INVESTORS' AGREEMENT (NO. 1) dated as of October
10, 1996, among TW INC. (to be renamed TIME WARNER
INC.), a Delaware corporation ("Holdco"), and the other
parties signatory hereto (each an "Investor").
This Agreement is entered into pursuant to Section 6.02(f) of
the Amended and Restated Agreement and Plan of Merger, dated as of
September 22, 1995 (the "Amended and Restated Merger Agreement"), among
Time Warner Inc., a Delaware corporation ("Parent"), Holdco, Time Warner
Acquisition Corp., a Delaware corporation ("Delaware Sub") and a direct
wholly owned subsidiary of Holdco, TW Acquisition Corp., a Georgia
corporation ("Georgia Sub") and a direct wholly owned subsidiary of Holdco,
and Xxxxxx Broadcasting System, Inc., a Georgia corporation (the
"Company"). In connection with the TBS Merger (as defined in the Amended
and Restated Merger Agreement), subject to certain exceptions, (a) each
share of Class A Common Stock, par value $.0625 per share, of the Company
and each share of Class B Common Stock, par value $.0625 per share, of the
Company will be converted into the right to receive 0.75 shares of Common
Stock, par value $0.01 per share, of Holdco ("Holdco Common Stock") and (b)
each share of Class C Convertible Preferred Stock, par value $.125 per
share, of the Company will be converted into the right to receive 4.80
shares of Holdco Common Stock. As a condition to the obligations of Parent,
Holdco, Delaware Sub and Georgia Sub to effect the Mergers (as defined in
the Amended and Restated Merger Agreement), Parent, Holdco, Delaware Sub
and Georgia Sub have required that each initial Investor enter into this
Agreement.
Accordingly, it is hereby agreed as follows:
ARTICLE I
Definitions
SECTION 1.01. Definitions. Capitalized terms used but not
defined herein shall have the meanings assigned to such terms in the
Amended and Restated Merger Agreement. For purposes of this Agreement, the
following terms shall have the following meanings:
"Affiliate" and "Associate", when used with reference to any
person, shall have the respective meanings ascribed to such terms in Rule
12b-2 of the Exchange Act, as in effect on the date of this Agreement.
Neither Holdco nor any of its subsidiaries or controlled Affiliates, on the
one hand, nor the Principal Investor, on the other hand, shall be an
"Affiliate" or an "Associate" of the other. The Xxxxxx Foundation, Inc. and
the Xxxxxx X. Xxxxxx Charitable Foundation Unitrust No. 2 shall be deemed
not to be Affiliate or Associates of any Investor.
A person shall be deemed the "beneficial owner" of, and shall
be deemed to "beneficially own", and shall be deemed to have "beneficial
ownership" of:
(i) any securities that such person or any of such person's
Affiliates or Associates is deemed to "beneficially own" within
the meaning of Rule 13d-3 under the Exchange Act, as in effect on
the date of this Agreement; and
(ii) any securities (the "underlying securities") that such
person or any of such person's Affiliates or Associates has the
right to acquire (whether such right is exercisable immediately
or only after the passage of time) pursuant to any agreement,
arrangement or understanding (written or oral), or upon the
exercise of conversion rights, exchange rights, rights, warrants
or options, or otherwise (it being understood that such person
shall also be deemed to be the beneficial owner of the securities
convertible into or exchangeable for the underlying securities).
"Board" shall mean the board of directors of Holdco.
"Charitable Transferee" shall mean any charitable
organization described in Section 501(c)(3) of the Code.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as in effect on the date in question, unless otherwise specifically
provided.
"Investor" shall mean each person that executes this
Agreement in such capacity and each successor, assign and other person that
pursuant to the terms hereof is required to become a party hereto as an
Investor.
"Investors' Agreement (No. 2)" shall mean an Investors'
Agreement (No. 2), substantially in the form of Exhibit C-2 to the Amended
and Restated Merger Agreement.
"permitted transferee" of any natural person shall mean (i)
in the case of the death of such person, such person's executors,
administrators, testamentary trustees, heirs, devisees and legatees and
(ii) such person's current or future spouse, parents, siblings or
descendants or such parents', siblings' or descendants' spouses (the
"Family Members").
"person" shall have the meaning given such term in the
Amended and Restated Merger Agreement.
"Principal Investor" shall mean R.E. Xxxxxx.
"Qualified Stockholder" shall mean any Charitable Transferee
or Qualified Trust from time to time bound as an "Investor" under an
Investors' Agreement (No. 2).
