STOCK AND ASSET PURCHASE AGREEMENT by and between THE MCCLATCHY COMPANY and SOUND PUBLISHING HOLDINGS, INC. Dated June 7, 2006 TABLE OF CONTENTS

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EX-2.1 2 dex21.htm STOCK AND ASSET PURCHASE AGREEMENT - SOUND PUBLISHING HOLDINGS Stock and Asset Purchase Agreement - Sound Publishing Holdings

EXHIBIT 2.1

STOCK AND ASSET PURCHASE AGREEMENT

by

and

between

THE MCCLATCHY COMPANY

and

SOUND PUBLISHING HOLDINGS, INC.

Dated June 7, 2006

TABLE OF CONTENTS

 

          Page
ARTICLE 1 DEFINITIONS    2
1.1       

Certain Definitions

    2
1.2       

Other Definitions

    3
ARTICLE 2 SALE AND TRANSFER OF SHARES AND ACQUIRED ASSETS; CLOSING    5
2.1       

Purchase and Sale of Shares and Acquired Assets

    5
2.2       

Assumption of Liabilities

    5
2.3       

Consideration for the Shares and the Acquired Assets

    8
2.4       

Further Assurances

    10
2.5       

Nontransferable Business Contracts

    10
2.6       

Closing

    10
2.7       

Closing Obligations

    11
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF SELLER CONCERNING THE BUSINESS    12
3.1       

Qualification; Organization; Subsidiaries, etc

    12
3.2       

Capital Structure

    13
3.3       

Business Financial Statements

    14
3.4       

No Undisclosed Liabilities

    14
3.5       

Compliance with Law; Permits

    14
3.6       

Environmental Laws and Regulations

    15
3.7       

Employee Benefit Plans

    16
3.8       

Absence of Certain Changes or Events

    19
3.9       

Investigations; Litigation

    19
3.10     

Tax Matters

    19
3.11     

Labor Matters

    20
3.12     

Intellectual Property

    21
3.13     

Real Property

    21
3.14     

Material Contracts

    22
3.15     

Transactions with Affiliates

    22
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF SELLER CONCERNING ITSELF    22
4.1       

Organization

    22
4.2       

Corporate Authority Relative to this Agreement; No Violation

    23
4.3       

Investigations; Litigation

    24
4.4       

Finders or Brokers

    24
4.5       

Title

    25
4.6       

No Additional Representations

    25

 

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TABLE OF CONTENTS

(Continued)

 

          Page
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF BUYER    25
5.1       

Organization

    25
5.2       

Corporate Authority Relative to this Agreement; No Violation

    25
5.3       

Investigations; Litigation

    26
5.4       

Finders or Brokers

    26
5.5       

Investment Intent

    27
5.6       

Solvency

    27
5.7       

Available Funds

    27
ARTICLE 6 COVENANTS    27
6.1       

No Liability of Seller for Actions and Inaction of Knight Ridder

    27
6.2       

Conduct of Business by the Acquired Companies

    28
6.3       

Access to Information; Confidentiality

    32
6.4       

Mutual Best Efforts

    33
6.5       

Tax Matters

    35
6.6       

Public Announcements

    38
6.7       

Transaction Costs

    38
6.8       

Retention of and Access to Records

    38
6.9       

Notifications

    39
6.10     

Payments

    39
6.11     

Cooperation in Post-Closing Litigation

    39
6.12     

Consummation of Merger

    39
6.13     

Environmental Assessment

    39
6.14     

Non-Competition

    39
ARTICLE 7 EMPLOYMENT MATTERS    40
7.1       

Acquired Employees.

    40
7.2       

Welfare Plans.

    40
7.3       

Severance and Stay Bonus Liabilities

    41
7.4       

Collective Bargaining Agreements

    42
7.5       

Multiemployer Pension Plans

    42
7.6       

Pension Plans

    42
7.7       

Savings Plans

    42
7.8       

Post-Retirement Benefit Liabilities

    43
7.9       

Vacation

    43
7.10     

WARN Act

    43
7.11     

Cooperation

    43
7.12     

COBRA Coverage

    43
7.13     

General

    44

 

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TABLE OF CONTENTS

(Continued)

 

          Page
ARTICLE 8 CONDITIONS PRECEDENT TO OBLIGATIONS    44
8.1       

Conditions to Each Party’s Obligation

    44
8.2       

Conditions to Obligations of Buyer

    45
8.3       

Conditions to Obligations of Seller

    45
ARTICLE 9 TERMINATION    46
9.1       

Termination

    46
9.2       

Effect of Termination

    47
ARTICLE 10 INDEMNIFICATION; REMEDIES    47
10.1     

Survival

    47
10.2     

Indemnification By Buyer

    47
10.3     

Indemnification By Seller

    47
10.4     

Notice and Defense of Claims

    48
10.5     

Procedure for Indemnification — Third Party Claims

    48
10.6     

Procedure for Indemnification — Other Claims

    49
10.7     

Exclusive Remedy

    49
ARTICLE 11 GENERAL PROVISIONS    49
11.1     

Expenses

    49
11.2     

Notices

    49
11.3     

Certain Definitions

    50
11.4     

Interpretation

    51
11.5     

Counterparts

    52
11.6     

Entire Agreement; Third-Party Beneficiaries

    52
11.7     

Governing Law

    52
11.8     

Assignment

    52
11.9     

Nondisclosure

    52
11.10   

Amendments; Waiver

    52
11.11   

Enforcement

    52
11.12   

Severability

    53

 

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EXHIBITS

 

EXHIBIT A    Performance Guarantee
EXHIBIT B    Bill of Sale
EXHIBIT C    Assignment and Assumption Agreement
EXHIBIT D    Transition Services Agreement

SCHEDULES

 

SCHEDULE A    Acquired Companies
SCHEDULE B    Publications
SCHEDULE C    Acquired Assets
SCHEDULE D    Excluded Assets
SCHEDULE E    Current Assets
SCHEDULE F    Current Liabilities

 

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STOCK AND ASSET PURCHASE AGREEMENT

THIS STOCK AND ASSET PURCHASE AGREEMENT (“Agreement”) is made as of June 7, 2006, by and between SOUND PUBLISHING HOLDINGS, INC., a Washington corporation (“Buyer”), and THE MCCLATCHY COMPANY, a Delaware corporation (“Seller,” provided that following the Effective Time (as defined below), “Seller” shall mean the surviving corporation in the Merger (as defined below)).

RECITALS

WHEREAS, Seller intends to acquire all of the assets and liabilities of Knight-Ridder, Inc., a Florida corporation (“Knight Ridder”), through the merger of Knight Ridder with and into Seller (the “Merger”) pursuant to that certain Agreement and Plan of Merger (the “Merger Agreement”) dated as of March 12, 2006, between Seller and Knight Ridder.

WHEREAS, Knight Ridder and/or its Subsidiaries (as defined below) own all of the issued and outstanding shares of capital stock of each of the entities set forth on Schedule A hereto (the “Acquired Companies” and each an “Acquired Company”) and certain other assets listed on Schedule C hereto, which it and/or its Subsidiaries use to conduct the business of operating the newspapers and publications listed on Schedule B hereto and certain related websites listed on Schedule C hereto and are subject to certain liabilities relating to the business and operations of the Acquired Companies (collectively, the “Business”).

WHEREAS, following the Effective Time, Seller desires to sell, or cause its Subsidiaries to sell, to Buyer, and Buyer desires to purchase from the Seller Entities (as defined below) the issued and outstanding shares of capital stock of the Acquired Companies owned by the Seller Entities (the “Shares”), which will be issued as set forth in Section 2.1 hereof and the Acquired Assets (as defined below), and in connection therewith, Buyer has agreed to assume certain liabilities relating to the Business, all upon the terms and subject to the conditions set forth in this Agreement.

WHEREAS, concurrently with the execution of this Agreement, Black Press, Ltd., a British Columbia company and an affiliate of Buyer, has delivered a letter agreement to Seller, which is in the form attached hereto as Exhibit A (the “Performance Guarantee”), pursuant to which, and subject to the terms and conditions thereof, Black Press, Ltd. has guaranteed certain obligations of Buyer hereunder.

AGREEMENT

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows.

ARTICLE 1

DEFINITIONS

1.1 Certain Definitions. For purposes of this Agreement, the following terms have the meanings specified or referred to in this Section 1.1:

“Acquired Assets” – the assets set forth on Schedule C hereto.

“Ancillary Agreements” — the Bill of Sale, Assignment and Assumption Agreement, the Bank Commitment Letter, Transition Services Agreement, the Performance Guarantee and the instruments described in clauses (iv), (v), (vi) and (viii) of Section 2.7(a) and clause (ii) of Section 2.7(b).

“assets” — all properties, assets, rights (contractual or otherwise) and claims, whether personal, tangible or intangible.

“Closing Date” — the date and time as of which the Closing actually takes place.

“Effective Time” — as defined in the Merger Agreement.

“Excluded Assets” — the assets set forth on Schedule D hereto, whether such assets are assets of the Acquired Companies or the Seller Entities.

“Governmental Entity” — any Federal, state or local government or any court, administrative agency, bureau, commission, department or other authority of any domestic or foreign government or any arbitrator in any case that has jurisdiction over an applicable party or any of its properties or assets.

“IRC” — the Internal Revenue Code of 1986, as amended, or any successor law.

“IRS” — the United States Internal Revenue Service or any successor agency, and, to the extent relevant, the United States Department of the Treasury.

“Liability” — any direct or indirect debt, obligation or liability of any kind or nature, whether accrued or fixed, absolute or contingent, determined or determinable, matured or unmatured, and whether due or to become due, asserted or unasserted, or known or unknown.

“Merger Closing Date” — the Closing Date (as defined in the Merger Agreement).

“Prime Rate” — the interest at the rate publicly announced from time to time by Bank of America as its prime rate per annum.

“Proceeding” — any action, inquiry, proceeding, arbitration, audit, hearing, investigation, litigation, or suit (whether civil, criminal, administrative, investigative, or informal) commenced, brought, conducted, or heard by or before, or otherwise involving, any Governmental Entity.

 

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“Representative” — with respect to a particular person, any director, officer, employee, agent, consultant, or other representative of such person, including legal counsel, accountants, financial advisors and lenders.

“SEC” — the Securities and Exchange Commission.

“Seller Entities” — Knight Ridder and its Subsidiaries (other than the Acquired Companies) or, following the Effective Time, Seller and its Subsidiaries (other than the Acquired Companies).

1.2 Other Definitions. The following terms are defined in the sections indicated:

 

Term

  

Section

Acquired Companies   Recitals
Acquired Company   Recitals
Acquired Employees   7.1
affiliates   11.3(b)
Agreement   Preamble
Assignment and Assumption Agreement   2.7(a)(iii)
Assumed Contract   2.5
Assumed Liabilities   2.2(b)
Bank Commitment Letter   5.7
Benefit Plans   3.7(a)
Bill of Sale   2.7(a)(ii)
Business   Recitals
business day   11.3(e)
Business Employee   3.7(a)
Business Employees   3.7(a)
Business Financial Statements   3.3
Business Material Adverse Effect   3.1
Business Material Contracts   3.14(a)
Buyer   Preamble
Buyer Approvals   5.2(b)
Buyer Disclosure Schedules   Article 5
Buyer Indemnified Parties   10.3
Closing   2.6
Closing Working Capital   2.3(b)(ii)
Confidentiality Agreement   6.3(b)
Contract   2.5
control   11.3(b)
controlled by   11.3(b)
Controlled Group Liability   3.7(h)
End Date   9.1(c)
Environmental Law   3.6(c)
ERISA   3.7(a)

 

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Term

  

Section

Exchange Act

  

4.2(b)

Excluded Liabilities

  

2.2(c)

Forms

  

6.5(e)(ii)

GAAP

  

3.3

Hazardous Substance

  

3.6(d)

HSR Act

  

4.2(b)

Income Taxes

  

6.5(a)

Indemnified Party

  

10.4

Indemnifying Party

  

10.4

Independent Accountant

  

2.3(b)(iv)

Intellectual Property

  

3.12

Knight Ridder

  

Recitals

knowledge

  

11.3(d)

Law

  

3.5(a)

Laws

  

3.5(a)

Lien

  

4.2(c)

Losses

  

10.2

Merger

  

Recitals

Merger Agreement

  

Recitals

New Welfare Plans

  

7.2(a)

Notice of Disagreement

  

2.3(b)(iv)

Old Plans

  

7.2(a)

PBGC

  

3.7(g)(iii)

Performance Guarantee

  

Recitals

Permitted Lien

  

4.2(c)

person

  

11.3(c)

Phase I Environmental Assessment

  

6.13

Pre-Closing Income Tax Return

  

6.5(b)

Pre-Closing Tax Period

  

6.5(a)

Purchase Price

  

2.3(a)

Regulatory Law

  

6.4(d)

Section 338(h)(10) Election

  

6.5(e)(i)

Section 6.2 Contracts

  

6.2(b)(x)

Securities Act

  

4.2(b)

Seller

  

Preamble

Seller Approvals

  

4.2(b)

Seller Disclosure Schedules

  

Article 3

Seller Indemnified Parties

  

10.2

Seller Permits

  

3.5(b)

Seller Savings Plan

  

7.7

Shares

  

Recitals

Statement of Working Capital

  

2.3(b)(ii)

Straddle Period

  

6.5(a)

 

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Term

  

Section

Subsidiaries   11.3(a)
Tax Contest   6.5(c)
Taxes   3.10(b)
Tax Return   3.10(b)
Termination Date   6.2(a)
Transfer Taxes   6.7
Transition Services Agreement   2.7(a)(x)
under common control with   11.3(b)
Union Employee   7.1
Union Employees   7.1
Union Pension Plans   7.6
URS   6.13
WARN Act   3.11
Working Capital   2.3(b)(i)

ARTICLE 2

SALE AND TRANSFER OF SHARES AND ACQUIRED ASSETS; CLOSING

2.1 Purchase and Sale of Shares and Acquired Assets. Subject to the terms and conditions of this Agreement, at the Closing, Seller will sell and transfer (and/or will cause one or more other Seller Entities to sell and transfer) the Shares to Buyer, and Buyer will purchase such Shares from Seller and/or one or more other Seller Entities and Buyer will purchase from Seller and/or one or more other Seller Entities, and Seller shall sell, convey, transfer, assign and deliver (and/or will cause one or more other Seller Entities to sell, convey, transfer, assign and deliver) to Buyer all of its right, title and interest in and to the Acquired Assets. Notwithstanding anything herein to the contrary, Seller, Knight Ridder or any of their Subsidiaries (including the Acquired Companies) shall be permitted, prior to the Closing, to cause any or all of the Acquired Companies to transfer to Seller, any Seller Entity or any other party (and thereby to not directly or indirectly sell or transfer to Buyer) any Excluded Assets.

2.2 Assumption of Liabilities.

(a) Assumption. Upon the terms and subject to the conditions set forth herein, at the Closing and effective as of the Closing Date, Buyer shall assume from the Seller Entities (and therefore agree to pay, perform and discharge), and the Seller Entities shall irrevocably convey, transfer and assign to Buyer, all of the Assumed Liabilities.

(b) Definition of Assumed Liabilities. For all purposes of and under this Agreement, the term “Assumed Liabilities” shall mean, refer to and include all Liabilities of any of the Seller Entities or any of the Acquired Companies, to the extent arising out of or relating to the operation of the Business, including the Liabilities set forth below to the extent that such Liabilities arose out of or relate to the operation of the Business or the Acquired Assets, but specifically excluding the Excluded Liabilities:

(i) Liabilities of Seller and its Subsidiaries under all Contracts included in the Acquired Assets;

 

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(ii) Liabilities of Seller and its Subsidiaries under any Benefit Plans set forth in Section 2.2(b)(ii) of the Seller Disclosure Schedules;

(iii) Liabilities of Seller and its Subsidiaries reflected in the Business Financial Statements related to the Business and similar Liabilities incurred after the date of the Business Financial Statements in connection with the operation of the Business (including any Liabilities related to workers compensation for any Business Employees);

(iv) Liabilities for Taxes that are the responsibility of Buyer pursuant to Section 6.5 or 6.7 hereof;

(v) Liabilities of Seller and its Subsidiaries arising out of or in connection with any Proceedings to the extent related to the Business (including any Proceedings set forth on Section 3.11 of the Seller Disclosure Schedules and any Liabilities related to workers compensation for any Business Employees);

(vi) Liabilities of Seller and its Subsidiaries for any obligation to make severance payments to any Business Employee as set forth in any employment agreement or other Contract between Seller and any such Business Employee or in any collective bargaining agreement to the extent that such Liabilities are assumed by Buyer pursuant to Article 7 hereof;

(vii) Liabilities of Seller and its Subsidiaries for all accrued vacation and sick time of all Business Employees to the extent that such liabilities are assumed by Buyer pursuant to Article 7 hereof;

(viii) Liabilities of Seller and its Subsidiaries arising from discharges or releases of Hazardous Substances, violations of Environmental Laws or similar matters to the extent such Liabilities are related to the operations of the Business;

(ix) Liabilities under all employment agreements, other Contracts between Seller or its Subsidiaries and any Business Employee, and collective bargaining agreements relating to the Business, including all employee benefit plans or other arrangements required under any collective bargaining agreement or otherwise negotiated with the union that is a party thereto to the extent that such liabilities are assumed by Buyer pursuant to Article 7 hereof;

(x) Liabilities of Seller and its Subsidiaries, up to a maximum amount of $270,000 in the aggregate, for the claims incurred by Business Employees prior to the Closing Date under the Knight Ridder Group Medical Benefit Plan for Employees and Retirees (Blue and Green Option); and

 

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(xi) Liabilities of Seller under the second sentence of Section 5.9(a), Section 5.9(b), Section 5.9(d) of the Merger Agreement and to the extent related to the foregoing, Section 5.9(e), Section 5.9(f) and the last sentence of Section 5.9(a) of the Merger Agreement, in each case, to the extent such Liability relates to actions, omissions, events or circumstances related to the Business.

