPANY]
The undersigned hereby certify, on behalf of [insert name of Company],
and United Magazine Company, an Ohio corporation ("UNIMAG"), respectively, to
Xxxxx & Xxxxxxxxx, which is the escrow agent under a certain document escrow
agreement dated October ___, 1996 (the "MICHIANA DOCUMENT ESCROW AGREEMENT"),
among Unimag, Michiana News Service, Inc. ("MICHIANA"), all of Michiana's
shareholders, and Xxxxx & Xxxxxxxxx, as follows:
1. The escrow closing (the "_________ Escrow Closing")
contemplated by [insert description of appropriate acquisition
agreement] was completed on [insert date];
2. The _________ Escrow Closing was completed upon terms and
conditions substantially similar to the escrow closing
provided for in the Michiana Document Escrow Agreement.
[INSERT NAME OF
COMPANY]
Date: October ___, 1996 By__________________________________
Print Name________________________
Its__________________________________
UNITED MAGAZINE COMPANY
Date: October ___, 1996 By__________________________________
Print Name________________________
Its__________________________________
[Acknowledgement on the following page.]
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ACKNOWLEDGEMENT
The undersigned hereby acknowledges and agrees, on behalf of Michiana,
that the certifications set forth in this certificate satisfy the requirements
of Section 7(a) of the Michiana Document Escrow Agreement.
MICHIANA NEWS SERVICE, INC.
Date: October ___, 1996 By__________________________________
Print Name________________________
Its__________________________________
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EXHIBIT F
CERTIFICATE OF INSPECTOR OF ELECTIONS
The undersigned, as the inspector of elections for the annual meeting
of shareholders of United Magazine Company, an Ohio corporation ("UNIMAG"), held
on ______________, 1996, hereby certifies to Xxxxx & Xxxxxxxxx that the
acquisitions described below have been approved by the affirmative vote of
shareholders entitled to exercise voting power over at least a majority of the
outstanding common shares of Unimag:
1. The Stock Transfer and Exchange Agreement among Unimag,
Michiana News Service, Inc. ("MICHIANA"), and all of its
shareholders and the acquisition of the stock of Michiana in
accordance with the terms of such exchange agreement;
2. The Stock Transfer and Exchange Agreement among Unimag, The
Xxxxx Companies ("XXXXX"), and all of its shareholders and the
acquisition of the stock of Xxxxx in accordance with the terms
of such exchange agreement;
3. The Asset Transfer and Exchange Agreement between Unimag and
Northern News Company ("NORTHERN") and the acquisition of
certain assets and liabilities of Northern in accordance with
the terms of such exchange agreement;
4. The Asset Transfer and Exchange Agreement between Unimag and
Ohio Periodical Distributors, Inc. ("OPD"), and the
acquisition of certain assets and liabilities of OPD in
accordance with the terms of such exchange agreement;
5. The Stock transfer and Exchange Agreement among Unimag, The
Xxxxxxx Companies ("XXXXXXX"), and all of its shareholders and
the acquisition of the stock of Xxxxxxx in accordance with the
terms of such exchange agreement; and
6. The Asset Transfer and Exchange Agreement between Unimag and
Wholesalers Leasing Corp. ("WHOLESALERS") and the acquisition
of certain assets of Wholesalers in accordance with the terms
of such exchange agreement.
7. The Stock Transfer and Exchange Agreement among Unimag, The
Xxxxxx X. Xxxxx News Co., Central News Co., Newspaper Sales,
Inc. (collectively, the "XXXXX COMPANIES"), and all of their
shareholders and the acquisition of the stock of the Xxxxx
Companies in accordance with the terms of such exchange
agreement.
Date: _____________, 1996 ____________________________________
_________________, Inspector of Elections
