STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of November 25, 1997, by and
between Xxxxxxxx X. Xxxxxxxxxxxx, an individual with an address at 000 Xxxxxx
Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000 (the "Seller") and News Communications, Inc., a
Nevada corporation, with an address at 174-15 Xxxxxx Xxxxxxx Expressway, Fresh
Xxxxxxx, New York 11365 (the "Purchaser").
RECITALS
1. The Seller owns an aggregate of ten (10) shares (the "Shares") of
Common Stock, no par value, of South Shore Publishers, Inc. (the "Company"), a
corporation engaged in the business of publishing a weekly newspaper (the
"Business").
2. The Seller desires to sell to the Purchaser, and the Purchaser
desires to purchase from the Seller, all of the Shares, upon the terms and
subject to the conditions set forth herein.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1.
PURCHASE AND SALE
Section 1.1. Sale of the Shares. Simultaneously with the execution
and delivery of this Agreement, the Seller shall sell, transfer and assign to
the Purchaser, and the Purchaser shall acquire from the Seller, all of the
Shares, free and clear of all claims, liens, security interests, pledges,
charges, restrictions or other encumbrances ("Liens"), and the Seller shall
deliver to the Purchaser certificates representing the Shares, duly endorsed or
accompanied by stock powers duly endorsed in blank.
Section 1.2. Purchase Price; Adjustment.
(a) The aggregate purchase price for the Shares is $422,000 (the "Purchase
Price"). The Purchase Price shall be paid by the Purchaser to the Seller, on the
Closing Date, by certified check or wire transfer to an account designated by
the Seller, minus the Escrow Amount (as defined below).
(b) On the Closing Date, the Purchaser shall deposit with Xxxxxx, Xxxxxx &
Xxxxxx, as escrow agent, a portion of the Purchase Price in the amount of
$42,200 (the "Escrow Amount") for purposes of satisfying the Working Capital
Shortfall (as defined below), if applicable, and the Indemnification
obligations, if applicable, of the Seller pursuant to Section 8.1 hereof. The
Escrow Amount shall be held in escrow and released pursuant to the terms of the
Escrow Agreement annexed hereto as Exhibit A.
(c) As soon as practicable, but in no event later than thirty (30)
calendar days following the Closing Date, the Purchaser shall prepare and
deliver to the Seller a calculation of the Net Working Capital (as hereinafter
defined) of the Company as of the Closing Date (the "Closing Date Net Working
Capital") prepared in accordance with generally accepted accounting principles
("GAAP") on a basis consistent with the Company's past accounting practices and
procedures. The Purchaser will provide the Seller with access to all workpapers,
records and personnel reasonably necessary for the Seller to review the Closing
Date Net Working Capital. If, as soon as reasonably practical following the
Purchaser's delivery of the Closing Date Net Working Capital (but in no event
later than 60 calendar days following the Closing Date), the Seller shall have
any disagreement with respect thereto, the Seller will give written notice to
the Purchaser within the 60 calendar-day period, specifying such disagreement
and the Seller's basis therefor. The failure by the Seller to express her
disagreement within the 60 calendar-day period
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will constitute the Seller's acceptance of the Closing Date Net Working Capital
as determined by the Seller and the Closing Date Net Working Capital shall
constitute the "Final Net Working Capital". If the Purchaser and the Seller are
unable to resolve any disagreement between them within 15 calendar days after
the giving of notice of such disagreement, the items in dispute (collectively,
the "Disputed Items") will promptly be referred for determination to an
accounting firm to be selected, jointly, by the Purchaser and the Seller (the
"Accountants"). The Accountants shall, within 30 calendar days of the date on
which a Disputed Item has been referred to them for determination, (a) make a
determination only as to each of the Disputed Items and shall have no authority
to review and make a determination with respect to any item which has not been
submitted by the parties hereto for determination by the Accountants and (b)
based on the items not in dispute and on the Accountants' determination of the
Disputed Items, calculate the resultant Net Working Capital (the "Final Net
Working Capital"), which determination and calculation will be (i) in writing,
(ii) promptly furnished to each of the parties hereto after the Disputed Items
have been referred to the Accountants (but in any event within 30 calendar
days), (iii) made in accordance with this Agreement and (iv) conclusive and
binding upon each of the parties hereto. In connection with their determination
of the Disputed Items, the Accountants will be entitled to review the
workpapers, trial balances and similar materials and any books and records
related thereto. The fees and expenses of the Accountants will be shared equally
by the Purchaser and the Seller. For purposes hereof, "Net Working Capital"
shall mean: the cash and accounts receivables and prepaid expenses of the
Company, less the accounts payable and accrued expenses of the Company (only to
the extent such accounts payable and accrued expenses have not otherwise been
paid by, or reserved for the account of, the Seller), existing as of the Closing
Date determined in accordance with GAAP consistently applied in
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accordance with the Company's past practices. For the avoidance of doubt, but
without limiting the prior sentence, the liabilities and payables set forth on
Schedule 1.2 hereto, have been paid by, or reserved for the account of, the
Seller and, accordingly, are excluded from the calculation of the Final Net
Working Capital.
(d) If the Final Net Working Capital is less than $58,569 (the "June 30th
Working Capital"), then the Purchase Price shall be reduced at the rate of one
dollar for each dollar that the Final Net Working Capital is less than the June
30th Working Capital (the "Working Capital Shortfall"). The Shortfall, if any,
shall be paid by the Seller to the Purchaser by wire transfer or certified check
within thirty (30) business days of the determination of the Final Net Working
Capital. If the Final Net Working Capital is more than the June 30th Working
Capital (the "Working Capital Excess"), then the Purchase Price shall be
increased at the rate of one dollar for each dollar that the Final Net Working
Capital is more than the June 30th Working Capital. The Excess, if any, shall be
paid by the Purchaser to the Seller by wire transfer or certified check within
thirty (30) business days of the determination of the Final Net Working Capital.
Section 1.3. Closing Date. The closing (the "Closing") of the
transactions contemplated hereby shall be held at the offices of Xxxxxx, Xxxxxx
& Xxxxxx, counsel to the Seller, on or before November 15, 1997, or as otherwise
extended by written agreement of the parties (the "Closing Date").
ARTICLE 2.
REPRESENTATIONS AND
WARRANTIES OF THE SELLER
The Seller hereby represents and warrants to the Purchaser as follows:
Section 2.1. Authorization; Organization; Standing. The Seller has
the legal capacity to enter into this Agreement and each other agreement
contemplated to be executed by
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the Seller in connection herewith (the "Seller Related Agreements") and to carry
out the transactions contemplated hereby and thereby and this Agreement and each
of the Seller Related Agreements. This Agreement and each of the Seller Related
Agreement has been duly executed by Seller and constitutes the valid and binding
obligation of the Seller enforceable against the Seller in accordance with its
terms, except as enforceability may be limited by the Bankruptcy Code or other
laws affecting creditors' rights generally and except as the application of
equitable principles may limit the right of specific performance. The Company is
a corporation duly organized, validly existing and in good standing under the
laws of the State of New York. The Company has the corporate power and authority
to own and lease its properties and to carry on its business as now conducted.
