REGISTRATION RIGHTS AGREEMENT
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THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is entered into as
of November 13, 1997 by and among MCCLATCHY NEWSPAPERS, INC., a Delaware
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corporation ("Parent"), NEWCO HOLDING, INC., a Delaware corporation ("Newco
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Holding"), and the persons listed on the signature pages hereto (individually, a
"Stockholder," and collectively, the "Stockholders").
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WITNESSETH:
WHEREAS, Parent, Newco Holding, and Xxxxxx Media Company, a Delaware
corporation (the "Company"), have entered into that certain Agreement and Plan
of Merger and Reorganization dated as of November 13, 1997 (as it may be amended
from time to time, the "Merger Agreement"), in which in exchange for the
Stockholders' capital stock of the Company, Stockholders will have the right to
elect to receive shares of Class A Common Stock, par value $0.01 per share, of
Newco Holding (the "Class A Common Stock"); and
WHEREAS, the parties hereto wish to enter into this Agreement to
provide for the registration of the Stockholders' shares of Class A Common
Stock,
NOW, THEREFORE, in consideration for the mutual promises contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Parent, Newco Holding and each
Stockholder hereby agree as follows:
Article 1. Registration.
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1.1 Certain Definitions. As used in this Agreement, the following terms
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shall have the following meanings:
(a) "Advice": Shall be as defined in the last paragraph of Section
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2.2.
(b) "Commission" shall mean the Securities and Exchange Commission or
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any other federal agency at the time administering the Securities Act.
(c) "Effectiveness Period": Shall be as defined in Section 2.1(a).
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(d) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
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amended, or any similar successor federal statute and the rules and regulations
thereunder, all as the same shall be in effect at the time.
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(e) "Holder" shall mean the Stockholders, and any transferee or
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subsequent transferee of Registrable Securities originally issued to the
Stockholders (other than a transferee who purchases the Registrable Securities
in a sale effected pursuant to any Registration Statement or pursuant to Rule
144 or Rule 145).
(f) "Prospectus" shall mean the prospectus included in any Registration
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Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement,
including, without limitation, with respect to the terms of the offering of any
portion of the Registrable Securities covered by such Registration Statement and
all other amendments and supplements to the prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such prospectus.
(g) "Register," "registered" and "registration" shall refer to a
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registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
(h) "Registrable Securities" shall mean shares of Class A Common Stock
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issued to the Stockholders pursuant to the Merger Agreement; provided, however,
that Registrable Securities shall not include any such shares of Class A Common
Stock that have previously been registered (other than on the Form S-4 filed in
connection with the Merger Agreement) or which have been sold by a Stockholder
under an effective Registration Statement or under Rule 144 or Rule 145.
(i) "Registration Expenses": Shall be as set forth in Section 2.3.
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(j) "Registration Statement" shall mean any registration statement of
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Newco Holding that covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement, including post-effective amendments,
all exhibits, and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
(k) "Rule 144" and "Rule 145" shall mean Rule 144 and Rule 145,
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respectively, as promulgated by the Commission under the Securities Act, as such
rules may be amended from time to time, or any similar successor rules that may
be promulgated by the Commission.
(l) "Rule 415" shall mean Rule 415 as promulgated by the Commission
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under the Securities Act, as such rule may be amended from time to time, or any
similar successor rule that may be promulgated by the Commission.
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(m) "Securities Act" shall mean the Securities Act of 1933, as amended,
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or any similar successor federal statute and the rules and regulations
thereunder, all as the same shall be in effect at the time.
(n) "Shelf Registration" shall mean either the Initial Shelf
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Registration (as defined in Section 2.1(a) below) or a Subsequent Shelf
Registration (as defined in Section 2.1(b) below), as appropriate.
