EXHIBIT 99.4
SHAREHOLDER AGREEMENT
This SHAREHOLDER AGREEMENT, dated as of July 1, 2005, between MediaNews
Group, Inc., a Delaware corporation (the "Company"), and Xxxxxx X. Xxxxxxx, XX
("Shareholder"). Capitalized terms used but not defined elsewhere herein are
defined in Section 4.
WITNESSETH:
WHEREAS, Shareholder owns approximately 2.53% of the Company's outstanding
common stock; and
WHEREAS, the Company and Shareholder have entered into this Agreement to
provide liquidity to Shareholder and other Permitted Lodovic Holders under
certain circumstances, and to enable the Company to repurchase Shareholder's
shares of common stock, under certain circumstances.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the Company and Shareholder hereby agree as follows:
1. Put and Call.
(a) Following the termination of Shareholder's employment with the Company
(i) on or after December 31, 2009 (for any reason), (ii) upon (A) Shareholder's
death or disability pursuant to Section 5 of the Employment Agreement or (B) the
mutual agreement of Shareholder and the Company, (iii) by Shareholder pursuant
to clause (a) or (b) of Section 7 of the Employment Agreement, (iv) by the
Company in breach of the Employment Agreement, or (v) for any reason upon or
following a Change in Control, Shareholder or his estate or legal
representatives (as the case may be) shall have the right to require the Company
to purchase all (but not less than all) Eligible Shares, which right shall be
exercisable by Shareholder or any Permitted Lodovic Holder upon written notice
to the Company during the one hundred eighty (180) days following such
termination. Any purchase pursuant to the prior sentence shall be made at 100%
of Fair Market Value of the Eligible Shares so purchased. The right of
Shareholder or any Permitted Lodovic Holder to require the Company to purchase
such Eligible Shares pursuant to this paragraph (a) shall terminate upon the
occurrence of an Eligible IPO unless previously exercised.
(b) Following any termination of Shareholder's employment with the Company
other than terminations described in the preceding paragraph (a) of this Section
1, (i) the Company shall have the right to purchase all (but not less than all)
Eligible Shares, which right shall be exercisable by the Company upon written
notice to Shareholder or his estate or legal representatives (as the case may
be) during the one hundred eighty (180) days following such termination, and
(ii) Shareholder and Permitted Lodovic Holders shall have the right to require
the Company to purchase all (but not less than all) Eligible Shares, which right
shall be exercisable by written notice during the one hundred eighty (180) day
period commencing on the earlier of (x) June 30, 2010 and (y) the date
Shareholder or his estate or legal representatives (as
2
the case may be) has knowledge of the occurrence of a Change in Control
(occurring after the date of termination of Shareholder's employment with the
Company). Any purchase pursuant to the prior sentence shall be made at the
following stated percentages of Fair Market Value of the Eligible Shares so
purchased: if Shareholder's employment with the Company terminates on or after
December 31, 2009, 100%; for termination on or after December 31, 2008 and
before December 31, 2009, 95%; for termination on or after December 31, 2007 and
before December 31, 2008, 90%; for termination on or after December 31, 2006 and
before December 31, 2007, 85%; for termination on or after December 31, 2005 and
before December 31, 2006, 80%; and for termination on or after December 31, 2004
and before December 31, 2005, 75%. Notwithstanding the foregoing, the percentage
of Fair Market Value shall be deemed to be 100% upon and following the
occurrence of a Change in Control.
(c) With regard to any exercise of any right of the Company to purchase
Eligible Shares pursuant to clause (i) of the first sentence of Section 1(b) (a
"Call Right"), the Company may, upon written notice accompanying notice of such
exercise, elect to pay the exercise price in installments, the first of which
shall be payable at the closing of the purchase, with subsequent installments
due on each successive anniversary of the closing (a "Payment Date"). The amount
due on each Payment Date (including the date of the closing of the purchase)
shall be (x) an amount determined by multiplying the total purchase price by the
percentages specified in the chart below or (y) if less, the remaining unpaid
balance of the purchase price. For this purpose, the Leverage Ratio shall be
determined as of the end of the fiscal quarter of the Company ending at least 60
days prior to the exercise of the Call Right and each subsequent Payment Date,
as applicable, and without regard to any debt constituting obligations under
this Agreement, until all the Eligible Shares subject to the Call Right are paid
for.