The Company is duly qualified, admitted or otherwise authorized to transact
business, and is in good standing, in each jurisdiction which the conduct or
nature of the Company's business requires it to be so qualified, admitted or
otherwise authorized, except where the failure to be so qualified would not have
a material adverse effect on the business, properties, financial condition,
results of operations or prospects of the Company (a "Material Adverse Effect").
Section 2.2. Capitalization; Options or Other Rights. The Company
has authorized capital stock consisting of two hundred (200) shares of Common
Stock, no par value, of which ten (10) shares are issued and outstanding. All of
the issued and outstanding Shares have been duly authorized and are validly
issued and are fully paid and non-assessable. There are no commitments, plans or
arrangements of the Company to repurchase, redeem, issue or sell, and no
outstanding options, warrants, convertible securities or other rights calling
for the issuance of, or exchangeable for, additional shares of the capital stock
of the Company. The Shares are not the subject of any voting trust agreement or
other agreement relating to the voting thereof or
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restricting in any way the sale or transfer thereof. The Shares are owned by the
Seller, free and clear of any and all Liens. Upon the payment of the Purchase
Price to the Seller at the Closing, the Seller will convey good and marketable
title to the Shares to the Purchaser, free and clear of all Liens.
Section 2.3. Subsidiaries. The Company has no subsidiaries. The
Company does not own any shares of, or have any equity interest in, any
corporation, partnership, joint venture, association or other business
organization.
Section 2.4. Contravention; Consents and Approvals.
(a) Except as set forth on Schedule 2.4(a) hereto, the execution and
delivery of this Agreement by the Seller does not, and the consummation of the
transactions contemplated hereby by the Seller will not, require any filing,
action, notice, authorization, consent or approval of any person, entity or
governmental body (the "Seller Consents").
(b) Except as set forth on Schedule 2.4(a), and subject to obtaining the
Seller Consents, the execution, delivery and performance of this Agreement by
the Seller and the consummation of the transactions contemplated hereby by the
Seller will not (A) result in a breach of the terms or conditions of, or
constitute a default under or violate or give any third party the right to
accelerate any obligation under (1) any provision of any material law,
regulation or ordinance applicable to the Business, (2) the Certificate of
Incorporation or By-laws of the Company, (3) any material agreement, lease,
mortgage, note, bond, indenture, or other instrument or undertaking to which the
Company or the Seller is bound, or (4) any judgment, order, writ, injunction or
decree of any court, administrative agency or governmental body; or (B) result
in the creation or imposition of any Lien upon the property, assets or business
of the Company or the Seller.
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Section 2.5. Financial Statements. Schedule 2.5 hereto contains the
unaudited balance sheets of the Company for the twelve month period ending
December 31, 1996, the four month period ending April 30, 1997 and the six month
period ending June 30, 1997 (the "Interim Financial Statement"), and the related
statements of operations and stockholders' equity in the Company for the periods
then ended (collectively the "Financial Statements"). Except as described on
Schedule 2.5, the Financial Statements have been prepared from and in accordance
with the books and records of the Company, in accordance with past custom and
practice and present fairly the financial condition and results of operations of
the Company in all material respects as of the dates and for the periods
indicated.
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Section 2.6. Real and Personal Property; Liens.
(a) The Company does not own any real property.
(b) Subject to Section 2.6(c) hereof, and except as provided in Schedule
2.6(c) hereto, the Company has good, valid and marketable title to, or valid and
enforceable leasehold interests in, all property and assets, whether personal or
mixed, tangible or intangible, owned or used by the Company in the operation of
the Business (collectively, the "Personal Property") (except Personal Property
disposed of in the ordinary course of business consistent with past custom and
practice between the date hereof and the Closing Date). All of the Personal
Property that is tangible is in all material respects in good condition and
repair, ordinary wear and tear excepted and is adequate to permit the Company to
conduct its business in substantially the same manner as heretofore conducted.
(c) The Personal Property is not subject to any Lien, except (1) those set
forth in Schedule 2.6(c) or, (2) Liens for taxes not yet due and payable
(collectively, "Permitted Liens").
Section 2.7. Liabilities. The Company has no liability,
indebtedness, claim or obligation, matured or unmatured, contingent or otherwise
(collectively, "Liabilities") other than: (a) Liabilities disclosed or provided
for in the Financial Statements; (b) Liabilities disclosed in this Agreement and
the Schedules referred to in this Agreement and Liabilities not required to be
disclosed therein by reason of term or amount or other qualifications contained
in the representations and warranties of this Agreement; (c) Liabilities arising
in connection with the Contracts (as hereinafter defined) (none of which arise
from defaults thereunder or breaches thereof by the Company prior to the
Closing); and (d) Liabilities incurred in the ordinary course of the Business
consistent with past custom and practice between June 30, 1997 and the Closing
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Date which, individually or in the aggregate, would not have a Material Adverse
Effect.
Section 2.8. Occurrences after June 30, 1997. Since June 30, 1997,
through the date hereof, except as set forth in Schedule 2.8 hereto, except as
may be set forth in the Financial Statements, and except for changes in the
ordinary course of business consistent with past custom and practice and changes
in the industry or market in which the Company operates generally, there has
been no change in the financial condition, the Personal Property, results of
operations or business of the Company, which has materially adversely affected
the financial condition, Personal Property, results of operations, business or
prospects of the Company. Without limiting the foregoing, since June 30, 1997,
except as set forth in Schedule 2.8 hereto or in the Financial Statements, or as
otherwise described in this Agreement or the Schedules hereto, the Company has
not: (a) incurred, guaranteed, assumed or become subject to any liabilities,
except liabilities incurred in the ordinary course of business consistent with
past custom and practice; (b) mortgaged, pledged or subjected to Liens, other
than Permitted Liens, any of the Personal Property; (c) sold or transferred any
of the Personal Property except in the ordinary course of business consistent
with past custom and practice; (d) engaged in any transactions not in the
ordinary course of business consistent with past custom and practice; (e)
granted or promised to grant any increase in the wages, salary, compensation,
bonuses or benefits payable by it to any of its employees; (f) increased, or
agreed to increase, any benefits payable under, or amended or entered into any
severance agreements, employment agreements or Benefit Plans, except as required
pursuant to such policies, agreements or Benefit Plans; (g) made or authorized
any change in its Certificate of Incorporation or by-laws; (h) declared, set
aside or paid any dividend or made or agreed to make any other distribution or
payment in respect of its capital shares or redeemed, purchased any of its
capital shares or issued, or committed to issue, any shares of stock
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or other equity securities or obligations or securities convertible into or
exchangeable for shares of capital stock or other equity securities; (i) made
commitments or agreements for capital expenditures except such as may be
involved in ordinary repair, maintenance or replacement of its assets; or (j)
entered into any agreement to effectuate any of the foregoing.
Section 2.9. Tax Matters. Except as set forth on Schedule 2.9, the
Company has timely filed when due all tax returns that it was required to file
on or before the Closing Date, all of which tax returns were true, correct and
complete in all material respects. Except as set forth on Schedule 2.9, all
taxes, including, but not limited to, any federal, state, local, or foreign
income, payroll, employment, franchise, withholding, social security,
unemployment and sales taxes, of the Company required to be filed and paid,
pursuant to such tax returns, which have become due at any time on or prior to
and including the Closing Date have been, or will on the Closing Date be, duly
paid. Except as set forth on Schedule 2.9, there are no tax audits or
investigations pending or, to the knowledge of the Seller, threatened with
respect to the Company. No person currently holds, with respect to tax returns
filed, powers of attorney from the Company. Except as set forth on Schedule 2.9,
no issues have been raised by the relevant taxing authority in connection with
the examination of any tax returns of the Company and the Company has not waived
any statute of limitations with respect to any taxes.