2. Registration.
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2.1 Registration Statement. (a) Newco holding will use all reasonable
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efforts to prepare and file with the Commission as of the Closing (as defined in
the Merger Agreement), a Registration Statement with respect to all of the
Registrable Securities for an offering to be made on a continuous basis pursuant
to Rule 415 covering the resale from time to time by the Holders of all of the
Registrable Securities (the "Initial Shelf Registration"). The Initial Shelf
Registration shall be on Form S-1 or Form S-3 (if available) or any comparable
form or successor to any such form permitting registration of Registrable
Securities for resale by the Holders. Newco Holding shall use best efforts to
cause the Initial Shelf Registration to be declared effective under the
Securities Act as soon as practicable after the filing thereof, and to keep the
Initial Shelf Registration continuously effective under the Securities Act until
the earlier of (i) all Registrable Securities covered by the Initial Shelf
Registration have been sold under the Initial Shelf Registration, (ii) a
subsequent Shelf Registration covering all of the Registrable Securities has
been declared effective under the Securities Act, (iii) Holders no longer hold
any Registrable Securities, (iv) with respect to any Holder, all Registrable
Securities held by such Holder may be sold in compliance with Rule 144 or Rule
145 within any three month period, or (v) two years from the Effective Date of
the Company Merger (as defined in the Merger Agreement) (the "Effectiveness
Period").
(b) If the Initial Shelf Registration or any subsequent Shelf
Registration ceases to be effective for any reason at any time during the
Effectiveness Period (other than because of the sale of all of the securities
registered thereunder), Newco Holding shall use all reasonable efforts to obtain
the prompt withdrawal of any order suspending the effectiveness thereof, and in
any event shall within 30 days of such cessation of effectiveness amend the
Shelf Registration in a manner reasonably expected to obtain the withdrawal of
the order suspending the effectiveness thereof, or file an additional "shelf"
Registration Statement pursuant to Rule 415 covering the resale from time to
time of all the Registrable Securities (a "Subsequent Shelf Registration"). If a
Subsequent Shelf Registration is filed, Newco Holding shall use all reasonable
efforts to cause the Subsequent Shelf Registration to be declared effective as
soon as practicable after such filing and to keep such Registration Statement
continuously effective until the end of the Effectiveness Period.
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(c) Newco Holding shall supplement and amend the Shelf Registration or
Subsequent Shelf Registration, as the case may be, if required by the rules,
regulations or instructions applicable to the registration form used by Newco
Holding for such Shelf Registration, if required by the Securities Act.
(d) The registration statement filed in accordance with this Section
may include other securities of Newco Holding with respect to which registration
rights have been granted, and may include securities of Newco Holding being sold
for the account of Newco Holding.
2.2 Registration Procedures. In connection with Newco Holding's
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registration obligations under Section 2.1 hereof, Newco Holding shall effect
such registration to permit the sale of the Registrable Securities in accordance
with the method or methods of disposition thereof intended by the Holder, and
pursuant thereto Newco Holding shall as expeditiously as practicable:
(a) Before filing any Registration Statement or Prospectus or any
amendments or supplements thereto (other than documents that would be
incorporated or deemed to be incorporated therein by reference and that Newco
Holding is required by applicable securities laws or stock exchange requirements
to file), furnish to the Holders copies of all such documents proposed to be
filed, which documents will be subject to the review of such Holders and their
counsel, if any, and Newco Holding shall not file any such Registration
Statement or amendment thereto or any Prospectus or any supplement thereto
(other than such documents which, upon filing, would be incorporated or deemed
to be incorporated by reference therein and that Newco Holding is required by
applicable securities laws or stock exchange requirements to file) to which the
Holders of a majority of the securities covered by such Registration Statement
shall reasonably object on a timely basis. In the event of any such objection,
the Holders shall provide Newco Holding with any requested revisions to such
prospectus or supplement within ten (10) days of such objection.
(b) Prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be necessary to
keep such Registration Statement continuously effective for the applicable
period specified in Section 2.1(a); cause the related Prospectus to be amended
or supplemented by any required Prospectus amendment or supplement, and as so
amended or supplemented to be filed pursuant to Rule 424 (or any similar
provisions then in force) under the Securities Act; and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement during the applicable period
in accordance with the methods of disposition intended by the Holders thereof
set forth in such Registration Statement as so amended or in such Prospectus as
so supplemented.