(c) Definition of Excluded Liabilities. Notwithstanding anything to the contrary set forth in this Section 2.2 or elsewhere in this Agreement, Buyer and the Acquired Companies shall not assume, and Seller agrees that Buyer and the Acquired Companies shall not be liable or otherwise responsible for, the following Liabilities, whether such Liabilities are Liabilities of the Acquired Companies or the Seller Entities (the Liabilities referred to in clauses (i) through (viii) of this Section 2.2(c), collectively, the “Excluded Liabilities”):

(i) Liabilities under any Benefit Plan which is assumed or retained by the Seller Entities, including such assumed or retained Benefit Plans set forth on Section 2.2(c)(i) of the Seller Disclosure Schedules; provided, however, that such Liabilities shall be limited to: (a) Liabilities under such Benefit Plans that are attributable to Seller employees, other than Business Employees; (b) Liabilities under such Benefit Plans that are attributable to Business Employees that have accrued prior to the Closing Date to the extent assumed pursuant to Article 7 of this Agreement; and (c) Liabilities under such Benefits Plans that are attributable to Business Employees that Seller has expressly agreed to retain pursuant to Article 7 of the Agreement;

(ii) Liabilities of the Acquired Companies or the Seller Entities in respect of transaction costs payable by Seller pursuant to Section 6.7 hereof;

(iii) Liabilities of the Acquired Companies or the Seller Entities for any amounts owed to any Seller Entity pursuant to an inter-company note or account payable;

(iv) Liabilities of Seller and its Subsidiaries with respect to indebtedness for borrowed money (including Liabilities as a guarantor with respect to indebtedness for borrowed money or liabilities for capitalized leases, but excluding capitalized leases primarily for the benefit of the Business);

(v) Liabilities of Seller to the stockholders of Seller or the former stockholders of Knight Ridder (or obligations to indemnify the current or former officers or directors of Knight Ridder in connection therewith) relating to the execution and performance of the Merger Agreement;

(vi) Liabilities of Seller owed to Buyer (or, pursuant to Article 10, any Buyer Indemnified Parties) as a result of any breach of this Agreement by Seller;

(vii) Liabilities for Taxes that are the responsibility of Seller pursuant to Section 6.5 hereof;

 

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(viii) Liabilities of Seller and its Subsidiaries, in excess of $270,000 in the aggregate, for the claims incurred by Business Employees prior to the Closing Date under the Knight Ridder Group Medical Benefit Plan for Employees and Retirees (Blue and Green Option); and

(ix) Liabilities of the Seller Entities not arising out of or relating to the operation of the Business.

2.3 Consideration for the Shares and the Acquired Assets.

(a) Subject to the adjustments in Section 2.3(b), the aggregate consideration (the “Purchase Price”) for the Shares and the Acquired Assets will be (i) $165,000,000 (One Hundred and Sixty Five Million Dollars) in cash and (ii) the assumption by Buyer of the Assumed Liabilities pursuant to Section 2.2 hereof.

(b) Working Capital Adjustment.

(i) For all purposes of and under this Agreement, the term “Working Capital” shall mean (x) the value of the current assets of the categories described on Schedule E hereto of the Acquired Companies and the Acquired Assets, minus (y) the value of the current liabilities of the categories described on Schedule F hereto of the Acquired Companies and included in the Assumed Liabilities.

(ii) As promptly as practicable, but in any event within sixty (60) calendar days following the Closing, Seller shall cause to be prepared and delivered to the Buyer a statement (the “Statement of Working Capital”) setting forth the Working Capital as of the Closing (the “Closing Working Capital”). The Statement of Working Capital will be prepared, to the extent practicable, in accordance with GAAP, except that (A) no cash or cash equivalents shall be included as current assets, (B) no transfer costs and expenses or Transfer Taxes incurred in connection with the transactions contemplated hereby that are the responsibility of a party hereto pursuant to Section 6.7 hereof will be included, (C) no Excluded Liabilities will be included, (D) no Excluded Assets will be included, (E) no deferred financing fees will be included, (F) no deferred Tax asset or deferred Tax liability (attributable to timing differences between book and tax accounting) will be included, (G) no Tax asset or Tax liability relating to Income Taxes will be included, (H) the amount, up to a maximum amount of $270,000, of the claims incurred by Acquired Employees prior to the Closing Date under the Knight Ridder Group Medical Benefit Plan for Employees and Retirees (Blue and Green Option) will be included as current liabilities and (I) any current liabilities related to health flexible spending and dependent care assistance accounts of the Business Employees shall be reflected net of any positive balances in the Business Employees’ health flexible spending and dependent care assistance accounts as of the Closing Date.

(iii) Subject to Section 2.3(b)(iv) hereof, within twenty (20) calendar days following delivery of the Statement of Working Capital pursuant to Section 2.3(b)(ii) hereof, (A) Seller shall pay to Buyer the amount, if any, that the Closing Working Capital reflected in the Statement of Working Capital is less than $6,500,000 (Six Million Five Hundred Thousand Dollars), or (B) Buyer shall pay to Seller the amount, if any, that the Closing Working Capital reflected in the

 

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Statement of Working Capital exceeds $6,500,000 (Six Million Five Hundred Thousand Dollars), in either case, plus interest calculated at the Prime Rate from the date of the Closing until the date of such payment. Any and all payments made pursuant to this Section 2.3(b)(iii) shall be made by wire transfer of immediately available funds to an account designated in writing by the party to receive such payment. Any payment made pursuant to this Section 2.3(b)(iii) shall be deemed to be an adjustment to the Purchase Price.

(iv) If Buyer disagrees in good faith with the Statement of Working Capital, then Buyer shall notify Seller in writing (the “Notice of Disagreement”) of such disagreement within thirty (30) calendar days following delivery of the Statement of Working Capital. If Seller has not received a Notice of Disagreement within such thirty (30) day period, Buyer shall be deemed to have accepted the Statement of Working Capital. Any Notice of Disagreement shall set forth in reasonable detail the adjustments Buyer proposes to make to the Statement of Working Capital and the basis therefor and shall be consistent with the provisions of Section 2.3(b)(ii). Thereafter, Seller and Buyer shall attempt in good faith to resolve and finally determine the amount of the Closing Working Capital. If Seller and Buyer are unable to resolve the disagreement within thirty (30) calendar days following delivery of the Notice of Disagreement, then Seller and Buyer shall select a mutually acceptable, nationally recognized independent accounting firm that does not then have a relationship with Seller or Buyer (the “Independent Accountant”), to resolve the disagreement and make a determination with respect thereto. If Seller and Buyer are unable, within ten (10) calendar days, to select a mutually acceptable Independent Accountant, then each of Seller and Buyer shall select a nationally recognized independent accounting firm that does not have a relationship with Seller or Buyer and these two firms will choose a nationally recognized independent accounting firm who will serve as the Independent Accountant. The determination of the Independent Accountant to resolve the disagreement between Seller and Buyer as to the Statement of Working Capital will be made, and written notice thereof given to Seller and Buyer, within thirty (30) calendar days after the selection of the Independent Accountant. The determination by the Independent Accountant shall be final, binding and conclusive upon Seller and Buyer. The scope of the Independent Accountant’s engagement (which will not be an audit) shall be limited to the resolution of the disputed items described in the Notice of Disagreement, and the recalculation, if any, of the Statement of Working Capital in light of such resolution. If an Independent Accountant is engaged pursuant to this Section 2.3(b)(iv), the fees and expenses of the Independent Accountant shall be borne equally by Seller and Buyer. Within ten (10) calendar days after delivery of a notice of determination by the Independent Accountant as described above, any payment required by Section 2.3(b)(iii) hereof shall be made, based on such determination.

(c) Allocation of Purchase Price to the Shares and Acquired Assets. As soon as practicable after the Closing Date and at least sixty (60) days prior to the due date for filing of Internal Revenue Service Form 8594 by either party, Seller shall provide Buyer with a draft of Internal Revenue Service Form 8594 allocating the consideration payable under Section 2.3(a). Buyer shall review such Form 8594 and provide any proposed revisions to Seller at least thirty (30) days prior to the due date of such Form 8594 for either party. Buyer and Seller agree to negotiate in good faith with respect to such proposed revisions and to attempt to resolve any differences between the parties. In the event the parties reach agreement as to the information to be reflected on such

 

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Form 8594, the Form 8594 shall be revised and timely filed by each party as required by Law. Each of Buyer and Seller shall report the allocation (and any adjustments thereto) for Tax purposes and file its Tax Returns (including Form 8594) in a manner consistent with any mutually-agreed allocations determined pursuant to this Section 2.3(c). In the event the parties do not reach agreement on the information to be reflected on the Form 8594, the allocation shall be determined by a qualified appraiser reasonably acceptable to Buyer and Seller, with the costs of such appraiser being borne equally between the parties. The allocations determined by such appraiser shall be final and binding on the parties and each party shall reflect in its final version of its Form 8594 the allocation so determined and shall timely file its final version of such Form 8594 in the manner required by Law.

2.4 Further Assurances. At and after the Closing, and without further consideration therefor, (a) Seller shall (and shall cause the other Seller Entities to) execute and deliver to Buyer such further instruments and certificates of conveyance and transfer as Buyer may reasonably request in order to more effectively convey and transfer the Shares and Acquired Assets to Buyer and to put Buyer in operational control of the Business, or for aiding, assisting, collecting and reducing to possession any of the Acquired Assets and exercising rights with respect thereto, and (b) Buyer shall execute and deliver to the Seller Entities such further instruments and certificates of assumption, novation and release as Seller may reasonably request in order to effectively make Buyer responsible for all Assumed Liabilities and release Seller therefrom to the fullest extent permitted under applicable Law.

2.5 Nontransferable Business Contracts. To the extent that transfer or assignment hereunder by Seller to Buyer of any agreement, contract, binding understanding, instrument or legally binding commitment or understanding (a “Contract”) included in the Acquired Assets (an “Assumed Contract”) is not permitted or is not permitted without the consent of another person, this Agreement shall not be deemed to constitute an undertaking to assign the same if such consent is not given or if such an undertaking otherwise would constitute a breach thereof or cause a loss of benefits thereunder. Seller shall use commercially reasonable efforts to obtain any and all such third party consents under all Assumed Contracts; provided, however, that Seller shall not be required to pay or incur any cost or expense to obtain any third party consent. If any such third party consent is not obtained before the Closing, Seller shall (and shall cause the other Seller Entities to), for a period of one (1) year after the Closing and at Buyer’s expense, use commercially reasonable efforts to: (a) obtain such consent, (b) cooperate with Buyer in any reasonable arrangement designed to provide Buyer the benefits of the applicable Assumed Contract and (c) enforce any rights of the Seller Entities under or with respect to the applicable Assumed Contract against all other persons (including termination thereof in accordance with the terms thereof upon the election of Buyer). In addition, if any such third party consent is not obtained before the Closing, Buyer shall perform the obligations of the applicable Seller Entity or Acquired Company under such Assumed Contract to the extent that such obligation would have been an Assumed Liability but for the fact that such consent has not been so obtained.

2.6 Closing. The purchase and sale (the “Closing”) provided for in this Agreement is subject to the consummation of the transactions contemplated under the Merger Agreement, and,

 

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except to the extent that Buyer and Seller agree on another time and place, will take place at the offices of Wilson Sonsini Goodrich & Rosati, Professional Corporation at 650 Page Mill Road, Palo Alto, CA 94304, at 10:00 a.m. (local time), as soon as practicable after the Effective Time, and in any event on a date that is no more than two business days following the satisfaction and fulfillment or, if permissible pursuant to the terms hereof, waiver of the conditions contained in Article 8.

2.7 Closing Obligations. At the Closing:

(a) Seller will deliver to Buyer duly executed copies of:

(i) certificates representing the Shares, duly endorsed (or accompanied by duly executed stock powers), for transfer to Buyer;

(ii) a Bill of Sale for the Acquired Assets substantially in the form attached hereto as Exhibit B (the “Bill of Sale”);

(iii) an Instrument of Assignment and Assumption substantially in the form attached hereto as Exhibit C (the “Assignment and Assumption Agreement”);

(iv) certificates pursuant to clauses (a) and (b) of Section 8.2;

(v) instruments of assignment to Buyer of all patents, patent applications, registered trademarks and trademark applications and registered copyrights and copyright applications included in the Acquired Assets and reasonably requested by Buyer;

(vi) instruments of assignment to Buyer of all rights of the Seller Entities to the domain names and website addresses included in the Acquired Assets and reasonably requested by Buyer;

(vii) a copy of the certificate of merger with respect to the Merger, duly certified by the Secretary of State of the State of Delaware;

(viii) a certificate of Seller that Seller and each other Seller Entity that is selling any of the Shares or the Acquired Assets is not a foreign person subject to withholding under Section 1445 of the IRC;

(ix) U.C.C. termination statements and releases of mortgages in recordable form with respect to any recorded Liens in the Acquired Assets (and to the extent required to consummate the transactions contemplated by the Bank Commitment Letter, any Liens on the assets of the Acquired Companies) described in Section 4.5;

(x) a Transition Services Agreement substantially in the form attached hereto as Exhibit D (the “Transition Services Agreement”); and

(xi) all other instruments or documents as Buyer may reasonably request to effect the assignment of the Shares and the Acquired Assets as contemplated hereby.

 

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(b) Buyer will deliver to Seller:

(i) the Purchase Price by wire transfer in immediately available funds to the accounts specified by Seller;

(ii) duly executed copies of the certificates pursuant to clauses (a) and (b) of Section 8.3;

(iii) a duly executed copy of the Bill of Sale;

(iv) a duly executed copy of the Assignment and Assumption Agreement;

(v) a duly executed copy of the Transition Services Agreement; and

(vi) duly executed copies of all other instruments and certificates of assumption, novation and release as Seller may reasonably request in order to effectively make Buyer responsible for all Assumed Liabilities and release the Seller Entities therefrom to the fullest extent permitted under applicable Law.

ARTICLE 3

REPRESENTATIONS AND WARRANTIES OF SELLER CONCERNING THE BUSINESS

Except as disclosed in Knight Ridder’s Annual Report on Form 10-K for the fiscal year ended December 25, 2005 (except for the portions of the Form 10-K identified therein as risk factors or forward looking statement safe harbors), in Knight-Ridder’s amendment on Form 10-K/A filed with the SEC on April 14, 2006, in Knight Ridder’s Quarterly Report on Form 10-Q for the fiscal quarter ended March 26, 2006 (except for the portions of the Form 10-Q identified therein as risk factors or forward looking statement safe harbors), or in the disclosure schedules delivered by Seller to Buyer immediately prior to the execution of this Agreement (it being agreed that any information set forth in one section of such disclosure schedules shall be deemed to apply to each other section thereof to which its relevance is reasonably apparent) (the “Seller Disclosure Schedules”), Seller represents and warrants to Buyer to its knowledge (it being understood and agreed that Seller, as of the date hereof, does not own and has never operated the Business) as follows:

3.1 Qualification; Organization; Subsidiaries, etc. Each of the Acquired Companies is a legal entity duly organized, validly existing and in good standing under the Laws of its respective jurisdiction of organization and has all requisite corporate or similar power and authority to own, lease and operate its properties and assets and to carry on its business as presently conducted and is qualified to do business and is in good standing as a foreign corporation in each jurisdiction where the ownership, leasing or operation of its assets or properties or conduct of its business requires such qualification, except where the failure to be so organized, validly existing, qualified or in good standing, or to have such power or authority, would not have, individually or in the aggregate, a Business Material Adverse Effect. As used in this Agreement, any reference to any facts,

 

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circumstances, events or changes having a “Business Material Adverse Effect” means such facts, circumstances, events or changes that are, or would reasonably be expected to become, materially adverse to the business, financial condition or continuing operations of the Business taken as a whole but shall not include facts, circumstances, events or changes (a) generally affecting the newspaper industry in the United States or the economy or the financial or securities markets in the United States or elsewhere in the world, including regulatory and political conditions or developments (including any outbreak or escalation of hostilities or acts of war or terrorism) or (b) resulting from (i) the announcement or the existence of, or compliance with, this Agreement or the Merger Agreement or the transactions contemplated hereby or thereby, including the effect of the announcement of, or the existence of the plan to make, the Proposed Divestitures (as defined in the Merger Agreement) (provided that the exception in this clause (b)(i) shall not apply to the representations and warranties contained in Section 4.2(c) to the extent that the execution of this Agreement or the consummation of the transactions contemplated hereby would result in any of the consequences set forth in clauses (i) or (ii) of such section), (ii) any litigation arising from allegations of a breach of fiduciary duty or other violation of applicable Law relating to the Merger Agreement or this Agreement or the transactions contemplated thereby or hereby or (iii) changes in applicable Law, GAAP or accounting standards. No Acquired Company is in violation of any of the provisions of its respective articles or certificate of incorporation and by-laws, except as would not have a Business Material Adverse Effect. All the outstanding shares of capital stock of, or other equity interests in the Acquired Companies have been validly issued and are fully paid and non-assessable, owned directly or indirectly by Knight Ridder (or following the Effective Time, Seller), free and clear of all Liens, other than Permitted Liens, including any restriction on the right to vote, sell or otherwise dispose of such capital stock or other ownership interests, except for restrictions imposed by applicable securities laws.

