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EXHIBIT 10.20
EXECUTION COPY
MEDIANEWS GROUP, INC.
SHAREHOLDERS' AGREEMENT
THIS AGREEMENT is made effective as of January 31, 2000, by and among
The ▇▇▇▇▇▇▇▇▇ Family Voting Trust for MediaNews Group, Inc. (the "▇▇▇▇▇▇▇▇▇
Family Voting Trust"), by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇., Trustee, The ▇▇▇▇▇▇▇▇▇ Family
Irrevocable Trust by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Trustees, The
▇▇▇▇▇▇▇▇▇ Family Revocable Trust by ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
▇▇., Trustees (the ▇▇▇▇▇▇▇▇▇ Family Voting Trust, the ▇▇▇▇▇▇▇▇▇ Family
Irrevocable Trust and the ▇▇▇▇▇▇▇▇▇ Family Revocable Trust being sometimes
collectively referred to herein as the "▇▇▇▇▇▇▇▇▇ Shareholders"), The ▇▇▇▇▇▇▇
Family Voting Trust for MediaNews Group, Inc. (the "▇▇▇▇▇▇▇ Family Voting
Trust") by ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustee, The ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Irrevocable Trust by
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustee (the "▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Irrevocable Trust"), the ▇▇▇▇▇▇▇
Family 1987 Trust by ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustee (the "▇▇▇▇▇▇▇ Family 1987 Trust"),
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ individually, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ individually, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
individually, as custodian under the Uniform Gift to Minors Act ("UGMA") for
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, subject to the ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Irrevocable Trust, and as
Trustee under the ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Irrevocable Trust and the ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Irrevocable Trust, and ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, individually, as custodian under the
UGMA for ▇▇▇▇▇ ▇▇▇▇▇▇, subject to the ▇▇▇▇▇ ▇▇▇▇▇▇ Irrevocable Trust, as
custodian under the UGMA for ▇▇▇▇▇▇ ▇▇▇▇▇▇, subject to the ▇▇▇▇▇▇ ▇▇▇▇▇▇
Irrevocable Trust and as Trustee under the Chipeta ▇▇▇▇▇▇ Irrevocable Trust, the
▇▇▇▇▇ ▇▇▇▇▇▇ Irrevocable Trust and the ▇▇▇▇▇▇ ▇▇▇▇▇▇ Irrevocable Trust (the
▇▇▇▇▇▇▇ Family Voting Trust, the ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Irrevocable Trust, the ▇▇▇▇▇▇▇
Family 1987 Trust, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ individually, ▇▇▇▇ ▇▇▇▇▇▇▇ individually,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, individually, as custodian for ▇▇▇▇▇▇▇▇▇ and as Trustee for the
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Irrevocable Trust and the ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Irrevocable Trust,
and ▇▇▇▇▇▇▇▇▇
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▇. ▇▇▇▇▇▇, individually, as custodian for Katya and ▇▇▇▇▇▇ ▇▇▇▇▇▇ and as Trustee
for the Chipeta ▇▇▇▇▇▇ Irrevocable Trust, the ▇▇▇▇▇ ▇▇▇▇▇▇ Irrevocable Trust and
the ▇▇▇▇▇▇ ▇▇▇▇▇▇ Irrevocable Trust, being sometimes collectively referred to
herein as the "▇▇▇▇▇▇▇ Shareholders"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇ and MediaNews
Group, Inc., a Delaware corporation ("MNG" or the "Company").
WHEREAS, the current equitable ownership of the Class A Common Stock,
par value $0.001 per share, (the "Class A Common Stock") of MNG is as follows:
The ▇▇▇▇▇▇▇▇▇ Family 254,858.9900 Shares of Class A Common Stock
Revocable Trust
The ▇▇▇▇▇▇▇▇▇ Family 786,426.5100 Shares of Class A Common Stock
Irrevocable Trust
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇ 58,199.0000 Shares of Class A Common Stock
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Individually 185,817.3750 Shares of Class A Common Stock
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Individually 260,321.3750 Shares of Class A Common Stock
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as Trustee for 123,743.7450 Shares of Class A Common Stock
▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
under The ▇▇▇▇▇▇▇ Family 1987
Trust
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as Trustee for 74,504.0000 Shares of Class A Common Stock
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ under The
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Irrevocable
Trust
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Individually 86,773.7917 Shares of Class A Common Stock
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as Custodian 132,299.6658 Shares of Class A Common Stock
for Katya and ▇▇▇▇▇▇ ▇▇▇▇▇▇,
and as Trustee for the
Chipeta ▇▇▇▇▇▇ Irrevocable Trust,
the ▇▇▇▇▇ ▇▇▇▇▇▇ Irrevocable Trust and
the ▇▇▇▇▇▇ ▇▇▇▇▇▇ Irrevocable Trust
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Individually 59,275.1825 Shares of Class A Common Stock
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, as 118,550.3750 Shares of Class A Common Stock;
Custodian for ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
and as Trustee for the ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ Irrevocable Trust and the
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Irrevocable Trust
WHEREAS, the MNG shareholders who are parties to this Agreement now
own, legally and beneficially, 2,140,770 shares, representing 92.5% of the
issued and outstanding shares of the Class A Common Stock (the Class A Common
Stock is sometimes referred to herein as the "Stock");
WHEREAS, concurrently with the execution of this Agreement (i) the
▇▇▇▇▇▇▇ Shareholders are entering into the ▇▇▇▇▇▇▇ Family Voting Trust and (ii)
the ▇▇▇▇▇▇▇▇▇ Shareholders are entering into the ▇▇▇▇▇▇▇▇▇ Family Voting Trust;
WHEREAS, the parties hereto desire to enter into this Shareholders'
Agreement in order to provide a continuing framework for their relationship as
the legal and beneficial owners of ninety-two and five tenths percent (92.5%) of
the outstanding Class A Common Stock and to further define their mutual
obligations.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants herein contained, the parties hereto mutually agree as follows:
1. PROPOSED ACTIVITIES OF MNG
1.01 Newspaper Publishing Business. MNG will engage only in the
business of owning and holding the securities or assets of companies that are in
the business of publishing and distributing newspapers or are engaged in related
advertising or media based business.