(c) Notify the Holders promptly, and confirm such notice in writing,
(i) when a Prospectus or any Prospectus supplement or post-effective amendment
has been filed, and,
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with respect to a Registration Statement or any post-effective amendment, when
the same has become effective, (ii) of any request by the Commission or any
other federal or state governmental authority during the period of effectiveness
of the Registration Statement for amendments or supplements to a Registration
Statement or related Prospectus or for additional information, (iii) of the
issuance by the Commission or any other federal or state governmental authority
of any stop order suspending the effectiveness of a Registration Statement or
the initiation of any proceedings for that purpose, (iv) of the receipt by Newco
Holding of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose, (v) of the existence of any fact or the happening of any event that
makes any statement made in such Registration Statement or related Prospectus or
any document incorporated or deemed to be incorporated therein by reference
untrue in any material respect or which requires the making of any changes in
such Registration Statement, Prospectus or documents so that, in the case of the
Registration Statement, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and that in the case of
the Prospectus, it will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, and (vi) of Newco Holding's reasonable determination
that a post-effective amendment to a Registration Statement would be
appropriate.
(d) Use all reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement, or the lifting of any
suspension of the qualification (or exemption from qualification) of any of the
Registrable Securities for sale in any jurisdiction, at the earliest practicable
time.
(e) If reasonably requested by the Holders of a majority of the
securities being sold, (i) promptly incorporate in a Prospectus supplement or
post-effective amendment such information as Newco Holding or the Holders of a
majority of such securities agree should be included therein as required by
applicable law, (ii) make all required filings of such Prospectus supplement or
such post-effective amendment as soon as practicable after Newco Holding has
received notification of the matters to be incorporated in such Prospectus
supplement or post-effective amendment, and (iii) supplement or make amendments
to any Registration Statement consistent with clause (i) or (ii) above;
provided, that Newco Holding shall not be required to take any actions under
this paragraph that are not, in the opinion of outside counsel for Newco
Holding, in compliance with applicable law.
(f) Furnish to each Holder and its counsel, if any, upon written
request and without charge, at least one conformed copy of the Registration
Statement or Statements and any post-effective amendment thereto, including
financial statements (but excluding schedules, all documents incorporated or
deemed to be incorporated therein by reference and all exhibits, unless
requested in writing by such Holder or counsel).
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(g) Deliver to each Holder and its counsel, if any, without charge, as
many copies of the Prospectus or Prospectuses relating to such Registrable
Securities (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons may reasonably request in writing; and Newco
Holding hereby consents to the use of such Prospectus or each amendment or
supplement thereto by each Holder in connection with the offering and sale of
the Registrable Securities covered by such Prospectus or any amendment or
supplement thereto.
(h) Use all reasonable efforts to register and qualify the Registrable
Securities under (or obtain exemption from) the securities or Blue Sky laws of
such jurisdictions within the United States as any Holder reasonably requests in
writing; keep each such registration or qualification (or exemption therefrom)
effective during the Effectiveness Period and do any and all other acts or
things necessary or advisable to enable the disposition in such jurisdictions of
the Registrable Securities covered by the applicable Registration Statement;
provided, that Newco Holding will not be required to (i) qualify generally to do
business in any jurisdiction where it is not then so qualified or (ii) take any
action that would subject it to general service of process in any such
jurisdiction where it is not then so subject.
(i) Cause the Registrable Securities covered by the applicable
Registration Statement to be registered with or approved by such other
governmental agencies or authorities within the United States, except as may be
required solely as a consequence of the nature of any Holder or Holders, in
which case Newco Holding will cooperate in all reasonable respects with the
filing of such Registration Statement and the granting of such approvals, as may
be necessary to enable such Holder or Holders to consummate the disposition of
such Registrable Securities.