Leverage Ratio Percentage
-------------- ----------
3:1 or less 100%
Greater than 3:1 and equal to or less than 3.5:1 60%
Greater than 3.5:1 and equal to or less than 4:1 50%
Greater than 4.1 and equal to or less than 4.5:1 40%
Greater than 4.5:1 and equal to or less than 5:1 30%
Greater than 5:1 and equal to or less than 5.5:1 20%
Greater that 5.5:1 and equal to or less than 6:1 10%
Greater than 6:1 0%
Notwithstanding the foregoing, (x) the percentages in the chart shall all
be deemed to be 100% following the first to occur of (i) the occurrence of a
Change in Control, (ii) the consummation of an Eligible IPO, or (iii) January 1,
2010 and (y) all remaining payments of purchase price pursuant to the exercise
of a Call Right shall be payable on the first to occur of January 1, 2010, the
date of the occurrence of a Change in Control or the date of consummation of an
Eligible IPO occurring after the exercise of such Purchase Right.
(d) (i) The closing of any purchase of Eligible Shares pursuant to this
Section 1 shall (subject to clause (ii) below) take place on the later of (x)
the thirtieth day after notice of exercise of a right of Shareholder to require
the Company to purchase Eligible Shares pursuant to paragraphs (a) or (b) of
this Section 1 (a "Put Right") or of a Call Right (Call Rights and Put Rights
are referred to collectively as "Purchase Rights") is given, (y) in the case of
the exercise
3
of a Put Right, the fifth business day after the condition described in clause
(ii) of this paragraph (d) is first satisfied and (z) the fifth business day
after expiration or termination of any applicable waiting period under the HSR
Act. At any such closing, the Eligible Shares shall be delivered to the Company
free and clear of all liens, claims and other encumbrances.
(ii) If, (x) at the time of the exercise of a Put Right, the
Leverage Ratio is greater than 5:1, then (without limitation of Section 2 below)
the consummation of the purchase of Eligible Shares shall be deferred until such
time as the Leverage Ratio is equal to or less than 5:1 (without regard to any
debt constituting obligations under this Agreement), or (y) at the time of
payment of the purchase price pursuant to a Put Right, the purchase by the
Company of Eligible Shares pursuant to such Put Right would violate Section
160(a) of the General Corporation Law of the State of Delaware, then the
purchase of such portion of such Eligible Shares as would result in such
violation shall be deferred until such purchase would not so violate such
provision, provided that (I) following receipt of notice of the exercise of a
Put Right that is affected by this clause (d)(ii), the Company shall not
repurchase any Common Stock (either directly or thorough any subsidiary or any
other Person, but excluding repurchases of shares issued under the RSU Plan,
Section 2 hereof or under Section 10 of the Employment Agreement dated the date
hereof between the Company and Xxxxxxx Xxxx Xxxxxxxxx) or pay or declare any
dividends or other distributions on its Common Stock until the purchase of
Eligible Shares pursuant to such Put Right has been consummated and the entire
purchase price therefore paid, (II) in no event shall the making of any payment
be deferred as a result of sub-clause (x) of this clause (d)(ii) beyond the
first to occur of (a) the third business day following the second anniversary of
the exercise of the Put Right or (b) the date of the occurrence of a Change in
Control or the consummation of an eligible IPO and (III) in the event that this
clause (d)(ii) would result in the deferral of payment of all or any portion of
the purchase price pursuant to a Put Right, Shareholder by notice to the Company
may rescind the exercise of such Put Right (which Put Right may be exercised at
a later date in accordance with this Agreement).
(e) (i) The Company and Shareholder agree that from and after the exercise
of any Purchase Right, each shall use their respective commercially reasonable
efforts to take or cause to be taken all actions and to do or cause to be done
all things necessary, proper or advisable to consummate the closing thereof, and
to cooperate in connection with the foregoing, including using their respective
commercially reasonable efforts to obtain all approvals that are required to be
obtained under any legal requirement, to effect all necessary registrations,
filings and submissions of information requested by any governmental authority
and, subject to paragraph (d)(ii) of this Section 1, obtain all consents
required under agreements binding upon the Company or its subsidiaries.
