EXHIBIT 10.19
BUSINESS OPPORTUNITIES AGREEMENT
AS AMENDED AND RESTATED AS OF FEBRUARY 7, 1996
This Agreement (the "AGREEMENT") is made as of this
7th day of February, 1996 by and between XXXXXXXXX INTERNATIONAL INC., a
Delaware corporation formerly named American Publishing Company (the "COMPANY"),
and XXXXXXXXX INC., a corporation continued under the laws of Canada
("XXXXXXXXX").
WHEREAS, the Company and Xxxxxxxxx, in connection with the initial
public offering of the Company's Class A Common Stock in May 1994, entered into
a Business Opportunities Agreement dated May 11, 1994 (the "1994 BUSINESS
OPPORTUNITIES AGREEMENT"), whereby they stated their desire that the Company
would be Xxxxxxxxx'x principal vehicle for engaging in the newspaper business in
the United States and Israel and set forth certain principles governing the
start-up, acquisition, development and operation of newspaper and other media
business in the United States and Israel by the Company;
WHEREAS, on October 13, 1995, pursuant to the terms of a Share
Exchange Agreement dated as of July 19, 1995 (the "SHARE EXCHANGE AGREEMENT"),
the Company and Xxxxxxxxx reorganized their international newspaper interests by
means of the transfer to the Company of Xxxxxxxxx'x 58.4% indirect interest in
The Telegraph plc, a corporation organized under the laws of England ("THE
TELEGRAPH") (including The Telegraph's approximate 25% interest in Xxxx Xxxxxxx
Holdings Limited, an Australian newspaper and magazine publisher ("FAIRFAX")),
an option to acquire an additional 5.2% of The Telegraph's ordinary shares from
another shareholder, and Xxxxxxxxx'x direct and indirect 19.3% interest in
Southam Inc., a Canadian newspaper and magazine publisher ("SOUTHAM"), in
exchange for 33,610,754 shares of
Class A Common Stock of the Company and 739,500 shares of the Company's newly
created, non-voting Series A Redeemable Convertible Preferred Stock (the
"REORGANIZATION");
WHEREAS, pursuant to Section 5(d) of the Share Exchange Agreement,
the Company and Xxxxxxxxx amended and restated the 1994 Business Opportunities
Agreement to reflect the objectives and effects of the Reorganization, effective
October 13, 1995;
WHEREAS, on February 7, 1996 the Company completed an underwritten
public offering of 14,000,000 shares of Class A Common Stock (plus an additional
2,100,000 shares subject to the Underwriters' overallotment option) (the
"Offering") and, in connection with the Offering, the Company and Xxxxxxxxx
agreed that it would be appropriate to further amend and restate the Business
Opportunities Agreement as provided herein, effective as of the date hereof;
WHEREAS, in accordance with the terms of the 1994 Business
Opportunities Agreement, the Audit Committee of the Board of Directors of the
Company has approved this Agreement as an amendment and restatement of the 1994
Business Opportunities Agreement;
WHEREAS, after giving effect to the Offering Xxxxxxxxx owns
approximately 66.5% of the total outstanding shares of both classes of the
Company's Common Stock and 88.2% of the combined voting power of both classes of
the Company's Common Stock;
WHEREAS, Xxxxxxxxx'x long-term business objective is to operate
successfully in the Newspaper Business (as defined herein) and in the Media
Business (as defined herein) in numerous geographic regions throughout the
world, as market conditions and available resources permit;
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WHEREAS, pursuant to the terms of that certain Co-operation
Agreement dated June 23, 1992 between Xxxxxxxxx and The Telegraph (the
"CO-OPERATION AGREEMENT"), a copy of which is attached hereto as Annex A and
which will remain in effect following the Reorganization, Xxxxxxxxx has
undertaken to restrict its activities and the activities of entities controlled
by it in respect to Newspaper and Media Businesses carried on within the
Telegraph Territory (as defined herein);
WHEREAS, the parties desire that the Company will be Xxxxxxxxx'x
principal vehicle for engaging in the Newspaper Business and Related Media
Businesses (as defined herein) in the United States, Israel and, through The
Telegraph, in the Telegraph Territory and that in the normal course of its
business the Company intends to seek additional newspaper and related media
assets for acquisition and development in these areas;
WHEREAS, the parties also desire that, through its investment in
Southam, the Company will engage in the Newspaper Business in Canada; and
WHEREAS, for their convenience and mutual benefit the parties hereto
wish to set forth herein the principles governing the start-up, acquisition,
development and operation of Newspaper and Media Businesses in the United
States, Israel, the Telegraph Territory and Canada by the Company and Xxxxxxxxx.