(j) Within five (5) business days following the occurrence of any event
contemplated by paragraphs 2.2(c)(v) or 2.2(c)(vi) above, prepare and file with
the Commission a supplement or post-effective amendment to each Registration
Statement or an amendment or supplement to the related Prospectus or any
document incorporated therein by reference or file any other required document
(such as a Current Report on Form 8-K) so that, as thereafter delivered to the
purchasers of the Registrable Securities being sold thereunder, such Prospectus
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the five (5) business day period may be
extended by an additional 30 days if such amended or supplemental disclosures
would be seriously detrimental to Newco Holding at such time and Newco Holding
shall furnish to the Holders notice to that effect; provided, further that Newco
Holding may not extend such period more than once during any 12-month period.
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(k) If necessary in connection with a disposition of Registrable
Securities, make available for inspection, at the offices where normally kept
during reasonable business hours, by a representative of any Holder and any
attorney or accountant retained by such Holder, financial and other records,
pertinent corporate documents and properties of Newco Holding and its
subsidiaries as they may reasonably request, and cause the officers, directors
and employees of Newco Holding and its subsidiaries to supply all information
reasonably requested by any such representative, attorney or accountant in
connection with such disposition; provided, that any records, information or
documents that are designated by Newco Holding in writing as confidential at the
time of delivery of such records, information or documents shall be kept
confidential by such Persons, and such Persons shall so agree in writing.
(l) Comply with all applicable rules and regulations of the Commission
and make generally available to its security holders earning statements
satisfying the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder (or any similar rule promulgated under the Securities Act) no later
than 45 days after the end of any 12-month period (or 90 days after the end of
any 12-month period if such period is a fiscal year) commencing on the first day
of the first fiscal quarter of Newco Holding, after the effective date of a
Registration Statement, which statements shall cover said 12-month periods.
(m) Enter into such agreements and take all such other actions in
connection therewith in order to expedite or facilitate the disposition of such
Registrable Securities.
(n) Cooperate with the Holders and transfer agent and registrar to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends; and
enable such Registrable Securities to be in such denominations and registered in
such names as a Holder may request.
(o) Cause the shares of Class A Common Stock to be listed on each
securities exchange or quotation system on which Newco Holding's Class A Common
Stock is then listed no later than the date the Registration Statement is
declared effective and, in connection therewith, to the extent applicable, to
make any required filings under the Exchange Act and to have such filings
declared effective thereunder.
Newco Holding may require a Holder, and each Holder agrees, to furnish
to Newco Holding such information regarding the distribution of such Registrable
Securities as Newco Holding may, from time to time, reasonably request in
writing and Newco Holding may exclude from such registration the Registrable
Securities of any Holder if such Holder unreasonably fails to furnish such
information within a reasonable time after receiving such request. Each Holder
agrees promptly to furnish to Newco Holding all information required to be
disclosed in order to make the information previously furnished to Newco Holding
by such Holder not misleading. Any sale of any Registrable Securities by any
Holder shall constitute a representation and warranty by such Holder that the
information relating to such
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Holder and its plan of distribution is as set forth in the Prospectus delivered
by such Holder in connection with such disposition, that such Prospectus does
not as of the time of such sale contain any untrue statement of a material fact
relating to such Holder or its plan of distribution and that such Prospectus
does not as of the time of such sale omit to state any material fact relating to
such Holder or its plan of distribution necessary to make the statements in such
Prospectus, in the light of the circumstances under which they were made, not
misleading.
Each Holder agrees that, upon receipt of any notice from Newco Holding
of the happening of any event of the kind described in paragraphs 2.2(c)(ii),
2.2(c)(iii), 2.2(c)(iv), 2.2(c)(v) or 2.2(c)(vi) hereof, such Holder will
forthwith discontinue disposition of such Registrable Securities covered by the
applicable Registration Statement or Prospectus until such Holder's receipt of
the copies of the supplemented or amended Prospectus contemplated by paragraph
2.2(j) hereof, or until it is advised in writing (the "Advice") by Newco Holding
that the use of the applicable Prospectus may be resumed, and has received
copies of any additional or supplemental filings that are incorporated or deemed
to be incorporated by reference in such Prospectus. Newco Holding agrees to give
the Advice promptly after it determines that the use of the applicable
Prospectus may be resumed.