(ii) As soon as practicable after the exercise of any Purchase Right,
the Company and Shareholder will, and will cause their respective affiliates to,
prepare and file all documents with the Federal Trade Commission and the United
States Department of Justice (if any) that are required to comply with the HSR
Act in connection with the transactions contemplated hereby. The Company and
Shareholder will (and will cause their respective affiliates to) in good faith
promptly furnish all materials reasonably requested by any of the regulatory
agencies having jurisdiction over such filings. The Company and Shareholder will
(and will cause their respective affiliates to) request early termination of the
waiting period under
4
the HSR Act. All fees payable to the Federal Trade Commission or the Department
of Justice (or otherwise to the U.S. government) in connection with such filing
shall be paid by the Company.
(f) Any payment of the purchase price pursuant to the exercise of a
Purchase Right that is made on a date subsequent to the date it would otherwise
be made pursuant to paragraph (d)(i) (whether as a result of paragraph (c) or
paragraph (d)(ii) of this Section 1 or for any other reason) (the "Original
Payment Date") shall accrue interest from the Original Payment Date through (but
excluding) the date made at an annual rate of LIBOR plus 6%, payable quarterly
in arrears on the fifth business day following the end of each calendar quarter.
(g) Nothing in this Section 1 shall be deemed to restrict Shareholder or
any Permitted Lodovic Holder from selling or otherwise transferring Eligible
Shares prior to the exercise of a Purchase Right. All Eligible Shares
transferred to a Permitted Lodovic Holder shall remain subject to the terms and
provisions of this Section 1, and Eligible Shares that are transferred to any
other Person shall not be subject to the terms of this Section 1. Until Eligible
Shares are transferred to a Person who is not a Permitted Lodovic Holder, the
certificates representing such shares shall bear the following legend (or a
legend of similar effect):
"THIS CERTIFICATE AND THE SECURITIES REPRESENTED HEREBY ARE SUBJECT
TO THE PROVISIONS OF A SHAREHOLDER AGREEMENT. A COPY OF THAT
AGREEMENT, AS IT MAY BE AMENDED FROM TIME TO TIME, IS MAINTAINED
WITH THE CORPORATE RECORDS OF THE COMPANY AND IS AVAILABLE FOR
INSPECTION AT THE EXECUTIVE OFFICES OF THE COMPANY."
2. Right to Sell Shares following Disability. Notwithstanding any
provision of this Agreement, in the event that (x) Shareholder's employment with
the Company terminates as a result of Shareholder's disability pursuant to the
second paragraph of Section 5 of his Employment Agreement, or (y) at any time
following the termination of Shareholder's employment with the Company for any
reason Shareholder is or becomes Disabled, Shareholder (or any Permitted Lodovic
Holder) shall have the right (in the case of the exercise of this right pursuant
to clause (y) above, so long as Shareholder remains Disabled) commencing the day
that is six months and one day following termination of employment, to require
the Company to purchase Common Stock from Shareholder (or such Permitted Lodovic
Holder) from time to time during Shareholder's lifetime (subject to lawfully
available funds) in an aggregate amount not to exceed $1 million in any fiscal
year of the Company, or such lesser amount of Common Stock (if any) as the
Company may purchase without violating any covenant limiting "restricted
payments" contained in any instrument governing debt of the Company. The
purchase price for Common Stock purchased by the Company under this Section 2
shall be the Fair Market Value of the Common Stock so purchased. Such right
shall be exercised by written notice of Shareholder (or such Permitted Lodovic
Holder) given to the Company, and may be exercised no more than 2 times in any
fiscal year of the Company. The closing of any such purchase shall take place
within 30 days of the giving of a notice of exercise by Shareholder (or such
Permitted Lodovic Holder). The provisions of Section 1(e)(i) shall apply to
transaction pursuant to this Section 2 mutatis mutandis. The right of
Shareholder or any Permitted Lodovic Holder to require the Company to purchase
Common Stock pursuant to this Section 2 shall terminate upon the occurrence of
an Eligible IPO unless previously exercised.