"Qualified Trust" shall mean any trust described in Section
664 of the Code of which the Principal Investor or members of his family
are income beneficiaries.
"Voting Power", when used with reference to any class or
series of securities of Holdco, or any classes or series of securities of
Holdco entitled to vote together as a single class or series, shall mean
the power of such class or series (or such classes or series) to vote for
the election of directors. For purposes of determining the percentage of
Voting Power of any class or series (or classes or series) beneficially
owned by any person, any securities not outstanding which are subject to
conversion rights, exchange rights, rights, warrants, options or similar
securities held by such person shall be deemed to be outstanding for the
purpose of computing the percentage of outstanding securities of the class
or series (or classes or series) beneficially owned by such person, but
shall not be deemed to be outstanding for the purpose of computing the
percentage of the class or series (or classes or series) beneficially owned
by any other person.
"Voting Securities", when used with reference to any person,
shall mean any securities of such person having Voting Power or any
securities convertible into or exchangeable for any securities having
Voting Power.
ARTICLE II
Securities Act; Legend
SECTION 2.01. Transfers of Holdco Common Stock. None of the
Investors may offer for sale or sell any shares of Holdco Common Stock
acquired pursuant to the Amended and Restated Merger Agreement, or any
interest therein, except (a) pursuant to a registration of such shares
under the Securities Act and applicable state securities laws or (b) in a
transaction as to which such Investor has delivered an opinion of counsel
or other evidence reasonably satisfactory to Holdco, to the effect that
such transaction is exempt from, or not subject to, the registration
requirements of, the Securities Act and applicable state securities laws.
SECTION 2.02. Legends on Certificates. Each Investor shall
hold in certificate form all shares of Holdco Common Stock owned by such
Investor. Each certificate for shares of Holdco Common Stock issued to or
beneficially owned by a person that is subject to the provisions of this
Agreement shall bear the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO AN
INVESTORS' AGREEMENT (NO. 1) DATED AS OF OCTOBER 10, 1996 (THE
"INVESTORS' AGREEMENT"), AMONG THE CORPORATION, THE ORIGINAL
HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE AND
CERTAIN OTHER STOCKHOLDERS OF THE CORPORATION. A COPY OF THE
INVESTORS' AGREEMENT MAY BE OBTAINED FROM THE CORPORATION FREE OF
CHARGE. BY ITS ACCEPTANCE HEREOF, THE HOLDER OF THIS CERTIFICATE
AGREES TO COMPLY IN ALL RESPECTS WITH THE REQUIREMENTS OF THE
INVESTORS' AGREEMENT.
ARTICLE III
Covenants of the Parties
SECTION 3.01. Standstill. None of the Investors may (and each
Investor shall cause its Affiliates and Associates that it controls, and
use reasonable efforts to cause its other Affiliates and Associates, not
to), without the prior written consent of the Board:
(a) publicly propose that any Investor or Qualified
Stockholder or any Affiliate or Associate of any Investor or
Qualified Stockholder enter into, directly or indirectly, any
merger or other business combination involving Holdco or propose
to purchase, directly or indirectly, a material portion of the
assets of Holdco or any material subsidiary of Holdco, or make
any such proposal privately if it would reasonably be expected to
require Holdco to make a public announcement regarding such
proposal;
(b) make, or in any way participate in, directly or
indirectly, any "solicitation" of "proxies" (as such terms are
used in Regulation 14A promulgated under the Exchange Act) to
vote or consent with respect to any Voting Securities of Holdco
or become a "participant" in any "election contest" (as such
terms are defined or used in Rule 14a-11 under the Exchange Act)
with respect to Holdco;
(c) form, join or participate in or encourage the formation
of a "group" (within the meaning of Section 13(d)(3) of the
Exchange Act) with respect to any Voting Securities of Holdco,
other than a group consisting solely of Investors and Qualified
Stockholders;
(d) deposit any Voting Securities of Holdco into a voting
trust or subject any such Voting Securities to any arrangement or
agreement with respect to the voting thereof, other than any such
trust, arrangement or agreement (i) the only parties to, or
beneficiaries of, which are Investors and Qualified Stockholders
and (ii) the terms of which do not require or expressly permit
any party thereto to act in a manner inconsistent with this
Agreement;
(e) initiate, propose or otherwise solicit stockholders of
Holdco for the approval of one or more stockholder proposals with
respect to Holdco as described in Rule 14a-8 under the Exchange
Act, or induce or attempt to induce any other person to initiate
any stockholder proposal with respect to Holdco;
(f) except in accordance with Section 3.04, seek election
to or seek to place a representative on the Board or seek the
removal of any member of the Board;
(g) call or seek to have called any meeting of the
stockholders of Holdco;
(h)(A) solicit, seek to effect, negotiate with or provide
non-public information to any other person with respect to, (B)
make any statement or proposal, whether written or oral, to the
Board or any director or officer of Holdco with respect to, or
(C) otherwise make any public announcement or proposal whatsoever
with respect to any form of business combination transaction
(with any person) involving a change of control of Holdco or the
acquisition of a substantial portion of the equity securities or