Section 2.10. Insurance. Schedule 2.10 hereto sets forth a summary
description of all insurance policies currently maintained with respect to the
Company. Such policies of insurance are valid and enforceable in accordance with
their terms against the Company, and to the best of the Seller' knowledge, are
valid and enforceable in accordance with their terms against any other party
thereto and are in full force and effect. The Company has taken no action or
omitted to take any action that has resulted in a material breach of such
policies of insurance.
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The Company has not received any written notice from any insurance carrier
issuing such policies that there will hereafter be a cancellation or a
non-renewal of any existing policies.
Section 2.11. Accounts Receivable. Except as set forth on Schedule
2.11 hereto, the accounts receivable of the Company as set forth on the Interim
Financial Statements or arising since the date thereof are valid and genuine;
have arisen solely out of bona fide sales and performance of services and other
business transactions in the ordinary course of business consistent with past
practice, and are not subject to defenses, set-offs or counterclaims and, to the
Seller's knowledge, are fully collectible in the ordinary course of business
without resort to legal proceedings, net of the reserve set forth on Schedule
2.11 hereto. Notwithstanding the foregoing, any accounts receivable with respect
to which an adjustment has been made for purposes of determining the Final Net
Working Capital shall be excluded from the representation set forth herein.
Section 2.12. Intellectual Property. Schedule 2.12 hereto sets forth
a complete list of all patents, trademarks, service marks, trade dress, trade
names and corporate names owned or used by the Company in the operation of the
Business and all registrations, applications and renewals for any of the
foregoing (collectively, the "Intellectual Property"). Except as set forth in
Schedule 2.12 hereto, the Company is the sole and exclusive owner of the
Intellectual Property, free and clear of any Lien (other than Permitted Liens).
The Seller is not aware of any facts which indicate a likelihood of any
infringement or misappropriation by any third party with respect to the
Intellectual Property. To the Seller's knowledge, the use of the Intellectual
Property by the Company does not infringe on the rights of any person. There is
no pending or, to the knowledge of the Seller, threatened claim, that the
Company is infringing on any patents, trademarks, service marks, trade dress,
trade names or other proprietary rights of a third party.
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Section 2.13. Litigation. Except as set forth on Schedule 2.13,
there are no legal, administrative, arbitration or other proceeding or
governmental investigation pending or, to the knowledge of the Seller,
threatened against the Company or the Seller with respect to the Company. Except
as set forth in Schedule 2.13 hereto, the Company is not subject to, nor is
there outstanding, any judgment, award, order, writ, injunction or decree of any
court, administrative agency, governmental body or arbitration tribunal with
respect to the Company. The Company is not in default of any judgment, award,
order, writ, injunction or decree set forth on Schedule 2.13 hereto.
Section 2.14. Employee Compensation. Schedule 2.14 hereto contains a
true and complete list of all persons employed by the Company, as in effect on
the date hereof, together with a statement as to the full amount of
compensation, commissions or bonuses currently payable to, or on behalf of, each
such person for services rendered during the current year.
Section 2.15. Employee Benefit Plans. Schedule 2.15 hereto sets
forth a list of each retirement or deferred compensation plan, incentive
compensation plans, stock plan, unemployment compensation plan, vacation pay,
severance pay, bonus or benefit arrangement, insurance or hospitalization
program or other fringe benefit arrangements for any employee, director
consultant or agent, whether pursuant to contract, arrangement, custom or
informal understanding which is maintained, administered or contributed to by
the Company. Such benefit plans are hereinafter collectively referred to as the
"Benefit Plans." Each Benefit Plan is in compliance in all material respects
with, and has always been operated in all material respects in accordance with,
its terms and the requirements of all applicable law. All contributions,
premiums or payments required to be made with respect to any Benefit Plan have
been made on or before their due dates. No employee of the Company will become
entitled to any bonus,
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retirement, severance, job security or similar benefit as a result of the
transactions contemplated by this Agreement.
Section 2.16. Labor Matters. The Company does not have any
agreement, commitment or understanding, whether formal or informal, with any
union representing workers of the Company The Company has not suffered any
strike, slowdown, picketing or work stoppage by any union or other group of
employees affecting the business of the Company. No collective bargaining agent
has been certified to the Company as a representative of any of the employees of
the Company, and to the Seller's knowledge, no representation campaign or
election is now in progress with respect to any of the employees of the Company.
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Section 2.17. Agreements and Other Rights.
(a) Schedule 2.17 hereto sets forth all material contracts, agreements and
commitments of the Company, including, but not limited to (collectively, the
"Contracts"): (1) agreements for the purchase, sale, leasing or mortgage of real
property; (2) notes, debentures, letters of credit, loan agreements or other
contracts or commitments for the borrowing or lending of money or guarantees,
pledges or undertakings of the indebtedness of any other person; (3) agreements
for the purchase, rental or leasing by the Company of materials, supplies,
services, machinery or equipment; (4) agreements with customers and subscribers;
(5) agreements with advertisers; (6) agreements for any capital expenditure or
leasehold improvement in excess of $5,000; (7) agreements which contain any
covenant on the part of the Company not to compete in a certain geographic area,
during a certain time period, in a certain business or otherwise restricts the
use of confidential information by the Company or any such person; (8)
agreements with any present employee, agent or consultant; or (9) any other
agreement that is material to the Company.
(b) All Contracts are in full force and effect and constitute the valid
and binding obligations of the Company enforceable in accordance with their
respective terms against the Company. As to the Contracts, except as disclosed
in the Schedules to this Agreement, (1) neither the Company nor, to the Sellers'
knowledge, any other party thereunder is in default or breach in any material
respect under the terms thereof, and (2) except as set forth on Schedule 2.17,
and subject to obtaining the Seller Consents, no event, act or omission has or,
as a result of the consummation of the transactions contemplated hereby, will
occur which (with or without notice, lapse of time or the happening or
occurrence of any other event) would result in a default thereunder, give cause
for termination thereof or permit the acceleration of any obligation
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thereunder.
Section 2.18. Compliance with Laws. The licenses and permits set
forth in Schedule 2.18 hereto are the only licenses and permits which
individually or in the aggregate are necessary or required in the conduct of the
business of the Company as currently conducted by the Company, except for such
licenses and permits the failure to obtain have not resulted in a material
adverse effect on the business of the Company and all of such listed licenses
and permits are in full force and effect on the date hereof. The Company has not
received notice, and, to the knowledge of the Seller, there is no reason to
believe, that any appropriate authority intends to cancel, terminate or amend
any of such licenses or permits or that valid grounds for such cancellation or
termination currently exist. The Company is not in violation of any material
law, rule or regulation applicable to the Business, including, but not limited
to laws relating to employment and employment practices, occupational safety and
health laws and regulations and laws relating to pollution or protection of the
environment, and laws relating to emissions, discharges, releases or threatened
releases of pollutants, contaminants, chemicals or industrial, toxic or
hazardous substances or wastes into the environment (including, without
limitation, ambient air, surface water, ground water or land) or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of pollutants, contaminants, chemicals or
industrial, toxic or hazardous substances or wastes (collectively, "Laws"),
except such violations that would not, individually or in the aggregate, have a
Material Adverse Effect. Except as set forth on Schedule 2.18, since 1990,
neither the Company nor the Seller has received any notification of any asserted
failure by the Company to comply with any Laws or Permits applicable to the
operation of the Business nor are any claims pending against the Company with
respect to a violation of any Laws.