2. RESTRICTIONS UPON SALE OR TRANSFER OF STOCK
2.01 Generally. At any time during the term of this Agreement none of
the ▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇▇▇ Shareholders nor any other party to this
Agreement shall sell, transfer,
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assign, pledge, give away or otherwise dispose of, alienate, or encumber in any
manner any interest in, any shares of, or interest in any voting trust
certificates relating to, any class, now or hereafter authorized, of the Common
Stock of MNG (any Common Stock of MNG or interest in any voting trust
certificate relating thereto being hereinafter referred to as the "Stock")
beneficially owned by any of them, other than as hereinafter expressly provided
in Sections 3, 4 or 5 of this Agreement, and any attempt to sell, transfer,
assign, pledge, give away or otherwise dispose of or alienate or encumber any
interest in any of the Stock in violation of this Agreement shall be void and of
no effect and shall not be recognized or recorded in the stock transfer books of
MNG.
2.02. Additional Restrictions. Until the earlier of (i) the date on
which none of the Company's 8 3/4% Senior Subordinated Notes due October 1, 2009
or its 8 5/8% Senior Subordinated Noes due July 1, 2011 is outstanding, or (ii)
the date on which MNG's Leverage Ratio, as such term is defined in the Indenture
dated October 1, 1997 by and between the Company (then known as Garden State
Newspapers, Inc.) and the Bank of New York as Trustee, is less than 3:1, and
except as otherwise provided in Section 3 or 4 hereof, no person who is a party
to or who is otherwise bound by the terms of this Agreement shall sell,
transfer, assign, pledge, give away or otherwise dispose of, alienate, or
encumber in any manner whatsoever (each, as "Transfer") any shares or interest
in any shares of any class, now or hereafter authorized, of the Stock
beneficially owned by it unless all shares of Stock of the Company then
outstanding are Transferred by the holders thereof in a single transaction or
series of related transactions on substantially the same terms.
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2.03 Tag-Along Restrictions/Rights.
(a) No shareholder (a "Selling Shareholder") shall, individually or
collectively, in any one transaction or series of transactions, directly or
indirectly, Transfer rights to all or any part of the Selling Shareholder's
Stock in a transaction not otherwise permitted under Section 3 or Section 4
hereof, to any person (other than a Permitted Transferee) (a "Third Party")
unless the terms and conditions of such Transfer to such Third Party shall
include an offer to each other Shareholder (each, for purposes of the Section
2.03, a "Tag-Along Offeree,") to include at the option of each Tag-Along
Offeree, in the sale or other disposition to the Third Party such number of
shares owned by each such Tag-Along offeree at the time of such Transfer
determined in accordance with this Section 2.03. The Selling Shareholder
proposing to effect such Transfer (the "Transferor") shall send a written notice
(the "Tag-Along Notice") to each of the Tag-Along Offerees setting forth the
maximum number of shares of Stock the Third Party is willing to purchase or
otherwise acquire. At any time within 30 days after its receipt of the Tag-Along
Notice, each of the Tag-Along Offerees may exercise its option to sell a number
of shares of Stock owned by such Tag-Along Offeree determined in accordance with
the provisions of Section (b) of this Section 2.03 by furnishing written notice
of such exercise (the "Exercise Notice") to the Transferor, which Exercise
Notice shall set forth the maximum and minimum number of shares of Stock that
such Tag-Along Offeree wishes to Transfer to the Third Party.
