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EXHIBIT 2.2
PARTNERSHIP INTEREST PURCHASE AGREEMENT
PARTNERSHIP INTEREST PURCHASE AGREEMENT, dated as of April 26, 1998
(the "AGREEMENT"), among The Times Mirror Company, a Delaware corporation
("TMC"), Xxxxxxx'x Inc., a Delaware corporation ("XXXXXXX'X"), TM ShepCo, Inc.,
a Delaware corporation ("TM SHEPCO") (TMC, Xxxxxxx'x and TM ShepCo,
collectively, "SELLER"), Xxxx Elsevier Inc., a Massachusetts corporation
("REI"), and Xxxx Books Inc., a Delaware corporation ("RBI") (REI and RBI,
collectively, "XXXX").
WITNESSETH:
WHEREAS, TMC entered into an Exchange Agreement dated as of July 3,
1996 (the "XXXXXXX'X EXCHANGE AGREEMENT") with XxXxxx-Xxxx, Inc. ("MGH")
pursuant to which TMC purchased all of the capital stock of
Xxxxxxx'x/XxXxxx-Xxxx, Inc., a Delaware corporation ("SMGH"), previously a
wholly owned subsidiary of MGH, in a taxable transaction (the "XXXXXXX'X
PURCHASE");
WHEREAS, by a Certificate of Amendment to its Certificate of
Incorporation dated October 15, 1996, SMGH's name was changed to Xxxxxxx'x Inc.;
WHEREAS, Xxxxxxx'x and TM ShepCo formed Xxxxxxx'x Company, a Delaware
general partnership (the "PARTNERSHIP"), pursuant to a short form partnership
agreement dated October 16, 1996 (the "INITIAL PARTNERSHIP AGREEMENT"), pursuant
to which Xxxxxxx'x and TM ShepCo, each contributed the sum of one Dollar to the
Partnership (the "PREVIOUS CONTRIBUTIONS");
WHEREAS, pursuant to the Contribution to Capital and Assignment
Agreement dated as of October 16, 1996, (i) TMC assigned to Xxxxxxx'x the
Contract Rights and the Contract Liabilities (each as defined therein) and (ii)
Xxxxxxx'x contributed to the Partnership all of the Xxxxxxx'x Assets (as defined
therein) and assigned to the Partnership all of the Contract Rights and the
Contract Liabilities (subject to the assumption by the Partnership of the
Assumed Liabilities (as defined therein)) in exchange for the issuance to
Xxxxxxx'x of all of the economic interest in the Partnership, other than that
attributable to the Previous Contributions (the "ADDITIONAL PARTNERSHIP
INTEREST" and, together with economic interest in the Partnership attributable
to the Previous Contributions, the "100% PARTNERSHIP INTEREST");
WHEREAS, pursuant to The Partnership Interest Purchase Agreement dated
as of November 27, 1996, (the "1996 PURCHASE AGREEMENT"), Xxxxxxx'x sold, and
REI and RBI purchased, 49.99% and 0.01%, respectively, of the 100% Partnership
Interest (such interests collectively, the "50% PARTNERSHIP INTEREST"); and
WHEREAS, concurrently with the execution and performance of the 1996
Purchase Agreement, (i) Xxxxxxx'x, XX ShepCo, REI and RBI entered into the
Partnership Agreement
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dated as of November 27, 1996 amending and restating the Initial Partnership
Agreement in its entirety, which Partnership Agreement was subsequently amended
by an Amendment No. 1 to Partnership Agreement dated as of June 23, 1997 (as so
amended, the "PARTNERSHIP AGREEMENT") and (ii) Xxxxxxx'x and TM ShepCo caused
the Partnership to admit REI and RBI as general partners with an aggregate
initial 50% Partnership Interest and an initial Capital Account (in each case as
defined in the Partnership Agreement) equal to those of Xxxxxxx'x and TM ShepCo
in the aggregate; and
WHEREAS, REI wishes to purchase all right, title and interest of
Xxxxxxx'x and TM ShepCo in and to the Partnership and under the Partnership
Agreement and Xxxxxxx'x and TM ShepCo wish to sell, transfer and assign to REI
all of their respective interest in and to the Partnership and under the
Partnership Agreement, in each case in accordance with the terms, provisions and
conditions hereinafter set forth.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized representatives as of the day and