2.3 Registration Expenses. All fees and expenses incident to the
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performance of or compliance with this Agreement by Newco Holding shall be borne
by Newco Holding whether or not any of the Registration Statements become
effective and whether or not any of the Registrable Securities are transferred
pursuant to the Registration Statement. Such fees and expenses shall include,
without limitation, (i) all registration and filing fees (including, without
limitation, fees and expenses (A) with respect to designation of the Registrable
Securities as eligible for trading on The New York Stock Exchange, and (B) of
compliance with securities or Blue Sky laws), (ii) printing expenses (including,
without limitation, expenses of printing certificates for Registrable Securities
in a form eligible for deposit with The Depository Trust Company and of printing
Prospectuses), (iii) messenger, telephone and delivery expenses, (iv) fees and
disbursements of counsel for Newco Holding in connection with the Shelf
Registration, (v) reasonable fees and disbursements of all independent certified
public accountants, (vi) Securities Act liability insurance if Newco Holding so
desires such insurance, and (vii) fees and expenses of all other Persons
retained by Newco Holding. In addition, Newco Holding will, in any event, bear
its own internal expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting duties),
the expense of any annual audit, the fees and expenses incurred in connection
with the listing of the Registrable Securities on any securities exchange on
which similar securities issued by Newco Holding are then listed and the fees
and expenses of any Person, including special experts, retained by Newco
Holding. Newco Holding shall pay the reasonable fees and expenses of counsel
retained by any Holder in connection with the Holder's registration of
Registrable Securities pursuant to this Agreement.
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3. Indemnification.
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(a) To the maximum extent permitted by law, Newco Holding will
indemnify and hold harmless each Holder of Registrable Securities, each person,
if any, who controls such Holder within the meaning of the Securities Act or the
Exchange Act, and each underwriter of Registrable Securities, against any
losses, claims, damages or liabilities (joint or several) to which they may
become subject under the Securities Act, the Exchange Act or other federal or
state law, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any of the following statements,
omissions or violations (collectively, a "Violation"): (i) any untrue statement
or alleged untrue statement of a material fact contained in such registration
statement, including any preliminary prospectus or final prospectus contained
therein or any amendments or supplements thereto, (ii) the omission or alleged
omission to state therein a material fact required to be stated therein, or
necessary to make the statements therein not misleading, or (iii) any violation
or alleged violation by Newco Holding of the Securities Act, the Exchange Act,
any state securities law or any rule or regulation promulgated under the
Securities Act, the Exchange Act or any state securities law; and Newco Holding
will reimburse each such Holder or controlling person for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the indemnity agreement contained in this Section 3(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of Newco Holding (which
consent shall not be unreasonably withheld or delayed), nor shall Newco Holding
be liable in any such case for any such loss, claim, damage, expense, liability
or action to the extent that it arises out of or is based upon a Violation which
arises out of or is based upon information furnished in writing expressly for
use in connection with such registration by any such Holder, controlling person
or underwriter, as the case may be; provided, further, that Newco Holding will
not be liable to any Holder or controlling person or underwriter, as the case
may be with respect to any loss, claim, damage, expense or liability arising out
of or based upon any untrue statement or alleged untrue statement or omission or
alleged omission to state a material fact in any preliminary prospectus which is
corrected in an amended, supplemented or final prospectus if the purchaser
asserting such loss, claim, damage, expense or liability purchased from such
Holder or underwriter, as applicable and was not sent or given a copy of such
amended, supplemented or final prospectus at or prior to the sale of Registrable
Securities to such purchaser.
(b) To the maximum extent permitted by law, each Holder will, if
Registrable Securities held by such Holder are included in the Registrable
Securities as to which such registration, qualification or compliance is being
effected, indemnify and hold harmless Newco Holding and each person who controls
Newco Holding within the meaning of the Securities Act or the Exchange Act,
against any losses, claims, damages or liabilities (joint or several) to which
Newco Holding or any such director or controlling person may become subject,
under the Securities Act, the Exchange Act or other federal state law, insofar
as such
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losses, claims, damages or liabilities (or actions in respect thereto) arise out
of or are based upon any Violation, in each case to the extent (and only to the
extent) that such Violation arises out of or is based upon information furnished
by such Holder in writing expressly for use in connection with such
registration; and each such Holder will reimburse any legal or other expenses
incurred by Newco Holding or any such controlling person in connection with
investigating or defending any such loss, claim, damage, liability, or action;
provided, however, that the indemnity agreement contained in this Section 3(b)
shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of the
Holder, which consent shall not be unreasonably withheld or delayed. Each
Holder's liability under this Section 3(b) shall not exceed the proceeds
received by such Holder from the sale of Registrable Securities held by such
Holder included in such registration, qualification or compliance.