NOW, THEREFORE, for and in consideration of the recitals set forth
above and the agreements, rights, obligations and covenants contained herein,
the parties hereto, intending to be legally bound, hereby agree as follows:
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ARTICLE I
DEFINITIONS
1.1 PARTICULAR TERMS. As used in this Agreement, the following terms
shall have the meanings ascribed to them below:
(a) "AFFILIATE" shall mean for any Person, another Person
directly or indirectly controlling, controlled by or under common control with
such Person; provided, however, that for the purposes of this Agreement, neither
the Company nor any Person controlled by the Company shall be deemed to be an
Affiliate of Xxxxxxxxx and neither Xxxxxxxxx nor any Person who is controlled by
Xxxxxxxxx other than through its ownership of shares of the Company shall be
deemed to be an Affiliate of the Company. For the purposes hereof, "control,"
"controlling" and "controlled" shall mean the power, direct or indirect, of a
Person to direct the business and affairs of another generally whether by share
ownership, agreement or otherwise.
(b) "AUDIT COMMITTEE" shall mean the Audit Committee of the
Board of Directors of the Company, which committee shall at all times consist of
directors a majority of whom are Independent Directors.
(c) "BENEFICIAL OWNERSHIP" shall have the meaning attributed
to such term under Section 13(d) of the United States Securities Exchange Act of
1934.
(d) "INDEPENDENT DIRECTORS" shall mean directors of the
Company who are not (i) employees, officers or directors (or former employees,
officers or directors) of Xxxxxxxxx or any of its Subsidiaries or Affiliates
(other than the Company) or (ii) employees or officers (or former employees or
officers) of the Company or any of its Subsidiaries.
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(e) "MEDIA BUSINESS" shall mean the business of the broadcast
of radio, television, cable and satellite programs (including national, regional
or local radio, television, cable and satellite programs).
(f) "NEWSPAPER BUSINESS" shall mean the business of publishing
and distributing (including distributing by electronic means) newspapers,
magazines and other paid or free publications having national, regional, local
or targeted markets, including publications having limited or no news or
editorial content such as shopper and other "total market coverage" publications
and similar publications.
(g) "PERSON" shall mean any individual, partnership,
corporation, business trust, joint stock company, trust, unincorporated
association, joint venture, or other entity of whatever nature.
(h) "RELATED MEDIA BUSINESS" shall mean any Media Business
that is an Affiliate of, or is owned or operated in conjunction with, a
Newspaper Business owned or controlled by the Company and its Subsidiaries or
Xxxxxxxxx, as the case may be, as a result of an acquisition or otherwise.
(i) "SUBSIDIARY" shall mean any corporation 50% or more of the
voting power of the capital stock of which is held directly or indirectly by
Xxxxxxxxx or the Company, as the case may be.
(j) "TELEGRAPH TERRITORY" shall have the meaning ascribed
thereto in the Co-operation Agreement.
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(k) "UNITED STATES" shall mean the United States of America,
including the states thereof and the District of Columbia.
1.2 OTHER TERMS. Other capitalized teams shall have the meanings
ascribed to them elsewhere in this Agreement.
ARTICLE II
CORPORATE OPPORTUNITY, ALLOCATION AND
CONFLICTS OF INTEREST
2.1 CORPORATE OPPORTUNITY GENERALLY. This Section 2.1 sets forth
general principles which underlie the corporate structure of the Company and
Xxxxxxxxx following the Reorganization and which provide a framework whereby
Xxxxxxxxx and the Company will resolve conflicts over business opportunities.