year first above written and hereby agree as follows:
ARTICLE 1
SALE OF PARTNERSHIP INTERESTS
SECTION 1.01. The Sale. Subject to the terms and conditions set forth
in this Agreement, at the Closing (as that term is defined in Section 1.02),
Xxxxxxx'x and TM ShepCo shall each, and TMC shall cause Xxxxxxx'x and TM ShepCo
to each, sell, transfer and assign to REI and REI shall purchase from Xxxxxxx'x
and TM ShepCo, all of Xxxxxxx'x and TM ShepCo's right, title and interest in and
to the respective Partnership Interest (as that term is defined in the
Partnership Agreement) of each of Xxxxxxx'x and TM ShepCo, and all right, title
and interest of each of Xxxxxxx'x and TM ShepCo in and under the Partnership
Agreement (the "PARTNERSHIP AGREEMENT RIGHTS"), which sales, transfers,
assignments and purchases are hereinafter collectively referred to as the
"SALE."
SECTION 1.02. The Closing. The closing of the Sale (the "Closing") will
take place at a time and on a date (the "Closing Date") which shall be on the
last business day of the calendar month during which the satisfaction or waiver
of the conditions set forth in Article 2 occurs, at the offices of Xxxxxx, Xxxx
& Xxxxxxxx, LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
SECTION 1.03. Payment of Purchase Price. Subject to the terms and
conditions set forth in this Agreement, at the Closing, REI shall pay to
Xxxxxxx'x and TM ShepCo, as full payment for their Partnership Interests and
Partnership Agreement Rights, $274,725,000 and $275,000, respectively, in
immediately available funds by wire transfer to a bank account in the United
States of America designated in writing to REI by the Sellers at least three
business days prior to the Closing.
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ARTICLE 2
CONDITIONS TO CLOSING
SECTION 2.01. Conditions to All Parties' Obligations. The respective
obligations of the parties hereto to consummate the Sale shall be subject to the
satisfaction (or waiver by each party) as of the Closing Date of the following
conditions:
(a) HSR Act; Other Governmental Approvals. Any waiting period
applicable to the consummation of the Sale contemplated under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules
and regulations thereunder (the "HSR ACT") shall have expired or have been
terminated, and any other notice or approvals to or of any federal, state or
foreign governmental authority with respect to the Sale shall have been either
filed or received.
(b) No Order. No federal, state or foreign governmental
authority or other agency or commission or court of competent jurisdiction shall
have enacted, issued, promulgated, enforced or entered any statute, rule,
regulation, injunction or other order (whether temporary, preliminary or
permanent) which remains in effect, and which has the effect of making the
transactions contemplated hereby illegal or otherwise prohibiting consummation
of the Sale.
(c) Closing Under the Merger Agreement. All of the conditions
to the consummation of the merger contemplated by that certain Agreement and
Plan of Merger of even date herewith by and among TMC, TMD, Inc., Xxxxxxx Xxxxxx
& Company, Inc., Xxxx Elsevier U.S. Holdings Inc., CBM Acquisition Parent Co.
and CBM Acquisition Corp. shall have been satisfied or waived and the closing
thereunder shall have taken place concurrently with the Closing.
(d) Mutual Release. Seller and Xxxx shall have each executed
and delivered on their own behalf and on behalf of their Affiliates to the other
party a mutual release, in form reasonably satisfactory to each of them,
releasing each of them and their Affiliates from any and all claims, liabilities
and obligations arising out of the Partnership Agreement.