5
3. Rules 144 and 144A. If the Company shall have consummated an Eligible
IPO, the Company covenants that it will file the reports required to be filed by
it under the Securities Act and the Exchange Act and the rules and regulations
adopted by the Commission thereunder, and it will take such further action as
any holder of Eligible Shares may reasonably request, all to the extent required
from time to time to enable such holder to sell Eligible Shares without
registration under the Securities Act within the limitation of the exemptions
provided by (i) Rules 144, 144A or Regulation S under the Securities Act, as
such rules may be amended from time to time, or (ii) any similar rule or
regulation hereafter adopted by the Commission. Upon the request of any holder
of Eligible Shares, the Company will deliver to such holder a written statement
as to whether it has complied with such requirements and, if not, the specifics
thereof.
4. Certain Definitions.
(a) "Average Market Price" per share of Common Stock on any date means the
average of the daily Closing Prices of Common Stock for the 10 consecutive
Trading Days prior to such date.
(b) "Beneficial Owner" and "Beneficially Own" have the meaning ascribed
thereto in Rule 13d-3 under the Exchange Act.
(c) "Change in Control" shall be deemed to occur on:
(i) the date that both
(A) any Person (or other group of Persons acting in
concert) with a view to the acquisition, holding or disposition of
securities of the Company, becomes, directly or indirectly, the
Beneficial Owner of securities of the Company representing 35% or
more of the voting power of all Voting Securities of the Company,
other than by reason of (x) the acquisition of Company securities by
the Company or any of its subsidiaries or any employee benefit plan
of the Company or any of its subsidiaries, or (y) the acquisition of
Company securities by Permitted Holders, and
(B) Permitted Holders cease to be, directly or
indirectly, the Beneficial Owners of Voting Securities of the
Company having a voting power equal to or greater than that of such
Person or group;
(ii) the consummation of a merger or consolidation of the
Company with another Person unless
(A) the shareholders of the Company, immediately prior
to the merger or consolidation, Beneficially Own, immediately after
the merger or consolidation, shares entitling such shareholders to
more than 50% of the voting power of all Voting Securities of the
corporation or other entity surviving the merger or consolidation in
substantially the same proportions as their ownership, immediately
prior to such merger or consolidation, of Voting Securities of the
Company; and
6
(B) the members of the Board of Directors of the
Company, immediately prior to the merger or consolidation,
constitute, immediately after the merger or consolidation, a
majority of the board of directors of the Person issuing cash or
securities in the merger;
(iii) the date on which a majority of the members of the Board
of Directors of the Company consist of persons other than Current
Directors;
(iv) the consummation of a sale or other disposition of all or
substantially all of the assets of the Company unless:
(A) the shareholders of the Company, immediately prior
to such sale or other disposition, Beneficially Own, immediately
after such sale or other disposition, shares entitling such
shareholders to 50% or more of the voting power of all Voting
Securities of the corporation or other entity acquiring such assets
in substantially the same proportions as their ownership immediately
prior to the consummation of such sale or other disposition, of
Voting Securities of the Company; and
(B) the members of the Board of Directors of the
Company, immediately prior to such sale or other disposition,
constitute, immediately after the sale or other disposition, a
majority of the board of directors of the Person acquiring such
assets; or
(v) the date of approval by the shareholders of the Company of
a plan of complete liquidation of the Company.
(d) "Closing Price" means, as applied to Common Stock on any date, the
last reported sales price, regular way, per share of such stock on such day, or
if no such sale takes place on such day, the average of the closing bid and
asked prices, regular way, in each case, as reported in the principal
consolidated transaction reporting system with respect to securities listed on
the principal national securities exchange on which Common Stock is listed, or
if not listed on a national securities exchange, quoted on the national market
system of The NASDAQ Stock Market (or any successor or similar system).
(e) "Common Stock" means all common stock of the Company. In the event
that the Common Stock shall be changed into or exchanged for a different number
or kind of shares of capital stock or other securities of the Company or of
another corporation or other entity as a result of a merger, consolidation,
partial or complete liquidation, sale of assets, distribution to stockholders or
otherwise, the Common Stock shall include such different capital stock or other
securities.