assets of Holdco or any material subsidiary of Holdco, including
a merger, consolidation, tender offer, exchange offer or
liquidation of Holdco's assets, or any restructuring,
recapitalization or similar transaction with respect to Holdco or
any material subsidiary of Holdco; provided, however, that the
foregoing shall not (x) apply to any discussion between or among
the Investors and the Qualified Stockholders or any of their
respective officers, employees, agents or representatives or (y)
in the case of clause (B) above, be interpreted to limit the
ability of any Investor or Qualified Stockholder, or any designee
of any Investor or Qualified Stockholder, on the Board to make
any such statement or proposal or to discuss any such proposal
with any officer or director of or advisor to Holdco or advisor
to the Board unless, in either case, it would reasonably be
expected to require Holdco to make a public announcement
regarding such discussion, statement or proposal;
(i) otherwise act, alone or in concert with others, to seek
to control or influence the management or policies of Holdco
(except for (A) voting as a holder of Voting Securities in
accordance with the terms of such Voting Securities and (B)
actions taken as a director or officer of Holdco);
(j) publicly disclose any intention, plan or arrangement
inconsistent with the foregoing, or make any such disclosure
privately if it would reasonably be expected to require Holdco to
make a public announcement regarding such intention, plan or
arrangement; or
(k) advise, assist (including by knowingly providing or
arranging financing for that purpose) or knowingly encourage any
other person in connection with any of the foregoing.
SECTION 3.02. Transfer Restrictions. None of the Investors
may, without the prior written consent of Holdco, sell, transfer, pledge,
encumber or otherwise dispose of, or agree to sell, transfer, pledge,
encumber or otherwise dispose of, any Voting Securities of Holdco, or any
rights or options to acquire such Voting Securities, except in a
transaction complying with any of the following clauses:
(a) to the underwriters in connection with an underwritten
public offering of shares of such securities on a firm commitment
basis registered under the Securities Act, pursuant to which the
sale of such securities is in a manner that is intended to effect
a broad distribution;
(b) to any wholly owned subsidiary of such Investor or any
partnership of which such Investor is the sole general partner;
provided, however, that such transferee becomes a party to this
Agreement as an Investor;
(c) to any person in a transaction that complies with the
volume and manner of sale provisions contained in Rule 144(e) and
Rule 144(f) as in effect on the date hereof under the Securities
Act (whether or not Rule 144 is in effect on the date of such
transaction); provided, however, that dispositions pursuant to
this clause (c) may not be made during any period that a person
has made and not withdrawn or terminated a tender or exchange
offer for Voting Securities of Holdco or announced its intention
to make such an offer;
(d) to any person (including any pledgee of shares of
Voting Securities), other than a person that such Investor, or
any of its Affiliates or Associates, knows or, after commercially
reasonable inquiry should have known, beneficially owns or, after
giving effect to such sale, will beneficially own more than 5% of
the aggregate Voting Power of the Voting Securities of Holdco;
(e) in the case of a natural person, to any permitted
transferee of such person; provided, however, that such
transferee becomes a party to this Agreement as an Investor;
(f) in a bona fide pledge of shares of Voting Securities of
Holdco to a financial institution to secure borrowings as
permitted by applicable laws, rules and regulations; provided,
however, that (i) such financial institution agrees to be bound
by this Section 3.02 and (ii) the borrowings so secured are full
recourse obligations of the pledgor and are entered into
substantially simultaneously with such pledge;
(g) upon five Business Days' prior notice to Holdco,
pursuant to the terms of any tender or exchange offer for Voting
Securities of Holdco made pursuant to the applicable provisions
of the Exchange Act or pursuant to any merger or consolidation of
Holdco (but in the case of any tender or exchange offer, only so
long as each Investor and Qualified Stockholder is at the time in
substantial compliance with the provisions of Sections 3.01 and
3.05(c), whether or not bound by such provisions, and such tender
or exchange offer is not materially related to any past
noncompliance with such provisions by any Investor or Qualified
Stockholder (whether or not bound by such provisions));
(h) a gift to a Charitable Transferee or Qualified Trust;
provided, however, that (i) at the time of such gift, the
Principal Investor and his Family Members constitute a sufficient
number of the directors or trustees, as appropriate, of such
Charitable Transferee or Qualified Trust to permit approval of
matters by such Charitable Transferee or Qualified Trust without
the approval of any other director or trustee of such Charitable
Transferee or Qualified Trust and (ii) such Charitable Transferee
or Qualified Trust is or simultaneously becomes a Qualified
Stockholder (and Holdco agrees upon request to enter into an
Investors' Agreement (No. 2) with such Charitable Transferee or
Qualified Trust);
(i) to TCI Xxxxxx Preferred, Inc. ("TCITP") or its designee
in accordance with the Stockholders' Agreement dated as of the
same date as this Agreement among TCITP, Holdco and certain
stockholders of Holdco; or
(j) to Holdco.