(c) Each party entitled to indemnification under this Section (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not unreasonably be
withheld). Without limiting the generality of the foregoing, the Indemnified
Party may withhold its consent to any such counsel who also acts as counsel to
the Indemnifying Party (with respect to such claim or otherwise) and the
Indemnified Party reasonably believes that there exists a conflict of interest
between the Indemnified Party and the Indemnifying Party, with respect to such
claim or litigation. In such event, the Indemnifying Party shall bear the
expense of another counsel who shall represent the Indemnified Party and any
other persons or entities who have indemnification rights from the Indemnifying
Party hereunder, with respect to such claim or litigation, and shall be selected
as provided in the first sentence of this Section 3(c). The Indemnified Party
may participate in such defense at such party's expense (except to the extent
that the Indemnifying Party is required to pay the expense of such counsel
pursuant to this Section 3(c)), and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Agreement, unless such failure
is materially prejudicial to the Indemnifying Party in defending such claim or
litigation. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability with respect to such claim or
litigation.
(d) If the indemnification provided for in this Section is held by a
court of competent jurisdiction to be unavailable to an Indemnified Party with
respect to any loss, liability, claim, damage or expense referred to therein,
then the Indemnifying Party, in lieu of indemnifying such Indemnified Party
hereunder, shall contribute to the amount paid or
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payable by such Indemnified Party as a result of such loss, liability, claim,
damage or expense in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party (on the one hand) and of the Indemnified Party
(on the other) in connection with the statements or omissions which resulted in
such loss, liability, claim, damage or expense as well as any other relevant
equitable considerations. The relative fault of the Indemnifying Party and of
the Indemnified Party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
Indemnifying Party or by the Indemnified Party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
4. Information Requirements.
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(a) Newco Holding shall file in a timely manner the reports required to
be filed by it under the Securities Act and the Exchange Act, and if at any time
Newco Holding is not required to file such reports, it will, upon the request of
any Holder, make publicly available other information so long as necessary to
permit sales pursuant to Rule 144 under the Securities Act. Newco Holding
further covenants that it will cooperate with any Holder and take such further
action as such Holder may reasonably request (including without limitation
making such representations as any such Holder may reasonably request), all to
the extent required from time to time to enable such Holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by Rule 144 and Rule 145 under the Securities Act.
Upon the request of any Holder, Newco Holding shall deliver to such Holder a
written statement as to whether it has complied with such filing requirements.
(b) Newco Holding shall file in a timely manner the reports required to
be filed by it under the Exchange Act and shall comply with all other
requirements set forth in the instructions to any Registration Form used in
connection with any Registration effected pursuant hereto in order to allow
Newco Holding to be eligible to file registration statements on such form.
5. Miscellaneous.
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5.1 No Inconsistent Agreements. Newco Holding has not entered, as of
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the date hereof, and shall not enter, on or after the date of this Agreement,
any agreement with respect to its securities which is inconsistent with the
rights granted to the Holders in this Agreement.
5.2 Amendments and Waivers. The provisions of this Agreement, including
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the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given, unless Newco Holding has obtained the written consent of each Holder.
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5.3 Notices. All notices and other communications provided for or
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permitted hereunder shall be made in writing and shall be deemed given (i) when
made, if made by hand delivery, (ii) upon confirmation, if made by telefax or
(iii) one business day after being deposited with a reputable next-day courier,
charges prepaid, to the parties as follows:
(a) if to a Holder, at the most current address given by such
Holder to Newco Holding in accordance with the provisions of this
Section; and
(b) if to Newco Holding,
c/o McClatchy Newspapers, Inc.