3.2 Capital Structure.

(a) All outstanding shares of capital stock of each Acquired Company are duly authorized, validly issued, fully paid and non-assessable and free of pre-emptive rights.

(b) There are no outstanding subscriptions, options, warrants, calls, convertible securities or other similar rights, agreements or commitments relating to the issuance of capital stock or other equity interests to which any Acquired Company is a party obligating any Acquired Company to (i) issue, transfer or sell any shares of capital stock or other equity interests of such Acquired Company or securities convertible into or exchangeable for such shares or equity interests, (ii) grant, extend or enter into any such subscription, option, warrant, call, convertible securities or other similar right, agreement, arrangement or commitment to repurchase, (iii) redeem or otherwise acquire any such shares of capital stock or other equity interests, or (iv) provide a material amount of funds to, or make any material investment (in the form of a loan, capital contribution or otherwise) in, any of its Subsidiaries. There are no outstanding or authorized stock appreciation, phantom stock, profit participation or other similar stock or other equity-based rights of any Acquired Company.

 

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(c) No Acquired Company has any outstanding bonds, debentures, notes or other obligations, the holders of which have the right to vote (or which are convertible into or exercisable for securities having the right to vote) with the shareholders of such Acquired Company on any matter.

(d) There are no voting trusts or other agreements or understandings to which any Acquired Company is a party with respect to the voting of the capital stock or other equity interest of such Acquired Company.

3.3 Business Financial Statements. Attached to Section 3.3 of the Seller Disclosure Schedules is a true, correct and complete copy of the unaudited statement of assets and liabilities of the Business as of December 25, 2005, and the related unaudited statements of revenues and expenses for the twelve (12) month period then ended (the “Business Financial Statements”). The Business Financial Statements are derived from the books and records of Knight Ridder and the audited consolidated financial statements of Knight Ridder (which were prepared in accordance with United States generally accepted accounting principles (“GAAP”)), and fairly present, in all material respects, the assets and the liabilities of the Business as of the dates thereof, and the results of operations of the Business for the periods then ended.

3.4 No Undisclosed Liabilities. Except (a) as reflected or reserved against in the consolidated balance sheet (or the notes thereto) of the Business as of December 25, 2005, included in the Business Financial Statements, (b) for liabilities permitted by or incurred pursuant to this Agreement or the Merger Agreement, (c) for liabilities and obligations incurred in the ordinary course of business since December 25, 2005, (d) for liabilities and obligations for pension Liabilities and insurance reserves, including in connection with workers compensation, and (e) for liabilities or obligations which have been discharged or paid in full in the ordinary course of business, as of the date hereof, none of the Seller Entities has any liabilities or obligations arising out of or relating to the operation of the Business, and none of the Acquired Companies has any liabilities or obligations, of any nature, in each case, whether or not accrued, contingent or otherwise, that would be required by GAAP to be reflected on a consolidated balance sheet of the Business (or in the notes thereto), other than those which would not have, individually or in the aggregate, a Business Material Adverse Effect.

3.5 Compliance with Law; Permits.

(a) Each Acquired Company, and, with respect to the Business, each Seller Entity is in compliance with and are not in default under or in violation of any applicable federal, state, local or foreign constitution, law, statute, ordinance, rule, regulation, judgment, order, injunction, decree or agency requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Entity (collectively, “Laws” and each, a “Law”), except where such non-compliance, default or violation would not have, individually or in the aggregate, a Business Material Adverse Effect.

(b) Each Acquired Company and with respect to the Business, each Seller Entity, is in possession of all franchises, grants, authorizations, licenses, permits, easements, variances,

 

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exceptions, consents, certificates, approvals and orders of any Governmental Entity necessary for each Seller Entity and each Acquired Company to own, lease and operate its properties and assets or to carry on the Business as it is now being conducted (the “Seller Permits”), except where the failure to have any of Seller Permits would not have, individually or in the aggregate, a Business Material Adverse Effect. All Seller Permits are in full force and effect, except where the failure to be in full force and effect would not have, individually or in the aggregate, a Business Material Adverse Effect.

3.6 Environmental Laws and Regulations.

(a) Except as would not, individually or in the aggregate, have a Business Material Adverse Effect, (i) the Seller Entities and the Acquired Companies have conducted the Business in compliance with all applicable Environmental Laws (as hereinafter defined), (ii) no Hazardous Substance (as hereinafter defined) is present in, on, under or about any of the properties currently owned or leased by any of the Acquired Companies or, in connection with the operation of the Business, the Seller Entities in amounts exceeding the levels permitted by applicable Environmental Laws and for which any Seller Entity or any Acquired Company would reasonably be expected to be liable, (iii) to the knowledge of Knight Ridder as of March 12, 2006, and the Merger Closing Date, no Hazardous Substance is present in, on, under or about any of the properties previously owned or leased by any of the Acquired Companies or, with respect to the Business, the Seller Entities, in amounts exceeding the levels permitted by applicable Environmental Laws and for which any Seller Entity or any Acquired Company would reasonably be expected to be liable, (iv) since December 25, 2005, as of March 12, 2006, neither Knight Ridder nor any of its Subsidiaries (including the Acquired Companies) has received any notices, demand letters or requests for information from any federal, state, local or foreign Governmental Entity indicating that Knight Ridder and its Subsidiaries may be in violation of, or liable under, any Environmental Law as it pertains to the operation of the Business, (v) to the knowledge of Knight Ridder as of March 12, 2006, and the Merger Closing Date, no Hazardous Substance has been disposed of, released or transported in violation of any applicable Environmental Law, or in a manner giving rise to any liability under Environmental Law, from any properties owned, leased or operated by any of the Acquired Companies or, with respect to the Business, the Seller Entities, as a result of any activity of any Seller Entity or any Acquired Company during the time such properties were owned, leased or operated by any Seller Entity or any Acquired Company and (vi) neither any Acquired Company or its properties nor any of the properties of the Seller Entities that are used in connection with the operation of the Business are subject to any liabilities relating to any suit, settlement, court order, administrative order, regulatory requirement, judgment or written claim asserted or arising under any Environmental Law. It is agreed and understood that no representation or warranty is made in respect of environmental matters in any Section of this Agreement other than this Section 3.6.

(b) Except as would not have a Business Material Adverse Effect, none of the Acquired Companies or, with respect to the Business, any of the Seller Entities, has entered into any agreement that would require it to guarantee, reimburse, pledge, defend, hold harmless or indemnify any other party with respect to liabilities arising out of Environmental Laws, other than environmental provisions of lease agreements, typical hazardous materials purchasing, handling, transportation and disposal contracts or arising out of financial assurance requirements under Environmental Laws.

 

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(c) As used herein, “Environmental Law” means any Law relating to (x) the protection, preservation or restoration of the environment (including air, water vapor, surface water, groundwater, drinking water supply, surface land, subsurface land, plant and animal life or any other natural resource), (y) worker safety or (z) the exposure to, or the use, storage, recycling, treatment, generation, transportation, processing, handling, labeling, production, release or disposal of Hazardous Substances, in each case as in effect at the date hereof.

(d) As used herein, “Hazardous Substance” means any substance presently listed, defined, designated or classified as hazardous, toxic, radioactive, or dangerous, or otherwise regulated, under any Environmental Law. Hazardous Substance includes any substance to which exposure is regulated by any Governmental Entity or any Environmental Law, including any toxic waste, pollutant, contaminant, hazardous substance, toxic substance, hazardous waste, special waste, industrial substance or petroleum or any derivative or byproduct thereof, radon, radioactive material, asbestos, or asbestos containing material, urea formaldehyde, foam insulation or polychlorinated biphenyls or toxic mold.

3.7 Employee Benefit Plans.

(a) Section 3.7(a) of the Seller Disclosure Schedules lists all material Benefit Plans. “Benefit Plans” means all compensation or employee benefit plans, programs, policies, agreements or other arrangements, whether or not “employee benefit plans” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA), providing cash or equity-based incentives, health, medical, dental, disability, accident or life insurance benefits, vacation, severance, retirement, pension or savings benefits, that are sponsored, maintained or contributed to by Knight Ridder or any of its affiliates for the benefit of current or former employees, directors or consultants of any Acquired Company (with respect to their relationship to the Business) or other officers, employees, or consultants of Knight Ridder or any of its affiliates who provide services primarily with respect to the Business and all employee agreements providing compensation, vacation, severance or other benefits to any current or former officer, employee or consultant of the Acquired Companies or other officers, employees, or consultants of Knight Ridder or any affiliates who provide services primarily with respect to the Business (each a “Business Employee” and collectively, the “Business Employees”).

(b) Other than as disclosed on Section 3.7(a) of the Seller Disclosure Schedules, neither any Seller Entity nor any Acquired Company has any commitment to establish any new Benefit Plan (except to the extent required by Law or to conform any such Benefit Plan to the requirements of any applicable Law, or as required by this Agreement) or to modify any Benefit Plan for the benefit of the Business Employees.

(c) Seller has made available to Parent correct and complete copies of:

(i) each Benefit Plan;

 

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(ii) the most recent annual actuarial valuations, if any, prepared for each Benefit Plan;

(iii) the most recent annual report (Form Series 5500) and all schedules and financial statements attached thereto), if any, required under ERISA or the Code in connection with each Benefit Plan;

(iv) if the Benefit Plan is funded, the most recent annual and periodic accounting of Benefit Plan assets;

(v) the most recent summary plan description together with the summary(ies) of material modifications thereto, if any, required under ERISA with respect to each Benefit Plan;

(vi) all communications material provided to any Business Employees relating to any Benefit Plan and any proposed Benefit Plans, in each case, relating to any amendments, terminations, establishments, increases or decreases in benefits, acceleration of payments or vesting schedules or other events which would result in any additional material liability to any Seller Entity or any Acquired Company that does not otherwise arise from existing rights under the terms of the Benefit Plans or existing award agreements thereunder; and

(vii) any IRS determination letters relating to each Benefit Plan.

(d) Each material Benefit Plan has been maintained and administered in compliance with its terms and with applicable Law, including ERISA and the Code to the extent applicable thereto, except for such non-compliance which would not have, individually or in the aggregate, a Business Material Adverse Effect.

(e) Any Benefit Plan intended to be qualified under Section 401(a) of the Code and each trust intended to qualify under Section 501(a) of the Code:

(i) has either applied for, prior to the expiration of the requisite period under applicable Treasury Regulations or IRS pronouncements, or obtained a favorable determination, notification, advisory and/or opinion letter, as applicable, as to its qualified status from the IRS or still has a remaining period of time under applicable Treasury Regulations or IRS pronouncements in which to apply for such letter and to make any amendments necessary to obtain a favorable determination;

(ii) incorporates or has been amended to incorporate all provisions required to comply with the Tax Reform Act of 1986 and subsequent legislation; and

(iii) has had no event, condition or circumstance that has adversely affected or is likely to adversely affect such qualified status.

 

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(f) No Benefit Plan provides, or reflects or represents any liability to provide post-termination or retiree welfare benefits to any person for any reason, except as may be required by COBRA or other applicable statute, and neither any Seller Entity nor any Acquired Company has made a binding commitment to provide to any Business Employee (either individually or to Business Employees as a group) with post-termination or retiree welfare benefits, except to the extent required by COBRA or other applicable statute.

(g) With respect to each material Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, except as would not have, individually or in the aggregate, a Business Material Adverse Effect, as of the date hereof:

(i) there does not exist any accumulated funding deficiency within the meaning of Section 412 of the Code or Section 302 of ERISA,

(ii) no reportable event within the meaning of Section 4043(c) of ERISA for which the 30-day notice requirement has not been waived has occurred,

(iii) all premiums to the Pension Benefit Guaranty Corporation (the “PBGC”) have been timely paid in full,

(iv) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Seller or any Acquired Company, and

(v) the PBGC has not instituted proceedings to terminate any such Benefit Plan.

(h) To the knowledge of Knight Ridder, as of March 12, 2006, there does not exist any Controlled Group Liability that would be a liability of Seller or any of its Subsidiaries following the Closing. “Controlled Group Liability” means liabilities (i) under Title IV of ERISA, (ii) under Section 302 of ERISA, (iii) under Sections 412 and 4971 of the Code or (iii) as a result of a failure to comply with the continuation coverage requirements of Section 601 et seq. of ERISA and Section 4980B of the Code, other than such liabilities that arise solely out of, or relate solely to, the Benefit Plans.

(i) The consummation of the transactions contemplated by this Agreement will not, either alone or in combination with another event:

(i) entitle any Business Employee to severance pay, unemployment compensation or any other payment, except as expressly provided in this Agreement or as required by applicable Law or pursuant to a collective bargaining agreement set forth in Section 3.11 of the Seller Disclosure Schedules, or

(ii) accelerate the time of payment or vesting, or increase the amount of compensation due any such Business Employee, except as expressly provided in this Agreement or pursuant to a collective bargaining agreement set forth in Section 3.11 of the Seller Disclosure Schedules.

 

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3.8 Absence of Certain Changes or Events.

(a) From December 25, 2005, through the date of this Agreement, except as otherwise contemplated, required or permitted by this Agreement or the Merger Agreement, the Business has been conducted, in all material respects, in the ordinary course of business consistent with past practice and there has not been (i) any event, development or state of circumstances that has had, individually or in the aggregate, a Business Material Adverse Effect, (ii) any distribution or dividend made by any Acquired Company, (iii) any material repurchase of equity securities by any Acquired Company, (iv) any split, combination or reclassification of any of the Acquired Companies’ capital stock, (v) any material change in accounting methods, principles or practices of any Acquired Company or, with respect to the Business, any Seller Entity, (vi) any material acquisition by any Acquired Company or, with respect to the Business, any Seller Entity, of, or agreement by any Acquired Company or, with respect to the Business, any Seller Entity, to acquire, any business or corporation, partnership, association or other business organization or division thereof or (vii) any sale, lease, license or other disposition of any material properties or assets of any Acquired Company or any material properties or assets included in the Acquired Assets, except the sale, lease, license or disposition of property or assets in the ordinary course of business consistent with past practice.

(b) Since the date of this Agreement, there has not been any event, development or state of circumstances that has had, individually or in the aggregate, a Business Material Adverse Effect.

3.9 Investigations; Litigation. As of the date hereof, (a) there is no investigation or review pending (or, to the knowledge of Knight Ridder as of March 12, 2006, threatened) by any Governmental Entity with respect to the Business and (b) there are no actions, suits, inquiries, claims, investigations or proceedings pending (or, to the knowledge of Knight Ridder as of March 12, 2006, threatened) against or affecting the Business, or any of the properties related to the Business at law or in equity before, and there are no orders, judgments or decrees of, or before, any Governmental Entity or arbitrator, in each case of clause (a) or (b), which would have, individually or in the aggregate, a Business Material Adverse Effect.