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Section 2.19. Finders' Fee. There is no investment banker, broker,
finder or other intermediary which has been retained by, or is authorized to act
on behalf of, the Seller or the Company who is or might be entitled to any fee
or commission from the Company or the Seller upon the consummation of the
transactions contemplated by this Agreement.
Section 2.20. Bank Accounts; Officer and Directors. Schedule 2.20
sets forth the name and location of each bank in which the Company has an
account, lock box or safe deposit and the number of each such account or box and
those persons authorized to sign thereon. Schedule 2.20 sets forth a list of all
corporate officers and directors of the Company.
Section 2.21. Transactions with Certain Persons. Except as set forth
on Schedule 2.21 annexed hereto, no officer, director or employee of the Company
or any member of any such person's immediate family (an "Affiliated Person") is
presently a party to any transaction with the Company, including without
limitation any contract, agreement or other arrangement (i) providing for
furnishing of services by, (ii) providing for the rental or real or personal
property from, or (iii) otherwise requiring payments to (in each case other than
for services as officers, directors or employees of the Company) any such
person, or corporation, partnership or other entity in which any such person has
a substantial interest (more than 5% of the outstanding equity securities) as a
shareholder, or is an officer, director, trustee or general partner.
Section 2.22. Corporate Documents. Annexed hereto as Schedule 2.22
are true, correct and complete copies of the Certificate of Incorporation and
By-laws of the Company, as amended.
Section 2.23. Full Disclosure. No representation or warranty of
Seller contained in this Agreement contains an untrue statement of material fact
or omits to state a material fact required to be stated therein to make the
statement, in the context in which made, not materially
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false or misleading.
Section 2.24. Seller's Knowledge. Whenever the phrase "the Seller's
knowledge", "to the best of the Seller's knowledge" or similar phrase is used
herein, it shall mean the actual knowledge of Xxxxxxxx X. Xxxxxxxxxxxx which she
would have had after due inquiry of the responsible officers and employees of
the Company and its counsel and accountants..
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES
OF THE PURCHASER
The Purchaser hereby represents and warrants to the Seller as follows:
Section 3.1. Authorization; Organization; Standing. The Purchaser
has the power and authority to enter into this Agreement and each other
agreement contemplated to be executed by the Purchaser in connection herewith,
as applicable (the "Purchaser Related Agreements") and to carry out the
transactions contemplated hereby and thereby and this Agreement and each of the
Purchaser Related Agreements constitutes the legal, valid and binding obligation
of the Purchaser, enforceable in accordance with its terms. The Purchaser is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Nevada. The Purchaser has the corporate power and authority to
own and lease its properties and to carry on its business as now conducted. The
execution, delivery and performance by the Purchaser of this Agreement and each
of the Purchaser Related Agreements and the transactions contemplated hereby and
thereby have been duly authorized by the Board of Directors of the Purchaser.
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Section 3.2. Contravention; Consents and Approvals.
(a) The execution and delivery of this Agreement by the Purchaser does
not, and the consummation of the transactions contemplated hereby by the
Purchaser will not, require any filing, action, notice, authorization, consent
or approval of any person, entity or governmental body.
(b) The execution, delivery and performance of this Agreement by the
Purchaser and the consummation of the transactions contemplated hereby by the
Purchaser will not (A) result in a breach of the terms or conditions of, or
constitute a default under or violate or give any third party the right to
accelerate any obligation under (1) any provision of any material law,
regulation or ordinance applicable to the Purchaser, (2) the Certificate of
Incorporation or By-laws of the Purchaser, (3) any material agreement, lease,
mortgage, note, bond, indenture, or other instrument or undertaking to which the
Purchaser is bound, or (4) any judgment, order, writ, injunction or decree of
any court, administrative agency or governmental body; or (B) result in the
creation or imposition of any Lien upon the property, assets or business of the
Purchaser, except, in any case, for such breaches, defaults, violations or Liens
which will not have a material adverse impact on the property, assets and
business of the Purchaser or on the ability of the Purchaser to consummate the
transactions contemplated hereby.
Section 3.3. Purchase for Investment. The Purchaser is acquiring the
Shares for investment and not with a view to the sale or distribution thereof in
violation of the Securities Act of 1933, as amended, or any other Federal or
State securities laws.
Section 3.4. Financing. The Purchaser has the funds required to pay
the Purchase Price and to consummate the transactions contemplated hereby.
Section 3.5. Finders' Fee. There is no investment banker, broker,
finder or other
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intermediary which has been retained by, or is authorized to act on behalf of,
the Purchaser or any affiliates who might be entitled to any fee or commission
from the Purchaser or any of its affiliates upon consummation of the
transactions contemplated by this Agreement.
ARTICLE 4.
COVENANTS OF THE SELLER
The Seller covenants and agrees that:
Section 4.1. Non-Competition. The Seller agrees that for a period of
three (3) years after the Closing, the Seller shall not, directly or indirectly,
herself or as the agent of any partnership, or as an agent, stockholder or
investor (except as not more than 2% of the outstanding stock of any corporation
whose stock is publicly traded) of any corporation, (i) engage in or be
connected in any manner with any business or activity located within Nassau
County, which is engaged in the business of publishing a weekly newspaper,
except that, notwithstanding the foregoing, Seller shall be permitted to submit
and publish writings and columns in any such weekly newspaper; provided, that
the Seller first gives the Company the option to publish any such writings and
columns, and the Company does not (within 5 days of the Seller's submission of
such column to the Company), elect to publish such writings. If the Company
elects to publish such columns, and does not actually publish such columns,
within one month of its election, then the Seller is free to submit such column
to any other entity, or (ii) solicit, interfere with or endeavor to entice away
from the Purchaser or its affiliates any customers or any person, firm, company
or corporation dealing with the Purchaser or its affiliates, or interfere with
or entice away any employee of the Purchaser or its affiliates.
Section 4.2. Consents. The Seller will use her best efforts to cause
the Company to obtain all consents, approvals and waivers of third parties or
authorities set forth in
19
Schedule 2.4(a) hereto required to be obtained pursuant to this Agreement on or
prior to the Closing.
Section 4.3. Taxes. It is understood and agreed that all liabilities
with respect to taxes and income arising out of the operation of the business of
the Company for all periods through the Closing Date shall be for the account of
the Seller and all liabilities with respect to taxes and income arising out of
the operation of the business of the Company from and after the Closing Date
shall be for the account of the Purchaser. The parties shall file such returns
and taxes as are applicable in accordance with the foregoing. In addition, the
Seller agrees to use her best efforts, following the Closing Date, to obtain the
appropriate documentation, to the extent available, to indicate that the tax
liens set forth on Schedule 2.9 hereto have been satisfied, other than the Tax
Liabilities (as defined in Section 8.1 hereof).