0000 X Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
President and Chief Executive Officer
or to such other address as any party may have furnished to the other parties in
writing in accordance herewith.
5.4 Successors and Assigns. This Agreement shall inure to the benefit
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of and be binding upon the successors and permitted assigns of each of the
parties. Newco Holding may not assign its rights or obligations hereunder
without the prior written consent of Holders of a majority of the Registrable
Securities.
5.5 Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
5.6 Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
5.7 Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Delaware, without regard to principles
of conflicts of laws.
5.8 Severability. If any term, provisions, covenant or restriction of
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this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall use
their best efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they
12
would have executed the remaining terms, provisions, covenants and restrictions
without including any of such which may be hereafter declared invalid, void or
unenforceable.
5.9 Entire Agreement. This Agreement is intended by the parties as a
----------------
final expression of their agreement and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and the registration rights
granted by Newco Holding with respect to the Class A Common Stock issued to the
Stockholders pursuant to the Merger Agreement. Except as provided in the Merger
Agreement, there are no restrictions, promises, warranties or undertakings,
other than those set forth or referred to herein, with respect to the
registration rights granted by Newco Holding with respect to the Class A Common
Stock. This Agreement supersedes all prior agreements and understandings among
the parties with respect to such registration rights.
5.10 Attorneys' Fees. In any action or proceeding brought to enforce
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any provision of this Agreement, or where any provision hereof is validly
asserted as a defense, the prevailing party, as determined by the court, shall
be entitled to recover reasonable attorneys' fees in addition to any other
available remedy.
5.11 Further Assurances. Each of the parties hereto shall use all
------------------
reasonable efforts to take, or cause to be taken, all appropriate action, do or
cause to be done all things reasonably necessary, proper or advisable under
applicable law, and execute and deliver such documents and other papers, as may
be required to carry out the provisions of this Agreement and the other
documents contemplated hereby and consummate and make effective the transactions
contemplated hereby.
5.12 Termination. This Agreement and the obligations of the parties
-----------
hereunder shall terminate at the end of the Effectiveness Period, except for any
liabilities or obligations under Section 2.3 or 3 or the proviso of paragraph
2.2(k) above, which shall remain in effect in accordance with their terms.
[signature pages follow]
13
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
MCCLATCHY NEWSPAPERS, INC.
By
------------------------------------
Title
---------------------------------
NEWCO HOLDING, INC.
By
------------------------------------
Title
---------------------------------
STOCKHOLDERS:
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Xxxxxxxxx Xxxxxxxxxx Xxxxxxxxx Xxxxxxxxxx and First Bank of South Dakota,
N.A, as co-trustees of the Xxxxxxxxx Xxxxxxxxxx Trust
(#30930)
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Xxxx Xxxxxxx
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Xxxxxxx Xxxx Ballantine, Custodian Xxxxxxxxx Xxxxxxxxxx, Xxxxxxx Xxx Xxxxxxxxxx and
Xxxxxxx X. Xxxxxxx VA UTMA First Bank of South Dakota, N.A., as co-trustees of
the Xxxxxx X. Xxxxxxxxxx Trust for Concord Academy an
Xxxxxxxxx Xxxxxxxxxx and Others FBO: Xxxxxxxxx
Xxxxxxxxxx (#30470)
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Xxxxxxx Xxxx Ballantine, Custodian
Xxxxx Xxxxxxxxxx Xxxxxxx VA UTMA
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Xxxxxxxxx Xxxxxxx Xxxxxxx Xxxxxx XX
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Xxxxx Xxxxxxxx Xxxxxxxxxx X. Xxxxxx
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Xxxxxxxxx Xxxxxxx, Xxxxx X. Xxxxxxxx and First Bank of Xxxxxxx Xxxxxx, XX and Xxxxxx X. Xxxxxxxxx,
South Dakota, N.A., Trustees of Xxxxx Xxxxxx Bullitt Trustees, of Xxxxxxx Xxxxxx, XX Living Trust
Trust for Radcliffe College and Xxxxxxxxx Xxxxxxx and Agreement dated 12/16/67
Others FBO: Xxxxxxxxx Xxxxxxx (#30500)
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Xxxxxxx Xxxxxx, XX, Xxxxxx X. Xxxxxxxxx and First
Bank of South Dakota, N.A., as co-trustees of the
Xxxxxxx Xxxxxx, XX 1967 Trust for Xxxxxxx Xxxxxx and
Others u.t.i. dated 12/16/67 FBO: Xxxxxxx Xxxxxx,
XX (#30760)
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Xxxxxxx Xxxxxx, XX, Xxxxxxxxxx X. Xxxxxx and