3.10 Tax Matters.

(a) Except as would not have, individually or in the aggregate, a Business Material Adverse Effect, (i) each Seller Entity and each Acquired Company have prepared and timely filed (taking into account any extension of time within which to file) all Tax Returns with respect to the Business required to be filed by any of them and all such filed Tax Returns are true, correct and complete, (ii) each Seller Entity and each Acquired Company have paid all Taxes that are required to be paid by any of them with respect to the Business, except with respect to matters contested in good faith or for which adequate reserves have been established in accordance with GAAP, (iii) the U.S. consolidated federal income Tax Returns of the Seller Entities and the Acquired

 

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Companies, as applicable to the Business, have been examined by the Internal Revenue Service (or the period for assessment of the Taxes in respect of which such Tax Returns were required to be filed has expired) for all periods ending on or before December 30, 2001, (iv) there are not pending or threatened in writing, any audits, examinations, investigations or other proceedings in respect of U.S. federal or state Taxes with respect to the Business, (v) there are no Liens for Taxes on any of the Acquired Assets or any of the assets of the Acquired Companies other than Permitted Liens, (vi) neither any Seller Entity nor any Acquired Company has been a “controlled corporation” or a “distributing corporation” in any distribution occurring during the two-year period ending on the date hereof that was purported or intended to be governed by Section 355 of the Code (or any similar provision of state, local or foreign Law) and (vii) neither any Seller Entity nor any Acquired Company has engaged in a “reportable transaction,” within the meaning of Treas. Reg. Section 1.6011-4(b), or any transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a tax avoidance transaction and identified by notice, regulation or other form of published guidance as a “listed transaction,” as set forth in Treas. Reg. Section 1.6011-4(b)(2).

(b) As used in this Agreement, (i) “Taxes” means any and all domestic or foreign, federal, state, local or other taxes of any kind (together with any and all interest, penalties, additions to tax and additional amounts imposed with respect thereto) imposed by any Governmental Entity, including taxes on or with respect to income, franchises, windfall or other profits, gross receipts, property, sales, use, capital stock, payroll, employment, unemployment, social security, workers’ compensation or net worth, taxes in the nature of excise, withholding, ad valorem or value added, and any obligations with respect to such amounts arising as a result of being a member of an affiliated, consolidated, combined or unitary group for any period or under any agreements or arrangements with any other person and including any liability for taxes of a predecessor entity, and (ii) “Tax Return” means any return, report or similar filing (including the attached schedules) required to be filed with respect to Taxes, including any information return, claim for refund, amended return or declaration of estimated Taxes.

3.11 Labor Matters. Except for such matters which would not have, individually or in the aggregate, a Business Material Adverse Effect, (a) as of the date hereof, (i) there are no strikes or lockouts with respect to any Business Employees and, (ii) to the knowledge of Knight Ridder as of March 12, 2006, there is no union organizing effort pending or threatened against the Business, (iii) there is no unfair labor practice, labor dispute (other than routine individual grievances) or labor arbitration proceeding pending or, to the knowledge of Knight Ridder as of March 12, 2006, threatened against the Business, and (iv) there is no slowdown, or work stoppage in effect or, to the knowledge of Knight Ridder as of March 12, 2006, threatened with respect to Business Employees and (b) the Acquired Companies and, with respect to the Business, the Seller Entities, are in compliance with all applicable Laws respecting (i) employment and employment practices, (ii) terms and conditions of employment and wages and hours and (iii) unfair labor practices. Neither any Seller Entity with respect to the Business nor any Acquired Company has any liabilities under the Worker Adjustment and Retraining Act of 1998 (the “WARN Act”) as a result of any action taken by Seller or Knight Ridder (other than at the written direction of Buyer or as a result of any of the transactions contemplated by the Merger Agreement or hereby) that would have, individually or in the aggregate, a Business Material Adverse Effect.

 

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3.12 Intellectual Property. Except as would not have, individually or in the aggregate, a Business Material Adverse Effect, either one or more of the Seller Entities or an Acquired Company owns, or is licensed or otherwise possesses legally enforceable rights to use, all material trademarks, trade names, service marks, service names, mark registrations, logos, assumed names, registered and unregistered copyrights, including copyright to all material morgue and picture files of the Business, domain names, website content, circulation and advertiser lists, patents or applications and registrations used in the Business as currently conducted (collectively, the “Intellectual Property”). Except as would not have, individually or in the aggregate, a Business Material Adverse Effect, (a) as of the date hereof, there are no pending or, to the knowledge of Knight Ridder as of March 12, 2006, threatened claims by any person alleging infringement of any material intellectual property rights of any person by the Acquired Companies or by the Seller Entities for their use of the Intellectual Property used in the Business, (b) to the knowledge of Knight Ridder as of March 12, 2006, the conduct of the Business does not infringe any intellectual property rights of any person, (c) as of the date hereof, neither Knight Ridder nor any Acquired Company has made any claim of a violation or infringement by others of its rights to or in connection with the Intellectual Property of the Acquired Companies or included in the Acquired Assets, and (d) to the knowledge of Knight Ridder as of March 12, 2006, no person is infringing any Intellectual Property of the Acquired Companies or included in the Acquired Assets.

3.13 Real Property. Section 3.13 of the Seller Disclosure Schedules sets forth a list of material real property currently owned or leased by one or more of the Seller Entities or the Acquired Companies and used in the operation of the Business. Except as would not have, individually or in the aggregate, a Business Material Adverse Effect, a Seller Entity or an Acquired Company owns and has valid title to all of its owned real property and has valid leasehold interests in all of its leased properties used in the operation of the Business, except for properties and assets that have been disposed of in the ordinary course of business since December 25, 2005, free and clear of all Liens (except for Permitted Liens and all other title exceptions, defects, encumbrances and other matters, whether or not of record, which do not materially and adversely affect the continued use of the property for the purposes for which the property is currently being used by one or more of the Seller Entities or the Acquired Companies in the Business as of the date hereof, excluding therefrom mortgages, deeds of trust, judgment liens, Tax liens for delinquent taxes and other monetary liens). Except as would not have, individually or in the aggregate, a Business Material Adverse Effect, each material lease agreement related to the operation of the Business to which any Seller Entity or any Acquired Company is a party is valid and enforceable and neither any Seller Entity nor any Acquired Company is in default under any such agreement, and no circumstances exist which, with notice, the passage of time or both, would reasonably be expected to constitute a default of any Seller Entity or any Acquired Company under any such agreement.

 

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3.14 Material Contracts.

(a) Except for this Agreement or as filed as exhibits to the forms, documents and reports required to be filed or furnished by Knight Ridder with the SEC since December 28, 2003, and prior to the date hereof, as of the date hereof, no Acquired Company nor, with respect to the Business, any Seller Entity is a party to or bound by any (i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii) any contract containing any covenant materially limiting the right of the Acquired Companies or, with respect to the Business, the Seller Entities, to engage in the Business, (iii) any mortgages, indentures, financial guarantees, loans or credit agreements, security agreements or other contracts relating to the borrowing of money or extension of credit, other than accounts receivable and payable in the ordinary course of business or (iv) any material settlement agreement with material continuing obligations of, or material restrictions on, the Acquired Companies or, with respect to the Business, the Seller Entities (all contracts of the type described in this Section 3.14(a) being referred to herein as “Business Material Contracts”).

(b) No Acquired Company or, with respect to the Business, any Seller Entity is in breach of or default under the terms of any Business Material Contract where such breach or default would have, individually or in the aggregate, a Business Material Adverse Effect. To the knowledge of Knight Ridder as of March 12, 2006, and the Merger Closing Date, no other party to any Business Material Contract is in breach of or default under the terms of any Business Material Contract where such breach or default would have, individually or in the aggregate, a Business Material Adverse Effect. Each Business Material Contract is a valid and binding obligation of a Seller Entity or an Acquired Company and, to the knowledge of Knight Ridder as of March 12, 2006, and the Merger Closing Date, of each other party thereto, and is in full force and effect, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.

3.15 Transactions with Affiliates. Except as set forth in Knight Ridder’s report on Form 10-K/A filed with the SEC on April 14, 2006, or Knight Ridder’s last proxy statement filed with the SEC filed prior to March 12, 2006, since the date of Knight Ridder’s last proxy statement filed with the SEC filed prior to March 12, 2006, no event had occurred as of March 12, 2006, that would be required to be reported by Knight Ridder pursuant to Item 404 of Regulation S-K promulgated by the SEC with regard to the Acquired Companies or the Business.

ARTICLE 4

REPRESENTATIONS AND WARRANTIES OF SELLER CONCERNING ITSELF

Except as disclosed in the Seller Disclosure Schedules, Seller represents and warrants to Buyer as follows:

4.1 Organization. Seller is a legal entity duly organized, validly existing and in good standing under the Laws of its jurisdiction of organization.

 

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4.2 Corporate Authority Relative to this Agreement; No Violation.

(a) Seller has all requisite corporate power and authority to enter into this Agreement and the Ancillary Agreements to be executed and delivered by Seller and to consummate the transactions contemplated hereby and thereby. At the Closing, each applicable Seller Entity will have all requisite corporate power and authority to enter into the Ancillary Agreements to be executed and delivered by such Seller Entity and to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement and the Ancillary Agreements to be executed and delivered by Seller and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by the Board of Directors of Seller, and no other corporate proceedings on the part of Seller are necessary to authorize the consummation of the transactions contemplated hereby and thereby. At the Closing, the execution and delivery of the Ancillary Agreements to be executed and delivered by each applicable Seller Entity and the consummation of the transactions contemplated hereby and thereby will have been duly and validly authorized by the Board of Directors, and if necessary, the stockholders of each applicable Seller Entity, and no other corporate proceedings on the part of such Seller Entity will be necessary to authorize the consummation of the transactions contemplated hereby and thereby. This Agreement has been duly and validly executed and delivered by Seller, and the Ancillary Agreements to be executed and delivered by each applicable Seller Entity will, as of the Closing, have been, duly and validly executed and delivered by each such Seller Entity and, assuming this Agreement constitutes the valid and binding agreement of Buyer and each of the Ancillary Agreements constitutes the valid and binding agreement of the other parties thereto, this Agreement constitutes, and as of the Closing, the Ancillary Agreements to be executed and delivered by each applicable Seller Entity will constitute, the valid and binding agreement of Seller and such Seller Entity, enforceable against Seller and such Seller Entity in accordance with its terms.

(b) Other than in connection with or in compliance with (i) the Delaware General Corporation Law, (ii) the Securities Act of 1933 (the “Securities Act”), (iii) the Securities Exchange Act of 1934 (the “Exchange Act”) and (iv) the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the “HSR Act”) and other federal and state competition Laws (collectively, the “Seller Approvals”), no authorization, consent or approval of, or filing with, any Governmental Entity is necessary, under applicable Law, for the consummation by the Seller Entities of the transactions contemplated by this Agreement and the Ancillary Agreements to which any Seller Entity is a party, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not have, individually or in the aggregate, a Business Material Adverse Effect or materially impair or delay the consummation of the transactions contemplated hereby.

(c) The execution and delivery by Seller of this Agreement and the execution and delivery by each applicable Seller Entity of the Ancillary Agreements to be executed and delivered by such Seller Entity does not, and, except as described in Section 4.2(b), the consummation of the transactions contemplated hereby and thereby and compliance with the provisions hereof and thereof

 

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will not (i) result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any material obligation or to the loss of a material benefit under any loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon (x) Seller and its Subsidiaries which Seller (prior to the Effective Time) or its Subsidiaries (prior to the Effective Time) were a party to prior to the Effective Time or (y) to the knowledge of Seller, any Acquired Company or, with respect to the Business, any Seller Entity or included in the Acquired Assets or, to the knowledge of Seller, result in the creation of any liens, claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (each, a “Lien”), other than any such Lien (A) for Taxes or governmental assessments, charges or claims of payment not yet due, being contested in good faith or for which adequate accruals or reserves have been established, (B) which is a carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other similar lien arising in the ordinary course of business, (C) which is disclosed on the most recent balance sheet of Knight Ridder or notes thereto or securing liabilities reflected on such balance sheet or (D) which was incurred in the ordinary course of business since the date of the most recent consolidated balance sheet of Knight Ridder and is immaterial in amount (each of the foregoing, a “Permitted Lien”), upon any of the properties or assets of any Acquired Company or included in the Acquired Assets, (ii) conflict with or result in any violation of any provision of the articles of incorporation or by-laws or other equivalent organizational document, in each case as amended, of Seller or any of its Subsidiaries, (iii) conflict with or violate any applicable Laws, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, termination, cancellation, acceleration, right, loss or Lien that would not have, individually or in the aggregate, a Business Material Adverse Effect and would not materially impair or delay the consummation of the transactions contemplated hereby.

4.3 Investigations; Litigation. As of the date hereof, (a) there is no investigation or review pending (or, to the knowledge of Seller, threatened) by any Governmental Entity with respect to Seller or any of Seller’s Subsidiaries, and (b) there are no actions, suits, inquiries, claims, investigations or proceedings pending (or, to the knowledge of Seller, threatened) against or affecting Seller or any of Seller’s Subsidiaries, or any of their respective properties at law or in equity before, and there are no orders, judgments or decrees of, or before, any Governmental Entity or arbitrator, in each case of clause (a) or (b), which would result in a Business Material Adverse Effect or materially impair or delay the consummation of the transactions contemplated hereby.

4.4 Finders or Brokers. Except for Credit Suisse First Boston LLC whose fees will be the sole responsibility of Seller, neither Seller nor any of its Subsidiaries has employed any investment banker, broker or finder in connection with the transactions contemplated by this Agreement who might be entitled to any fee or any commission in connection with or upon consummation of the transactions contemplated hereby.

 

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4.5 Title. At the Closing, 100% of the issued and outstanding Shares (except as provided in Schedule A) will be conveyed by the Seller Entities to Buyer, free and clear of all Liens (other than Liens securing Assumed Liabilities and restrictions imposed by applicable securities laws). At the Closing, the Acquired Assets conveyed by the Seller Entities to Buyer at the Closing pursuant to this Agreement will be free and clear of all Liens imposed by the Seller Entities following the Effective Time securing Excluded Liabilities.

4.6 No Additional Representations. Other than the representations and warranties expressly set forth in Article 3 and this Article 4, Seller shall not be deemed to have made any other representation or warranty in connection with this Agreement or the transactions contemplated hereby.

ARTICLE 5

REPRESENTATIONS AND WARRANTIES OF BUYER

Buyer represents and warrants to Seller that except as disclosed in the Disclosure Schedules delivered to Seller by Buyer at the time of execution of this Agreement (the “Buyer Disclosure Schedules”):

5.1 Organization. Buyer is a legal entity duly organized, validly existing and in good standing under the Laws of its jurisdiction of organization.

5.2 Corporate Authority Relative to this Agreement; No Violation.

(a) Buyer has all requisite corporate power and authority to enter into this Agreement and the Ancillary Agreements to be executed and delivered by Buyer and to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement and the Ancillary Agreements to be executed and delivered by Buyer and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by the Board of Directors of Buyer, and no other corporate proceedings on the part of Buyer are necessary to authorize the consummation of the transactions contemplated hereby and thereby. This Agreement has been, and the Ancillary Agreements to be executed and delivered by Buyer will, as of the Closing, have been, duly and validly executed and delivered by Buyer and, assuming this Agreement constitutes, and as of the Closing the Ancillary Agreements to be executed and delivered by the applicable Seller Entities will constitute the valid and binding agreement of such Seller Entities, this Agreement constitutes, and as of the Closing, the Ancillary Agreements to be executed and delivered by Buyer will constitute, the valid and binding agreement of Buyer, enforceable against Buyer in accordance with its terms.

(b) Other than in connection with or in compliance with (i) the Washington General Corporation Law, (ii) the Securities Act, (iii) the Exchange Act and (iv) the HSR Act and other federal and state competition Laws (collectively, the “Buyer Approvals”), no authorization, consent or approval of, or filing with, any Governmental Entity is necessary, under applicable Law,

 

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for the consummation by Buyer of the transactions contemplated by this Agreement and the Ancillary Agreements, except for such authorizations, consents, approvals or filings, that, if not obtained or made, would not materially impair or delay the consummation of the transactions contemplated hereby.

(c) The execution and delivery by Buyer of this Agreement and the Ancillary Agreements to be executed and delivered by Buyer does not, and, except as described in Section 5.2(b), the consummation of the transactions contemplated hereby and thereby and compliance with the provisions hereof and thereof will not (i) result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any material obligation or to the loss of a material benefit under any loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon Buyer or any of its Subsidiaries or result in the creation of any Lien, other than any such Lien (A) for Taxes or governmental assessments, charges or claims of payment not yet due, being contested in good faith or for which adequate accruals or reserves has been established, (B) which is a carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other similar lien arising in the ordinary course of business, (C) which is disclosed on the most recent consolidated balance sheet of Buyer or notes thereto or securing liabilities reflected on such balance sheet or (D) which was incurred in the ordinary course of business since the date of the most recent consolidated balance sheet of Buyer and is immaterial in amount, upon any of the properties or assets of Buyer or any of its Subsidiaries, (ii) conflict with or result in any violation of any provision of the articles of incorporation or by-laws or other equivalent organizational document, in each case as amended, of Buyer or any of its Subsidiaries or (iii) conflict with or violate any applicable Laws, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, termination, cancellation, acceleration, loss or Lien that would not materially impair or delay the consummation of the transactions contemplated hereby.