ARTICLE 5.
COVENANTS OF THE PURCHASER
Section 5.1. Books and Records. Until the expiration of six years
from the Closing Date (and, if at the expiration thereof any judicial proceeding
is in progress, for such longer period as such judicial proceeding is in
progress) with respect to books and records of the Company, the Purchaser will,
and will cause the Company to, (i) retain and, as the Seller may reasonably
request, permit the Seller at her expense during normal business hours to
inspect and copy, all books and records of the Company that relate to the period
prior to the Closing Date, and (ii) assist in arranging discussions with
officers, directors, employees and agents of the Company on matters that relate
to the Company with respect to periods prior to the Closing Date.
20
ARTICLE 6.
DELIVERIES BY THE SELLER
On the date hereof, the Seller shall deliver the following items to the
Purchaser, each of which shall be in form and substance reasonably satisfactory
to the Purchaser:
Section 6.1. Delivery of Stock Certificates. The Seller shall have
delivered to the Purchaser certificates representing the Shares, duly endorsed
for transfer by delivery, or accompanied by stock powers duly endorsed in blank.
Section 6.2. Resignations. The Seller shall have delivered to the
Purchaser the resignations, effective as of the Closing Date, of each of the
directors of the Company, and each corporate officer of the Company.
Section 6.3. Escrow Agreement. The Seller shall have delivered to
the Purchaser the Escrow Agreement, annexed hereto as Exhibit A, duly executed
by the Seller and the Escrow Agent.
Section 6.4. Good Standing; Corporate Records. The Seller shall have
delivered to the Purchaser a Certificate of Good Standing, with respect to the
Company, from the Secretary of State of the State of New York and the corporate
books and records, including the stock book and stock book ledger of the Company
existing on the Closing Date.
Section 6.5. Shareholder Loans. The loans to the Company set forth
on Schedule 2.21 hereto shall have been paid in full and the Purchaser shall
have been provided with satisfactory evidence thereof.
Section 6.6. Outstanding Tax Liabilities. The outstanding tax
liabilities of the Company listed on Schedule 2.9 shall have been paid in full
or deducted from the Purchase Price on the Closing Date, and the Purchaser
provided with satisfactory evidence thereof.
21
Section 6.7. Secretary's Certificate. The Seller shall have
delivered to Purchaser a Secretary's Certificate of the Company certifying as to
the true and correct nature of the Certificate of Incorporation and By-Laws of
the Company.
ARTICLE 7.
DELIVERIES BY THE PURCHASER
On the date hereof, the Purchaser shall deliver the following to the
Seller, each of which shall be in form and substance reasonably satisfactory to
the Seller:
Section 7.1. Payment. Payment of the Purchase Price shall have been
made as provided in Section 1.2 hereof.
Section 7.2. Escrow Agreement. The Purchaser shall have delivered to
the Seller the Escrow Agreement annexed hereto as Exhibit A duly executed by the
Purchaser and the Escrow Agent.
Section 7.3. Consents. The Seller Consents, and all other consents
necessary to consummate the transactions contemplated hereby, shall have been
obtained.
Section 7.4. Secretary's Certificate. The Seller, shall have
received a certificate duly executed by the Secretary of the Purchaser,
certifying as to the resolutions adopted by the board of directors of the
Purchaser approving the execution of this Agreement and the consummation of the
transactions contemplated hereby, together with copies of such resolutions.
ARTICLE 8.
INDEMNIFICATION
Section 8.1. Seller's Indemnification. The Seller hereby agrees to
indemnify and hold harmless the Purchaser and its affiliates, successors and
assigns, officers and directors, from and against any liabilities or
obligations, damages, losses, claims, encumbrances, costs or expenses (including
reasonable attorneys' fees) of any nature, whether absolute, contingent or
22
otherwise (any or all of the foregoing herein referred to as a "Loss" or the
"Losses") to the extent that a Loss arises out of or is based upon (i) any
breach of any of the representations and warranties made by the Seller in this
Agreement or the Seller Related Agreements; (ii) any breach of any covenants or
agreements made by the Seller in this Agreement or the Seller Related
Agreements; (iii) subject to the next two sentences of this Section 8.1, any
claims of any taxing authorities against the Company in respect of tax
liabilities (including interest and penalties thereon) relating to all periods
ending on or prior to the Closing Date, (iv) any claims in respect of those
matters set forth on Schedule 2.13, provided, that for those matters for which a
reserve or expense has been established or included on the Financial Statements,
or in the calculation of the Closing Date Net Working Capital, only claims in
excess of such reserve or expense item, and (v) any claims of any Affiliated
Person with respect to any contract, agreement or arrangement entered into prior
to the Closing Date. Notwithstanding Section 8.1 (iii) above, it is agreed that
the Purchase Price has been reduced in an amount equal to the outstanding tax
liabilities of the Company set forth on Schedule 1.2 hereto (the "Tax
Liabilities"). Accordingly, any and all Losses and liabilities arising out of or
based upon the Tax Liabilities, up to the amount set forth on Schedule 1.2, are
for the sole account, liability and obligation of the Purchaser and the Company,
shall not be deemed Losses of the Purchaser or the Company and the Seller shall
have no liability or obligations with respect thereto, whether under this
Section 8.1 or otherwise.
Section 8.2. Purchaser's Indemnity. The Purchaser hereby agrees to
indemnify and hold harmless the Seller and her affiliates, successors, assigns,
representatives and heirs from and against any Loss to the extent that such Loss
arises out of or is based upon (i) any breach of any of the representations and
warranties made by the Purchaser in this Agreement or the
23
Purchaser Related Documents; or (ii) any breach of any of the covenants or
agreements made by the Purchaser in this Agreement or the Purchaser Related
Agreements; or (iii) any claims of any taxing authorities in respect of tax
liabilities (including interest and penalties thereon) relating to all periods
ending after the Closing Date; or (iv) any claims arising in connection with the
Tax Liabilities, up to the amount set forth on Schedule 1.2; and (v) all
liabilities and obligations arising out of the operation of the business of the
Company (except to the extent such liability or obligation arises out of an item
for which the Purchaser is entitled to be indemnified for hereunder).
Section 8.3. Tax Benefit/Insurance Proceeds. Indemnification with
respect to a Loss shall be net of the tax benefit to the person asserting a
right to indemnification under this Article 8 (the "Indemnitee"), or any company
joining in a consolidated tax return with the Indemnitee, but after giving
effect to any tax which shall be required to be paid on such indemnification
payment by the Indemnitee or the entity receiving such payment attributable to a
Loss. Indemnitee's determination of the net tax benefit shall not be subject to
dispute or challenge absent manifest error. In addition, in determining the
amount of Loss for which an Indemnitee is entitled, the Loss shall be reduced by
any insurance proceeds which are paid to such Indemnitee with respect to the
Loss for which indemnification is sought. If the Seller pays the Purchaser a
payment which satisfied the Seller's obligations under this Article 8 with
regard to a Loss for which the Purchaser was entitled to indemnification in
accordance with Section 8.1 and, after such payment by the Seller, the Purchaser
receives insurance proceeds in payment of the same Loss, the Purchaser will
reimburse the Seller for the amount the Seller has paid up to, but not
exceeding, the insurance proceeds received.