(f) "Consolidated Operating Cash Flow" shall have the meaning specified in
the Senior Credit Facility from time to time, and shall include successor
definitions contained therein having a similar meaning and use therein. It is
intended that Consolidated Operating Cash Flow reflect all pro forma adjustments
made thereto under the Senior Credit Facility. Furthermore, regardless of
whether an adjustment is made under the Senior Credit Facility, to the extent
that a capital project that exceeds $2 million in cost and that is expected to
result in aggregate cost
7
savings is approved, for purposes of determining Consolidated Operating Cash
Flow appropriate pro forma adjustments shall be made to Consolidated Operating
Cash Flow in order that all debt to be incurred to finance such capital
expenditure shall be deemed to have been incurred and such cost savings shall be
deemed to be recognized commencing the first day of the four fiscal quarter
period ending the last day of the fiscal quarter ending immediately prior to the
approval of such capital expenditure for which Required Financial Information
has been delivered under the Senior Credit Facility.
(g) "Current Director" shall mean any member of the Board of Directors of
the Company on the date hereof and any member whose nomination or election has
been approved by a majority of Current Directors then on the Board of Directors
of the Company.
(h) "Disabled" means Executive's permanent inability to perform the
material and substantial duties of his regular occupation.
(i) "EBITDA" means, at any date of determination, the Consolidated
Operating Cash Flow of the Company for the immediately preceding four fiscal
quarters of the Company for which Required Financial Information has been
delivered under the Senior Credit Facility.
(j) "Eligible IPO" means (x) a public offering by the Company or its
shareholders of shares of Common Stock pursuant to a registration statement
under the Securities Act of 1933 that results in (i) aggregate cash proceeds to
the Company and selling shareholders of an amount equal to or greater than $50
million (before deduction of underwriting discounts and commissions) and (ii)
the listing of Common Stock on any national securities exchange or quotation on
the national market system of The Nasdaq Stock Market (or any successor or
similar system) or (y) consummation of any transaction that results in (i) the
listing of Common Stock on any national securities exchange or quotation on the
national market system of The NASDAQ Stock Market (or any successor or similar
system) and (ii) shares Common Stock having a market value of at least $50
million held by Persons that are not "affiliates" of the Company (as such term
is used in Rule 144 under the Securities Act of 1933).
(k) "Eligible Shares" means all shares of Common Stock as to which both of
the following conditions are satisfied: (i) such shares are owned by Shareholder
on the date hereof and (ii) continue to be owned by Shareholder or any Lodovic
Permitted Holder on the date of termination of Shareholder's employment with the
Company.
(l) "Employment Agreement" means the Employment Agreement dated the date
hereof, between Shareholder and the Company, as in effect from time to time.
(m) "Exchange Act" means the Securities Exchange Act of 1934, as amended.
(n) "Fair Market Value" with respect to any Common Stock means the fair
market value of such Common Stock as of the date of exercise of a Purchase
Right. Prior to the occurrence of Eligible IPO, fair market value of a share of
Common Stock, on any date, shall be an amount equal to (A)(i) the product of the
Representative Multiple, multiplied by EBITDA, minus (ii) consolidated long-term
debt of the Company as of such date, divided by (B) the total number of shares
of Common Stock outstanding (including Common Stock issuable (x) pursuant to the
Company's Career RSU Plan to the extent RSUs have vested, (y) under options and
rights
8
to purchase Common Stock, determined using the treasury stock method, and
(z) under securities convertible into Common Stock); provided, however, that in
the event that the Fair Market Value does not at any time reasonably approximate
the fair market value of a share of Common Stock, the formula described above
shall be amended in such manner as the Board of Directors of the Company
reasonably determines, with the approval of Shareholder (such approval not to be
unreasonably withheld), so that Fair Market Value reasonably approximates such
fair market value. Following an Eligible IPO, fair market value of Common Stock
shall be the Average Market Price of Common Stock as of the date of
determination, provided that if following an Eligible IPO on the day of
determination Common Stock is not listed or traded on a national securities
exchange or the national market system of The NASDAQ Stock Market (or any
successor or similar system) or has not been listed or traded for the 10
consecutive Trading Days prior to such date, "Average Market Price" shall be the
Fair Market Value determined pursuant to the first sentence of this definition
as if no Eligible IPO has occurred.