Xxxxxx X. Xxxxxxxxx, Trustees of Xxxxxxx Xxxxxx, XX
1968 Trust for Xxxxxxx Xxxxxx XX and Others u.t.i.
dated 02/16/68
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First Bank of South Dakota, N.A., as trustee of the
Xxxx Xxxxxx Family Trust FBO: Xxxxxxx Xxxxxx, XX
(#30650)
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Xxxxx Xxxxxxxxxx Xxxxx, Xxxxxxx Xxxxxx Xxxxxx and
First Bank of South Dakota, N.A., Trustees, Xxxx
Xxxxxx Trust for the Benefit of Xxxx and Xxxxxxxxx
Xxxxx Xxxxxx Foundation and for the Children of Xxxx
Xxxxxx FBO: Xxxxxx Xxxxxx Xxxxxxxxxx, Xxxxx Xxxxxx
Xxxxxxx, Xxxx Xxxxxx, Xx. and Xxxxxxx Xxxxxx, XX
(#30440)
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Xxxx Xxxxxx III Page Xxxxxxx Xxxxxx and Xxxxxx X. Xxxxxxxxx,
Trustees, Page Xxxxxxx Xxxxxx Living Trust dated
01/04/91
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Page Xxxxxxx Xxxxxx
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Xxxx Xxxxxx, III and Xxxxxx X. Xxxxxxxxx, Trustees of Xxxx Xxxxxx, Xx., Xxxxx Xxxx Xxxxxx, Xxxx Xxxxxx,
the Xxxx Xxxxxx, III Living Trust dated 01/04/91 III, Xxxx Xxxx Xxxxxx, Xxxxxxx Xxxxxx Xxxxxx and
First Bank of South Dakota, N.A., Trustees, Xxxx
Xxxxxx Family Trust FBO: Xxxx Xxxxxx, Xx. (#30640)
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Page Xxxxxxx Xxxxxx and Xxxx Xxxxxx, III, Trustees,
Page Xxxxxxx and Xxxx Xxxxxx, III Irrevocable Trust
dated 08/20/97
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Xxxx Xxxxxx, III, as sole trustee of the Xxxx Xxxxxx
Xx. Irrevocable Short-Term Trust dated 11/29/90
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Page Xxxxxxx Xxxxxx and Xxxx Xxxxxx, III, Trustees,
Page Xxxxxxx and Xxxx Xxxxxx, III Second Irrevocable
Trust dated 11/11/97
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Xxxx Xxxxxx, III, as sole trustee of the Xxxx Xxxx
Xxxxxx Xxxxxx Irrevocable Short-Term Trust dated
11/29/90
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Xxxx Xxxxxx, III, and Page Xxxxxxx Xxxxxx, Trustees,
Xxxxx Xxxxxx Xxxxxx Trust dated 08/20/97
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Xxxx Xxxxxx, III, and Page Xxxxxxx Xxxxxx, Trustees,
Xxxxx Xxxxxxx Xxxxxx Trust dated 08/20/97
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Xxxx Xxxxxx, III, and Page Xxxxxxx Xxxxxx, Trustees,
Xxxxxxx Xxxxxxxx Xxxxxx Trust dated 08/20/97
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Xxx Xxxxxxxx
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Xxxx Xxxxxxxxxx
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Xxxxx X. Xxx
Xxx Family Fund
By:____________________________________________________
Xxxxx X. Xxx
Its: President
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Xxxx X. Xxxxxx
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Xxxxx X. Xxxxx