Section 8.4. Notice. Notice of any matter which may give rise to
such claim
24
shall be given in writing by the Indemnitee to the person against whom
indemnification is sought (the "Indemnitor") promptly after such matter has been
asserted against Indemnitee. Such notice shall state that the Indemnitor is
required to indemnify the Indemnitee for a Loss and shall specify the relevant
details thereof. The Indemnitee's failure to give prompt notice of a claim shall
not constitute a defense (in part or in whole) to any claim for indemnification
for such party, except and only to the extent that such failure shall result in
material prejudice to the indemnifying party.
Section 8.5. Procedural Matters. The Indemnitor shall have the right
to settle and to defend, through counsel reasonably satisfactory to the
Indemnitee, at the Indemnitor's expense, any action which may be brought in
connection with all indemnifiable matters subject to this Article 8 (a "Third
Party Action") by providing Indemnitee with written notice thereof. The defense
by Indemnitor of any such action shall not be deemed a waiver by the Indemnitor
of its right to assert a dispute with respect to the responsibility of the
Indemnitor with respect to the Loss in question. The Indemnitee shall not have
the right to settle or compromise any claim against the Indemnitee without the
prior written consent of the Indemnitor unless the Indemnitor has elected not to
defend such claim in which event the Indemnitee shall have the right to assume
the defense of such claim in such manner as it deems appropriate, at the
Indemnitor's expense; provided, however, that any such settlement or compromise,
as a condition precedent thereto, must include a release of the Indemnitor in
form and substance satisfactory to such Indemnitor from such claim. No
Indemnitee shall pay or voluntarily permit the determination of any liability
which is subject to any such action while the Indemnitor is negotiating the
settlement thereof or contesting the matter, except with the prior written
consent of the Indemnitor, which consent shall not be unreasonably withheld.
25
Section 8.6. Limitation on Indemnification. Notwithstanding anything
else to the contrary contained herein, the Purchaser shall not be entitled to
assert any claim for indemnification contained in Section 8.1 unless and until
such time as the Losses, in the aggregate, exceed $25,000, at which time the
Seller shall indemnify the Purchaser only for those Losses which exceed $25,000;
it being understood and agreed that the Seller shall have no liability to the
Purchaser with respect to the first $25,000 of Losses and that such are for the
sole account of the Purchaser. In addition, the total indemnification to which
the Purchaser shall be entitled under this Agreement shall be limited to an
amount, in the aggregate, not to exceed the Purchase Price, as adjusted pursuant
to Section 1.2(c) hereof.
Section 8.7. Survival. The representations and warranties of the
parties contained in this Agreement (and the obligations of the parties hereto
to indemnify the other with respect thereto) will survive the Closing until
August 27, 1998; provided, however, that the representations and warranties
contained in Section 2.9 shall survive until expiration of the statute of
limitations applicable to the matters covered thereby (after giving effect to
any waiver, mitigation or extension thereof) and the representations and
warranties contained in Section 2.2 shall survive the Closing for a period of
six years and the representations and warranties contained in Sections 2.19 and
3.5 shall survive the Closing indefinitely. Notwithstanding the preceding
sentence, any representation or warranty in respect of which indemnification may
be sought will survive the time at which it would otherwise terminate if written
notice of such indemnification claim shall have been made prior to such
termination date.
Section 8.8. Exclusive Remedy. Subject to Article 9 hereof, the
parties hereto acknowledge and agree that the indemnity provided in this Article
8 shall be the sole and exclusive remedy of the parties for any breach of this
Agreement, provided, however, that the
26
foregoing shall not be deemed to waive any claims any party may assert against
the other arising out of fraud.
ARTICLE 9.
MISCELLANEOUS
Section 9.1. Governing Law; Jurisdiction. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
(without giving effect to conflicts of law).
Section 9.2. Headings and Captions The headings and captions
contained in this Agreement are for reference purposes only and shall not affect
the meaning or interpretation of this Agreement.
Section 9.3. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute but one and the same instrument.
Section 9.4. Entire Agreement. This Agreement including all Exhibits
and Schedules hereto and thereto, constitutes the entire understanding among the
parties with respect to the subject matter hereof, superseding all negotiations,
prior discussions, in each case, whether oral or written, preliminary
agreements, representations or warranties or projections made prior to the date
hereof.
Section 9.5. Separability. If any section, subsection or provision
is held invalid, the remainder of this Agreement and the application of such
section, subsection or provision to persons or circumstances other than those to
which it is held invalid shall not be affected thereby.
Section 9.6. Notices All notices, consents or other communications
required or permitted to be given by any party hereunder shall be in writing and
shall be given by delivery,
27
telecopy transmission or by overnight courier, postage prepaid, as follows: if
to the Seller, to the address set forth on page one annexed hereto, with a copy
to Xxxxxx, Xxxxxx & Xxxxxx, EAB Plaza, Uniondale, New York, 11556, Attn: Xxxx
Xxxxx Xxxxxxxx, Esq., and if to the Purchaser, to its address set forth on page
one hereto, with a copy to Xxxxx Day, Xxxxxx & Xxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attn: Xxxx Xxxxxxxxx, Esq., or at such other address or
telecopy number as any party may from time to time specify to the other parties
hereto. Any notice, consent or other communication required or permitted to be
given hereunder shall be deemed to have been given (i) on the next day following
delivery with an overnight courier, (ii) on the date of personal delivery, or
(iii) on the date of telecopy (provided the appropriate answer back is received)
thereof, as the case may be.
Section 9.7. Costs. Except as otherwise set forth herein, each party
will pay its own costs and expenses involved in carrying out the transactions
contemplated by this Agreement.
Section 9.8. Amendment; Assignment. This Agreement may not be
amended or assigned except by an instrument in writing signed by all of the
parties hereto.
Section 9.9. Disclosure on Schedules. For purposes of this
Agreement, a disclosure by any party hereto of any fact on any Schedule shall be
deemed a disclosure on every Schedule of any party hereto to the extent such
disclosure properly could have been made thereon but was not made.
28
Section 9.10. Arbitration.
(a) Each and every controversy or claim arising out of or relating to this
Agreement, and any document executed in connection herewith, shall be settled by
arbitration in accordance with the rules of the American Arbitration Association
(the "AAA"), in Nassau County, New York and judgment upon the award rendered in
such arbitration shall be final and binding upon the parties and may be
confirmed in any court having jurisdiction thereof. Notice of the demand for
arbitration shall be filed in writing with the other party to this Agreement in
accordance with the rules of the AAA. In no event shall the demand for
arbitration be made after the date when institution of legal or equitable
proceedings based on such claim, dispute or other matter in question would be
barred by the applicable statutes of limitations. The award of the arbitrator
shall be in writing and it shall specify in detail the issues submitted to
arbitration and the award of the arbitrator with respect to each of the issues
so submitted. The award pursuant to such arbitration will be final, binding and
conclusive. The arbitration shall be conducted by one arbitrator selected in
accordance with the rules of the AAA.