The benefits and obligations of these principles are to apply to the Company and
Xxxxxxxxx so long as Xxxxxxxxx and its Affiliates have beneficial-ownership of
more than 50% of the voting power of the Company's outstanding securities.
2.2 ALLOCATION OF OPPORTUNITIES. (a) The parties hereby agree that,
subject to certain exceptions set forth in Section 3.8 below, opportunities
relating to the start-up, acquisition, development and operation of a Newspaper
Business and Related Media Business in the United States, Israel and the
Telegraph Territory shall be allocated to the Company and its Subsidiaries
subject to the limitations of the Co-Operation Agreement, and opportunities
relating to the start-up, acquisition, development and operation of a Newspaper
Business and Related Media Business in Canada shall be allocated to Xxxxxxxxx.
Subject to the terms of the Co-Operation Agreement, with respect to
opportunities in the Media Business other than in a Related Media Business as
provided above, Xxxxxxxxx intends to reserve the opportunity to itself or such
of its Subsidiaries or Affiliates or the Company's Subsidiaries or Affiliates as
Xxxxxxxxx,
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in its reasonable and good faith judgment, believes will be best able to develop
such opportunity in light of such factors as the nature and requirements of the
opportunity (including financial requirements), the respective levels of
relevant experience of the Company and Xxxxxxxxx and their respective
Subsidiaries and Affiliates, the similarity of the opportunity to and
compatibility with the respective then existing operations, facilities and plans
of the Company and Xxxxxxxxx and their respective Subsidiaries and Affiliates,
and the requirements of applicable law relating to broadcasting or other aspects
of the Media Business.
(b) For the purposes of this Agreement, a Newspaper Business
is conducted in the United States, Israel or Canada if, based on estimates
deemed reasonable by the parties, 25% or more of the readers of a newspaper,
magazine or other publication published as part of such business are persons
resident in the United States, Israel or Canada, as the case may be. Different
editions of a newspaper or other publication published under the same title
shall be treated as one newspaper or other publication if substantially similar.
For the purpose of this Agreement, a Related Media Business is conducted in the
United States, Israel or Canada if, based on estimates deemed reasonable by the
parties, 25% or more of the listeners, viewers, or subscribers or other
customers of such Media Business are located in the United States, Israel or
Canada, as the case may be.
(c) Nothing in this Agreement is intended to modify or
contravene the Co-operation Agreement.
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ARTICLE III
RESTRICTIONS; PERMITTED INVESTMENTS
3.1 INVESTMENT IN THE TELEGRAPH. For so long as Xxxxxxxxx and its
Affiliates have beneficial ownership of 50% or more of the voting power of the
Company's outstanding securities, neither Xxxxxxxxx nor a Subsidiary (other than
the Company or any of its Subsidiaries) or an Affiliate of Xxxxxxxxx will
acquire beneficial ownership of any voting securities of The Telegraph except
indirectly as a result of the ownership or acquisition of securities of the
Company; provided, however, that the foregoing clause shall, not restrict any
individual who may be deemed to be an Affiliate of Xxxxxxxxx from acquiring
beneficial ownership of securities of The Telegraph through any equity-based
compensation program conducted by The Telegraph for its officers, directors or
key employees.
3.2 COMPLIANCE WITH CO-OPERATION AGREEMENT. The Company and
Xxxxxxxxx hereby acknowledge that pursuant to the terms of the Co-operation
Agreement, Xxxxxxxxx has undertaken to restrict its activities and the
activities of entities controlled by it in respect of Newspaper and Media
Businesses carried on in the Telegraph Territory on the terms and conditions set
out therein. For so long as Xxxxxxxxx and its Affiliates have beneficial
ownership of 50% or more of the voting power of the Company's outstanding
securities, neither the Company nor Xxxxxxxxx shall, without the other's prior
written consent, directly or indirectly in any manner whatsoever including,
without limitation, either on its own account or in conjunction with or on
behalf of any other Person, make any investment or take any action which would
contravene clause 2 of the Co-operation Agreement. Furthermore, Xxxxxxxxx agrees
that, without the prior written consent of the Company, it shall not agree to
amend or modify the
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Co-operation Agreement and shall not waive any benefit or right belonging or
accruing to it thereunder.
