Exhibit 99.2
STOCKHOLDERS AGREEMENT (this
Agreement), dated as of June 5, 2006,
among The Washington Post Company, a
Delaware Corporation (Parent),
▇▇▇▇▇▇, Inc., a Delaware corporation
(the Company), and ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ (the Stockholder).
WITNESSETH:
WHEREAS, the Stockholder has been
awarded Shares (as defined below), and may
in the future be awarded, or acquire through
the exercise of options or otherwise,
additional Shares;
WHEREAS, as of the date hereof,
Parent owns all of the outstanding Shares
that are not owned by the Stockholder; and
WHEREAS, the parties hereto wish to
make provision relating to the ownership,
voting and disposition by the Stockholder
of the Shares owned by the Stockholder
on the date hereof and from time to
time hereafter.
NOW, THEREFORE, in consideration of
the mutual covenants and agreements contained
herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. As used
in this Agreement, the following terms shall
have the meanings ascribed to them below:
Affiliate of any Person shall mean any
Person that, directly or indirectly through one
or more intermediaries, controls, is controlled
by or is under common control with such Person.
Code shall mean the Internal Revenue Code
of 1986, as amended.
Company Board shall mean the Board of
Directors of the Company.
Compensation Committee shall mean the
Compensation Committee of the Board of Directors
of Parent.
Fair Market Value shall mean, as of any
date, the value of the Shares determined as
follows:
(i) if the Shares are listed on any
established stock exchange or a national market
system, including without limitation The Nasdaq
National Market or The Nasdaq SmallCap Market of
The Nasdaq Stock Market, their Fair Market
Value shall be the mean between the high and
low sale prices for the Shares (or the closing
bid, if no sales were reported) as quoted on
such exchange or system for the last market
trading day prior to the time of determination,
as reported in The Wall Street Journal or
such other source as the Company Board deems
reliable, or if the Shares are regularly quoted
by a recognized securities dealer but selling
prices are not reported, their Fair Market
Value shall be the mean between the high bid
and low asked prices for the Shares on the last
market trading day prior to the day of
determination; or
(ii) in the absence of an established
market for the Shares, the aggregate Fair Market
Value thereof shall be determined at least once
a year on or before the first day of February
and at such other times as may be deemed
appropriate by the Compensation Committee in
its sole discretion. As part of its determination,
the Compensation Committee shall (1) obtain and
consider a professional appraisal of the value
of the Company from an investment bank or from
another entity capable of preparing such
valuation; and (2) use or cause to be used
methodologies such as those used by ▇▇▇▇▇▇▇ ▇▇▇▇▇
in its 1997 valuation of the Company, including a
multiple of earnings, present value of future
cash flows or such other established methodologies
that value comparable enterprises as going
concerns. However, both the recommendation of
the professional appraisal and the result
of the application of such methodologies
shall only be advisory to the Compensation
Committee and not determinative of the value
of the Company. The Compensation Committee
shall have the right, in its sole discretion,
to retain and make use of any advisory
assistance it deems necessary or desirable in
preparing the valuations of the Company,
including, but not limited to, the right to
appoint a new appraiser. The Fair Market
Value of each Share shall be determined
by dividing the aggregate Fair Market Value
by the number of then-outstanding Shares plus
the number of Shares reserved for issuance
under and pursuant to the terms of the
Companys stock option plans.
Initial Public Offering shall mean a
bona fide underwritten public offering of
Shares as a direct result of which at least
35 of the aggregate voting common equity
securities of the Company (calculated on a
fully diluted basis taking into account the
number of Shares reserved for issuance under
and pursuant to the terms of the Companys
stock option plans) will be beneficially
owned by Persons other than Parent and its
Affiliates (including all directors,
officers and employees of Parent and its
Affiliates).
Minority-Held Subsidiary shall mean a
corporation, that is not a Subsidiary of the
Company, whether now or hereafter existing,
in an unbroken chain of corporations beginning
with the Company, in which each of the
corporations in the chain other than the last
corporation in the chain owns stock possessing
20% or more of the issued and outstanding stock
in one of the other corporations in such chain.