SECTION 3.03. Additional Agreements. None of the Investors
may (and each Investor shall cause its Affiliates and Associates that it
controls, and use reasonable efforts to cause its other Affiliates and
Associates, not to) (a) publicly request Holdco or any of its agents,
directly or indirectly, to amend or waive any provision of this Agreement
or (b) knowingly take any action that would reasonably be expected to
require Holdco to make a public announcement regarding the possibility of a
transaction with such Investor.
SECTION 3.04. Board Representation. (a) Upon execution of
this Agreement, Holdco shall use reasonable efforts to cause to be elected
to the Board two persons designated by the Principal Investor who are
Eligible Persons. "Eligible Person" means (i) the Principal Investor and
(ii) any other individual (A) who is reasonably acceptable to the Board,
(B) whose election to the Board would not, in the opinion of counsel for
Holdco, violate or be in conflict with, or result in any material
limitation on the ownership or operation of any business or assets of
Holdco or any of its subsidiaries under, any statute, law, ordinance,
regulation, rule, judgment, decree or order of any Governmental Entity and
(C) who has agreed in writing with Holdco to comply with Section 3.01 and
to resign as a director of Holdco if requested to do so pursuant to this
Section 3.04. With respect to each meeting of stockholders of Holdco at
which any designee of the Principal Investor on the Board comes up for
reelection, Holdco shall use reasonable efforts to cause such designee (or
another Eligible Person designated by the Principal Investor) to be
included in the list of candidates recommended by the Board for election to
the Board. Upon the death, resignation or removal of any designee of the
Principal Investor on the Board, Holdco shall use reasonable efforts to
have the vacancy thereby created filled with an Eligible Person designated
by the Principal Investor.
(b) Upon the Investors and (subject to Section 3.06) the
Qualified Stockholders, taken together, ceasing to own of record and
beneficially at least 50% of the Voting Securities of Holdco owned by the
Investors and the Qualified Stockholders, taken together, immediately
following the Mergers (appropriately adjusted for stock dividends, stock
splits, reverse stock splits and similar transactions), the number of
persons that the Principal Investor shall be entitled to designate for
election to the Board shall be reduced to one. If at such time there are
two designees of the Principal Investor on the Board, the Principal
Investor shall specify which of such designees shall continue to be
entitled to the benefits of Section 3.04(a), and the other designee shall
thereafter cease to constitute a designee of the Principal Investor for the
purposes of Section 3.04(a) (and, if requested by Holdco, such other
designee shall resign from the Board).
(c) Upon (i) (A) the Investors and (subject to Section 3.06)
the Qualified Stockholders, taken together, ceasing to own of record and
beneficially at least one-third of the Voting Securities of Holdco owned by
the Investors and the Qualified Stockholders, taken together, immediately
following the Mergers (appropriately adjusted for stock dividends, stock
splits, reverse stock splits and similar transactions) and (B) the
Principal Investor ceasing to be an employee of Holdco or any subsidiary of
Holdco, (ii) the death or incapacity of the Principal Investor, (iii) the
wilful violation in any material respect of this Article by any Investor or
(iv) five business days' prior written notice of termination from the
Principal Investor, the number of persons that the Principal Investor shall
be entitled to designate for election to the Board shall be reduced to
zero. At such time, if requested by Holdco, each designee of the Principal
Investor shall resign from the Board.