3.3 INVESTMENT IN SOUTHAM. For so long as Xxxxxxxxx and its
Affiliates have beneficial ownership of 50% or more of the voting power of the
Company's outstanding securities, neither Xxxxxxxxx nor a Subsidiary (other than
the Company or any of its Subsidiaries) or an Affiliate of Xxxxxxxxx will
acquire beneficial ownership of any voting securities of Southam except
indirectly as a result of the ownership or acquisition of securities of the
Company; provided, however, that the foregoing clause shall not apply if the
Company and its Subsidiaries are precluded by Canadian foreign ownership laws or
the constrained share provisions of Southam's Articles of Incorporation, as
amended from time to time, from holding or acquiring beneficial ownership of any
voting securities of Southam; and, provided further, that this Section 3.3 shall
not restrict any individual who may be deemed to be an Affiliate of Xxxxxxxxx
from acquiring beneficial ownership of securities of Southam through any
equity-based compensation program conducted by Southam for its officers,
directors or key employees.
3.4 XXXXXXXXX ACQUISITIONS. Subject to Section 3.8 hereof, if
Xxxxxxxxx or a Subsidiary (other than the Company or any of its Subsidiaries) or
an Affiliate of Xxxxxxxxx (an "ACQUIRING ENTITY") acquires the capital stock or
substantially all of the assets of any other Person which engages in the
Newspaper Business or Related Media Business in the United States or in Israel
(an "ACQUIRED ENTITY"), Xxxxxxxxx agrees that it shall cause the Acquired Entity
(or those operations which relate to the Newspaper Business or Related Media
Business in the United States or Israel) to be offered for sale to the Company
(a) at a price equivalent to that part of the consideration paid by Xxxxxxxxx
(or its Subsidiary or Affiliate) attributable to the Newspaper Business or
Related Media Business carried on in the United States or in Israel by the
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Acquired Entity and (b) on other terms which sire no less favorable than those
upon which the Acquired Entity (or those operations which relate to the
Newspaper Business or Related Media Business) was acquired by Xxxxxxxxx (or its
Subsidiary or Affiliate).
3.5 COMPANY ACQUISITIONS. Subject to Section 3.8 hereof, if the
Company or a Subsidiary or Affiliate of the Company (an "ACQUIRING ENTITY")
acquires the capital stock or substantially all of the assets of any other
Person which engages in the Newspaper Business or Related Media Business in
Canada (an "ACQUIRED ENTITY"), the Company agrees that it shall cause the
Acquired Entity (or those operations which relate to the Newspaper Business or
Related Media Business in Canada) to be offered for sale to Xxxxxxxxx (a) at a
price equivalent to that part of the consideration paid by the Company (or its
Subsidiary or Affiliate) attributable to the Newspaper Business or Related Media
Business carried on in Canada by the Acquired Entity and (b) on other terms
which are no less favorable than those upon which the Acquired Entity (or those
operations which relate to the Newspaper Business or Related Media Business) was
acquired by the Company (or its Subsidiary or Affiliate).
3.6 OFFERS. An offer by an Acquiring Entity pursuant to Sections 3.4
or 3.5 shall be made by the Acquiring Entity's giving to the Company, with
respect to offers made pursuant to Section 3.4, or to Xxxxxxxxx, with respect to
offers made pursuant to Section 3.5, prompt written notice of such offer (but in
no event later than 60 days after the date of the consummation of the
acquisition by the Acquiring Entity) disclosing all material information
relating to the Acquired Entity, the purchase price thereof and such other terms
and conditions as may be reasonable, taking into account applicable regulatory,
taxation, accounting and other financial considerations. The Company or
Xxxxxxxxx, as the case may be, shall have a period of 60 days after receipt of
such notice to elect to purchase the Acquired Entity, or those operations
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that relate to the Newspaper Business or Related Media Business, at such price
and on such specified terms and conditions. Such election shall be in writing
and shall be signed by a duly authorized executive officer(s) of the Company or
Xxxxxxxxx, as the case may be, and, where the Company is making such election,
after review and approval by the Audit Committee of the Company. If no election
to purchase is given by the Company or Xxxxxxxxx, as the case may be, then such
party shall be deemed to have determined not to acquire the Acquired Entity (or
those operations which relate to the Newspaper Business or Related Media
Business). If acceptance of any offer made pursuant to Section 3.4 or 3.5 is
delayed by reason of the requirements of any regulatory authority, necessity for
stockholder approval or requirements of applicable law, the time for acceptance
shall be extended to expire no more than 10 days after the satisfaction or
expiration of such requirements or the giving of such approval.