Minority-Held Subsidiary Employer shall
mean the Minority-Held Subsidiary with respect to
which the Stockholder becomes an employee,
director, or both, immediately following the
Stockholders termination of employment without
cause from the Company, from a Subsidiary
Employer, or from a Minority-Held Subsidiary
other than the Minority-Held Subsidiary
Employer, as the case may be.
Person shall mean any individual,
corporation (including any non-profit
corporation), general or limited partnership,
cooperative, limited liability company,
joint venture, estate, trust, association,
organization, labor union or other entity.
Securities Act shall mean the
Securities Act of 1933, as amended, and
all rules and regulations promulgated thereunder.
Shares shall, as the case may be, mean (i)
shares of common stock, par value $1.00 per
share, of the Company, (ii) any other shares of
capital stock of the Company and (iii) shares of
any other capital stock or securities into which
such shares of common stock or other shares of
capital stock are reclassified or changed,
including by reason of a merger, consolidation,
share exchange, reorganization, recapitalization
or similar transaction.
Subsidiary shall mean any subsidiary
corporation, whether now or hereafter existing,
as defined in Section 424(f) of the Code;
provided, however, that 80% shall be substituted
for 50% whereever 50% appears in such definition.
Subsidiary Employer shall mean the
Subsidiary of the Company with respect to
which the Stockholder becomes an employee,
director, or both, immediately following the
Stockholders termination of employment
without cause from the Company, from a
Subsidiary of the Company other than the
Subsidiary Employer, or from a Minority-Held
Subsidiary Employer, as the case may be.
ARTICLE II
TRANSFERS
SECTION 2.01. Restrictions on Transfers.
The Stockholder shall not, directly or
indirectly, offer, transfer, sell, assign,
pledge, hypothecate or otherwise dispose of
(collectively, Transfer) any Shares, or solicit
any offers to purchase or otherwise acquire or
take a pledge of any Shares, other than by
will or by the laws of descent and distribution.
The provisions of this Section 2.01 shall not
apply to any transaction contemplated by
Section 2.05 or Article III hereof.
SECTION 2.02. Legend. Each certificate
representing Shares held by the Stockholder
shall bear substantially the following legend:
THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO THE TERMS
OF, AND IN PARTICULAR MAY NOT BE
TRANSFERRED, SOLD, ASSIGNED, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED
OF UNLESS SUCH TRANSFER, SALE,
ASSIGNMENT, PLEDGE, HYPOTHECATION
OR OTHER DISPOSITION IS EXPRESSLY
PERMITTED BY, AND COMPLIES WITH THE
PROVISIONS OF, A STOCKHOLDERS
AGREEMENT (THE AGREEMENT) (A COPY
OF WHICH IS ON FILE WITH, AND MAY BE
OBTAINED FROM, THE SECRETARY OF
▇▇▇▇▇▇, INC. (TOGETHER WITH ITS
SUCCESSORS, THE COMPANY)). THE
HOLDER OF THIS CERTIFICATE, BY
ACCEPTANCE OF THIS CERTIFICATE,
AGREES TO BE BOUND BY ALL OF THE
PROVISIONS OF THE AGREEMENT.
IN ADDITION TO THE FOREGOING, THE
SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED
PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933, AS AMENDED
(THE SECURITIES ACT), AND MAY NOT BE
TRANSFERRED, SOLD, ASSIGNED, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED
OF UNLESS (A) SUCH DISPOSITION IS
PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR (B) THE HOLDER
HEREOF SHALL HAVE DELIVERED TO THE
COMPANY AN OPINION OF COUNSEL,
WHICH OPINION OF COUNSEL SHALL BE
REASONABLY SATISFACTORY TO THE
COMPANY, TO THE EFFECT THAT SUCH
DISPOSITION IS EXEMPT FROM
REGISTRATION UNDER THE SECURITIES
ACT AND ANY APPLICABLE STATE
SECURITIES OR BLUE SKY LAWS.
SECTION 2.03. Stop Transfers. The
Stockholder agrees that, in order to
ensure compliance with the restrictions
referred to herein, the Company may issue
appropriate stop transfer instructions to
its transfer agent, if any, and that, if
the Company transfers its own securities, it
may make appropriate notations to the same
effect in its own records. No Transfer of
Shares in violation of this Agreement shall
be made or recorded on the books of the
Company and any such Transfer shall be void
and of no effect.