(d) The right of the Principal Investor to membership on the
Board, as set forth in his employment agreement with Holdco to be entered
into at the Effective Time of the Mergers, is not in addition to his rights
under this Section 3.04.
(e) For the purposes of the calculations required by the
first sentence of Section 3.04(b) and by Section 3.04(c)(i)(A), any Exempt
Stock (as defined below) shall be excluded from the calculation of each of
(i) the Voting Securities of Holdco owned of record and beneficially by the
Qualified Stockholders on the date of such calculation and (ii) the Voting
Securities of Holdco owned by the Qualified Stockholders immediately
following the Mergers. "Exempt Stock" shall mean (A) any Holdco Common
Stock acquired by any Qualified Stockholder pursuant to the TBS Merger in
exchange for Company Capital Stock owned by such Qualified Stockholder on
September 22, 1995, and (B) any Holdco Common Stock acquired after the
Effective Time of the Mergers by any Qualified Stockholder other than
pursuant to Section 3.02(h).
SECTION 3.05. Additional Covenants. (a) None of the Investors
shall permit any other Investor that is at any time after the date hereof a
wholly owned subsidiary of such Investor to cease to be a wholly owned
subsidiary of such Investor for so long as such other Investor owns any
Voting Securities of Holdco.
(b) None of the Investors shall permit any of its
subsidiaries, other than any such subsidiaries that are Investors, to hold,
directly or indirectly, any shares of Voting Securities of Holdco.
(c) Each Investor shall use reasonable efforts to cause
each of its officers, employees, agents and representatives not to take any
action that would be prohibited under Section 3.01 if taken by such
Investor.
SECTION 3.06. Certain Special Provisions. If at any time the
Principal Investor and his Family Members cease to constitute a sufficient
number of the directors or trustees, as applicable, of any Qualified
Stockholder to permit approval of matters by such Qualified Stockholder
without the approval of any other director or trustee of such Qualified
Stockholder, the Voting Securities of Holdco held by such Qualified
Stockholder shall thereafter be deemed not to be owned of record and
beneficially by such Qualified Stockholder (or any Investor) for the
purposes of Sections 3.04(b) and 3.04(c). The Principal Investor shall be
liable to Holdco under this Agreement for any actions taken by any
Qualified Stockholder that would have been violations of Section 3.01, 3.03
or 3.05(c) had such Qualified Stockholder been bound by such Sections.
ARTICLE IV
Miscellaneous
SECTION 4.01. Termination. (a) The covenants and agreements
of the Investors in Sections 3.01, 3.03 and 3.05(c) shall terminate, except
with respect to liability for prior breaches thereof, upon the last to
occur of (i) the Principal Investor ceasing to be an employee of Holdco or
any subsidiary of Holdco, (ii) the Principal Investor ceasing to be a
member of the Board, and (iii) the Principal Investor ceasing pursuant to
Section 3.04(c) to be entitled to designate any Eligible Persons for
election to the Board.
(b) The covenants and agreements of the Investors in Section
3.02 shall terminate, except with respect to liability for prior breaches
thereof, on the fifth anniversary of the Effective Time of the Mergers.
(c) The covenants and agreements of Holdco in Section 3.04
shall terminate, except with respect to liability for prior breaches
thereof, upon the Principal Investor ceasing pursuant to Section 3.04(c) to
be entitled to designate any Eligible Persons for election to the Board.
(d) Without limiting Sections 4.01(a) and 4.01(b), the
covenants and agreements of the Investors in Article III shall terminate,
except with respect to liability for prior breaches thereof, if the Board
does not (i) on the date of execution of this Agreement, elect to the Board
the two Eligible Persons designated by the Principal Investor, (ii)
recommend for election by the stockholders of Holdco to the Board any
Eligible Person designated by the Principal Investor in accordance with
Section 3.04 or (iii) reasonably promptly after request from the Principal
Investor, fill any vacancy created on the Board upon the death, resignation
or removal of any designee of the Principal Investor on the Board with
another Eligible Person designated by the Principal Investor, in each case
if the effect of such failure is that the Principal Investor does not have
the representation on the Board to which he is entitled under Section 3.04.
(e) The other covenants and agreements set forth in this
Agreement shall terminate, except with respect to liability for prior
breaches thereof, upon the later of (i) the termination of Section 3.01
pursuant to Section 4.01(a) or 4.01(d) and (ii) the termination of Section
3.02 pursuant to Section 4.01(b) or 4.01(d).