SECTION 2.02. Conditions to Xxxx'x Obligations. The obligations of Xxxx
to consummate the Sale are subject to the satisfaction (or waiver of Xxxx) as of
the Closing Date of the following conditions:
(a) Representations, Warranties and Covenants. The
representations and warranties of each of Sellers made in this Agreement shall
be true and correct in all material respects as of the date of this Agreement
and, except as specifically contemplated by this Agreement, on and as of the
Closing Date, as though made on and as of the Closing Date, and each of Sellers
shall have performed or complied with, or shall have caused to be performed or
complied with, in all material respects all obligations and covenants required
by this Agreement to be performed or complied with by Sellers or their
affiliates by the time of the Closing; and
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REI shall have received from each of Sellers a certificate dated the Closing
Date and signed by an authorized officer of such Seller confirming the
foregoing.
(b) Certificates of Good Standing. Xxxx shall have received
from Sellers a certificate as to each of the Sellers issued by the Secretary of
State of Delaware, in each case evidencing such Seller's good standing in such
state as of a date not more than ten days prior to the Closing Date.
(c) Resolutions. Xxxx shall have received from Sellers
certified copies of resolutions duly adopted by their respective Boards of
Directors authorizing the execution, delivery and performance of this Agreement
by such Seller and the consummation of the transactions contemplated hereby and
all such resolutions shall not have been revoked and shall remain in full force
and effect.
SECTION 2.03. Conditions to Sellers' Obligations. The obligations of
Sellers to consummate the Sale are subject to the satisfaction (or waiver by
Sellers) as of the Closing Date of the following conditions:
(a) Representations, Warranties and Covenants. The
representations and warranties of Xxxx made in this Agreement shall be true and
correct as of the date of this Agreement and on and as of the Closing, as though
made on and as of the Closing Date, and Xxxx shall have performed or complied in
all material respects with all obligations and covenants required by this
Agreement to be performed or complied with by Xxxx or any affiliate of Xxxx by
the time of the Closing; and Sellers shall have received from REI a certificate
dated the Closing Date and signed by an authorized officer of REI confirming the
foregoing.
(b) Certificates of Good Standing. Sellers shall have received
from Xxxx certificates as to REI and RBI issued by the Secretaries of State of
Massachusetts and Delaware respectively, evidencing the good standing of the
applicable corporation in such state as of a date not more than ten days prior
to the Closing Date.
(c) Resolutions. Sellers shall have received from Xxxx
certified copies of resolutions duly adopted by the respective Boards of
Directors of REI and RBI authorizing the execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated hereby by
such corporation, and all such resolutions shall not have been revoked and shall
remain in full force and effect.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER
Sellers hereby jointly and severally represent and warrant to Xxxx as
follows:
SECTION 3.01. Organization and Good Standing of Sellers. Each of
Sellers is a corporation duly organized and validly existing under the laws of
the State of Delaware. Each of Sellers has all requisite corporate power and
authority and possesses all governmental franchises,
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licenses, permits, authorizations and approvals necessary to enable it to carry
on its business as presently conducted other than such franchises, licenses,
permits, authorizations and approvals the lack of which would not have a
material adverse effect on the ability of such party to consummate the Sale.
SECTION 3.02. Authority. Each of Sellers has all requisite corporate
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. All necessary corporate action required to
have been taken by or on behalf of Sellers by applicable law or its charter
documents has been taken to authorize (a) the approval, execution and delivery
on behalf of such party of this Agreement and (b) the performance by such party
of its obligations under this Agreement and the consummation of the transactions
contemplated hereby. This Agreement constitutes a valid and binding agreement of
each of Sellers, enforceable against it in accordance with its terms, except (i)
as the same may be limited by applicable bankruptcy, insolvency, moratorium or
similar laws of general application relating to or affecting creditors' rights,
including, without limitation, the effect of statutory or other laws regarding
fraudulent conveyances and preferential transfers and (ii) for the limitations
imposed by general principles of equity (the foregoing exceptions set forth in
clauses (i) and (ii) being referred to as the "ENFORCEABILITY EXCEPTIONS").