SECTION 2.04. Transfers to the
Company. Notwithstanding anything in this
Agreement to the contrary, the Stockholder
may at any time transfer all or a portion
of his Shares to the Company (on the terms
and conditions as may be agreed upon by the
Stockholder and the Company) without
complying with the provisions of this Article II.
SECTION 2.05. Repurchase Right Upon
Termination of Employment. In the event that
the Stockholder ceases to be employed by the
Company, a Subsidiary Employer or a Minority-Held
Subsidiary Employer (including by reason of death
or disability), and at such time, the Stockholder
(or his estate) holds Shares, the Company shall
have the right for a period of 90 days
following the effective date of any such
termination of employment to repurchase all
outstanding Shares held by the Stockholder
(or his estate) for an amount equal to the
then Fair Market Value of such Shares.
The Company, in exercising its repurchase
right, shall give the Stockholder
(or his estate) written notice specifying
(i) the number of Shares the Company is
repurchasing and (ii) the Fair Market
Value of such Shares (the Repurchase Notice).
The Fair Market Value for purposes of the
Companys exercise of its repurchase right
hereunder shall be the Fair Market Value
of the Shares as of the date of the
Repurchase Notice as determined in good
faith by the Compensation Committee.
The purchase price for Shares repurchased by
the Company shall be paid in cash.
ARTICLE III
DRAG-ALONG RIGHTS; BRING-ALONG RIGHTS,
REGISTRATION RIGHTS
SECTION 3.01. Drag-Along Right.
(a) If Parent at any time proposes to
sell or dispose of Shares representing
more than 50% of the Shares then outstanding
to any Person or Persons other than an
Affiliate of Parent (such transferee Person
or Persons are hereinafter referred to
collectively as the Drag-Along Purchasers),
Parent shall have the right (the Drag-Along
Right) to require the Stockholder to sell
or dispose to the Drag-Along Purchasers
such number of outstanding Shares owned
by the Stockholder determined in accordance
with this Section 3.01 (a Drag-Along
Disposition Transaction). Parent shall
send a written notice (a Drag-Along Notice)
to the Stockholder not less than 30 days
prior to the date upon which such sale or
disposition is scheduled to close. Each
Drag-Along Notice shall (i) specify in
reasonable detail all the terms and
conditions upon which such sale or disposition
is to occur and (ii) make reference to this
Section 3.01 and state that the Stockholder
is obligated to sell or dispose of its
Drag-Along Shares (as defined below)
pursuant to such sale.
(b) In connection with any Drag-
Along Disposition Transaction, (i the
Stockholder shall be required to sell or
dispose of the number of remaining Shares
(the Drag-Along Shares), requested
by Parent; provided, however, that the
percentage of the total number of
remaining Shares then owned by the
Stockholder represented by such Drag-Along
Shares shall be equal to the percentage of
the total number of outstanding Shares then
owned by Parent to be sold by Parent.
Unless the Stockholder agrees otherwise,
the Stockholder shall receive as
consideration upon such sale or disposition
for his Shares the same type of
consideration and the same amount of
consideration per share and on the same
terms and conditions as are applicable to
the Shares to be sold by Parent. The
Stockholder shall agree to the same
covenants, representations and warranties
as Parent agrees to in connection with the
proposed sale. To the extent the Stockholder
is required to provide indemnification in
connection with the Drag-Along Disposition
Transaction, the monetary indemnification
obligations of the Stockholder shall
be limited to the fair market value of
the cash, property and other assets
received by the Stockholder in such
Drag-Along Disposition Transaction;
provided, however, that this limitation
shall not apply in respect of any
representations, warranties or covenants
that are personal in nature to the
Stockholder (e.g., title to Shares being
transferred).
(c) Each of Parent and each Drag-Along
Purchaser shall have the right, in its sole
discretion, at all times prior to
consummation of the proposed Drag-Along
Disposition Transaction, to abandon or
otherwise terminate such transaction, and
neither Parent nor any Drag-Along Purchaser
shall have any liability or obligation to
the Stockholder with respect thereto by
virtue of such abandonment or termination;
provided, however, that the Company
shall promptly pay to the Stockholder his
reasonable out-of-pocket costs and
expenses (if any) incurred in connection
with the transaction through the date of
abandonment or termination thereof.