5.3 Investigations; Litigation. As of the date hereof, (a) there is no investigation or review pending (or, to the knowledge of Buyer, threatened) by any Governmental Entity with respect to Buyer or any of Buyer’s Subsidiaries, and (b) there are no actions, suits, inquiries, claims, investigations or proceedings pending (or, to the knowledge of Buyer, threatened) against or affecting Buyer or any of Buyer’s Subsidiaries, or any of their respective properties at law or in equity before, and there are no orders, judgments or decrees of, or before, any Governmental Entity or arbitrator, in each case of clause (a) or (b), which would materially impair or delay the consummation of the transactions contemplated hereby.

5.4 Finders or Brokers. Neither Buyer nor any of its Subsidiaries has employed any investment banker, broker or finder in connection with the transactions contemplated by this Agreement who might be entitled to any fee or any commission in connection with or upon consummation of the transactions contemplated hereby.

 

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5.5 Investment Intent. Buyer is acquiring the Shares and the Acquired Assets not with a view to their distribution within the meaning of Section 2(11) of the Securities Act. Buyer is an “accredited investor” as defined in Section 501(a) of the Securities Act.

5.6 Solvency. Immediately after giving effect to the transactions contemplated by this Agreement (including any financing in connection with the transactions contemplated hereby) and excluding the effect of any inaccuracy of the representations and warranties contained in Article 3, (a) none of Buyer or any of its Subsidiaries, taken as a whole, will have incurred debts beyond its ability to pay such debts as they mature or become due and the then present fair salable value of the assets of Buyer and each of its Subsidiaries, taken as a whole, will exceed the amount that will be required to pay its respective probable liabilities (including the probable amount of all contingent liabilities) and its respective debts as they become absolute and matured, (b) the assets of Buyer and each of its Subsidiaries, taken as a whole, at a fair valuation, will exceed its respective debts (including the probable amount of all contingent liabilities) and (c) none of Buyer or any of its Subsidiaries, taken as a whole, will have unreasonably small capital to carry on its business as presently conducted or as proposed to be conducted. No transfer of property is being made and no obligation is being incurred in connection with the transactions contemplated hereby with the intent to hinder, delay or defraud creditors of any Seller Entity or Acquired Company.

5.7 Available Funds. Buyer will have available at the Closing all funds necessary for the payment of the Purchase Price. Buyer has delivered to Seller complete and correct copies of a fully executed commitment letter (the “Bank Commitment Letter”), from the Toronto Dominion Bank and Bank of America, pursuant to which such financial institution has committed, upon the terms and subject to the conditions set forth therein, to arrange credit facilities in the amount of up to $165 million in connection with the transactions contemplated by this Agreement. The Bank Commitment Letter is in the form delivered to Seller, is in full force and effect and is a legal, valid and binding obligation of Buyer and, to the knowledge of Buyer, the other parties thereto. All commitment fees required to be paid thereunder have been, or will be once due, paid in full. There is no existing default or breach on the part of Buyer or any event which, with or without notice, lapse of time or both would constitute a default or breach on the part of Buyer under the Bank Commitment Letter. The obligation of the financing sources to fund the commitments under the Bank Commitment Letter is not subject to any conditions other than as set forth in the Bank Commitment Letter.

ARTICLE 6

COVENANTS

6.1 No Liability of Seller for Actions and Inaction of Knight Ridder. Without limitation of its rights under Article 8 and Article 9, Buyer acknowledges and agrees that Seller does not currently operate or control Knight Ridder or any Subsidiary thereof, any Acquired Company or the Business and has only the limited contractual rights with regard to the conduct of Knight Ridder as are set forth in the Merger Agreement. Buyer and its representatives have had an opportunity, prior to the execution of this Agreement by Buyer, to review the terms of the Merger Agreement, and

 

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Buyer understands that the limited contractual rights granted by Knight Ridder under the Merger Agreement: (a) address the conduct of the business of Knight Ridder and its Subsidiaries as a whole and not the Business or the Acquired Companies separately, (b) are subject to materiality (or “material adverse effect”) thresholds related to the business of Knight Ridder and its Subsidiaries as a whole which are inherently higher thresholds of materiality than materiality (or “material adverse effect”) with respect to the Business or the Acquired Companies, (c) are solely contractual in nature and (d) may be subject to dispute or differing interpretations as to their meaning or import. For these and other reasons, Buyer understands and agrees, without limitation of its rights under Article 8 and Article 9, that, prior to the Effective Time, although Seller has agreed herein to exercise its contractual rights under the Merger Agreement so as to use commercially reasonable efforts to require that Knight Ridder or its Subsidiaries take or refrain from taking certain actions, Seller does not possess sufficient rights to cause Knight Ridder or its Subsidiaries (including the Acquired Companies) to act or refrain from acting as may be contemplated by this Agreement and, in fact, is ultimately unable to cause Knight Ridder or its Subsidiaries (including the Acquired Companies) to take or refrain from taking any action whatsoever. Accordingly, it is acknowledged and agreed that, notwithstanding anything herein to the contrary but without limitation of Buyer’s rights under Article 8 and Article 9, Seller shall have no liability, directly or indirectly, for any reason whatsoever, arising from or relating to any action or failure to act on the part of Knight Ridder or any of its direct or indirect Subsidiaries (including the Acquired Companies) which occurs, commences or is agreed to prior to the Effective Time. For the avoidance of doubt, nothing in this Section 6.1 shall relieve Seller of its obligations set forth in Section 6.2(c).

6.2 Conduct of Business by the Acquired Companies.

(a) From and after the date hereof and prior to the Closing or the date, if any, on which this Agreement is earlier terminated pursuant to Section 9.1 (the “Termination Date”), and except (i) as may be required by applicable Law, (ii) as may be agreed in writing by Buyer (which consent shall not be unreasonably withheld, delayed or conditioned), (iii) as may be contemplated or required by this Agreement or (iv) as set forth in Section 6.2 of the Seller Disclosure Schedules, Seller covenants and agrees with Buyer that (A) (1) prior to the Effective Time, Seller shall exercise its contractual rights under the Merger Agreement so as to use commercially reasonable efforts to require that the Business shall be conducted in, and the Acquired Companies and, with respect to the Business, the Seller Entities, shall not take any action except in, the ordinary course of business and (2) following the Effective Time, the Business shall be, conducted in the ordinary course of business, and (B) prior to the Effective Time, Seller shall exercise its contractual rights under the Merger Agreement so as to use commercially reasonable efforts to require that Knight Ridder and its Subsidiaries, and following the Effective Time, Seller and its Subsidiaries shall, use commercially reasonable efforts to preserve intact the present business organizations of the Acquired Companies and, with respect to the Business, the Seller Entities, and to preserve their relationships with significant customers, suppliers, licensors and licensees of the Business and others with which they have business dealings related to the Business.

(b) Seller agrees with Buyer, that (x) between the date hereof and the Effective Time, without the prior written consent of Buyer (which consent shall not be unreasonably withheld,

 

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delayed or conditioned) and except as may be contemplated or required by this Agreement, Seller will exercise its contractual rights under the Merger Agreement so as to use commercially reasonable efforts to require that the Acquired Companies (and, solely with respect to clauses (ii), (iii), (iv), (ix), (x), (xii), (xv), (xvi) and, solely with respect to the foregoing, (xvii), of this Section 6.2(b), the Seller Entities with respect to the Business) and (y) following the Effective Time until the Closing, without the prior written consent of Buyer (which consent shall not be unreasonably withheld, delayed or conditioned), and except as may be contemplated or required by this Agreement, Seller will require that the Acquired Companies (and, solely with respect to clauses (ii), (iii), (iv), (ix), (x), (xii), (xv), (xvi) and, solely with respect to the foregoing, (xvii), of this Section 6.2(b), the Seller Entities with respect to the Business):

(i) shall not, and shall not permit any of its Subsidiaries to (A) authorize or pay any dividends on or make any distribution with respect to its outstanding shares of capital stock (whether in cash, assets, stock or other securities of such Acquired Company or its Subsidiaries) except dividends and distributions paid or made in the ordinary course of business or (B) split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, except for any such transaction by a wholly owned Subsidiary of an Acquired Company which remains a wholly owned Subsidiary after consummation of such transaction;

(ii) except as required by (x) existing written agreements or Benefit Plans, or (y) as otherwise required by applicable Law, shall not, and shall not permit any of its Subsidiaries to (A) increase the compensation or other benefits payable or provided to any Acquired Company’s or Seller Entity’s (in respect of the Business) directors, executive officers, publishers, or any other individual who has entered into an agreement with an Acquired Company or, with respect to the Business, a Seller Entity, that provides change in control and/or severance protection by more than 5% from the level at which such compensation or benefits were payable immediately prior to the date of this Agreement, (B) increase the compensation or benefits payable to any Business Employee except as in accordance with the ordinary course of business and consistent with past practice, (C) enter into any employment, consulting, special retirement, change of control, separation, severance or retention agreement with any Business Employee (provided that Seller, Knight Ridder or any Acquired Company may enter into individual agreements in accordance with the ordinary course of business and consistent with past practice that provide for payments not in excess of $250,000 per individual and, provided, further, that the total aggregate payments under all such agreements shall not exceed $2,500,000), (D) except as permitted pursuant to clause (B) above, establish, adopt, enter into or amend any Benefit Plan, collective bargaining agreement, plan, trust, fund, policy or arrangement for the benefit of any Business Employees, except, in each case, as would not result in a material increase in cost, or (E) hire, promote, demote or otherwise change the employment status (e.g., part-time, full-time, leave), title or other material term or material condition of employment of any individual who is (or would become after such hiring, promotion, demotion or change) a publisher or executive editor who is a Business Employee; provided, however, that notwithstanding the foregoing, Seller, Knight Ridder or any Acquired Company may pay “stay bonuses” in accordance with the provisions outlined in Section 6.2(b)(ii) of the Seller Disclosure Schedules;

 

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(iii) shall not, and shall not permit any of its Subsidiaries to, (x) agree to labor or employment arbitration awards or settlements applicable to Business Employees resulting in total payments of more than $300,000 or (y) agree in a labor arbitration or settlement to a work condition applicable to the Business that would set a precedent adversely affecting the Business;

(iv) shall not, and shall not permit any of its Subsidiaries to, enter into or make any loans or advances to any Business Employee (other than loans or advances in the ordinary course of business consistent with past practice) or make any change in its existing borrowing or lending arrangements for or on behalf of any of such persons, except as required by the terms of any Benefit Plan;

(v) shall not, and shall not permit its Subsidiaries to, materially change financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as required by GAAP, SEC rule or policy or applicable Law and except for changes at or after the Effective Time effected to conform the policies, procedures and methods of Knight Ridder and its Subsidiaries with those of Seller and its Subsidiaries;

(vi) shall not, and shall not permit any of its Subsidiaries to, adopt any material amendments to its articles of incorporation or by-laws or similar applicable charter documents;

(vii) shall not, and shall not permit any of its Subsidiaries to,

(1) issue, sell, pledge, dispose of or encumber, or authorize the issuance, sale, pledge, disposition or encumbrance of, any shares of its capital stock or other ownership interest in any Acquired Company or any securities convertible into or exchangeable for any such shares or ownership interest in any Acquired Company, or any rights, warrants or options to acquire or with respect to any such shares of capital stock, ownership interest or convertible or exchangeable securities,

(2) take any action to cause to be exercisable any otherwise unexercisable option under any existing stock option plan of an Acquired Company, or

(3) issue any equity-based compensation awards, whether settled in stock, cash, or otherwise;

(viii) shall not, and shall not permit any of its Subsidiaries to, incur, assume, guarantee, prepay or otherwise become liable for any indebtedness for borrowed money (directly, contingently or otherwise), other than in the ordinary course of business and except for (A) any indebtedness for borrowed money among any Acquired Company or Acquired Companies and/or any wholly-owned Subsidiary or Subsidiaries of an Acquired Company, in each case, in the ordinary course of business, (B) indebtedness for borrowed money incurred to replace, renew, extend, refinance or refund any existing indebtedness for borrowed money without increasing the amount of borrowing, (C) guarantees by an Acquired Company of indebtedness for borrowed money of

 

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Subsidiaries of an Acquired Company, which indebtedness is incurred in compliance with this Section 6.2(b) or (D) indebtedness for borrowed money incurred pursuant to agreements in effect prior to the execution of this Agreement;

(ix) except for transactions among any Acquired Company or Acquired Companies and/or any wholly-owned Subsidiary or Subsidiaries of an Acquired Company, shall not sell, lease, license, transfer, exchange or swap, mortgage or otherwise encumber (including securitizations), or subject to any Lien (other than Permitted Liens) or otherwise dispose of any material portion of the Acquired Assets or an Acquired Company’s material properties or assets;

(x) shall not, and shall not permit any of its Subsidiaries to modify, amend, terminate or waive any rights in a manner adverse to the Business under (A) any Contract containing any covenant limiting the right of any Acquired Company or, with respect to the Business, any Seller Entity, to engage in any material line of business or compete with any person in any material line of business, (B) any Contract or group of related Contracts with a person or entities (or group of affiliated persons or entities) under which such modification, amendment, termination or waiver of any right would have a Business Material Adverse Effect, (C) any mortgages, indentures, financial guarantees, loans or credit agreements or security agreements or other Contracts relating to the borrowing of money or extension of credit, other than accounts receivable and payable in the ordinary course of business, or (D) any material settlement agreement which contains continuing material obligations of the Acquired Companies or the Business (all contracts of the type described in this Section 6.2(b)(x) being referred to herein as “Section 6.2 Contracts”);

(xi) shall not, and shall not permit any of its Subsidiaries to, enter into any Section 6.2 Contracts or Business Material Contracts, other than, in each case, in the ordinary course of business and in compliance with the other restrictions set forth in this Section 6.2;

(xii) shall not, and shall not permit any of its Subsidiaries to, make, change or revoke any material Tax election, file any material amended Tax Return, settle or compromise any material liability for Taxes or surrender any material claim for a refund of Taxes;

(xiii) shall not, and shall not permit any of its Subsidiaries to, enter into any new line of business material to it and its Subsidiaries, taken as a whole;

(xiv) shall not, and shall not permit any of its Subsidiaries to, acquire or agree to acquire by merging or consolidating with, or by purchasing any equity interest in or a portion of the assets of, or by any other manner, any business or any person or entity or division thereof, or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the Business, except in the ordinary course of business;

(xv) shall not, and shall not permit any of its Subsidiaries to, settle any material claim, action or proceeding (other than any such claim, action or proceeding which is the subject of Section 6.2(b)(iii)), except to the extent such settlement provides solely for the payment of money damages which are (A) subject to reserves existing as of the date hereof in accordance with GAAP, (B) covered by existing insurance policies or (C) otherwise less than $500,000;

 

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(xvi) shall not, and shall not permit any of its Subsidiaries to, engage in bargaining with any union representing any Business Employee, except bargaining that is done after notice to and consultation with Buyer; and

(xvii) shall not, and shall not permit any of its Subsidiaries to, agree to take any of the foregoing actions.

(c) Seller covenants and agrees with Buyer that, between the date hereof and the Effective Time, to the extent it would not violate applicable Law and the terms of the Merger Agreement, except as otherwise consented to in writing by Buyer (which consent shall not be unreasonably withheld, delayed or conditioned), Seller will not in a manner that is adverse to the Business, waive, amend or agree to amend, any provisions of the Merger Agreement to the extent relating to the Acquired Companies, the Acquired Assets, the Assumed Liabilities or the Business, or consent to any matter relating to the conduct of the Business that requires the written consent of Seller under Section 5.1(a) or 5.1(b) of the Merger Agreement.

6.3 Access to Information; Confidentiality.

(a) Prior to the Effective Time, Seller shall exercise its contractual rights under the Merger Agreement so as to use commercially reasonable efforts to require that Knight Ridder will afford to Buyer and its Representatives, and following the Effective Time, Seller shall afford to Buyer and its Representatives, reasonable access during normal business hours, throughout the period prior to the earlier of (i) the Closing and (ii) the Termination Date, to the properties, employees, contracts, commitments, books and records of the Acquired Companies and, to the extent related to the Business, the Seller Entities, and any report, schedule or other document filed or received by an Acquired Company or, solely to the extent related to the Business, any Seller Entity, pursuant to the requirements of applicable Laws. Notwithstanding the foregoing, Seller shall not be required to afford such access if it would unreasonably disrupt the operations of Seller or the Business, would cause a violation of any agreement to which Seller or an Acquired Company or Buyer or any of its Subsidiaries is a party, would cause a significant risk, in the reasonable judgment of Seller, of a loss of privilege to the disclosing party, or any of its Subsidiaries or would constitute a violation of any applicable Law, nor shall Buyer or any of its Representatives be permitted to perform any invasive onsite environmental procedure with respect to any property of any Seller Entity or any Acquired Company.