3.7 AUDIT COMMITTEE ACTION. The Company's decision pursuant to
Section 3.2 to consent to an amendment, modification or waiver of any provision
of the Co-operation Agreement and the Company's decision pursuant to Section 3.6
hereof to acquire an Acquired Entity, or those operations of an Acquired Entity
relating to the Newspaper Business or Related Media Business, shall be made by
the majority decision of the Audit Committee.
3.8 PERMITTED INVESTMENTS. (a) Nothing in this Agreement shall
restrict:
(i) Xxxxxxxxx or any Subsidiary (other
than the Company) or Affiliate from acquiring or holding,
directly or indirectly, a beneficial interest in any Person
engaged in the Newspaper Business or Related Media Business in
the United States or in Israel, provided that any
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Newspaper Business or Related Media Business that may be
conducted by such Person does not constitute a Principal
Portion of such Person (as defined in Section 3.8(b) below);
(ii) Xxxxxxxxx or any Subsidiary (other
than the Company) or Affiliate from continuing to hold,
directly or indirectly, a beneficial interest or maintaining
its proportionate interest in any Person engaged in the
Newspaper Business or Related Media Business in the United
States or in Israel through the acquisition of additional
equity interests if following the original acquisition by
Xxxxxxxxx or any Subsidiary or Affiliate of a beneficial
interest in such Person, a Newspaper Business or Related Media
Business in the United States or in Israel becomes a Principal
Portion of that Person (provided that this exception shall not
apply if the original acquisition was made with the intention
that the Newspaper Business or Related Media Business would
become a Principal Portion of the Person);
(iii) The Company or any Subsidiary or
Affiliate from acquiring or holding, directly or indirectly, a
beneficial interest in any Person engaged in the Newspaper
Business or Related Media Business in Canada, provided that
any Newspaper Business or Related Media Business that may be
conducted by such Person does not constitute a Principal
Portion of such Person (as defined in Section 3.8(b) below);
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(iv) The Company or any Subsidiary or
Affiliate from continuing to hold, directly or indirectly, a
beneficial interest or maintaining its proportionate interest
in any Person engaged in the Newspaper Business or Related
Media Business in Canada through the acquisition of additional
equity interests if following the original acquisition by the
Company or any Subsidiary or Affiliate of a beneficial
interest in such Person, a Newspaper Business or Related Media
Business in Canada becomes a Principal Portion of that Person
(provided that this exception shall not apply if the original
acquisition was made with the intention that the Newspaper
Business or Related Media Business would become a Principal
Portion of the Person);
(v) Xxxxxxxxx or any Subsidiary (other
than the Company) or Affiliate from acquiring or holding not
more than 20% of the beneficial interest in any voting
securities of any corporation which is engaged in the
Newspaper Business or Related Media Business in the United
States or in Israel if such shares are listed on a national
securities exchange in the United States or in Israel or
quoted on Nasdaq;
(vi) The Company or any Subsidiary or
Affiliate from acquiring or holding not more than 20% of the
beneficial interest in any voting securities of any
corporation which is engaged in the Newspaper Business or
Related Media Business in Canada if such shares are listed on
a national securities exchange in the United States or Canada
or quoted on Nasdaq;
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(vii) Any Subsidiary (other than the
Company) of Xxxxxxxxx, the capital stock of which at such time
is in part publicly held, from acquiring or holding a
beneficial interest in any Person engaged in the Newspaper
Business or Related Media Business in the United States to the
extent expressly permitted in any cooperation or similar
agreement between Xxxxxxxxx and such Subsidiary relating to
the allocation of newspaper and media ownership and