SECTION 3.02. Bring-Along Rights.
(a) If the Company Board approves the
sale of the Company to another entity
(whether by a merger, consolidation, share
exchange, reorganization, recapitalization
or similar transaction) (an Approved Sale),
then (i) the Stockholder shall not raise
dissenter or appraisal rights with respect
to the Approved Sale, and (ii) if the
Approved Sale is structured as a sale of
capital stock, the Stockholder shall sell
all remaining Shares held by the Stockholder,
on the terms and conditions approved by the
Company Board. The Stockholder shall
promptly take all actions as the Company
Board shall deem necessary and appropriate in
connection with the consummation of the
Approved Sale. In the event of an Approved
Sale, the Stockholder, unless he expressly
(i.e. other than by operation of clause
(i) of this Section 3.02(a)) agrees
otherwise pursuant to the terms of the
Approved Sale, shall receive as consideration
upon such Approved Sale for his Shares
the same type of consideration and the
same amount of consideration per Share as
shall be received by Parent in connection
with such Approved Sale; provided, however,
that in any Approved Sale to a Person who is
not an Affiliate of Parent, Parent may
retain 10% or less of the Shares held by
Parent or receive a different type of
consideration than the Stockholder in
respect of 10% or less of the Shares
held by Parent in circumstances the Company
Board determines necessary for the
Approved Sale to be accounted for in the
manner requested by the purchaser of the
Company in such Approved Sale.
(b) If the Company Board desires to
consummate an ApprovedSale, the Company
Board shall provide a written notice to
the Stockholder, which notice shall
describe the proposed transaction in
summary terms and, if the Approved Sale is
structured as a sale of Shares, contain the
price, terms and conditions of the sale
of Shares by the Stockholder to the
entity to which such Shares are to be sold.
Upon not less than five business days
request, the Stockholder shall enter into
(i) a binding agreement with the entity to
which such Shares are to be sold to sell to
such entity all of his Shares, free
and clear of all liens, charges, pledges,
security interests and encumbrances and
t the price and on the terms contained in
said notice and (ii) any binding
interseller agreement relating to such
Approved Sale that the Company Board may
approve, which agreements may provide for
escrows, holdbacks, expense reimbursement
and other purchase price reductions or
deferrals that apply pro rata to all sellers.
To the extent the Stockholder is
required to provide indemnification in
connection with any Approved Sale, the
monetary indemnification obligations of
the Stockholder shall be limited to the
fair market value of the cash, property
and other assets received by the Stockholder
in the Approved Sale; provided, however, that
this limitation shall not apply in respect
of any representations, warranties or
covenants that are personal in nature to
the Stockholder (e.g., title to
Shares being transferred).
(c) The Stockholder shall bear his pro
rata share of the fees and expenses
incurred by the Company and Parent in
the Approved Sale.
SECTION 3.03. Piggyback Rights
In the event of an Initial Public Offering,
the Stockholder shall have the right to request
registration of the Shares for sale in
connection with an underwritten registered
Initial Public Offering. However, the
Company shall not be obligated to take any
action to effect any registration of
Stockholders Shares if, at the time of the
request, the managing underwriters advise
the Company in good faith and in writing
that such inclusion would adversely affect
the underwriters ability to market the shares
included in the registration statement. If the
Stockholders Shares are not registered in
connection with an Initial Public Offering
due to advice from the managing underwriter
of such shares, until such date as the
Shares are registered, the Stockholder
shall continue to have the right to put the
Shares to the Company at the per share
price of the publicly traded stock.
Stockholder agrees to execute any
customary agreements and certificates
required by the underwriters in connection
with any such underwritten registered
initial public offering.
ARTICLE IV
VOTING; WAIVER OF RIGHTS
SECTION 4.01. Proxy; Voting. The
Stockholder has, simultaneously with the
execution of this Agreement, granted Parent
a proxy to vote and provide consent with
respect to the Stockholders Shares as to all
matters presented to the stockholders of the
Company for voting or consent, including the
election of directors, substantially in the
form of Exhibit A attached hereto. If at
any time such proxy shall not be in full
force and effect for any reason other than
termination of this Agreement pursuant to
Section 6.14, the Stockholder shall vote or
cause to be voted, and provide or cause to
be provided consent with respect to, all
Shares held of record by him or over which
he has voting control, in each case as directed
by Parent with respect to all matters
presented to the stockholders of the Company
for voting or consent.