(b) If the proposed sale or other disposition to the Third Party by the
Transferor is consummated, each Tag-Along Offeree shall have the right to sell
to the Third Party as part of such proposed Transfer the same percentage of the
total number of shares of Stock then owned by such Tag-Along Offeree as the
percentage of the total number of shares of Stock then owned by the Selling
Shareholder to be Transferred to the Third Party; provided, however, that, in
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the event that the total number of shares of Stock proposed to be Transferred by
the Transferor and all Tag-Along Offerees as set forth in their respective
Exercise Notices exceeds the maximum number of shares of Stock that the Third
Party is willing to purchase or otherwise acquire, then the number of shares of
Stock to be Transferred by the Transferor and the Tag-Along Offerees who have
given Exercise Notices shall be allocated among the Transferor and such
Tag-Along Offerees (with rounding to avoid fractional shares) in proportion to
the number of shares of Stock that each of them originally proposed to Transfer
to the Third Party; provided that if such allocation would result in any such
Tag-Along Offeree Transferring less than the minimum number of shares of Stock
set forth in such Tag-Along Offeree's Exercise Notice, such Exercise Notice
shall be deemed revoked and the shares of Stock which such Tag-Along Offeree
would otherwise have been entitled to Transfer to the Third Party shall be
allocated among the Transferor and the other Tag-Along Offerees who gave
Exercise Notices in accordance with the foregoing provisions of this sentence.
All calculations pursuant to this paragraph Section 2.03 shall exclude and
ignore any unissued shares of Stock issuable pursuant to stock options, warrants
and other rights to acquire shares of Stock.
(c) Each of the Transferor and the Third Party shall have the right, in
its sole discretion, at all times prior to consummation of the proposed Transfer
giving rise to the tag-along right granted by this Section 2.03, to abandon,
rescind, annul, withdraw or otherwise terminate such Transfer whereupon all
tag-along rights in respect of such sale or other disposition pursuant to this
Section 2.03 shall become null and void, and neither the Transferor nor the
Third Party shall have any liability or obligation to any Tag-Along Offeree with
respect thereto by virtue of such abandonment, rescission, annulment, withdrawal
or termination.
(d) The purchase from the Tag-Along Offerees pursuant to this Section
2.03 shall be on the same terms and conditions, including but not limited to the
per share price and the date of sale
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or other disposition, as are applicable to the Transferor which shall be as
stated in the Tag-Along Notice provided to the Tag-Along Offerees by the
Transferor.
(e) If within 30 days after receipt of the Tag-Along Notice, any
Tag-Along Offeree has not delivered an Exercise Notice, such Tag-Along Offeree
will be deemed to have waived any and all of its rights with respect to the
Transfer described in the Tag-Along Notice and the Transferor shall have 90 days
after the expiration of such 30 day period in which to Transfer not more than
the number of shares of Stock described in the Tag-Along Notice (minus the
number of shares of Stock Transferred to the Third Party by Tag-Along Offerees)
on terms not more favorable to the Transferor than were set forth in the
Tag-Along Notice. If, at the end of 120 days following the receipt of the
Tag-Along Notice, the Transferor has not completed the Transfer of Stock of the
Transferor in accordance with the terms described in the Tag-Along Notice, all
the restrictions on Transfer contained in this Agreement with respect to Stock
owned by the Transferor shall again be in effect.
3. PERMITTED TRANSFERS AMONG RELATED PARTIES
3.01 Permitted Transfers. At any time during the term of this
Agreement, any shareholder may at any time sell to MNG all or any portion of
their interest in shares of Stock, for such consideration as such Shareholder
and MNG shall mutually determine appropriate, and any of the ▇▇▇▇▇▇▇▇▇ or
▇▇▇▇▇▇▇ Shareholders may at any time sell, transfer, or assign by inter vivos
gift, testamentary bequest, or otherwise, for such consideration, if any, as
such person or entity shall, in its or his sole discretion, determine
appropriate (and without the prior consent of any other shareholder or party to
this Agreement), all or a portion of their interest in shares of Stock to
members of their respective families (i.e., their spouses, parents, siblings,
children, any descendants of the foregoing or any spouses of any of the
foregoing) or to a trust for the benefit of such family member(s) or in the case
of a trust, to its grantor or to its beneficiaries, (all such permitted
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transferees sometimes being hereafter referred to as "Permitted Transferees"),
provided that the person or trustee of any trust to whom such shares are
transferred shall, together with his successors, assigns, distributees,
legatees, personal representatives, any receiver or trustee in bankruptcy or
trust beneficiaries, shall take such Stock subject to and bound by all of the
terms and conditions of this Agreement, including, without limitation, the
provisions of this Section 3 and of Sections 2, 4, 5, 6 and 7 hereof, and
further provided that the Transferee shall execute and deliver to MNG a written
acknowledgment of the foregoing, whereupon a new certificate shall be issued
representing the shares of Stock transferred and bearing the restrictive legend
set forth in Paragraph 6.01 hereof.