acquisition opportunities so long as such agreement is not
inconsistent with the provisions of Article III hereof and
does not enlarge the exceptions set forth in subsections (i),
(ii) and (v) of Section 3.8(a) hereof; or
(viii) Any Subsidiary of the Company,
the capital stock of which at such time is in part publicly
held, from acquiring or holding a beneficial interest in any
Person engaged in the Newspaper Business or Related Media
Business in Canada to the extent expressly permitted in any
cooperation or similar agreement between the Company and such
Subsidiary relating to the allocation of newspaper ownership
and acquisition opportunities so long as such agreement is not
inconsistent with the provisions of Article III hereof and
does not enlarge the exceptions set forth in subsections
(iii), (iv) and (vi) of Section 3.8(a) hereof;
(ix) Companies or entities in which
Xxxxxxxxx has directly or indirectly an equity investment
interest, but which are not Subsidiaries of Xxxxxxxxx
(including The Financial Post Company, a
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Canadian newspaper partnership), from acquiring or holding,
directly or indirectly, a beneficial interest in any Person
engaged in the Newspaper Business or Related Media Business in
the United States or in Israel;
(x) Companies or entities in which the
Company has directly or indirectly an equity investment
interest, but which are not Subsidiaries of the Company
(including Southam and Fairfax), from engaging in or acquiring
or holding, directly or indirectly, a beneficial interest in
any Person engaged in the Newspaper Business or Related Media
Business in Canada; or
(xi) any investment made as of the date
hereof or hereafter by the Company, directly or indirectly, in
Southam including, without limitation, the acquisition or
holding by the Company, directly or indirectly, of any
interest in Southam or any successor or affiliate thereof.
(b) A Newspaper Business shall constitute a "PRINCIPAL
PORTION" of a Person if the net asset value of such business is equal to 25% or
more of the consolidated net asset value of the Person or the net income of such
business is equal to 25% or more of the consolidated net income of the Person,
using for such calculations the most recent consolidated audited annual
financial statements of such Person if the end of the period to which such
financial statements relate is not more than 18 months before the date of
investment in such Person by Xxxxxxxxx or the Company or their respective
Subsidiaries or Affiliates or, if there are no such financial statements, if the
net asset value or net income of such Newspaper Business or Related Media
Business exceeds U.S. $5,000,000. Net asset value and net income shall be
15
calculated according to applicable United States generally accepted accounting
principles with intangibles included.
ARTICLE IV
MISCELLANEOUS
4.1 EFFECTIVE TIME; TERMINATION. This Agreement shall become
effective upon execution; provided, however, that it shall not be effective
against the Company unless and until approved or ratified by a majority of the
Audit Committee of the Board of Directors of the Company. This Agreement shall
continue in force so long as Xxxxxxxxx and its Affiliates have beneficial
ownership of 50% or more of the voting power of the Company's outstanding
securities.
4.2 MODIFICATION; WAIVER. This Agreement may be modified in any
manner and at any time but only by written instrument executed by the parties
hereto. Any of the terms, covenants and conditions of this Agreement may be
waived at any time by the party entitled to the benefit of such term, covenant
or condition; provided, however, such waiver must be in writing and executed by
the party against whom such waiver is asserted. No modification or waiver which
materially alters the rights or obligations of the Company shall be effective
against the Company unless and until approved or ratified by a majority of the
Audit Committee of the
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Board of Directors of the Company. No course of dealing will be deemed effective
to modify, amend or discharge any part of this Agreement or any rights or
obligations of any party under or by reason of this agreement.