(b) Counsel to the Purchaser and the Seller and in connection with the
negotiation of and consummation of the transactions under this Agreement shall
be entitled to represent their respective party in any and all proceedings under
this Section or in any other proceeding (collectively, "Proceedings"). The
Purchaser and the Seller, respectively, waive the right and agree they shall not
seek to disqualify any such counsel in any such Proceedings for any reason,
including but not limited to the fact that such counsel or any member thereof
may be a witness in any such Proceedings or possess or have learned of
information of a confidential or financial nature of the party whose interests
are adverse to the party represented by such counsel in any such Proceedings.
29
Section 9.11. Construction. Any court or arbitrator interpreting or
construing this Agreement shall not apply a presumption that any provision shall
be more strictly construed against the party who prepared it.
30
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the date first written above.
/s/ Xxxxxxxx X. Xxxxxxxxxxxx
---------------------------------
Xxxxxxxx X. Xxxxxxxxxxxx
NEWS COMMUNICATIONS, INC.
By: /s/ Xxxxxx X. Xxxx, Xx.
------------------------------
Name: Xxxxxx X. Xxxx, Xx.
----------------------------
Title: Chief Executive Officer
---------------------------
31
Exhibit A
ESCROW AGREEMENT
ESCROW AGREEMENT, dated as of November ___, 1997, by and among
Xxxxxxxx Xxxxxxxxxxxx (the "Seller"), News Communications, Inc. (the "Buyer")
and Xxxxxx, Xxxxxx & Xxxxxx (the "Escrow Agent").
R E C I T A L S:
1. The Seller and the Buyer have entered into a Stock Purchase
Agreement, dated the date hereof (the "Purchase Agreement"), providing for the
sale by the Seller and the purchase by the Buyer of all of the issued and
outstanding stock (the "Shares") of South Shore Publishers, Inc., all as set
forth in the Purchase Agreement.
2. The Purchase Agreement requires the sum of $42,200 to be
delivered to the Escrow Agent in connection with certain claims that may arise
under Sections 1.2(c) and 8.1 thereof.
3. The parties hereto wish to appoint the Escrow Agent, and the
Escrow Agent has agreed to act, as a depository and administrator of the escrow
funds, all upon the terms, conditions and provisions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties hereto agree as follows:
1. Deposit of Funds. On the date hereof, the Buyer has deposited the
sum of $42,200 (the "Escrow Funds") with the Escrow Agent and the Escrow Agent
acknowledges receipt of the Escrow Funds.
2. Handling of Escrow Funds. The Escrow Agent shall hold the Escrow
Funds in a segregated, interest-bearing bank account, in the name of the Escrow
Agent, as escrow agent (the Escrow Funds, including all interest earned thereon,
being collectively, the "Escrow Amount").
3. Term. The Escrow Amount shall be held, maintained, invested and
paid in accordance with the terms of this Escrow Agreement for a period of one
year (i.e., 365 calendar days) from, but excluding, the date hereof (the "Escrow
Period"), subject to the further provisions of this Escrow Agreement.
4. Release of Escrow Amount to the Buyer. From time to time prior to
the expiration of the Escrow Period, the Buyer shall have the right to make a
claim against the Escrow Amount, by delivering a written demand, specifying the
precise dollar amount of the claim (a "claim") and the basis therefor under
Sections 1.2(c) or 8.1 of the Purchase Agreement,
to the Escrow Agent, with a copy of such claim being delivered simultaneously to
the Seller. The Escrow Agent shall deliver to the Buyer the portion of the
Escrow Amount which is equal to the amount of such claim at the expiration of a
period of ten "business days" (as defined below) following, but excluding, the
day on which the Escrow Agent receives such demand unless, during such ten
business day period, the Escrow Agent receives written notice from the Seller
stating the objection of the Seller to all or a portion of such claim (a
"dispute") and specifying the precise dollar amount which is in dispute (the
"disputed amount"), with such notice being given simultaneously to the Buyer. If
the Escrow Agent receives notice of a dispute in accordance with the foregoing
provisions, the Escrow Agent shall not disburse any of the Escrow Funds which
are the subject of any such dispute to the Buyer or the Seller until the dispute
has been settled in the manner set forth in Section 7 below. For purposes
hereof, the term "business days" means any day on which commercial banks are not
authorized or required to close in New York City.
5. Release of Escrow Amount to the Seller. Upon the expiration of
the Escrow Period and from time to time thereafter (i.e., until the entire
Escrow Amount has been disbursed or deposited in accordance with the provisions
hereof), the Escrow Agent shall make payment to the Seller of that portion of
the Escrow Amount which is not the subject of a "pending" claim or dispute
(i.e., a claim which is not the subject of a dispute or a dispute that has not
been settled in the manner set forth in Section 7 below).
6. Compliance with Purchase Agreement.
The Seller acknowledges and agrees that the Buyer has the right to
make a claim upon the Escrow Amount, provided that the Buyer complies with the
terms and conditions of this Escrow Agreement and with the terms, conditions and
limitations of Article 8 of the Purchase Agreement.
7. Settlement of Disputes. Any dispute that may arise under this
Escrow Agreement shall be settled either by mutual agreement of the Buyer and
the Seller (evidenced by appropriate instructions in writing to the Escrow
Agent, signed by such parties) or by a Final Order (as hereinafter defined), and
the Escrow Agent shall only be obligated to disburse the disputed amount to the
Buyer or the Seller, as the case may be, in accordance with the explicit written
instructions contained in any such agreement or Final Order, as the case may be.
The Escrow Agent shall be under no duty whatsoever to institute or defend any
such proceedings.
8. Concerning the Escrow Agent.
(a) The Escrow Agent may resign and be discharged from its
duties hereunder at any time by giving notice of such resignation to the Buyer
and the Seller specifying a date when such resignation shall take effect. Upon
such notice, a successor escrow agent shall be appointed with the written
consent of the Buyer and the Seller, such successor escrow agent to become
escrow agent hereunder upon the resignation date specified in such notice and
upon the delivery by the Escrow Agent to such successor of the Escrow Amount
then held by the Escrow Agent hereunder. If the Buyer and the Seller are unable
to agree upon a successor
2
escrow agent within thirty days after such notice, the Escrow Agent shall
deposit the Escrow Amount then held by the Escrow Agent hereunder in the Supreme
Court of the State of New York, County of Nassau, and it shall thereby be
discharged of its duties and responsibilities hereunder, the parties hereto
hereby consenting and submitting to the personal jurisdiction of such court and
agreeing to waive all rights to contest such jurisdiction in connection with any
such action by the Escrow Agent or any matter arising out of this Escrow
Agreement or in connection herewith. The Escrow Agent shall continue to serve
until its successor executes this Escrow Agreement, accepts the escrow and
receives the Escrow Amount or until it shall deposit the Escrow Amount into
Court as provided above. The Buyer and the Seller shall have the right at any
time to substitute a new escrow agent by giving written notice thereof, duly
executed by each, to the Escrow Agent or the escrow agent then acting.