SECTION 4.02. Entire Agreement; Assignment. This Agreement
(i) constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes all other prior agreements and
understandings, both written and oral, among the parties with respect to
the subject matter hereof and (ii) except as provided in Section 3.02,
shall not be assigned by operation of law or otherwise without the prior
written consent of the other parties. Any person who agrees pursuant to
Section 3.02 to 6 become a party to this Agreement as an Investor shall
thereupon become, and have all the rights and obligations of, an Investor
hereunder. Any attempted assignment or transfer in violation of this
Section 4.02 shall be void and of no effect. Subject to the foregoing, the
provisions of this Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective estates, heirs, successors and
assigns.
SECTION 4.03. Amendments; Waivers. This Agreement may not be
modified, amended, altered or supplemented, except upon the execution and
delivery of a written agreement executed by the parties hereto. The waiver
by any party of a breach of any provision of this Agreement shall not
operate, or be construed, as a waiver of any subsequent breach thereof.
SECTION 4.04. Notices. All notices, requests, claims, demands
and other communications hereunder shall be in writing and shall be deemed
given (i) on the first Business Day following the date received, if
delivered personally or by telecopy (with telephonic confirmation of
receipt by the addressee), (ii) on the Business Day following timely
deposit with an overnight courier service, if sent by overnight courier
specifying next day delivery and (iii) on the first Business Day that is at
least five days following deposit in the mails, if sent by first class
mail, to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice):
If to any Investor, to:
R.E. Xxxxxx
In care of Xxxxxx Broadcasting System,
Inc.
Xxx XXX Xxxxxx
Xxx 000000
Xxxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
For Courier delivery:
Xxx XXX Xxxxxx
Xxxxxxx, XX 00000
Attention: General Counsel
If to Holdco, to:
Time Warner Inc.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: General Counsel
with a copy (which shall not constitute
notice) to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
SECTION 4.05. Governing Law. This Agreement shall be governed
by and construed in accordance with the internal laws of the State of
Delaware.
SECTION 4.06. Specific Performance. Each party recognizes and
acknowledges that a breach by it of Article III would cause the other
parties to sustain damages for which they would not have an adequate remedy
at law for money damages, and therefore each party agrees that in the event
of any such breach any of the other parties shall be entitled to seek the
remedy of specific performance of such Article III and injunctive and other
equitable relief in addition to any other remedy to which it may be
entitled, at law or in equity.
SECTION 4.07. Counterparts; Effectiveness. This Agreement may
be executed in two or more counterparts, all of which shall be considered
one and the same agreement, and shall become effective when two or more
counterparts have been signed by each of the parties and delivered to the
other parties.
SECTION 4.08. Descriptive Headings. The descriptive headings
used herein are inserted for convenience of reference only and are not
intended to be part of or to affect the meaning or interpretation of this
Agreement.
SECTION 4.09. Severability. Whenever possible, each provision
or portion of any provision of this Agreement shall be interpreted in such
manner as to be effective but if any provision or portion of any provision
of this Agreement is held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect
any other provision or portion of any provision, and this Agreement will be
reformed, construed and enforced as if such invalid, illegal or
unenforceable provision or portion of any provision had never been
contained herein. The parties shall endeavor in good faith negotiations to
replace any invalid, illegal or unenforceable provision with a valid
provision the effects of which come as close as possible to those of such
invalid, illegal or unenforceable provision.
SECTION 4.10. Attorneys' Fees. If any action at law or in
equity is necessary to enforce or interpret the terms of this Agreement,
the prevailing party shall be entitled to reasonable attorneys' fees, costs
and necessary disbursements, in addition to any other relief to which such
party may be entitled.
IN WITNESS WHEREOF, Holdco and each Investor have caused this
Agreement to be duly executed as of the day and year first above written.
TW INC.,
by /s/ Xxxxxx X. XxXxxxxxx
____________________________
Name: Xxxxxx X. XxXxxxxxx
Title: Vice President
/s/ R. E. Xxxxxx
______________________________
R. E. Xxxxxx
XXXXXX OUTDOOR, INC.,
by /s/ R. E. Xxxxxx
____________________________
Name: R. E. Xxxxxx
Title: President
XXXXXX PARTNERS, L.P.,
by /s/ R. E. Xxxxxx
___________________________
Name: R. E. Xxxxxx
Title: General Partner