3.02 Agreement of the Trustees. Each of the Trustees acknowledges that
he or she has only bare legal title to the Stock beneficially owned by the
▇▇▇▇▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇ Shareholders, respectively, and he or she
agrees with all parties hereto that he or she shall promptly take all action
necessary and appropriate to effect the transfer of title to any Stock that is
permitted or required to be transferred by the ▇▇▇▇▇▇▇▇▇ Shareholders or the
▇▇▇▇▇▇▇ Shareholders, as the case may be, pursuant to the provisions of this
Section 3 or under Sections 4 or 5. Each such Trustee further agrees that he or
she shall not have the power to transfer title to any of the Stock owned of
record by him except pursuant to a transfer permitted or required to be made by
the ▇▇▇▇▇▇▇▇▇ Shareholders or ▇▇▇▇▇▇▇ Shareholders under this Section 3 or under
Sections 4 or 5. All of the provisions of this Section 3.02 shall be binding
upon all successors and assigns of each such Trustee.
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4. TRANSFER OF STOCK BY CONSENT OF PARTIES
4.01 Transfer by Consent. At any time during the term of this Agreement
any Shareholder may Transfer, with or without consideration, all or any part of
its Stock free and clear of any restrictions or limitations in this Agreement,
but only with the express prior written consent of all of the other parties to
this Agreement, which consent may be granted or withheld in the sole and
absolute discretion of each of such parties. In the event such prior written
consent is obtained, this Agreement shall not apply to the Stock to which the
consent relates, so long as the Transfer is made in accordance with all the
terms and conditions of such consent.
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5. COMPANY'S AND SHAREHOLDERS' OPTIONS TO PURCHASE STOCK
5.01 Option to Purchase. Subject to the restrictions set forth in
Sections 2.02 and 2.03 hereof, should any Shareholder (for purposes of this
Section 5, a "Selling Shareholder") desire to Transfer rights in all or any part
of the Selling Shareholder's Stock in a transaction not otherwise permitted
under Section 3 or 4 hereof, whether the Selling Shareholder desires to initiate
a Transfer or is responding affirmatively to an offer to Transfer, before doing
so the Selling Shareholder shall first permit (i) the Company and thereafter
(ii) the other Shareholders (the "Remaining Shareholders") to exercise an option
to purchase the shares of Stock which the Selling Shareholder desires to
Transfer in accordance with the provisions of this Section.
(a) Subject to the restrictions set forth in Sections 2.02 and 2.03
above, a Shareholder may solicit third parties to purchase its Stock prior to
offering the same to the Company and the Remaining Shareholders, but no Transfer
to a third party may be consummated until such Stock has been offered to (i) the
Company and thereafter, (ii) the Remaining Shareholders in accordance with this
Agreement.
5.02 Required Notice. Upon deciding to Transfer all or any rights in
all or any part of his stock, whether the Selling Shareholder desires to
initiate a Transfer or is responding affirmatively to an offer to purchase,
except for Transfers expressly authorized pursuant to Sections 3 and 4 of this
Agreement, the Selling Shareholder shall simultaneously notify the Company and
the Remaining Shareholders of the intended Transfer. Such notice (the "Transfer
Notice") shall contain a complete description of the proposed transaction,
including the identity of any proposed Transferee, the "Purchase Price" (as such
term is defined in Section 5.04 hereof) offered by the Selling Shareholder or
proposed by a bona fide third party transferee and all other material terms of
such disposition. The Transfer Notice shall also specify whether the Selling
Shareholder is only willing to Transfer
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all of his Stock, or is willing to Transfer only a portion thereof, and such
specifications shall control the scope of any option to purchase thereunder.
5.03 Scope and Priority of Company's and Remaining Shareholders'
Options.
(a) Upon receipt of a Transfer Notice from a Selling Shareholder
pursuant to Section 5.02, the Company shall thereupon have the first option to
purchase all (but not less than all) of such shares of Stock tendered at the
Purchase Price. Such option to purchase must be exercised by the Company within
thirty (30) days after receipt of the Transfer Notice. Any exercise of such
option to purchase Stock by the Company shall be made by notice in writing to
the Selling Shareholder, with a copy to all other Shareholders, mailed within
such thirty day period. If the Company elects not to exercise such option to
purchase it shall so notify in writing the Selling Shareholder, with a copy to
all other Shareholders, (the "Non-Exercise Notice") mailed within such thirty
day period.