SECTION 4.02. Management of the
Business of the Company. The Stockholder
(i) acknowledges and agrees that Parent,
by virtue of its majority ownership of the
capital stock of the Company, controls the
management of the business and affairs of the
Company (including with respect to any sale or
initial public offering of the Company),
(ii) acknowledges and agrees that Parent
shall not be liable to the Stockholder for
any action taken in connection with its
management of the business and affairs of
the Company and (iii) hereby irrevocably
waives, to the fullest extent permitted by
law, any and all rights, claims or remedies
against Parent in respect of any duties
(including fiduciary duties), whether in
equity or at law (including any fiduciary
duties that a majority stockholder may have
to a minority stockholder), to the
Stockholder, whether arising from Parents
and the Stockholders ownership of capital
stock of the Company or otherwise. The
Stockholder acknowledges and agrees that
Parents practice has been to borrow money
from the Company on a regular basis on
terms previously disclosed to the
Stockholder. Without limiting the generality
of the foregoing, the Stockholder acknowledges
and agrees that the Stockholder has no
rights, claims, or remedies against Parent
in respect of any duties (including
fiduciary duties), whether in equity or at
law (including any fiduciary duties
that a majority stockholder may have
to a minority stockholder), to the extent
that the Parent continues such practice.
ARTICLE V
REPRESENTATIONS
Each of Parent and the Company
represents and warrants to the Stockholder,
and the Stockholder represents and warrants
to each of Parent and the Company, as
follows:
SECTION 5.01. Authority; Execution
and Delivery; Enforceability. Such party
has full power and authority to execute
this Agreement and to perform its
obligations hereunder. In the case of
any party that is a corporation, the
execution and delivery by such party of
this Agreement and the performance of its
obligations hereunder have been duly
authorized by all necessary corporate or
similar action. Such party has duly executed
and delivered this Agreement, and this
Agreement constitutes its legal, valid
and binding obligation, enforceable against
it in accordance with its terms.
SECTION 5.02. No Conflicts; Consents.
The execution and delivery by such party
of this Agreement do not, and the performance
of its obligations hereunder will not
conflict with, or 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, cancelation or
acceleration of any obligation or to loss
of a material benefit under, or to increased,
additional, accelerated or guaranteed rights
or entitlements of any person under, or
result in the creation of any mortgage,
lien, security interest, charge, restrictions
or encumbrances of any kind upon any of the
properties or assets of such party under,
any provision of (i) in the case of any party
that is a corporation or other legal entity,
the certificate of incorporation, by-laws
or similar organizational document of such
party, (ii) any material contract, lease,
license, indenture, agreement, commitment
or other legally binding arrangement to
which such party is a party or by which any
of its properties or assets is bound or
(iii) any material judgment, order or
decree or material statute, law (including
common law), ordinance, rule or regulation
applicable to such party or its properties
or assets. No consent, approval, license,
permit, order or authorization of, or
registration, declaration or filing with,
any Federal, state, local or foreign
government or any court of competent
jurisdiction, administrative agency or
commission or other governmental authority
or instrumentality, domestic or foreign,
is required to be obtained or made by or
with respect to such party in connection
with the execution, delivery and
performance of this Agreement.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Notices. All notices
and other communications provided for herein
shall be dated and in writing and shall
be given:
If to Parent, to it at the following
address:
The Washington Post Company
▇▇▇▇ ▇▇▇▇ ▇▇., ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Cravath, Swaine & ▇▇▇▇▇ LLP
Worldwide Plaza
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ Cami
Facsimile: 212-474-3700
If to the Stockholder, to him at
the following address:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, #▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
If to the Company, to it at the
following address:
▇▇▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Johan de Muinck Keizer,
General Counsel
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
or to such other address as the party to
whom notice is to be given may provide
in a written notice to the Company, a
copy of which written notice shall be
on file with the Companys Secretary.