SECTION 3.03. No Breach. The execution and delivery of this Agreement
by Sellers do not, and the consummation of the transactions contemplated hereby
will not, (i) violate or conflict with the Articles of Incorporation or Bylaws
of any of the Sellers or (ii) except as set forth on Schedule 3.03 hereto,
constitute a material breach or default or give rise to any lien, contract, or
any material law, rule or regulation to which it or any material portion of its
assets is subject.
SECTION 3.04. Consents and Approvals. Neither the execution and
delivery of this Agreement by Sellers nor the consummation of the transactions
to which contemplated hereby will require any consent, approval, authorization
or permit of, or filing with or notification to, any federal, state or foreign
governmental or regulatory authority, except for notification pursuant to, and
expiration or termination of the waiting period under, the HSR Act.
SECTION 3.05. Ownership of Partnership Interests. Each of Xxxxxxx'x and
TM ShepCo owns, legally and beneficially, all right, title and interest in and
to its respective Partnership Interest, free and clear of any liens,
encumbrances or contractual or other rights of any third party, except solely
those arising under the Partnership Agreement.
SECTION 3.06. Partnership Agreement Rights. Neither Xxxxxxx'x nor TM
ShepCo has assigned, transferred or encumbered any of its Partnership Agreement
Rights.
SECTION 3.07. Transactions with Affiliates. There are no agreements or
arrangements between the Partnership and TMC or any affiliate of TMC, other than
Xxxxxxx Xxxxxx & Company, Inc., a New York corporation, in respect of which the
Partnership will have any liability or obligation after the Closing Date (a "TMC
AFFILIATE AGREEMENT").
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SECTION 3.08. On-Line License. To the knowledge of Xxxxxxx X. Xxxxxxx
or Xxxxx Xxxxxxxx, the Partnership has no currently effective agreement or
arrangement with any person other than REI that permits such other person to
sell or sublicense the products or services of the Partnership in an on-line
format (a "THIRD-PARTY ON-LINE AGREEMENT") beyond December 31, 1999.
SECTION 3.09. Brokers. No broker, finder or investment banker other
than Xxxxxxx, Sachs & Co. is entitled to any brokerage finder's or other fee or
commission in connection with the transactions contemplated by this Agreement
based upon arrangements made by or on behalf of any of Sellers.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF XXXX
Xxxx hereby jointly and severally represent and warrant to each of
Sellers as follows:
SECTION 4.01. Organization and Good Standing of Xxxx. REI and RBI are
corporations duly organized, validly existing and in good standing under the
laws of the Commonwealth of Massachusetts and the State of Delaware,
respectively. Xxxx have all requisite corporate power and authority and possess
all governmental franchises, licenses, permits, authorizations and approvals
necessary to enable them to perform their obligations under this Agreement and
to consummate the Sale.
SECTION 4.02. Authority. Xxxx have all requisite corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. All necessary corporate action required to
have been taken by or on behalf of Xxxx by applicable law or its charter
documents has been taken to authorize (a) the approval, execution and delivery
on behalf of Xxxx of this Agreement and (b) the performance by Xxxx of their
obligations under this Agreement and the consummation of the transactions
contemplated hereby. This Agreement constitutes a valid and binding agreement of
each of REI and RBI, enforceable against it in accordance with its terms, except
as the same may be limited by the Enforceability Exceptions.
SECTION 4.03. No Breach. The execution and delivery of this Agreement
by Xxxx do not, and the consummation of the transactions contemplated hereby
will not, (a) violate or conflict with the organizational documents of Xxxx or
(b) constitute a material breach or default or give rise to any lien,
third-party right of termination, cancellation, material modification or
acceleration under any material agreement, understanding or undertaking to which
Acquiror is a party or by which Xxxx is bound, or any material law, rule or
regulation to which Xxxx or any material portion of Xxxx'x assets is subject.