(b) If the Company fails to exercise its option to purchase all of the
Selling Shareholder's Stock in accordance with Section 5.03(a) above, then upon
receipt of a notice (the "Second Transfer Notice") from a Selling Shareholder
that the Company has failed to exercise its option to purchase pursuant to
Section 5.03(a) above, or that the Company has notified the Selling Shareholder
that it has elected not to exercise such option to purchase, the Remaining
Shareholder(s) shall thereupon have an option to purchase all of such shares
tendered at the Purchase Price. This option to purchase must be exercised by the
Remaining Shareholder(s) within thirty (30) days after receipt by the Remaining
Shareholders of the Second Transfer Notice. If any Remaining Shareholder fails
to exercise his option to purchase shares, or exercises such option to purchase
less than all the shares available to him, then the other Remaining Shareholders
shall have a period of thirty (30) days following the initial thirty day period
to acquire all or any part of such offered shares which are left. Any exercise
of such option to purchase Stock by the Remaining Shareholder(s) shall be made
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by notice in writing to the Selling Shareholder, with a copy to all other
Shareholders, mailed within such thirty (30) day period (or, if not all shares
of the Selling Shareholder are acquired during such first period, then by notice
mailed within the ten day period following).
(c) Any notice given pursuant to this Section 5 shall be given as
provided in Section 9.01 of this Agreement.
5.04 Purchase Price.
(a) If the purchase price (the "Purchase Price") set forth in the
Transfer Notice is a bona fide all cash offer, then the Purchase Price shall be
such all cash offer.
(b) If all or any part of the Purchase Price set forth in the Transfer
Notice is non-cash consideration, then the Fair Market Value (as such term is
defined herein) of such non-cash consideration shall be determined pursuant to
the provisions of Section 5.05 hereof. The time periods for exercise of options
to purchase set forth in Section 5.03(a) and (b) hereof shall be tolled until
such time as the Fair Market Value of a non-cash offer has been determined in
accordance with the provisions of Section 5.05 hereof.
(c) As used in this Agreement, "Fair Market Value" shall mean the
amount that would be paid for all of the outstanding shares of capital stock of
the Company as a going concern, on a consolidated basis with its subsidiaries,
by a willing buyer to a willing seller, both knowledgeable in the newspaper
publishing industry.
5.05 Determination of Fair Market Value.
(a) If all or any part of the Purchase Price specified in the Transfer
Notice is a non-cash offer, then the Selling Shareholder and the Company may
mutually agree as to the Fair Market Value of the non-cash offer. If the Selling
Shareholder and the Company are unable to agree on such value within thirty (30)
days after the Company and the Remaining Shareholders receive the Transfer
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Notice, then in such event, Fair Market Value shall be established as
hereinafter provided by two independent qualified appraisers knowledgeable in
the newspaper publishing industry, one to be appointed by the Selling
Shareholder and the other to be appointed by majority vote of the Remaining
Shareholders (irrespective of whether the Company shall exercise the option
granted to it under Section 5.03 of this Agreement).
(b) The two independent appraisers shall be appointed within thirty
(30) days after receipt by the Company and Remaining Shareholders of the
Transfer Notice. If either the Selling Shareholder or the Remaining Shareholders
fails to appoint an appraiser within this time period, then its right to do so
shall lapse, and the appraisal made by the one independent appraiser who is
timely appointed shall be the Fair Market Value. If two appraisals are made, and
if the higher appraisal does not exceed 110% of the lower, Fair Market Value
will be the average of the two. If the two appraisals are further apart, a third
appraiser will be selected within thirty (30) days by the first two appraisers,
and the Fair Market Value will be deemed to be the average of the third
appraisal and the one of the first two appraisals which is closer to the third.
All appraisals shall be made within thirty (30) days of appointment of an
appraiser and written notice of the results of such appraisal shall be given to
the parties within such time. The Fair Market Value of MNG will be determined in
its entirety as a going concern, with the Selling Shareholder to receive a
proportionate part of the total value based on the number of shares being sold
by it. In making any appraisal hereunder all debts and liabilities shall be
taken into account and there shall be no discount made on account of the Selling
Shareholder's interest being a minority interest, and no premium imposed on
account of the Selling Shareholder's interest being a majority interest. The
Selling Shareholder shall pay the fee of the appraiser selected by it, and the
Remaining Shareholders (irrespective of whether the Company shall exercise the
option granted to it under Section 5.03 of this Agreement) shall pay the fee of
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the appraiser selected by them (in proportion to their respective ownership
interests in the Company) with the fee of any third appraiser to be divided
equally among the Selling Shareholder and the Remaining Shareholders.
5.06 Failure To Exercise. If the Remaining Shareholder(s) fails to
exercise its/their option to purchase the Selling Shareholder's Stock, the
Selling Shareholder shall be free to dispose of such Stock within the ninety
(90) day period after the expiration of the Remaining Shareholder(s) option, but
not below the Purchase Price offered to the Remaining Shareholders, and not to a
different transferee than specified in the Transfer Notice (if any transferee
was so specified), or in a materially different manner or on materially
different terms. If the Stock is not disposed of within such ninety (90) day
period then this right shall lapse and the Selling Shareholder must thereafter
recommence the offering process to the Company and the Remaining Shareholder(s)
if he subsequently wishes to dispose of his shares. For purposes of this
Section, a sale shall be deemed made when closing has occurred, and the transfer
agent (or if no transfer agent has been appointed, the Secretary of MNG) has
been requested to record the transfer of Stock in the stock transfer records of
MNG. Any person to whom the shares of the Selling Shareholder are transferred,
following the Remaining Shareholder(s)l failure to exercise its/their option to
purchase, shall take such shares subject to all the terms and conditions and
restrictions imposed by this Agreement.