(b) The parties acknowledge that Seller, Knight Ridder and Buyer have previously executed a Confidentiality Agreement dated as of November 29, 2006 (the “Confidentiality Agreement”), which Confidentiality Agreement will continue in full force and effect in accordance with their terms and each of Buyer and Seller will hold, and will cause its respective directors, officers, employees, agents and advisors (including attorneys, accountants, consultants, bankers and financial advisors) to hold, any Evaluation Information (as defined in the Confidentiality Agreement) confidential in accordance with the terms of the Confidentiality Agreement.

 

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6.4 Mutual Best Efforts.

(a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall use its commercially reasonable efforts (subject to, and in accordance with, applicable Law) to (and Seller shall exercise its contractual rights under the Merger Agreement so as to use commercially reasonable efforts to require that Knight Ridder and its Subsidiaries) take promptly, or cause to be taken, all actions, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the transactions contemplated by this Agreement (except that nothing herein shall require Seller to consummate the Merger), including (i) the obtaining of all necessary actions or nonactions, waivers, consents and approvals, including Seller Approvals and the Buyer Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement.

(b) Subject to the terms and conditions herein provided and without limiting the foregoing, Seller and Buyer shall (and Seller shall exercise its contractual rights under the Merger Agreement so as to use commercially reasonable efforts to require that Knight Ridder and its Subsidiaries will), (i) promptly (and, unless a later date is agreed to by the parties hereto, in any event within fourteen (14) days of the date of this Agreement) make any required submissions under the HSR Act in connection with this Agreement, (ii) use best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers or approvals are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (y) timely making all such filings and timely seeking all such consents, permits, authorizations or approvals and (z) furnishing the other party and to the other party’s counsel all such information as may be reasonably required in order to effectuate the foregoing actions, (iii) in the case of Buyer, use best efforts to offer to take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as reasonably may be necessary to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under Regulatory Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated hereby so as to enable the Closing to occur as soon as expeditiously possible (provided that nothing herein shall require Seller to consummate the Merger), including (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of such assets or businesses of Buyer or its Subsidiaries or affiliates or of the Business and (y) otherwise taking or

 

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committing to take actions that after the Closing Date would limit the freedom of Buyer or its Subsidiaries’ or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ businesses, product lines or assets, in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing or materially delaying the Closing, and (iv) subject to applicable legal limitations, the preservation of the attorney-client privilege and the instructions of any Governmental Entity, keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications between Seller or Buyer, as the case may be, or any of their respective Subsidiaries, and any third party and/or any Governmental Entity with respect to such transactions. Seller and Buyer shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Seller and Buyer agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with Buyer’s proposed purchase of the Acquired Companies and Acquired Assets unless it consults with the other party in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate.

(c) In furtherance and not in limitation of the covenants of the parties contained in this Section 6.4, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Regulatory Law (as hereinafter defined), each of Seller and Buyer shall cooperate in all respects with each other and shall use their respective best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement (provided that nothing herein shall require Seller to consummate the Merger). Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 6.4 shall limit a party’s right to terminate this Agreement pursuant to Section 9.1(b) so long as such party has, prior to such termination, complied with its obligations under this Section 6.4.

(d) For purposes of this Agreement, “Regulatory Law” means the Sherman Act of 1890, the Clayton Antitrust Act of 1914, the HSR Act, the Federal Trade Commission Act of 1914 and all other federal, state or foreign statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other Laws, including without limitation any antitrust, competition or trade regulation Laws, that are designed or intended to (i) prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening competition through merger or acquisition, (ii) preserve or promote diversity of media ownership or (iii) protect the national security or the national economy of any nation.

(e) Buyer will use all reasonable efforts to fully satisfy, on a timely basis, all terms, conditions, representations and warranties set forth in the Bank Commitment Letter. Buyer will use all reasonable efforts to (i) enter into definitive agreements with respect to the financing

 

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contemplated by the Bank Commitment Letter on terms and conditions no less favorable to Seller in the aggregate than the Bank Commitment Letter as soon as commercially reasonable but in any event at or prior to the Closing and (ii) to fully satisfy, on a timely basis, all the terms, conditions, representations and warranties set forth in such definitive agreements. Buyer will furnish correct and complete copies of such definitive agreements to Seller promptly upon their execution. Buyer shall keep Seller informed in reasonable detail with respect to all material activity concerning the status of the financing contemplated by the Bank Commitment Letter. Buyer shall not amend, alter or waive, or agree to amend, alter or waive, the Bank Commitment Letter in a manner that would reasonably be expected to materially impair or delay the consummation of the transactions contemplated hereby without the prior written consent of Seller (which consent shall not be unreasonably withheld, delayed or conditioned).

6.5 Tax Matters.

(a) Responsibility for Certain Taxes. Seller shall indemnify and hold Buyer harmless against any income, franchise or similar Taxes (“Income Taxes”) imposed on any Acquired Company or with respect to the Business or the Acquired Assets with respect to any taxable period (or portion thereof) ending on or before the Closing Date (each, a “Pre-Closing Tax Period”), including any Income Taxes attributable to the Section 338(h)(10) Election. In the case of any taxable period that includes (but does not end on) the Closing Date (each, a “Straddle Period”), the Income Taxes imposed upon any Acquired Company or with respect to the Business or the Acquired Assets allocable to the Pre-Closing Tax Period shall be computed as if such taxable period ended on the Closing Date; provided, however, that exemptions, allowances or deductions that are calculated on an annual basis (including depreciation and amortization deductions), other than with respect to property placed in service after the Closing, shall be allocated between the period ending on the Closing Date and the period after the Closing Date in proportion to the number of days in each period. Buyer shall indemnify and hold Seller harmless against any and all liabilities, obligations or commitments, whether or not accrued, assessed or currently due and payable for any Taxes (other than Taxes paid prior to the Closing that are (i) not attributable to the portion of any Straddle Period beginning after the Closing Date or (ii) attributable to such period and reflected on the Statement of Working Capital) imposed on any Acquired Company or with respect to the Business or the Acquired Assets that are not the responsibility of Seller pursuant to this Section 6.5(a).

(b) Tax Returns. Buyer shall be responsible for the preparation and filing of any Tax Return with respect to any Acquired Company or the Business or the Acquired Assets that is required to be filed after the Closing Date, other than any Tax Return for Income Taxes of (i) any Seller Entity with respect to any taxable period (or portion thereof) or (ii) any Acquired Company with respect to a Pre-Closing Tax Period (a “Pre-Closing Income Tax Return”). To the extent that Buyer is required to remit any Taxes that are the responsibility of Seller pursuant to Section 6.5(a), Seller shall pay to Buyer any such Taxes at least ten (10) days prior to the due date for payment of such Taxes. Seller shall be responsible for the preparation and filing of any Tax Return with respect to any Acquired Company or the Business or the Acquired Assets that is required to be filed on or before the Closing Date and any Pre-Closing Income Tax Return, including in each case any amended Tax Return, and each such Tax Return shall be true and correct and completed in

 

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accordance with applicable Law and consistent with past practice. To the extent that Seller is required to remit any Taxes that are the responsibility of Buyer pursuant to Section 6.5(a), Buyer shall pay to Seller any such Taxes at least ten (10) days prior to the due date for payment of such Taxes.

(c) Tax Contests. Seller shall control and bear the cost of the conduct of any audit, claim, dispute or controversy (“Tax Contest”) relating to any Tax for which Seller is responsible pursuant to Section 6.5(a), provided, however, Seller shall not settle or compromise any Tax Contest in a manner that could be reasonably expected to adversely affect the tax liability of Buyer, the Acquired Companies and their respective affiliates for any taxable period ending after the Closing Date without the consent of Buyer (which consent may not be unreasonably withheld, delayed or conditioned. Buyer shall control all other Tax Contests relating to any Acquired Company or the Business or the Acquired Assets. If any Tax Contest relates to Taxes for which Seller is responsible pursuant to Section 6.5(a) as well as Taxes for which Buyer is responsible under Section 6.5(a), the parties shall jointly conduct such Tax Contest if Buyer elects in a written notice delivered to Seller and in such case, such jointly conducted Tax Contest will not be settled or compromised except with the consent of both parties. If the parties cannot agree with respect to a compromise or settlement of a jointly conducted defense of a Tax Contest after making a good faith effort to do so, the matter shall be referred to an Independent Accountant for resolution. The Independent Accountant shall take into account the tax positions of both parties with due regard for the amount of each party’s potential tax liability.

(d) Refunds and Credits; Waiver of Carrybacks. Any refund or credit with respect to Taxes described in Section 6.5(a) that are the responsibility of Seller, to the extent such Taxes have been paid or reflected as a liability on the Statement of Working Capital, shall be for the account of Seller, except to the extent such refund or credit is reflected as an asset on the Statement of Working Capital, and if Buyer or any Acquired Company receives or becomes entitled to any refund or credit that relates to such Taxes, Buyer shall pay Seller the amount of any such refund or the value of such credit. All other refunds and credits shall be for the account of Buyer, and if any Seller Entity receives any such refund or credit, Seller or such Seller Entity shall pay to Buyer the amount of any such refund or the value of such credit. To the extent permitted by applicable law, Buyer shall (or shall cause or permit the Acquired Companies to) elect to relinquish any carryback of a Tax attribute to any taxable period or portion thereof ending on or before the Closing Date. In cases where Buyer cannot elect to relinquish such carrybacks, no Seller Entity shall have any obligation to pay to Buyer or any Acquired Company any Tax refund or other amount resulting from a carryback of a post-acquisition Tax attribute of any Acquired Company into a Pre-Closing Income Tax Return.

(e) Section 338(h)(10) Election.

(i) Seller and Buyer shall make a timely, irrevocable and effective election under Section 338(h)(10) of the Code and any similar election under any applicable state or local Tax law (collectively, the “Section 338(h)(10) Election”) with respect to Buyer’s purchase of the Acquired Companies.

 

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(ii) To facilitate the Section 338(h)(10) Election, Seller shall deliver to Buyer, at least fifteen days prior to the Closing Date, drafts of Internal Revenue Service Form 8023 and any similar forms under applicable state and local income Tax law (collectively, the “Forms”). Buyer shall review the Forms and provide any proposed revisions to Seller at least five days prior to the Closing. Buyer and Seller agree to negotiate in good faith with respect to such proposed revisions and to attempt to resolve any differences between the parties. The Forms, in the form reasonably agreed by the parties, shall be duly executed by Seller and Buyer at the Closing. Buyer shall duly and timely file the Forms as prescribed by Treasury Regulations Section 1.338(h)(10)-1 and the corresponding provisions of applicable state or local income Tax law.

(iii) As soon as practicable after the Closing Date and at least sixty (60) days prior to the due date for filing of Internal Revenue Service Form 8883 by either party, Seller shall provide Buyer with a draft of Internal Revenue Service Form 8883 (including the calculation and allocation of the Aggregate Deemed Sales Price in a manner consistent with the requirements of Section 338 and the Treasury Regulations thereunder). Buyer shall review such Form 8883 and provide any proposed revisions to Seller at least thirty (30) days prior to the due date of such Form 8883 for either party. Buyer and Seller agree to negotiate in good faith with respect to such proposed revisions and to attempt to resolve any differences between the parties. In the event the parties reach agreement as to the information to be reflected on such Form 8883, the Form 8883 shall be revised and timely filed by each party as required by law. Each of Buyer and Seller shall report the allocation of the Aggregate Deemed Sales Price (and any adjustments thereto) for Tax purposes and file its Tax Returns (including the Form 8883) in a manner consistent with any mutually-agreed allocations determined pursuant to this Section 6.5(e). In the event the parties do not reach agreement on the information to be reflected on the Form 8883, the allocation shall be determined by a qualified appraiser reasonably acceptable to Buyer and Seller, with the costs of such appraiser being borne equally between the parties. The allocations determined by such appraiser shall be final and binding on the parties and each party shall reflect in its final version of its Form 8883 the allocation so determined and shall timely file its final version of such Form 8883 in the manner required by Law and shall timely file its final version of such Form 8883 in the manner required by law.

(f) Cooperation. The parties to this Agreement shall provide assistance to each other as reasonably requested in preparing and filing Tax Returns and responding to Tax Contests, provide reasonably detailed notice of any Tax Contest sufficient to apprise the other party of the nature of the claim, make available to each other as reasonably requested all relevant information, records, and documents, including workpapers, relating to Taxes of any Acquired Company or the Business or the Acquired Assets and retain any books and records that could reasonably be expected to be necessary or useful in connection with any preparation by any other party of any Tax Return or for any Tax Contest.

(g) Survival; Conflicts. Notwithstanding anything to the contrary contained herein, the indemnity obligations pursuant to this Section 6.5 and Section 6.7 shall survive until the close of business on the thirtieth (30th) day following the expiration of the applicable statute of limitations with respect to the Tax liabilities in question (giving effect to any waiver, mitigation or

 

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extension thereof). In the event of a conflict between the provisions of this Section 6.5 or Section 6.7, as applicable, and any other section of this Agreement, Section 6.5 or Section 6.7, as applicable, shall govern and control.

6.6 Public Announcements. Buyer and Seller will consult with and provide each other the opportunity to review and comment upon any press release or, to the extent practicable, other public statement made by Buyer or Seller or their respective Subsidiaries prior to the issuance of such press release or, to the extent practicable, other public statement relating to this Agreement or the transactions contemplated herein and shall not issue any such press release or, to the extent practicable, other public statement prior to such consultation, except as may be required by applicable Law or by obligations pursuant to any listing agreement with any national securities exchange or market. Buyer and Seller agree to issue a joint press release announcing this Agreement.

6.7 Transaction Costs. Buyer shall pay all transaction costs and expenses (including legal, accounting and other professional fees and expenses and other fees described in Section 5.4 hereof) that it incurs in connection with the negotiation, execution and performance of this Agreement and the consummation of the transactions contemplated hereby. Seller shall pay all transaction costs and expenses (including legal, accounting and other professional fees and expenses and other fees described in Section 4.4 hereof) that it incurs in connection with the negotiation, execution and performance of this Agreement and the consummation of the transactions contemplated hereby. Notwithstanding the foregoing and anything to the contrary contained in this Agreement, Buyer shall be responsible for any transfer Taxes (including stock transfer, sales, use and deed Taxes) and the fees and costs of recording or filing all applicable conveyancing instruments associated with the transactions contemplated by this Agreement (“Transfer Taxes”). Seller and Buyer shall cooperate in the preparation, execution and filing of all Tax Returns regarding any Transfer Taxes that become payable as a result of the transactions contemplated by this Agreement.

6.8 Retention of and Access to Records. From and after the Closing, Buyer shall preserve, in accordance with the normal document retention policy of the Business, all books and records transferred by Seller to Buyer pursuant to this Agreement. In addition to the foregoing, from and after the Closing, each party shall afford to the other party hereto, and its counsel, accountants and other authorized agents and representatives, and their respective counsel, accountants and other authorized agents and representatives, during normal business hours and upon the execution and delivery of a confidentiality and non-disclosure agreement in customary form and substance (which shall include appropriate exceptions for disclosure relating to Tax matters), reasonable access to the employees, books, records and other data relating to the Acquired Companies, the Business, the Acquired Assets, the Assumed Liabilities and the Business Employees in its possession, and the right to make copies and extracts therefrom, to the extent that such access may be reasonably required by the requesting party (a) to facilitate the investigation, litigation and final disposition of any claims which may have been or may be made against any such party or person, or its affiliates, (b) for the preparation of Tax Returns and audits, and (c) for any other reasonable business purpose.

 

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6.9 Notifications. Prior to the Closing, Seller will promptly deliver notice to Buyer in writing of any termination of the Merger Agreement or any specific event or circumstance of which it has knowledge, or of which it receives notice, that (a) Seller believes has had a Business Material Adverse Effect or (b) would result in the conditions set forth in Section 8.2(a) or Section 8.2(b) not being satisfied; provided, however, that the delivery of any notice pursuant to this Section 6.9 shall not limit or otherwise affect the remedies available hereunder to Buyer. Prior to the Closing, Buyer will promptly deliver notice to Seller in writing of any amendment or termination of the Bank Commitment Letter or any specific event or circumstance of which it has knowledge, or of which it receives notice, that (i) Buyer believes would materially impair or delay the consummation of the transactions contemplated hereby or (ii) would result in the conditions set forth in Section 8.3(a) or Section 8.3(b) not being satisfied; provided, however, that the delivery of any notice pursuant to this Section 6.9 shall not limit or otherwise affect the remedies available hereunder to Seller.