SECTION 4.04. Consents and Approvals. Neither the execution and
delivery of this Agreement by Xxxx nor the consummation of the transactions
contemplated hereby will require any consent, approval, authorization or permit
of, or filing with or notification to, any governmental or regulatory authority,
except for notification pursuant to, and expiration or termination of the
waiting period under, the HSR Act.
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SECTION 4.05. Funding. Xxxx has, and on the Closing Date will have, on
hand or committed, sufficient funds to perform its obligations hereunder and to
consummate the Sale.
SECTION 4.06. Brokers. No broker, finder or investment banker other
than Xxxxxx Xxxxxxx & Co. Incorporated is entitled to any brokerage finder's or
other fee or commission in connection with the transactions contemplated by this
Agreement based upon arrangements made by or on behalf of Xxxx.
ARTICLE 5
COVENANTS OF SELLERS
SECTION 5.01. Encumbrances. Between the date hereof and the Closing
Date, Sellers shall not permit, allow or suffer their Partnership Interests or
Partnership Agreement Rights to be subjected to any mortgage, pledge, lien,
encumbrance, restriction or charge of any kind.
SECTION 5.02. TMC Affiliate Agreements. Between the date hereof and the
Closing Date, Sellers shall cause the Partnership not to enter into any TMC
Affiliate Agreement.
SECTION 5.03. Third-Party On-line Agreements. Between the date hereof
and the Closing Date, Sellers shall, to the extent that they may otherwise have
the authority to do so without the concurrence of the Management Committee or
any other partners of the Partnership, cause the Partnership not to enter into
any Third-Party On-line Agreement or to extend the term of, or otherwise
materially amend, any existing Third-Party On-line Agreement.
SECTION 5.04. Records. At the Closing, Sellers shall deliver to Xxxx
all original books, records and files (collectively, "RECORDS") in the
possession or under the control of Sellers related to the business and
operations of the Partnership. Sellers may retain copies of any Records to the
extent that they relate to Sellers' tax returns for taxable periods ended on or
prior to the Closing Date.
SECTION 5.05. Section 754 Election. Xxxxxxx'x, as Tax Matters Partner
of the Partnership, shall, pursuant to Section 13.2(c)(i) of the Partnership
Agreement, cause the Partnership to make and include in the Partnership's 1997
federal income tax return an election under Section 754 of the Internal Revenue
Code of 1986, as amended.
ARTICLE 6
COVENANTS OF XXXX
SECTION 6.01. Partnership Tax Returns. At the Closing, REI shall
replace Xxxxxxx'x as Tax Matters Partner of the Partnership and shall cause to
be accurately prepared on a basis consistent with tax returns previously filed
by the Partnership and timely filed all tax returns required to be filed for the
Partnership after the Closing Date in connection with the transactions
contemplated by this Agreement or with respect to any taxable period falling on
or before the
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Closing Date and shall cause the Partnership to prepare and deliver in a timely
manner to Sellers the applicable Schedule K-1.
ARTICLE 7
COVENANTS OF BOTH PARTIES
SECTION 7.01. Cooperation. The parties hereto shall cooperate with each
other and shall cause their respective officers, employees, affiliates, agents,
auditors and representatives to cooperate with each other after the Closing Date
to ensure the orderly transfer of the Partnership Interests to REI and to
minimize any disruption to the respective businesses of the Partnership or REI
that might result from the transactions contemplated hereby.
SECTION 7.02. Publicity. The parties hereto agree that, from the date
of this Agreement through the Closing Date, no public release or announcement
concerning the transactions contemplated hereby shall be issued by any party
without the prior consent of each other party (which consent shall not be
unreasonably withheld), except as such release or announcement may be required
by law or the rules or regulations of any United States or foreign securities
exchange, in which case the party required to make the release or announcement
shall allow each other party reasonable time within any constraints imposed by
such law, rule or regulation to comment on such release or announcement in
advance of such issuance.