(o) "HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvement Act of
1976, as amended.
(p) "Leverage Ratio" is defined in the Indenture dated as of January 26,
2004 between the Company and The Bank of New York.
(q) "LIBOR" shall mean on any day the weighted average of the "Eurodollar
Base Rate" under the Senior Credit Facility (or successor definitions contained
therein having a similar meaning or use therein) applicable to outstanding
borrowings of the Company thereunder on such date.
(r) "Multiple" means, at any date of determination for any company, a
number equal to the quotient of (i) long-term debt (as reflected on the most
recently available balance sheet of such company) plus market capitalization of
such company on such date, divided by (ii) earnings of such company before
interest, taxes, depreciation, amortization and any one-time or extraordinary
items (such as restructuring charges) for the four most recent fiscal quarters
of such company for which financial statements of such company are available, as
determined by the Board.
(s) "Permitted Holders" means (i) each of Xxxxxxx Xxxx Xxxxxxxxx, Xxxxxxx
X. Xxxxxxx, Shareholder and their respective spouses, ancestors, siblings,
descendants (including children or grandchildren by adoption) and the
descendants of any of their siblings; (ii) in the event of the incompetence or
death of any of the Persons described in clause (i), such Person's estate,
executor, administrator, committee or other personal representative, in each
case who at any particular date shall beneficially own or have the right to
acquire, directly or indirectly, the relevant Common Stock; (iii) any trust
created for the benefit of the Persons described in clause (i) or (ii) or any
trust for the benefit of any such trust; or (iv) any Person controlled by any of
the Persons described in clause (i), (ii) or (iii). For purposes of this
definition, "control," as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through
ownership of voting securities or by contract or otherwise.
9
(t) "Permitted Lodovic Holder" means (i) each of Shareholder and his
spouse, ancestors, siblings, descendants (including children or grandchildren by
adoption) and the descendants of any of their siblings; (ii) in the event of the
incompetence or death of any of the Persons described in clause (i), such
Person's estate, executor, administrator, committee or other personal
representative, in each case who at any particular date shall beneficially own
or have the right to acquire, directly or indirectly, the relevant Common Stock;
(iii) any trust created for the benefit of the Persons described in clause (i)
or (ii) or any trust for the benefit of any such trust; or (iv) any Person
controlled by any of the Persons described in clause (i), (ii) or (iii). For
purposes of this definition, "control," as used with respect to any Person,
shall mean the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of such Person, whether
through ownership of voting securities or by contract or otherwise.
(u) "Person" means any individual, corporation, limited liability company,
partnership, joint venture, incorporated or unincorporated association,
joint-stock company or trust or other entity of any kind.
(v) "Representative Multiple" shall mean, at any date of determination,
the average of the Multiples of Gannett Co. Inc., Xxx Enterprises Inc.,
Xxxxxx-Xxxxxx, Inc., The McClatchy Co. and Journal Register Co., provided that
in the event that any such company shall be acquired or cease to be publicly
traded, its name shall be deemed to be deleted from this definition and, if as a
result thereof there are less than three companies referred to in this
definition, the Board of Directors of the Company, with the approval of the
Shareholder (not to be unreasonably withheld), shall select another publicly
traded newspaper company, which shall be deemed to be added to this definition
such that this definition refers to three companies.
(w) "Required Financial Information" shall have the meaning specified in
the Senior Credit Facility, and shall include successor definitions therein
having a similar meaning and use therein.
(x) "RSU Plan" means the MediaNews Group, Inc. Career RSU Plan.
(y) "Senior Credit Facility" shall means the Credit Agreement dated as of
August 30, 2004, among the Company, the Guarantors identified therein, Bank of
America, N.A., as Administrative Agent, and the other financial institutions and
lenders identified therein, as amended, substituted, refinanced, renewed or
replaced from time to time without regard to the amount of credit extended
thereunder or the identity of the borrowers, lenders or agents with respect
thereto.