Notice shall be effective when received.
SECTION 6.02. Applicable Law. The
laws of the State of New York shall govern the
interpretation, validity and performance of the
terms of this Agreement, regardless of the law
that might be applied under principles of
conflicts of laws.
SECTION 6.03. Integration. This
Agreement and the documents referred to
herein or delivered pursuant hereto which
form a part hereof contain the entire
understanding of the parties with respect
to the subject matter hereof. This
Agreement supersedes all prior agreements
and understandings between the parties with
respect to the subject matter hereof.
SECTION 6.04. Descriptive Headings.
The headings in this Agreement are for
convenience of reference only and shall
not limit or otherwise affect the meaning
of terms contained herein.
SECTION 6.05. Severability. The
invalidity or unenforceability of any
provisions of this Agreement in any
jurisdiction shall not affect the validity,
legality or enforceability of the remainder
of this Agreement in such jurisdiction or
the validity, legality or enforceability
of this Agreement, or any provision hereof,
in any other jurisdiction, it being
intended that all rights and obligations
of the parties hereunder shall be enforceable
to the fullest extent permitted by law.
SECTION 6.06. Other Agreements.
Nothing contained in this Agreement shall
be deemed to be a waiver of, or release
from, any obligations any party hereto
may have under, or any restrictions on
the Transfer of Shares or other securities
of the Company imposed by, any other
agreement, if any.
SECTION 6.07. Successors, Assigns,
Transferees. The provisions of this Agreement
shall be binding upon and inure to the
benefit of the parties hereto and their
respective heirs, successors and permitted
assigns. Neither this Agreement nor any right,
remedy, obligation or liability arising
hereunder or by reason hereof may be
transferred by the Stockholder without
the prior written consent of Parent and
the Company. Any purported transfer of
rights under this Agreement in violation
of this Section 6.07 shall be void and of
no effect.
SECTION 6.08. Defaults. A default
by any party to this Agreement in such
partys compliance with any of the
conditions or covenants hereof or performance
of any of the obligations of such party
hereunder shall not constitute a default
by any other party.
SECTION 6.09. Amendments; Waivers.
This Agreement may not be amended, modified
or supplemented and no waivers of or consents
to departures from the provisions hereof may
be given unless consented to in writing by
Parent, the Company and the Stockholder.
SECTION 6.10. Counterparts. This
Agreement may be executed in two or more
counterparts, each of which shall be deemed
an original but all of which, when taken
together, shall constitute one and the same
Agreement.
SECTION 6.11. Specific Performance.
Each of the parties hereto acknowledges and
agrees that in the event of any breach of
this Agreement, the non-breaching parties
would be irreparably harmed and could not
be made whole by monetary damages. It is
accordingly agreed that the parties hereto
will waive the defense in any action for
specific performance that a remedy at law
would be adequate and that the parties
hereto, in addition to any other remedy to
which they may be entitled at law or in
equity, shall be entitled to an injunction
or injunctions to prevent breaches of the
provisions of this Agreement and to enforce
specifically the terms and provisions hereof
without the necessity of proving actual
damages or securing or posting any bond or
providing prior notice.
SECTION 6.12. Exclusive Jurisdiction;
Waiver of Jury Trial. (a) Each party agrees
to commence any action, suit or proceeding
arising out of this Agreement in any Federal
court sitting in the City of New York, New
York or, if such suit, action or other
proceeding may not be brought in such court
for jurisdictional reasons, in any New
York State court situated within the City of
New York. Each party irrevocably submits to
the jurisdiction of such court for the
purposes of any such suit, action or other
proceeding. Each party further agrees that
service of any process, summons, notice or
document by U.S. registered mail to such
partys respective address set forth above
shall be effective service of process for
any action, suit or proceeding in New York
with respect to any matters to which it has
submitted to jurisdiction in this
Section 6.12. Each party irrevocably and
unconditionally waives any objection to the
laying of venue of any action, suit or
proceeding arising out of this Agreement
or the transactions contemplated hereby
in any Federal Court in the City of New York,
New York, or any New York State court situated
in the City of New York, and hereby further
irrevocably and unconditionally waives and
agrees not to plead or claim in any such
court that any such action, suit or
proceeding brought in any such court has
been brought in an inconvenient forum.