SECTION 7.03. Anti-trust Notification. Each of TMC and REI will as
promptly as practicable, but in no event later than ten Business Days following
the execution and delivery of this Agreement, file with the United States
Federal Trade Commission (the "FTC") and the United States Department of Justice
(the "DOJ") the notification and report form, if any, required for the
transactions contemplated hereby and any supplemental information requested in
connection therewith pursuant to the HSR Act. Any such notification and report
form and supplemental information will be in substantial compliance with the
requirements of the HSR Act. Each of TMC and REI shall furnish to the other such
necessary information and reasonable assistance as the other may request in
connection with its preparation of any filing or submission which is necessary
under the HSR Act. TMC and REI shall keep each other apprised of the status of
any communications with, and inquiries or requests for additional information
from, the FTC and the DOJ and shall comply promptly with any such inquiry or
request. Each of TMC and REI will use its reasonable best efforts to obtain any
clearance required under the HSR Act for the consummation of the transactions
contemplated hereby.
ARTICLE 8
INDEMNITY
SECTION 8.01. Indemnification by Sellers. Sellers, jointly and
severally shall indemnify Xxxx and their affiliates (including the Partnership)
and each of their respective officers, directors, employees and agents and hold
them harmless from any Losses (as defined in Section 8.07) suffered or incurred
by any such indemnified party to the extent arising from
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(a) any failure of any representation or warranty of Sellers to be true and
correct as of the Closing Date or (b) any breach by Sellers of any covenant
contained in this Agreement.
SECTION 8.02. Indemnification by Xxxx. Xxxx jointly and severally shall
indemnify Sellers and their respective officers, directors, employees and agents
against and hold them harmless from any Losses suffered or incurred by any such
indemnified party to the extent arising from (a) any failure of any
representation or warranty of Xxxx to be true and correct as of the Closing Date
or (b) any breach by Xxxx of any covenant contained in this Agreement.
SECTION 8.03. Termination of Indemnification. The obligation to
indemnify and hold harmless a party hereto (a) pursuant to clause (a) of Section
8.01 and 8.02 shall terminate on the first anniversary of the Closing Date, and
(b) pursuant to clause (b) of each of Section 8.01 and 8.02, shall not
terminate; provided, however, that as to clauses (a) and (b) above, such
obligations to indemnify and hold harmless shall not terminate with respect to
any item as to which the person to be indemnified or the related party hereto
shall have, before the expiration of the applicable period, previously made a
claim by delivering a notice (setting forth the detailed basis of such claim) to
the indemnifying party.
SECTION 8.04. Procedures Relating to Indemnification. In order for a
party (the "INDEMNIFIED PARTY") to be entitled to any indemnification provided
for under this Agreement in respect of, arising out of or involving a claim or
demand made by any person, firm, governmental authority or corporation against
the indemnified party (a "THIRD-PARTY CLAIM"), such indemnified party must
notify the indemnifying party in writing, and in reasonable detail, of the
Third-Party Claim within 10 business days after receipt by such indemnified
party of written notice of the Third-Party Claim; provided, however, that
failure to give such notification shall not affect the indemnification provided
hereunder except to the extent the indemnifying party shall have been actually
prejudiced as a result of such failure (except that the indemnifying party shall
not be liable for any expenses incurred during the period in which the
indemnified party failed to give such notice). Thereafter, the indemnified party
shall deliver to the indemnifying party, within 5 Business Days after the
indemnified party's receipt thereof, copies of all notices and documents
(including court papers) received by the indemnified party relating to the
Third-Party Claim.