(b) The Escrow Agent undertakes to perform such duties as are
specifically set forth herein and may conclusively rely, and shall be protected
in acting or refraining from acting, on any written notice, instrument, or
signature believed by it to be genuine and believed by it to have been signed or
presented by the proper party or parties duly authorized to do so. The Escrow
Agent shall have no responsibility for the contents of any writing contemplated
herein and may rely without any liability upon the contents thereof. The Escrow
Agent is authorized, in its sole discretion, to disregard any and all notices or
directions given by either the Seller or the Buyer or by any other person, firm
or corporation, except (i) such notices, directions, certifications or
instructions as are specifically provided for herein and (ii) a Final Order (as
defined herein). If any property subject hereto is at any time attached,
garnished or levied upon under a Final Order, or if the payment, assignment,
transfer, conveyance or delivery of any such property shall be stayed or
enjoined by a Final Order, or if a Final Order shall be made or entered
affecting such property or any part thereof, then, in any of such events, the
Escrow Agent is authorized, in its sole discretion, to rely upon and comply with
any such Final Order. The term "Final Order" as used herein shall mean any
order, writ, judgment or decree of any court or arbitration proceeding in
accordance with Section 10.10 of the Purchase Agreement which the Escrow Agent
determines, in its sole discretion, is not subject to further review or appeal
and is binding upon the Escrow Agent. In the event that the Escrow Agent shall
be uncertain as to its duties, obligations or responsibilities hereunder, or
shall receive instructions from the Buyer or the Seller which, in the sole
judgment of the Escrow Agent, are vague or in conflict with any of the
provisions of this Escrow Agreement, it shall be entitled to maintain the Escrow
Amount in escrow in accordance with the provisions hereof and to decline to take
any further actions until the Escrow Agent receives joint written instructions
from the Buyer and the Seller or a Final Order directing the disbursement of all
or any portion of such Escrow Amount, in which case the Escrow Agent shall then
make such disbursement in accordance with such directions or Final Order.
(c) The Escrow Agent shall not be liable for any action taken
or omitted by it in good faith and believed by it to be authorized hereby or
within the rights or powers conferred upon it hereunder, nor for action taken or
omitted by it in good faith, and in accordance with advice of counsel (which
counsel may be of the Escrow Agent's own choosing), and shall not be liable for
any mistake of fact or error of judgment or for any acts or omissions of any
kind unless caused by its willful misconduct or gross negligence.
3
(d) Each party hereto agrees to indemnify the Escrow Agent and
hold it harmless from and against any claim made against the Escrow Agent by
reason of its acting or failing to act in connection with any of the
transactions contemplated hereby and against any loss, liability, cost or
expense, including reasonable attorneys' fees and other reasonable expenses of
defending itself against any claim of liability it may sustain in carrying out
the terms of this Escrow Agreement (which may include the services of the
partners and associates of the Escrow Agent billed at their customary rates),
except such claims successfully asserted against the Escrow Agent which are
based upon its bad faith or willful misconduct.
(e) Any payments of interest or income from the Escrow Funds
shall be subject to withholding regulations then in force with respect to
Federal taxes. The parties hereto will provide the Escrow Agent with appropriate
W-9 forms for tax identification purposes. It is understood that the Escrow
Agent shall be responsible for income reporting only with respect to income
earned on investment of the Escrow Funds and is not responsible for any other
reporting. The provisions of this Section (e), as well as Sections (c) and (d)
above and (f) below, shall survive any termination of this Escrow Agreement or
the resignation of the Escrow Agent.
(f) The Escrow Agent shall have no liability in respect of or
duty to inquire into the terms and conditions of the Purchase Agreement or any
other document or agreement executed in connection therewith, its duties under
this Escrow Agreement being understood to be purely ministerial in nature.
Furthermore, the Escrow Agent shall be permitted to consult with counsel of its
choice (which may include consultation with partners and associates of the
Escrow Agent) and shall not be liable for any action taken, suffered or omitted
by it in good faith in accordance with the advice of such counsel.
(g) The Escrow Agent shall not be bound by any modification,
amendment, termination, cancellation or recision of this Escrow Agreement,
unless the same shall be in writing and signed by the parties hereto, including
the Escrow Agent.
(h) The Buyer acknowledges that the Escrow Agent serves as
counsel to the Seller and consents to the Escrow Agent continuing to do so with
respect to all matters, including, but not limited to, the Purchase Agreement.
(i) Except as provided elsewhere herein to the contrary, all
expenses incurred by the Escrow Agent, including the time of its attorneys in
connection with the discharge of its services as Escrow Agent or otherwise, and
all disbursements, in any event incurred following the date hereof, shall be
borne one-half by the Buyer and one-half by the Seller, in an amount not to
exceed $2,500 in the aggregate.
9. Miscellaneous.
(a) This Escrow Agreement and any action in connection
herewith shall be construed by and governed in accordance with the laws of the
State of New York (without regard to its conflicts of laws rules).
(b) This Escrow Agreement shall be binding upon and shall
inure
4
to the benefit of the successors and assigns of the parties hereto.
(c) This Escrow Agreement may be executed in one or more
counterparts, but all such counterparts shall constitute one and the same
instrument.
(d) Section headings contained in this Escrow Agreement have
been inserted for reference purposes only and shall not be construed as part of
this Escrow Agreement.
(e) All capitalized terms used herein and not defined herein
shall have the meaning assigned to them in the Purchase Agreement.
(f) This Escrow Agreement constitutes the entire agreement and
understanding between the parties with respect to its subject matter and it may
and it may only be modified, amended, terminated, cancelled or rescinded
pursuant to a written agreement signed by all of the parties hereto (including
the Escrow Agent).
(g) All notices hereunder shall be sufficiently given for all
purposes hereunder if in writing and delivered personally or sent by registered
mail or certified mail, postage prepaid, to the appropriate address as set forth
below. Notices to the Seller shall be addressed to:
Xxxxxxxx Xxxxxxxxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
with a copy to:
Xxxxxx, Xxxxxx & Xxxxxx
EAB Plaza
Uniondale, New York 11556-0111
Attention: Xxxx Xxxxx Xxxxxxxx, Esq.
or at such other address and to the attention of such other person as the Seller
may designate by written notice to the Buyer.
Notices to the Buyer shall be addressed to:
News Communications, Inc.
174-15 Xxxxxx Xxxxxxx Expressway
Xxxxx Xxxxxxx, Xxx Xxxx 00000
Attention: President
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with a copy to:
Xxxxx Day Xxxxxx & Xxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxx, Esq.
or at such other address and to the attention of such other person as the Buyer
may designate by written notice to the Seller.
Notice to the Escrow Agent shall be addressed to:
Xxxxxx, Xxxxxx & Xxxxxx
XXX Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000-0000
Attention: Xxxx Xxxxx Xxxxxxxx, Esq.
or at such other address and to the attention of such other person as the Escrow
Agent may designate by written notice to the other parties. Except as provided
elsewhere herein to the contrary, any notice shall be deemed to have been served
or given as of the date such notice is personally delivered or five business
days after it is properly mailed hereunder.
(h) The parties hereto agree that all legal expenses incurred
by all parties in connection with a litigated dispute as to disbursement of the
Escrow Amount shall be borne by the party or parties against which the case is
decided.
IN WITNESS WHEREOF, the parties hereto have caused this Escrow
Agreement to be executed and delivered on the date first above written.
NEWS COMMUNICATIONS, NC.
----------------------------------
XXXXXX, XXXXXX & XXXXXX By: /s/ Xxxxxx X. Xxxx, Xx.
----------------------------------
Name: Xxxxxx X. Xxxx, Xx.
Title: Chief Executive Officer
-------------------------------------
Xxxxxxxx Xxxxxxxxxxxx
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