5.07 Payment of Purchase Price.
(a) The purchaser of any Stock under this Section 5 shall have the
option to pay the Purchase Price in one of two methods. The first method, called
Option 1, shall consist of full payment of the Purchase Price by a wire transfer
of immediately available federal funds to a bank account designated by the
Selling
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Shareholder upon a date mutually selected by the Selling Shareholder and the
purchaser which is not more than ninety (90) days after the determination of the
Purchase Price as hereinbefore provided (such date being herein referred to as
the "Closing Date").
Upon receipt of the Purchase Price on the Closing Date, all interest of
the Selling Shareholder in the Stock being sold shall terminate, and the Selling
Shareholder shall cease to have any further rights as a Shareholder in the Stock
being sold.
At the Closing or the Closing Date, the Selling Shareholder shall
deliver to the purchaser a certificate or certificates duly endorsed for
transfer representing all of the Stock being sold on that date by the Selling
Shareholder.
(b) The second method of payment for Stock called Option 2 shall
consist of paying not less than ten percent (10%) of the total Purchase Price in
cash on the Closing Date, and by giving the Selling Stockholder the purchaser's
promissory note for the balance of the Purchase Price in not more than 120 equal
monthly installments of principal.
Simple interest on the unpaid principal balance of the Purchase Price
shall accrue from the Closing Date and shall be payable monthly at the base rate
of interest established by Bankers Trust Company, as such rate may change from
time to time, but in no event less than the minimum rate of interest that is
required under the Internal Revenue Code and the regulations thereunder to avoid
the imputation of a higher rate. The first installment of principal and interest
shall be due on the first day of the first calendar month following the Closing
Date, and such installments shall continue on the first day of each month
thereafter until the entire principal balance together with interest thereon
have been paid, but in any case for a period of not more than ten (10) years
from the date of the first installment.
The purchaser's promissory note shall provide that such note shall be
payable in full (i) upon the sale of all or substantially all of the assets used
by MNG or its direct or indirect subsidiaries in
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the operation of their business, (ii) upon the sale of 50% or more of the then
outstanding Stock of MNG within any 180 day period, or (ii) upon the offering of
any equity securities by MNG or any subsidiary of MNG for sale to the public
after the date hereof. As used in this paragraph, the term "sale" includes an
exchange of assets or Stock for assets or stock, whether or not gain or loss
attributable to such transaction is recognized for federal income tax purposes.
However, the term "sale" shall not include any transaction by which the Stock or
assets of MNG become owned by any parties to this Agreement or any Transferee
permitted under Section 3 hereof or any corporation or other entity that is
wholly owned by one or more of the parties to this Agreement.
If the purchaser elects Option 2, in order to secure the performance by
the purchaser of the obligations under his or its promissory note, the purchaser
shall place the stock certificate or certificates representing the Stock
purchased in escrow with the law firm of Verner, Liipfert, Bernhard, ▇▇▇▇▇▇▇▇▇ &
Hand, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇, or such
other person or entity as shall be mutually acceptable to the purchaser and
seller, as escrow agent (the "Escrow Agent") , with stock powers duly endorsed
in blank, as security for the payment of the unpaid principal balance and
interest on the purchaser's promissory note. The Escrow Agent may require the
purchaser and seller to execute and deliver an escrow agreement more fully
outlining the obligations of the Escrow Agent and otherwise containing terms and
conditions typically found in escrow agreements in commercial transactions and
not inconsistent with this Agreement. The promissory note given by each
purchaser shall provide that upon default in payment of any installment of
principal or interest if such default shall continue for more than thirty (30)
days after written notice of default has been given to the purchaser by the
holder of the note, the holder of the note at that time may inform the Escrow
Agent in writing of the default, and thereupon, the Escrow Agent shall deliver
the stock certificates and accompanying stock powers to the holder of the
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promissory note. Upon such delivery (1) all obligations of the Escrow Agent to
all of the parties hereunder shall cease and (2) the holder of the promissory
note shall be entitled to pursue whatever remedies it may have in law or equity
against the purchaser.
Voting and dividend rights (other than the rights to any liquidating
dividend) with respect to the pledged Stock shall be vested in the purchaser
while such Stock is held in escrow and until there has been a default in payment
of interest or principal with respect to the promissory note.
All Stock pledged hereunder and all the accompanying stock powers shall
be returned to the purchaser upon full satisfaction of the promissory note.
In addition to the provisions for payment contained above in this
Section, the purchaser, at its sole option, may prepay any amount of principal
or interest due on the purchaser's promissory note at any time, without penalty.