6.10 Payments. If Seller or any of its Subsidiaries receive a payment of accounts receivable belonging to the Business, they will promptly turn such payment over to Buyer and if Buyer or any of its Subsidiaries receive a payment of accounts receivable belonging to the business of the Seller Entities, they will promptly turn such payment over to Seller.

6.11 Cooperation in Post-Closing Litigation. For a period of six (6) years following the Closing, each of Seller and Buyer will cooperate with the other in the investigation, defense or prosecution of any action, suit, inquiry, claim, investigation or proceeding which is pending, instituted or threatened either (a) against Buyer and which relates to or arises out of the Assumed Liabilities or (b) against Seller and which relates to or arises out of the Excluded Liabilities. The party seeking such cooperation will reimburse the party providing such cooperation for all reasonable expenses (including salaries of employees who are required to be absent from their employment or devote substantial amounts of time in satisfaction of the obligations set forth in this Section 6.11) incurred by the party providing such cooperation in connection with such cooperation.

6.12 Consummation of Merger. The parties hereto expressly acknowledge that the consummation of the transactions hereunder is subject to consummation of the Merger. Nothing herein shall be construed to require Seller to consummate the Merger or take steps in furtherance thereof.

6.13 Environmental Assessment. Seller agrees to engage URS Corporation (“URS”) to perform Phase I environmental assessments on the owned real properties of the Acquired Companies located at 44 and 80 E. Exchange Street in Akron, Ohio (the “Phase I Environmental Assessment”), the results of which shall be certified to Buyer. URS shall be directed to complete the Phase I Environmental Assessment and deliver it to Buyer no later than three (3) business days prior to the Closing Date.

6.14 Non-Competition. Unless this Agreement is terminated pursuant to Section 9.1 hereof, for a period of three years following the Closing Date, Seller will not, directly or through an affiliate of Seller controlled by Seller, print or publish a daily or weekly newspaper or other print advertising product primarily distributed in Summit, Portage or Medina counties (as constituted on the date hereof) of the State of Ohio.

 

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ARTICLE 7

EMPLOYMENT MATTERS

7.1 Acquired Employees.

(a) Buyer shall, or shall cause one or more of the Acquired Companies to, offer employment to, or employ all of the Business Employees who are actively at work on the Closing Date and are employed by Seller or one of its affiliates (after giving effect to the Merger) other than the Acquired Companies. Such employment will be effective as of immediately following the Closing Date. Buyer shall cause the Acquired Companies initially to continue to employ all of the Business Employees who are employed on the Closing Date. With respect to Business Employees other than Business Employees who are covered by a collective bargaining agreement (each a “Union Employee” and collectively, the “Union Employees”), such offers of employment or continued employment, as the case may be, shall be on terms and conditions substantially equivalent in the aggregate to those of similarly situated employees of any Buyer. Prior to the Closing, neither Seller nor its directors or officers shall either directly or indirectly, induce or encourage any of the Business Employees to decline Buyer’s offers of employment or become employed by Seller. Such Business Employees who accept such offer of employment and become employees of Buyer or an Acquired Company or who continue such employment with the Acquired Companies shall be referred to herein as “Acquired Employees.”

(b) Except as otherwise provided in this Article 7, (i) the Acquired Employees shall cease active participation in the Benefit Plans effective as of the Closing Date and shall commence participation in benefit plans maintained by Buyer (or its affiliates) in accordance with the terms of Buyer’s (or its affiliates’) plans; and (ii) Seller shall assume sole sponsorship of, and the Acquired Companies shall withdraw from participation in, the Benefit Plans effective as of the Closing Date.

7.2 Welfare Plans.

(a) For all purposes (including purposes of vesting, eligibility to participate and level of benefits) under the employee welfare benefit plans of Buyer and its affiliates providing benefits to any Acquired Employees after the Closing (the “New Welfare Plans”), each Acquired Employee shall subject to applicable Law, and applicable tax qualification requirements, be credited with his or her years of service with Knight Ridder or its affiliates, including the Acquired Companies and their Subsidiaries, before the Closing, to the same extent as such Acquired Employee was entitled, before the Closing, to credit for such service under any similar employee benefit plan in which such Acquired Employee participated or was eligible to participate immediately prior to the Closing, provided that the foregoing shall not apply to the extent that its application would result in a duplication of benefits. In addition, and without limiting the generality of the foregoing, (i) each Acquired Employee shall be immediately eligible to participate, without any waiting time, in any and all New Welfare Plans if such Acquired Employee participated immediately before the consummation of the transactions contemplated by this Agreement in a comparable type of welfare benefit plan of a Seller Entity (such plans, collectively, the “Old Plans” ), and (ii) for purposes of each New Welfare Plan providing medical, dental, pharmaceutical and/or vision benefits to any

 

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Acquired Employee, Buyer, or, as applicable, an Acquired Company, shall cause all pre-existing condition exclusions and actively-at-work requirements of such New Welfare Plan to be waived for such Acquired Employee and his or her covered dependents, unless such conditions would not have been waived under the comparable plans of Knight Ridder or its affiliates, including the Acquired Companies and their Subsidiaries, in which such Acquired Employee participated immediately prior to the Closing and Buyer shall cause any eligible expenses incurred by such employee and his or her covered dependents during the portion of the plan year of the Old Plan ending on the date such employee’s participation in the corresponding New Welfare Plan begins to be taken into account under such New Welfare Plan for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employee and his or her covered dependents for the applicable plan year as if such amounts had been paid in accordance with such New Welfare Plan.

(b) To the extent that an Acquired Employee has not used all amounts deferred to a health flexible spending account plan or the dependent care assistance plan as of the Closing Date, Seller shall transfer to Buyer, or shall leave in place at the applicable Acquired Company, in cash any positive balance in such Acquired Employee’s health flexible spending and dependent care assistance accounts as of the Closing Date to the extent not otherwise included in the Acquired Assets, and Buyer shall assume all obligations with respect to that Acquired Employee’s health flexible spending account plan and dependent care assistance plan account balances.

(c) Seller shall retain the Liabilities of Seller and its Subsidiaries, in excess of $270,000, for the claims incurred by Business Employees prior to the Closing Date but not paid until after the Closing Date under the Knight Ridder Group Medical Benefit Plan for Employees and Retirees (Blue and Green Option).

(d) Seller shall retain all liability relating to long-term disability benefits for any Acquired Employee receiving short-term disability benefits under the applicable Benefit Plan as of the Closing Date who subsequently becomes entitled to long-term disability benefits. Buyer shall provide to Seller any and all information with respect to Acquired Employees described in this Section 7.2(d) as is necessary for Seller’s administration of the long-term disability benefits to which such Acquired Employees become entitled. In addition, if an Acquired Employee returns to work for the Buyer or dies, Buyer shall notify Seller within five business days of the date the Acquired Employee returns to work or, in the case of the Acquired Employee’s death, the date Buyer obtains knowledge of such death.

7.3 Severance and Stay Bonus Liabilities. Effective as of the Closing Date, Buyer shall assume (and does hereby assume), shall be responsible for, covenants to pay or otherwise discharge, and shall indemnify and hold harmless, Seller against any liability, claim or obligation (including reasonable attorney’s fees) relating to or arising out of the Benefit Plans covering Business Employees which provide for severance, change in control payments, or stay bonuses and are set forth in Section 7.3 of the Seller Disclosure Schedules. Notwithstanding the preceding sentence, to the extent applicable, Seller shall reimburse Buyer against any liability, claim or obligation (including reasonable attorney’s fees) relating to or arising out of severance or change of control agreements covering Business Employees, if any, as set forth in Section 7.3 of the Seller Disclosure

 

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Schedules. In addition, Seller shall reimburse Buyer for 50% of any stay bonuses actually paid to Business Employees in accordance with the terms of such program as in effect immediately prior to the Closing Date and as set forth in Section 7.3 of the Seller Disclosure Schedules. Buyer agrees that it shall have no right or ability to amend any term or condition of any such change of control agreement or stay bonus for a Business Employee in any way that would increase the potential liability of Seller. Buyer shall notify Seller within 5 business days of any pending, threatened or actual claim for payments or benefits under any such change of control agreement or stay bonus.

7.4 Collective Bargaining Agreements. The collective bargaining agreements covering Business Employees shall be assumed by the Buyer. Seller has made available to Buyer a complete and correct (to its knowledge and based solely on the representations and warranties made by Knight Ridder to Seller in Article III of the Merger Agreement) copy of each such collective bargaining agreements. Buyer agrees that Buyer shall be responsible for, covenants to pay or otherwise discharge, and shall indemnify and hold harmless, Seller against any liability, claim or obligation (including reasonable attorney’s fees) resulting from Buyer’s failure to provide compensation or benefits following the Closing Date that are required to be provided under the collective bargaining agreements set forth in Section 3.11 of the Seller Disclosure Schedules.

7.5 Multiemployer Pension Plans. With respect to each Multiemployer Pension Plan listed in Section 7.5 of the Seller Disclosure Schedule which is a defined benefit pension plan in which any Union Employee participates under an applicable collective bargaining agreement, Buyer and Seller shall cooperate with each other to take such action as are necessary to ensure that the consummation of the transaction described herein does not result in withdrawal liability assessment for any Multiemployer Pension Plan.

7.6 Pension Plans.

(a) Union Pension Plans. Effective as of the Closing Date, Buyer shall assume sponsorship of the single-employer defined benefit plans covering Union Employees as set forth in Section 7.6 of the Seller Disclosure Schedules and the related trusts (“Union Pension Plans”). Buyer shall assume all liability and obligation of Seller under the Union Pension Plans, effective as of the Closing Date. Buyer shall maintain all such Union Pension Plans in accordance with their collective bargaining agreements, and Buyer shall credit the service of each Union Employee with Knight Ridder or its affiliates, including the Acquired Companies and their Subsidiaries, for purposes of eligibility and vesting. Buyer will make or cause the applicable Acquired Company to make all required contributions under Buyer’s pension plan(s) as required under any applicable collective bargaining unit agreement.

(b) Non-Union Pension Plans. Seller shall retain all assets and liabilities under, and shall assume sole sponsorship of, any Benefit Plan that is a defined benefit pension plan, whether qualified or non-qualified, other than a Union Pension Plan.

7.7 Savings Plans. Buyer shall take all steps necessary to permit each such Acquired Employee who has received an eligible rollover distribution (as defined in Section 402(c)(4) of the Code) from all Benefit Plans that are defined contribution savings plans (“Seller Savings Plans”) to

 

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roll over such eligible rollover distribution, including any associated loans, as part of any lump sum cash distribution into an account(s) under a 401(k) savings plan maintained by Buyer or an Acquired Company. Buyer shall credit the service of each Acquired Employee with Knight Ridder or its affiliates, including the Acquired Companies and their Subsidiaries, for purposes of eligibility and vesting under Buyer’s savings plan(s). In the case of Union Employees, Buyer will make or cause the applicable Acquired Company to make all required contributions under Buyer’s savings plan(s), if any, as required under any applicable collective bargaining agreement.

7.8 Post-Retirement Benefit Liabilities. Buyer shall assume responsibility for providing, and shall continue to provide, post-retirement medical and life insurance benefits on terms and conditions substantially equivalent in duration, scope, value, participant cost, vesting and otherwise to those in effect on the Closing Date (in no event shall this prevent Buyer from modifying the benefits so long as they are substantially equivalent in the aggregate) with respect to:

(a) Business Employees (including Union Employees other than Union Employees covered by a multiemployer welfare benefit plan in accordance with the applicable collective bargaining agreement) who have retired on or prior to the Closing Date and are receiving or entitled to receive post-retirement medical and life insurance benefits, and

(b) Acquired Employees (including Union Employees other than Union Employees covered by a multiemployer welfare benefit plan in accordance with the applicable collective bargaining agreement) who have satisfied the eligibility requirements for post-retirement medical and life insurance benefits as of the Closing Date and subsequently become entitled to receive such benefits.

Buyer acknowledges that Seller retains certain discretion under the Merger Agreement as to the provision of such benefits (for example, Seller may provide benefits at a level only substantially equivalent in the aggregate to those benefits provided to Seller retirees).

7.9 Vacation. Except as may otherwise be required by law, effective as of the Closing Date, Buyer shall assume Seller’s liability for all accrued, but unpaid vacation time of Acquired Employees to the extent such liability is not already a liability of an Acquired Company.

7.10 WARN Act. Buyer and Seller shall cooperate with each to provide any notice required under the WARN Act or similar local laws, and Buyer shall provide Seller with all information required to issue such notices required prior to the Closing.

7.11 Cooperation. Upon request, Seller shall provide Buyer, and Buyer shall provide Seller, such documents, data and information as may reasonably be necessary to implement the provisions of this Article 7 and to administer their respective benefit plans.

7.12 COBRA Coverage. Seller shall continue to provide continuation coverage required by section 4680B of the IRC and Sections 601 to 608 of ERISA (“COBRA”) to all current and former employees of the Business and their covered beneficiaries who are entitled to COBRA with respect to “qualifying events” (as defined in Section 4908B of the IRC) which are incurred on or before the Closing Date and not as a result of the transactions contemplated hereby.

 

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7.13 General. Nothing in this Article 7 or elsewhere in this Agreement shall be construed as (a) conferring any legal rights upon any Acquired Employee for continuation of employment by Buyer or its affiliates, (b) requiring Buyer to implement, or limiting the rights of Buyer to amend or discontinue, any fringe benefit plan, program or practice or any other employee benefit plan of any nature whatsoever, except as expressly provided otherwise in this Article 7 or in the Transition Services Agreement or (c) conferring upon any Acquired Employee any rights or remedies under this Agreement (including under this Article 7). In addition, the parties agree that for the purposes of this Article 7, Buyer may fulfill its obligations under this Article 7 to assume, maintain and operate the plans, benefits and agreements referred to in this Article 7 by causing the Acquired Companies to continue in effect such of those plans, benefits and agreements as were in effect prior to the Closing, or adopting new plans, benefits and agreements that otherwise fulfill its obligations under this Article 7 and to maintain such plans, benefits and agreements.

ARTICLE 8

CONDITIONS PRECEDENT TO OBLIGATIONS

8.1 Conditions to Each Party’s Obligation. The respective obligation of each party to effect the transactions contemplated by this Agreement is subject to the satisfaction or waiver, on or prior to the Closing Date, of the following conditions:

(a) HSR Act. The waiting period (and each extension thereof, if any) under the HSR Act applicable to the transactions contemplated under this Agreement shall have terminated or expired.

(b) No Injunction. No temporary or permanent injunction or other order issued by any court of competent jurisdiction prohibiting consummation of the transactions contemplated under this Agreement shall be in effect.

(c) No Proceedings. At the Closing, there shall not be instituted or pending any action or proceeding in which any Governmental Entity of competent jurisdiction seeks to make any of the material transactions contemplated hereby illegal or otherwise restrain in any material respect or prohibit consummation of any of the material transactions contemplated hereby.

(d) Merger. The Merger shall have been consummated.

 

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8.2 Conditions to Obligations of Buyer. Buyer’s obligation to purchase the Shares and the Acquired Assets and to take the other actions required to be taken by Buyer at the Closing is subject to the satisfaction, at or prior to the Closing, of each of the following conditions (any of which may be waived by Buyer, in whole or in part):

(a) Accuracy of Representations. The representations and warranties of Seller (subject to the qualifications in the preamble paragraph to Article 3) set forth in this Agreement (i) which are qualified by a “Business Material Adverse Effect” qualification shall be true and correct in all respects as so qualified at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date and (ii) which are not qualified by a “Business Material Adverse Effect” qualification shall be true and correct at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except for such failures to be true and correct as would not have, in the aggregate, a Business Material Adverse Effect; provided, however, that with respect to clauses (i) and (ii) hereof, representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i) or (ii), as applicable) only as of such date or period, and Buyer shall have received a certificate to such effect, signed on behalf of Seller by its chief executive officer and its chief financial officer.

(b) Seller’s Performance. All of the covenants and obligations that Seller is required to perform or to comply with pursuant to this Agreement at or prior to the Closing shall have been duly performed and complied with in all material respects. Buyer shall have received a certificate to such effect, signed on behalf of Seller, by its chief executive officer and its chief financial officer.

(c) Business Material Adverse Effect. Since December 25, 2005, no change, occurrence or development shall have occurred and be continuing that constitutes a Business Material Adverse Effect.

(d) Environmental Assessment. The Phase I Environmental Assessment shall not identify recognized environmental conditions of the Business not disclosed in the Seller Disclosure Schedules which would constitute a Business Material Adverse Effect. Buyer may not invoke this condition unless Buyer gives notice to Seller of its intention to invoke this condition within three business days after Buyer receives the Phase I Environmental Assessment.