4.3 NOTICES. Any notice or other communication required or permitted
to be given hereunder shall be in writing and shall be given by prepaid first
class mail, by facsimile or other means of electronic communication or by
delivery as hereafter provided. Any such notice or other communication, if
mailed by prepaid first class mail at anytime other than during a general
discontinuance of postal service due to strike, lockout or otherwise, shall be
deemed to have been received on the fourth business day after the postmarked
date thereof, or if sent by facsimile or other means of electronic
communication, shall be deemed to have been received on the business day
following the sending, or if delivered by hand shall be deemed to have been
received at the time it is delivered to the applicable address noted below
either to the individual designated below or to an individual at such address
having apparent authority to accept deliveries on behalf of the addressee.
Notice of change of address shall be governed by this section. In the event of a
general discontinuance of postal service due to strike, lockout or otherwise,
notices or other communications shall be delivered by hand or sent by facsimile
or other means of electronic communication and shall be deemed to have been
received in accordance with this section. Notices and other communications shall
be addressed as follows:
(a) if to Xxxxxxxxx:
00 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx
Xxxxxx X0X 0X0
Attention: Vice-President and Secretary
Telecopier Number: (000) 000-0000
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(b) if to the Company:
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx XXX 00000
Attention: Vice President and Secretary
Telecopier Number: (000) 000-0000
4.4 HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
4.5 THIRD PARTY RIGHTS. This Agreement shall not provide any third
parties with any remedy, claim, liability, reimbursement, cause of action or
other right in addition to those existing without reference to this Agreement.
4.6 ENTIRE AGREEMENT. This Agreement embodies the entire agreement
and understanding and, except as set forth herein, supersedes all prior
agreements and understandings of the parties with respect to the matters
contemplated hereby.
4.7 AFFILIATES. The parties hereto acknowledge that they conduct
their business operations through Subsidiaries and/or Affiliates. The parties
hereto therefore agree that they will cause their respective Subsidiaries and
controlled Affiliates to abide by the terms of this Agreement as if they were
parties hereto to the extent necessary to carry out the purposes of this
Agreement. Further, each party shall be entitled to cause its obligations
hereunder to be satisfied, and to cause its benefits and rights hereunder to be
received and enforced, by its Subsidiaries and controlled Affiliates.
4.8 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which shall,
constitute one and the same instrument.
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4.9 CHOICE OF LAW. This Agreement shall be interpreted and construed
in accordance with the internal laws (and not the conflicts of laws rules) of
the State of Delaware applicable to contracts made and to be performed in the
State of Delaware.
4.10 ASSIGNMENT. This Agreement shall be binding upon and inure to
the benefit of the successors of the parties but shall not be assignable without
the prior written consent of Xxxxxxxxx or the Company (subject to the prior
written approval of the Audit Committee), respectively.
4.11 SEVERABILITY. If any provision of this Agreement is prohibited
by or held to be invalid under applicable law, such provision will be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remaining provisions of this Agreement. Each provision in this
Agreement shall be read and construed independently of the other provisions
hereof. If any provision of this Agreement, as applied to any party or to any
circumstances, is adjudged by a court to be invalid or unenforceable for any
reason, such judgment shall in no way affect any other provision of this
Agreement, the application of such provision in any other circumstances or to
any other party or the validity or enforceability of this Agreement. If any
provision or part of a provision in this Agreement is held to be unenforceable
because of the duration of such provision, the geographical area covered by such
provision or the range of activities covered by such provision, the parties
agree that the court making such determination will have the power to reduce the
duration, area and scope of such provisions and to delete specific words or
phrases, if and as necessary under law, and in its reduced form such provision
will then be enforceable and will be enforced.
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first set forth above.
XXXXXXXXX INC.
By:/s/ X. X. Xxxxxxxx
_______________________________
X.X Xxxxxxxx
Vice President, Finance
and Treasury
By:/s/ Xxxxxxx X. Xxxxx
_______________________________
Xxxxxxx X. Xxxxx
Vice President and Secretary
ATTEST: XXXXXXXXX INTERNATIONAL INC.
By:/s/ Xxxxxxx X. Xxxxxx By:/s/ J. Xxxxx Xxxx
______________________________ ____________________________
Xxxxxxx X. Xxxxxx J. Xxxxx Xxxx
Vice President and Secretary Vice President