(z) "Securities Act" means the Securities Act of 1933, as amended.
(aa) "Trading Day" means, as applied to Common Stock, any day on which the
principal consolidated transaction reporting system with respect to securities
listed or traded on the principal national securities exchange or the national
market system of The NASDAQ Stock Market (or any successor or similar system) is
open for the trading of securities generally and with respect to which
information regarding the sale of securities included therein, or with respect
to which sales information is reported, is generally available.
10
(bb) "Voting Securities" means, as to a Person, securities of such Person
having the right under ordinary circumstances to vote at an election of the
Board of Directors (or other governing body).
5. Miscellaneous.
(a) Remedies. Any Person having rights under any provision of this
Agreement shall be entitled to enforce such rights specifically, to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
(b) Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(c) Business Days. If any time period for giving notice or taking action
hereunder expires on a day which is a Saturday, Sunday or legal holiday in the
state in which the Company's chief-executive office is located, the time period
shall automatically be extended to the business day immediately following such
Saturday, Sunday or legal holiday.
(d) Notices. All communications and notices made pursuant to this
Agreement shall be in writing and delivered by hand or by fax or sent by a
nationally recognized overnight carrier (such as Federal Express) as follows:
(i) If to Company, to:
MediaNews Group, Inc.
Attn: Xxxxxxx Xxxx Xxxxxxxxx
Vice Chairman and Chief Executive Officer
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
(ii) If to Shareholder, addressed to:
Xxxxxx X. Xxxxxxx, XX
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
or to such other address as either of the foregoing may from time to time
specify in writing. Any such notice shall be deemed to be given upon receipt.
11
(e) Interpretation, Etc. This Agreement constitutes the entire contract
between the parties hereto with respect to the subject matter.
(f) Governing Law. This Agreement shall be interpreted under the laws of
the State of Delaware, without regard to principles of conflicts of laws that
would result in the application of the laws of another jurisdiction.
(g) Counterparts. This Agreement may be executed simultaneously in two or
more counterparts, any one of which need not contain the signatures of more than
one party, but all such counterparts taken together shall constitute one and the
same Agreement.
(h) Successors, Assigns and Transferees.
(i) Shareholder may not transfer or assign his rights hereunder
without the consent of the Company except for an assignment to a Permitted
Lodovic Holder in connection with the transfer of Eligible Shares to any
Permitted Lodovic Holder of rights and obligations hereunder as they
relate to such Eligible Shares. No transfers of Eligible Shares (other
than by operation of law) shall be made to a Permitted Lodovic Holder
unless such Permitted Lodovic Holder agrees to be bound by the terms and
conditions hereof in respect of such shares.
(ii) This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto, and their respective successors and
permitted assigns. Whether or not any express assignment shall have been
made, the provisions of this Agreement which are for the benefit of the
parties hereto other than the Company shall also be for the benefit of and
enforceable by any permitted transferee holding Eligible Shares, subject
to the provisions contained herein.
(i) Amendment and Waiver. This Agreement may not be amended or modified
without the prior written consent of the Company and Shareholder. Any party may,
only by an instrument in writing, waive compliance by any other party or parties
with any term or provision hereof on the part of such other party or parties
hereto to be performed or complied with. No failure by any party to insist upon
the strict performance of any covenant, duty, agreement or condition of this
Agreement or to exercise any right or remedy consequent upon a breach thereof
shall constitute a waiver of any such breach or any other covenant, duty,
agreement or condition. No waiver of any breach by either party to this
Agreement shall operate or be construed as a waiver of any subsequent breach by
any party.
[The next page is the signature page]
12
IN WITNESS WHEREOF, the parties hereto have caused this Shareholder
Agreement to be executed as of the day and year first above written.
MediaNews Group, Inc.
By: /s/ W. Xxxx Xxxxxxxxx
------------------------
W. Xxxx Xxxxxxxxx
Vice Chairman and Chief Executive
Officer
/s/ Xxxxxx X. Xxxxxxx, XX
-------------------------
Xxxxxx X. Xxxxxxx, XX