(b) Each party waives, to the fullest
extent permitted by applicable law, any
right it may have to a trial by jury in
respect of any litigation arising out of
or relating to this Agreement. Each
party (i) certifies that no representative,
agent or attorney of another party has
represented, expressly or otherwise, that
such other party would not, in the event of
litigation, seek to enforce the foregoing
waiver and (ii) acknowledges that it has
been induced to enter into this Agreement by,
among other things, the mutual waivers and
certifications set forth above in this
Section 6.12(b).
SECTION 6.13. Recapitalization,
Exchanges, etc., Affecting Shares. The
provisions of this Agreement shall apply,
to the full extent set forth herein
with respect to the Shares, to any and
all securities of the Company or any
successor or assign of the Company
(whether by merger, share exchange,
consolidation, sale of assets or otherwise)
which may be issued in respect of, in
exchange for or in substitution of the
Shares, by reason of any stock dividend,
stock split, stock issuance, reverse
stock split, combination, recapitalization,
reclassification, merger, consolidation
or otherwise. Upon the occurrence of any
of such events, amounts hereunder shall be
appropriately adjusted.
SECTION 6.14. Termination. The
rights and obligations of the parties hereto
shall automatically terminate upon the
earlier of (i) the consummation of an
Initial Public Offering and (ii) the
consummation of any merger, consolidation,
share exchange, reorganization,
recapitalization or similar transaction
involving the Company, if Parent does not
own, directly or indirectly, at least a
majority of the voting power of the surviving
entity after giving effect to such transaction;
provided, however, that (A) the provisions of
Section 3.03 and Article VI shall survive any
such termination under clause (i) above until
the occurrence of an event described in clause
(ii) above, (B) in connection with any Transfer
by the Stockholder after such Initial Public
Offering (1) such Transfer shall be pursuant
to an effective registration statement under
the Securities Act and shall be registered
under all applicable state securities or
blue sky laws or (2) such Transfer shall
meet an available exemption from registration
under the Securities Act and all applicable
state securities or blue sky laws, and
(C) an outstanding Repurchase Notice shall
survive any termination under clause (i) above
if received by the Stockholder prior to the
date of such termination.
IN WITNESS WHEREOF, the parties
hereto have executed this Agreement as of
the date first above written.
THE WASHINGTON POST COMPANY,
by
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Executive Officer and
Chairman
▇▇▇▇▇▇, INC.,
by
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
EXHIBIT A
IRREVOCABLE PROXY
I, the undersigned, pursuant to
Section 212 of the Delaware General Corporation
Law, hereby irrevocably appoint The Washington Post
Company (Parent), a Delaware corporation, as
attorney and proxy for the undersigned, to vote,
and to provide consent, as to any matters presented
to the stockholders of ▇▇▇▇▇▇, Inc., a Delaware
corporation (the Company), for voting or consent,
including the election of directors, with respect to
the total number of shares of common stock, par value
$1.00 per share, of the Company owned by the
undersigned on the date hereof and any shares of
common stock or any other capital stock of the
Company acquired by the undersigned from time to
time subsequent to the date hereof (collectively,
the Shares); and to attend any and all meetings,
and adjournments thereof, of the stockholders of
the Company called for the purpose of voting or
providing consent as to any such matters; and to
represent and otherwise to act for the undersigned
in the same manner and with the same effect as if
such action were taken by the undersigned.
The undersigned hereby revokes any
previous proxies with respect to the Shares
which are the subject of this irrevocable proxy.
This proxy is irrevocable, coupled with an interest
and has been granted pursuant to the Stockholders
Agreement, dated as of June 5, 2006, among Parent,
the Company and the undersigned (the Stockholders
Agreement). This proxy shall not terminate
until such time as the Stockholders Agreement has
terminated in accordance with the terms thereof.
The undersigned authorizes the attorney
and proxy appointed herein to substitute any other
Person to act hereunder, to revoke any such
substitution and to file this proxy or any
substitution or revocation with the Secretary
of the Company.
IN WITNESS WHEREOF, the undersigned
has executed this proxy this 5th day of June
2006.
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, #▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