CONFORMED COPY
EXCHANGE AGREEMENT
BY AND AMONG
THE TIMES MIRROR COMPANY,
▇▇▇▇▇-YEAR BOOK, INC.
AND
THE ▇▇▇▇▇▇-▇▇▇▇ COMPANIES, INC.
dated as of
July 3, 1996
TABLE OF CONTENTS
RECITALS ..................................... 1
ARTICLE ONE DEFINITIONS.......................... 2
Section 1.01. Definitions.......................... 2
Section 1.02. Interpretation of this Agreement..... 9
ARTICLE TWO PURCHASE AND SALE.................... 10
Section 2.01. Purchase and Sale of the TMHE
Shares............................. 10
Section 2.02. Purchase and Sale of the ▇▇▇▇▇
Assets and International Assets;
Assumption of the ▇▇▇▇▇
Liabilities and International
Liabilities........................ 11
Section 2.03. Cash Payment......................... 12
Section 2.04. Purchase and Sale of the ▇▇▇▇▇▇▇'▇
Shares............................. 12
Section 2.05. Employee Benefit and Employee
Matters and Tax Matters
Handled Separately................. 12
ARTICLE THREE CLOSING.............................. 12
Section 3.01. Closing.............................. 12
ARTICLE FOUR CONDITIONS TO CLOSING................ 16
Section 4.01. Conditions to All Parties'
Obligations........................ 16
Section 4.02. Conditions to ▇▇▇▇▇▇-▇▇▇▇'▇
Obligations........................ 16
Section 4.03. Conditions to Times Mirror's and
▇▇▇▇▇'▇ Obligations................ 18
ARTICLE FIVE REPRESENTATIONS AND WARRANTIES OF
TIMES MIRROR AND ▇▇▇▇▇............. 20
Section 5.01. Organization and Authority
of Times Mirror.................... 20
Section 5.02. Organization and Authority of ▇▇▇▇▇.. 20
Section 5.03. No Breach............................ 20
Section 5.04. Governmental Consents and Approvals.. 21
Section 5.05. Organization and Standing of
TMHE and its Subsidiaries.......... 21
Section 5.06. Capital Stock of TMHE................ 22
Section 5.07. Title to and Transfer of the TMHE
Shares............................. 22
Section 5.08. Equity Interests..................... 22
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Section 5.09. Financial Statements................. 23
Section 5.10. Nonforeign Certification............. 25
Section 5.11. Taxes................................ 25
Section 5.12. Assets Other than Real Property...... 25
Section 5.13. Real Property........................ 26
Section 5.14. Intellectual Property................ 26
Section 5.15. Contracts............................ 28
Section 5.16. Litigation; Decrees.................. 31
Section 5.17. Employee and Related Matters; ERISA.. 31
Section 5.18. Absence of Changes or Events......... 33
Section 5.19. Compliance with Applicable Laws...... 34
Section 5.20. Employee and Labor Relations......... 35
Section 5.21. Securities Act of 1933; Sufficiency
of Information..................... 35
Section 5.22. International Assets................. 36
ARTICLE SIX REPRESENTATIONS AND WARRANTIES
OF ▇▇▇▇▇▇-▇▇▇▇..................... 36
Section 6.01. Organization and Authority........... 36
Section 6.02. No Breach............................ 37
Section 6.03. Governmental Consents and Approvals.. 37
Section 6.04. Organization and Standing of
▇▇▇▇▇▇▇'▇.......................... 37
Section 6.05. Capital Stock of ▇▇▇▇▇▇▇'▇........... 38
Section 6.06. Title to and Transfer of the
▇▇▇▇▇▇▇'▇ Shares................... 38
Section 6.07. Equity Interests..................... 39
Section 6.08. ▇▇▇▇▇▇▇'▇ Financial Statements....... 39
Section 6.09. Nonforeign Certification............. 39
Section 6.10. Taxes................................ 39
Section 6.11. Assets Other than Real Property...... 39
Section 6.12. Real Property ....................... 40
Section 6.13. Intellectual Property................ 40
Section 6.14. Contracts............................ 41
Section 6.15. Litigation; Decrees.................. 44
Section 6.16. Employee and Related Matters; ERISA.. 44
Section 6.17. Absence of Changes or Events......... 46
Section 6.18. Compliance with Applicable Laws...... 46
Section 6.19. Employee and Labor Relations......... 47
Section 6.20. Securities Act of 1933;
Sufficiency of Information......... 48
Section 6.21. Certain Material Contracts........... 48
ARTICLE SEVEN COVENANTS OF TIMES MIRROR AND ▇▇▇▇▇.. 49
Section 7.01. June 30 and Closing Date
Financial Statements............... 49