Any prepayment shall be applied against the remaining principal installments due
under the note to the Selling Shareholder in the inverse order in which such
installments fall due. Any prepayment shall be applied first to pay any interest
that is in arrears, and then shall be applied to reduce the entire principal
balance before any prepayment is applied to interest that is not in arrears.
6. RESTRICTIVE LEGEND
6.01 Form of Legend. All certificates for the shares of the Stock shall
bear the legend set forth below.
"Sale, transfer, assignment, pledge, gift or any other disposition,
alienation or encumbrance of the shares represented by this certificate
is restricted by the terms of a Shareholders' Agreement dated as of
January 31, 2000, among certain Shareholders and the Company, which may
be examined at the office of the Company, and such shares may be sold,
transferred, assigned, pledged, given or otherwise disposed of,
alienated or encumbered only upon compliance, with the terms of that
Agreement, which is incorporated herein by reference."
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"The shares represented by this certificate have not been registered
under the Securities Act of 1933 (the 'Act') and may not be offered,
sold, or otherwise transferred, unless and until (i) a registration
statement with respect thereto is effective under the Act or (ii) in
the opinion of counsel, which opinion is reasonably satisfactory in
form and in substance to counsel for the Company, such offer, sale or
other transfer is in compliance with the Act and any applicable state
securities laws."
6.02 Stock Not Registered; Purchase for Investment. The parties hereto
expressly acknowledge and agree that the Stock is restricted as described in the
above legends; and that MNG is under absolutely no obligation to, and has no
plans to, register any of the Stock under the Securities Act of 1933, as
amended.
7. GENERAL COVENANTS
7.01 Applicability of Covenants. The covenants set forth in this
Section 7 are made for the benefit only of each of the parties to this Agreement
and any permitted transferee of any such party.
7.02 Negative Covenants.
(a) From and after the date hereof, no equity securities of MNG shall
be issued, or class of securities convertible into equity securities of MNG
created, or obligations of MNG to issue additional equity securities incurred.
(b) MNG covenants that it shall not do, take or permit any of the
following actions, unless the same shall have first been approved by the
approval of all directors then serving on MNG's Board of Directors, or by
unanimous approval of the full Executive Committee of MNG's Board of Directors
as appointed by all directors then serving on the Board of Directors, or by the
holders of not less than 75% of the shares of Stock then outstanding, voting as
a single class, and each of the parties to this Agreement covenant that they
shall cause MNG to refrain from such actions, unless they have been approved in
the manner provided above:
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(1) Declare and pay any dividends on its common stock;
(2) Purchase or redeem any of its capital stock;
(3) Adopt annual capital or annual operating budgets;
(4) Except as otherwise provided in the Certificate of
Incorporation, create, establish or acquire any subsidiary, or liquidate or
dissolve itself or any subsidiary, or merge or consolidate, or cause or permit
any subsidiary to be merged or consolidated, with any corporation, or enter into
any transaction under which any class of its stock would be acquired or the
stock of any subsidiary would be sold, or sell, lease, encumber, convey,
transfer or otherwise dispose of all or any substantial part of its assets or
those of any subsidiary, or amend its Certificate of Incorporation or Bylaws,
or, except as otherwise provided in the Certificate of Incorporation, issue any
capital stock not specifically permitted herein, or permit any subsidiary to
issue capital stock to any person other than MNG or elect any directors of any
subsidiary;
(5) Increase the aggregate borrowing capacity of MNG and its
subsidiaries by more than $10 million in any fiscal year beyond the current
level of $350,000,000 which is reflected under MNG's and its subsidiaries
current bank credit facilities;
(6) Enter into or acquiesce in any agreement which limits or
restricts the rights of MNG or any of the parties to this Agreement to comply
with the provisions of this Agreement; or,
(7) Replacing or discharging the chief executive officer of MNG.
8. MISCELLANEOUS
8.01 Notices. All notices and other communications hereunder shall be
in writing and deemed to have been duly given if delivered by hand or mailed,
postage prepaid by certified mail,
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return receipt requested to the following persons and addresses:
(a) To MNG: W. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
Vice Chairman, Chief Executive Officer
and President
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With A Copy To: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., Esq.
Verner, Liipfert, Bernhard,
▇▇▇▇▇▇▇▇▇ & Hand Chartered
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) To The ▇▇▇▇▇▇▇ Family To or in care of:
Voting Trust Or Any ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Other ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇: ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
With A Copy To: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
▇▇▇▇▇▇, ▇▇▇▇ & English, LLP
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(c) To The ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., Esq.
Family Voting Trust: Verner, Liipfert, Bernhard,
▇▇▇▇▇▇▇▇▇ and Hand Chartered
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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(d) To The ▇▇▇▇▇▇▇▇▇ W. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Family Revocable ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇: ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., Esq.