If a Third-Party Claim is made against an indemnified party, the
indemnifying party will be entitled to participate in the defense thereof and,
if it so chooses, to assume the defense thereof with counsel selected by the
indemnifying party and reasonably satisfactory to the indemnified party. Should
the indemnifying party so elect to assume the defense of a Third-Party Claim,
the indemnifying party will not be liable to the indemnified party for legal
fees and expenses subsequently incurred by the indemnified party in connection
with the defense thereof. If the indemnifying party assumes such defense, the
indemnified party shall have the right to participate in the defense thereof and
to employ counsel, at its own expenses, separate from the counsel employed by
the indemnifying party, it being understood that the indemnifying party shall
control such defense. The indemnifying party shall be liable for the fees and
expenses of counsel employed by the indemnified party for any period during
which the indemnifying party has not assumed the defense thereof (other than
during any period in which the indemnified party
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shall have failed to give notice of the Third-Party Claim as provided above). If
the indemnifying party chooses to defend or prosecute any Third-Party Claim, all
the parties hereto shall cooperate in the defense or prosecution thereof. Such
cooperation shall include the retention and (upon the indemnifying party's
request) the provision to the indemnifying party of records and information
which are reasonably relevant to such Third-Party Claim, and making employees
available on a mutually convenient basis to provide additional information and
explanation of any material provided hereunder. Whether or not the indemnifying
party shall have assumed the defense of a Third-Party Claim, the indemnified
party shall not admit any liability with respect to, or settle, compromise or
discharge, such Third-Party Claim without the indemnifying party's prior written
consent (which consent shall not be unreasonably withheld).
SECTION 8.05. Losses Net of Insurance. The amount of any Losses for
which indemnification is provided under this Article 8 shall be net of any
amounts recovered or recoverable by the indemnified party under insurance
policies with respect to such Losses.
SECTION 8.06. Exclusive Remedy. In the absence of fraud or willful
misconduct on the part of the indemnifying party, or any of its officers,
directors, employees or agents in connection with the negotiation, execution or
delivery of this Agreement or the consummation of the transactions contemplated
hereby, the remedy contained in Sections 8.01 and 8.02 shall constitute the sole
and exclusive remedy of the indemnified party (and its affiliates and each of
their respective officers, directors, employees and agents) against the
indemnifying party for Losses suffered or incurred in connection with this
Agreement and the transactions contemplated hereby.
SECTION 8.07. Losses. "LOSSES" for purposes of this Agreement means any
and all damage, loss (including, without limitation, any diminution in the value
of the assets of the Partnership), liability and expense (including, without
limitation, reasonable expenses of investigation and reasonable attorneys' fees
and expenses in connection with any action, suit or proceeding).
ARTICLE 9
GENERAL
SECTION 9.01. Partnership Agreement. The parties hereby waive all
provisions of the Partnership Agreement that would otherwise be applicable to
the Sale and stipulate that this Agreement is not an Offer pursuant to Article
11 of the Partnership Agreement.
SECTION 9.02. Governing Law; Amendments. This Agreement shall be
governed by, and construed in accordance with, the laws of the State of
Delaware, without giving effect to principles of conflicts of law. Any provision
of this Agreement may be amended or waived only if such amendment or waiver is
signed by the parties hereto. This Agreement shall be binding upon and inure to
the benefit of each of the parties hereto and their respective successors and
assigns; provided, however, that no party may assign any of its rights or
obligation under this Agreement without the prior written consent of the other
party.
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SECTION 9.03. Counterparts; Effectiveness. This Agreement may be signed
in any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have received
the counterpart hereof signed by the other party hereto.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first written above.
THE TIMES MIRROR COMPANY
By /s/ XXXXXX XXXXXXXX
-----------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
XXXXXXX'X INC.
By /s/ XXXXXX XXXXXXXX
-----------------------------------
Name: Xxxxxx Xxxxxxxx
Title: President
TM SHEPCO, INC.
By /s/ XXXXXX XXXXXXXX
-----------------------------------
Name: Xxxxxx Xxxxxxxx
Title: President
XXXX ELSEVIER INC.
By /s/ XXXXX X. XXXXXXXXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxxxxxxxx
Title: Vice President
XXXX BOOKS INC.
By /s/ XXXXX X. XXXXXXXXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxxxxxxxx
Title: Secretary
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