8.3 Conditions to Obligations of Seller. The obligations of Seller to sell the Shares and the Acquired Assets and to take the other actions required to be taken by Seller at the Closing is subject to the satisfaction, at or prior to the Closing, of each of the following conditions (any of which may be waived by Seller, in whole or in part):

(a) Accuracy of Representations. The representations and warranties of Buyer set forth in this Agreement (i) which are qualified by the words “materially impair or delay the consummation of the transactions contemplated hereby” shall be true and correct in all respects as so qualified at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date and (ii) which are not qualified by the words “materially impair or delay

 

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the consummation of the transactions contemplated hereby” shall be true and correct at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except for such failures to be true and correct as would not materially impair or delay the consummation of the transactions contemplated hereby; provided, however, that, with respect to clauses (i) and (ii) hereof, representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i) and (ii) as applicable) only as of such date or period, and Seller shall have received a certificate to such effect, signed on behalf of Buyer by its chief executive officer and its chief financial officer.

(b) Buyer’s Performance. All of the covenants and obligations that Buyer is required to perform or to comply with pursuant to this Agreement at or prior to the Closing shall have been performed and complied with in all material respects. Seller shall have received a certificate to such effect, signed on behalf of Buyer, by its chief executive officer and its chief financial officer.

ARTICLE 9

TERMINATION

9.1 Termination. Upon any termination of the Merger Agreement, without any action of Buyer or Seller, this Agreement shall immediately terminate. In addition, this Agreement may be terminated at any time prior to the Closing Date:

(a) by mutual written consent of Seller and Buyer;

(b) by any of Seller or Buyer if any Governmental Entity shall have issued an order, decree or ruling permanently enjoining or prohibiting the consummation of the transactions contemplated under this Agreement and such order, decree or ruling shall have become final and nonappealable (but only if the party seeking to terminate pursuant to this clause (b) shall have used best efforts to oppose and remove such order, decree or ruling);

(c) by Seller or Buyer if the Closing has not occurred (other than through the failure of any party seeking to terminate this Agreement to comply fully with its obligations under this Agreement) on or before the later of October 15, 2006 or the date that is thirty (30) days after the closing of the Merger, or such later date as Seller and Buyer may agree upon (the “End Date”);

(d) by Seller, if Buyer shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform would result in a failure of a condition set forth in Section 8.3(a) or 8.3(b) cannot be cured by the End Date, provided that Seller shall have given Buyer written notice, delivered at least thirty (30) days prior to such termination, notifying Buyer of such breach or failure to perform;

 

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(e) by Buyer, if Seller shall have breached or failed to perform in any material respect any of their representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform would result in a failure of a condition set forth in Section 8.2(a) or 8.2(b) cannot be cured by the End Date, provided Buyer shall have given Seller written notice, delivered at least thirty (30) days prior to such termination, notifying Seller of such breach or failure to perform; and

(f) by Seller, if Buyer gives notice of its intent to invoke the condition set forth in Section 8.2(d).

9.2 Effect of Termination. If this Agreement is terminated under Section 9.1, this Agreement shall immediately become void and have no effect, without any liability or obligation on the part of Seller or Buyer, other than the provisions of Section 4.4, Section 5.4, Section 6.3(b), this Section 9.2 and Article 11. Notwithstanding the foregoing, if (but only if) the Merger is consummated, nothing in this section shall relieve Buyer or Seller for any willful breach of such party’s representations, warranties, covenants or agreements in this Agreement.

ARTICLE 10

INDEMNIFICATION; REMEDIES

10.1 Survival. All representations and warranties contained herein, and all representations and warranties contained in the certificates delivered pursuant to this Agreement and any other certificate or document delivered pursuant to this Agreement will terminate at the Closing, except that the representations and warranties contained in Sections 4.2(a), 4.2(b), 4.4, 4.5, 5.2(a), 5.2(b), 5.4 and 5.6 shall survive the Closing.

10.2 Indemnification By Buyer. From and after the Closing, Buyer shall indemnify, defend and hold harmless Seller and its affiliates and their respective stockholders, officers, directors, employees, affiliates, agents and representatives (collectively, the “Seller Indemnified Parties”), from and against all judgments, settlements, demands, claims, actions or causes of action, deficiencies, assessments, Liabilities, losses, damages (whether direct or indirect, incidental or consequential), interest, fines, penalties, costs and expenses (including, without limitation, reasonable legal, accounting and other costs and expenses incurred in connection with investigating, defending, settling or satisfying any and all demands, claims, actions or causes of action, suits, proceedings, deficiencies, assessments, judgments or appeals, and in seeking indemnification therefor pursuant to this Section 10.2) (collectively, “Losses”) arising out of, resulting from, related to or associated with (i) any and all of the Assumed Liabilities or (ii) breach of the representations and warranties of Buyer contained in Sections 5.2(a), 5.2(b), 5.4 or 5.6.

10.3 Indemnification By Seller. From and after the Closing, Seller shall indemnify, defend and hold harmless Buyer and its affiliates and their respective stockholders, officers, directors, employees, affiliates, agents and representatives (collectively, the “Buyer Indemnified Parties”), from and against all Losses arising out of, resulting from, related to or associated with (i) any and all of the Excluded Liabilities or (ii) breach of the representations and warranties of Seller contained in Sections 4.2(a), 4.2(b), 4.4 or 4.5.

 

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10.4 Notice and Defense of Claims. Each party entitled to indemnification under this Article 10 (the “Indemnified Party”) shall give notice to the party required to provide such indemnification (the “Indemnifying Party”) promptly after such Indemnified Party has actual knowledge of any claims as to which indemnity is sought, and shall permit the Indemnifying Party to assume the defense of any such claim or litigation resulting therefrom and to consent to the entry of any judgment or the entry into of any settlement with respect thereto; provided, however, that the Indemnified Party may participate in such defense at such party’s expense; 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 Article 10 except to the extent that the Indemnifying Party has been adversely affected by such failure. The Indemnified Party shall furnish such information regarding itself or the claim in question as the Indemnifying Party may reasonably request in writing and shall otherwise cooperate with the Indemnifying Party to such extent as shall be reasonably required in connection with the defense of such claim and litigation resulting therefrom.

10.5 Procedure for Indemnification — Third Party Claims.

(a) Promptly after receipt by an Indemnified Party under Section 10.2 or Section 10.3 of notice of the commencement of any Proceeding against it, such Indemnified Party will, if a claim is to be made against an Indemnifying Party under such Section, give notice to the Indemnifying Party of the commencement of such claim, but the failure to notify the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party, except to the extent that the Indemnifying Party demonstrates that the defense of such action is prejudiced by the Indemnified Party’s failure to give such notice.

(b) If any Proceeding referred to in Section 10.5(a) is brought against an Indemnified Party and it gives notice to the Indemnifying Party of the commencement of such Proceeding, the Indemnifying Party will be entitled to participate in such Proceeding and, to the extent that it wishes (unless (x) the Indemnifying Party is also a party to such Proceeding and the Indemnified Party determines in good faith that joint representation would be inappropriate, or (y) the Indemnifying Party fails to provide reasonable assurance to the Indemnified Party of its financial capacity to defend such Proceeding and provide indemnification with respect to such Proceeding), to assume the defense of such Proceeding with counsel satisfactory to the Indemnified Party and, after notice from the Indemnifying Party to the Indemnified Party of its election to assume the defense of such Proceeding, the Indemnifying Party will not, as long as it diligently conducts such defense, be liable to the Indemnified Party under this Article 10 for any fees of other counsel or any other expenses with respect to the defense of such proceeding, in each case subsequently incurred by the Indemnified Party in connection with the defense of such Proceeding, other than reasonable costs of investigation. If the Indemnifying Party assumes the defense of a Proceeding, (i) it will be conclusively established for purposes of this Agreement that the claims made in that Proceeding are within the scope of and subject to indemnification, regardless of the amount, (ii) no compromise or settlement of such claims may be effected by the Indemnifying Party without the

 

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Indemnified Party’s consent unless the sole relief provided is monetary damages that are paid in full by the Indemnifying Party, and (iii) the Indemnified Party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an Indemnifying Party of the commencement of any Proceeding and the Indemnifying Party does not, within thirty (30) days after the Indemnified Party’s notice is given, give notice to the Indemnified Party of its election to assume the defense of such Proceeding, the Indemnifying Party will be bound by any determination made in such Proceeding or any compromise or settlement effected by the Indemnified Party of such Proceeding, in each case, with the consent of the Indemnifying Party (not to be unreasonably withheld, delayed or conditioned).

10.6 Procedure for Indemnification — Other Claims. A claim for indemnification for any matter not involving a third-party claim may be asserted by notice to the party from whom indemnification is sought.

10.7 Exclusive Remedy. Subject to the applicability of Article 9 hereof, except for remedies that cannot be waived as a matter of Law, including, without limitation, claims under applicable state and federal securities laws and except for covenants contained herein which by their terms are to be performed at or after the Closing and Section 11.1, the indemnification obligations under this Article 10 shall be the sole and the exclusive remedy of the parties hereto with respect to any breach of any representation, warranty, covenant or agreement under this Agreement by any party hereto or any certificate delivered in connection herewith, except that, subject to Article 9 hereof, nothing herein or in any such certificate shall be construed or interpreted as limiting or impairing the rights or remedies that the parties hereto may have at equity for injunctive relief or specific performance.

ARTICLE 11

GENERAL PROVISIONS

11.1 Expenses. Except as otherwise expressly provided in this Agreement, each party to this Agreement will bear its respective expenses (including those of its respective Subsidiaries) incurred in connection with the preparation, execution, and performance of this Agreement and the transactions contemplated hereunder, including all fees and expenses of agents, representatives, counsel, and accountants incurred prior to Closing. Buyer will pay the HSR Act filing fee for the transactions contemplated hereby. In the event of termination of this Agreement, the obligation of each party to pay its own expenses will be subject to any rights of such party arising from a breach of this Agreement by another party.

11.2 Notices. All notices, requests, claims and other communications under this Agreement shall be in writing and shall be deemed given if delivered personally or by overnight courier to the parties at the following addressed (or at such other address for a party as shall be specified by notice from such party):

 

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  (a) If to Seller, to

The McClatchy Company

2100 Q Street

Sacramento, CA 95816

Attention:    Gary Pruitt
   President and Chief Executive Officer
Phone:    (916)  ###-###-####
Telecopy:    (916)  ###-###-####

With a copy to:

Wilson Sonsini Goodrich & Rosati

650 Page Mill Road

Palo Alto, California 94304

Attention:    Larry W. Sonsini, Esq.
   Katharine A. Martin, Esq.
Phone:    (650)  ###-###-####
Telecopy:    (650)  ###-###-####

 

  (b) If to Buyer, to:

Sound Publishing Holdings Inc.

c/o Black Press Ltd.

818 Broughton Street

Victoria, British Columbia, V8W 1E4

Attention:    David Black
Phone:    1 ###-###-####
Telecopy:    1 ###-###-####

With a copy to:

Patterson Adams

402 – 707 Fort Street

Victoria, British Columbia, V8W 2T6

Attention:    Les Jamieson
Phone:    1 ###-###-####
Telecopy:    1 ###-###-####

11.3 Certain Definitions. For purposes of this Agreement:

(a) References in this Agreement to “Subsidiaries” of any party shall mean any corporation, partnership, association, trust or other form of legal entity of which (i) more than 50% of the outstanding voting securities are on the date hereof directly or indirectly owned by such party, or (ii) such party or any Subsidiary of such party is a general partner (excluding partnerships in which such party or any Subsidiary of such party does not have a majority of the voting interests in such partnership).

 

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(b) References in this Agreement (except as specifically otherwise defined) to “affiliates” shall mean, as to any person, any other person which, directly or indirectly, controls, or is controlled by, or is under common control with, such person. As used in this definition, “control” (including, with its correlative meanings, “controlled by” and “under common control with”) shall mean the possession, directly or indirectly, of the power to direct or cause the direction of management or policies of a person, whether through the ownership of securities or partnership or other ownership interests, by contract or otherwise.

(c) References in this Agreement (except as specifically otherwise defined) to “person” shall mean an individual, a corporation, a partnership, a limited liability company, an association, a trust or any other entity, group (as such term is used in Section 13 of the Exchange Act) or organization, including a Governmental Entity, and any permitted successors and assigns of such person.

(d) References in this Agreement to “knowledge” shall mean (i) with respect to Buyer, the knowledge of David Black and Ted Cape and (ii) with respect to Seller, the actual knowledge of the individuals listed on Section 11.3(a) of the Seller Disclosure Schedules and (iii) with respect to Knight Ridder, the actual knowledge of Art Brisbane, Mary Jean Connors, Gary Effren, Larry Marbert (with respect to Section 3.6 only), P. Anthony Ridder, Steven Rossi, Hilary Schneider, Karen Stevenson, Alice Wang and Gordon Yamate.

(e) References in this Agreement to “business day” shall mean any day other than a Saturday, Sunday or a day on which the banks in New York or California are authorized by law or executive order to be closed.

(f) References in this Agreement to specific laws or to specific provisions of laws shall include all rules and regulations promulgated thereunder. Any statute defined or referred to herein or in any agreement or instrument referred to herein shall mean such statute as from time to time amended, modified or supplemented, including by succession of comparable successor statutes.

11.4 Interpretation. When a reference is made in this Agreement to a Section, Exhibit or Disclosure Schedule, such reference shall be to a Section of, or an Exhibit or Schedule to, this Agreement unless otherwise indicated. The table of contents and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the word “include,” “includes” or “including” is used in this Agreement, it shall be deemed to be followed by the words “without limitation.”

 

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11.5 Counterparts. This Agreement may be executed in counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each party and delivered to each other party.

11.6 Entire Agreement; Third-Party Beneficiaries. This Agreement and the other agreements referred to herein constitute the entire agreement (and supersede each prior agreement and understanding, whether written or oral) among the parties regarding the subject matter of this Agreement. This Agreement is not intended to confer any rights or remedies on any person other than the parties hereto. The rights of Buyer Indemnified Parties and Seller Indemnified Parties under Article 10 may be asserted by Buyer and Seller, respectively.

11.7 Governing Law. This Agreement shall be governed by; and construed in accordance with, the laws of the State of Delaware regardless of any Laws that might otherwise govern under applicable principles of conflicts of laws thereof.

11.8 Assignment. Neither this Agreement nor any right, interest or obligation hereunder shall be assigned, in whole or in part, by operation of law or otherwise, by any party without the prior written consent of the other party, provided, that Buyer may assign this Agreement and its rights hereunder to any existing or newly created wholly-owned Subsidiary of Buyer on the condition that Buyer’s obligations hereunder shall not be released or diminished as a result thereof and the ability of Buyer to complete the transactions contemplated herein are not adversely affected thereby. Subject to the preceding sentence of this Section 11.8, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the parties and their respective legal successors and permitted assigns.

11.9 Nondisclosure. Except as may be required by applicable Law or the requirements of the New York Stock Exchange, for a period of three (3) years following the Closing, Seller will (and will cause its Subsidiaries to) take commercially reasonable steps comparable to those steps Seller takes with regard to its own similar confidential information to protect the confidentiality of all confidential information related to the Business in the possession of Seller and its Subsidiaries (other than information which is or becomes known to the public other than through a breach of this Section by Seller).

11.10 Amendments; Waiver. This Agreement may not be amended or modified except by written agreement of the parties. No breach of any covenant, agreement, representation or warranty made herein shall be deemed waived unless expressly waived in writing by the party who might assert such breach.

11.11 Enforcement. The parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with its terms or were otherwise breached. Each party shall be entitled to injunctive relief to prevent any breach of this Agreement and to enforce this Agreement specifically in any court of the State of Delaware or any court of the United States located in the State of Delaware (in addition to any other remedy to which such party is entitled at law or in equity). In addition, each party hereby:

(a) submits itself to the personal jurisdiction of (i) the courts of the State of Delaware; and (ii) the United States District Court for the District of Delaware with respect to any dispute arising out of this Agreement or any transaction contemplated hereby to the extent such courts would have subject matter jurisdiction with respect to such dispute;

 

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(b) agrees that it will not attempt to deny or defeat such personal jurisdiction or venue by motion or other request for leave from any such court; and

(c) agrees that it will not bring any action relating to this Agreement (or any transactions contemplated by this Agreement) in any court order than such courts referred to above.

11.12 Severability. Each provision of this Agreement will be interpreted so as to be effective and valid under applicable Law, but if any provision is held invalid, illegal or unenforceable under applicable Law in any jurisdiction, then such invalidity, illegality or unenforceability will not affect any other provision, and this Agreement will be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been included herein.

 

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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.

 

SOUND PUBLISHING HOLDINGS, INC.
By:  

/s/ David Black

Name:   David Black
Title:  

 

THE MCCLATCHY COMPANY
By:  

/s/ Patrick Talamantes

Name:   Patrick Talamantes
Title:   VP/Finance & CFO