Verner, Liipfert, Bernhard,
▇▇▇▇▇▇▇▇▇ & Hand, Chartered
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(e) To The ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Family Irrevocable ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇: ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., Esq.
Verner, Liipfert, Bernhard,
▇▇▇▇▇▇▇▇▇ & Hand Chartered
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(f) To ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇
MediaNews Group, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or to such subsequent persons and addresses as may be specified by notice.
8.02 Equitable Relief. The parties hereby acknowledge that monetary
damages are insufficient to adequately remedy the damages which will accrue, or
which have accrued, to a part hereto by reason of a failure to perform any of
the obligations required under this Agreement. Therefore, if any party hereto
shall institute any action or proceeding to enforce the provisions hereof, any
person (including MNG) against whom such action or proceeding is brought hereby
waives the claim or defense therein that such party or personal representative
has or have an adequate remedy at law, and such person shall not advance in any
such action or proceeding the claim or defense that such remedy at law exists.
8.03 Entire Agreement. Except as otherwise expressly provided herein,
this Agreement contains the entire agreement among the parties and it may not be
modified, changed, or amended unless the same be in writing and signed by all of
the parties hereto, or their successors or assigns.
8.04 Successors and Assigns. All of the terms and conditions herein
contained shall bind each of the parties hereto, their successors, assigns,
distributees, legatees, heirs, executors,
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administrators and personal representatives and also any receiver or trustee in
bankruptcy or insolvency.
8.05 Brokerage and Expenses. The parties hereto agree to pay their
respective expenses incurred in connection with this Agreement. Each of the
parties represents that it has had no dealings in connection with this
transaction with any finder, broker or other third party who may have a claim
against any of the other parties hereto arising out of or in connection with any
of the transactions contemplated by this Agreement; and each agrees to indemnify
the others against and hold the others harmless from any and all liabilities
(including without limitation, cost of counsel) to any persons claiming
brokerage commissions or finder's fees on account of services purported to have
been rendered on behalf of, or loss of investment rights or opportunity caused
by, the indemnifying party in connection with this Agreement or the transactions
contemplated hereby.
8.06 Waivers. The terms, covenants, representations, warranties or
conditions of this Agreement may be waived only by a written instrument executed
by the party waiving compliance. No waiver by any party of any breach of any
term, covenant, representation, condition or warranty contained in this
Agreement, whether by contract or otherwise, in any one or more instances, shall
be deemed to be or construed as a waiver of any other breach of any other term,
covenant, representation, condition or warranty contained in this Agreement.
8.07 Amendment. This Agreement may be amended only by a written
instrument executed by all of the parties hereto.
8.08 Announcement. Such public announcement or "release" describing the
transactions provided for herein as may be required by applicable law or
regulation shall be made by MNG. No other public announcement or release with
respect to the transactions provided for herein shall be made by any party,
unless the same shall be approved in advance by the other parties hereto.
-22-
23
8.09 Captions and Pronouns. The captions appearing in this Agreement
are included solely for the convenience of the parties and shall not be given
any effect in construing this Agreement. wherever singular pronouns are used
herein, the same shall include the plural, and vice versa, and wherever words of
any gender are used herein, such words shall include other genders.
8.10 Choice of Law. This Agreement shall be construed and interpreted
in accordance with the internal laws of the State of Delaware without regard to
the conflict of laws provisions thereof.
8.11 Counterparts. This Agreement may be executed in one or more
counterparts and by facsimile signatures, each of which shall be deemed to be an
original, and all of which taken together shall be deemed to be one and the same
instrument.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the
date and year first shown above.
MEDIANEWS GROUP, INC.
By: /s/ W. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------
W. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Vice Chairman,
Chief Executive Officer and President
THE ▇▇▇▇▇▇▇▇▇ FAMILY VOTING TRUST
FOR MEDIANEWS GROUP, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., Trustee
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THE ▇▇▇▇▇▇▇▇▇ FAMILY IRREVOCABLE TRUST
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Trustee
THE ▇▇▇▇▇▇▇▇▇ FAMILY REVOCABLE TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., Trustee
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇
THE ▇▇▇▇▇▇▇ FAMILY VOTING TRUST
FOR MEDIANEWS GROUP, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustee
----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustee
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THE ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ IRREVOCABLE TRUST
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustee
THE ▇▇▇▇▇▇▇ FAMILY 1987 TRUST
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustee
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Individually
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Individually
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Individually, as
Custodian for ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and as
Trustee for the ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Irrevocable Trust and the ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ Irrevocable Trust
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Individually, as
Custodian for Katya and ▇▇▇▇▇▇ ▇▇▇▇▇▇,
and as Trustee for the Chipeta ▇▇▇▇▇▇
Irrevocable Trust, the ▇▇▇▇▇ ▇▇▇▇▇▇
Irrevocable Trust and the ▇▇▇▇▇▇ ▇▇▇▇▇▇
Irrevocable Trust
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