Section 7.02. Access............................... 51
Section 7.03. Ordinary Conduct..................... 52
Section 7.04. Insurance............................ 55
Section 7.05. Resignations......................... 55
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Section 7.06. Non-Competition...................... 55
Section 7.07. Intercompany Accounts................ 57
Section 7.08. Confidentiality...................... 57
Section 7.09. No Additional Representations........ 57
Section 7.10. Performance of Obligations by
Times Mirror After Closing Date.... 58
Section 7.11. Name Change.......................... 58
Section 7.12. Grant of License..................... 58
Section 7.13. Purchase of Limited Partner
Interest........................... 59
ARTICLE EIGHT COVENANTS OF ▇▇▇▇▇▇-▇▇▇▇............. 59
Section 8.01. June 30 and Closing Date
Financial Statements............... 59
Section 8.02. Access............................... 60
Section 8.03. Ordinary Conduct..................... 61
Section 8.04. Insurance............................ 63
Section 8.05. Resignations......................... 63
Section 8.06. Non-Competition...................... 63
Section 8.07. Intercompany Accounts................ 64
Section 8.08. Confidentiality...................... 65
Section 8.09. No Additional Representations........ 65
Section 8.10. Performance of Obligations by
▇▇▇▇▇▇-▇▇▇▇ After Closing Date..... 65
Section 8.11. Name Change.......................... 66
Section 8.12. Transitional Services................ 66
ARTICLE NINE MUTUAL COVENANTS..................... 66
Section 9.01. Post-Closing Adjustment.............. 66
Section 9.02. Use of Names......................... 69
Section 9.03. Cooperation.......................... 70
Section 9.04. Publicity............................ 70
Section 9.05. Antitrust Notification............... 70
Section 9.06. Records.............................. 71
Section 9.07. Further Assurances................... 73
Section 9.08. Provision of Audited Financials...... 73
ARTICLE TEN EMPLOYEE AND RELATED MATTERS WITH
RESPECT TO COLLEGE PUBLISHING
BUSINESS........................... 73
Section 10.01. Continuation of Employment........... 73
Section 10.02. Times Mirror's Benefit Plans and
Employee Related Liabilities....... 74
Section 10.03. ▇▇▇▇▇▇-▇▇▇▇'▇ Benefit Plans.......... 75
Section 10.04. Severance Obligations................ 75
Section 10.05. Defined Contribution Plans........... 75
Section 10.06. Defined Benefit Plans................ 76
Section 10.07. Welfare Benefits..................... 77
Section 10.08. Modifications........................ 78
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Section 10.09. Mutual Cooperation................... 78
Section 10.10. Employee Benefits Indemnity.......... 78
Section 10.11. Third-Party Claims................... 79
ARTICLE TEN-A EMPLOYEE AND RELATED MATTERS WITH
RESPECT TO ▇▇▇▇▇▇▇'▇............... 79
Section 10A.01. Continuation of Employment........... 79
Section 10A.02. ▇▇▇▇▇▇-▇▇▇▇'▇ Benefit Plans and
Employee Related Liabilities....... 80
Section 10A.03. Times Mirror's Benefit Plans......... 80
Section 10A.04. Severance Obligations................ 80
Section 10A.05. Defined Contribution Plans........... 81
Section 10A.06. Defined Benefit Plans................ 81
Section 10A.07. Welfare Benefits..................... 82
Section 10A.08. Modifications........................ 83
Section 10A.09. Mutual Cooperation................... 83
Section 10A.10. Employee Benefits Indemnity.......... 83
Section 10A.11. Third-Party Claims................... 84
ARTICLE ELEVEN INDEMNIFICATION...................... 84
Section 11.01. Tax Indemnification.................. 84
Section 11.02. Environmental Indemnification........ 84
Section 11.03. Indemnification by Times Mirror
and ▇▇▇▇▇.......................... 86
Section 11.04. Indemnification by ▇▇▇▇▇▇-▇▇▇▇....... 86
Section 11.05. Exclusive Remedy..................... 87
Section 11.06. Losses Net of Insurance.............. 87
Section 11.07. Termination of Indemnification....... 87
Section 11.08. Procedures Relating to Indemnifi-
cation (Except Under Section
11.01)............................. 88
ARTICLE TWELVE TAX MATTERS RELATING TO THE TRANSFER
OF THE TMHE SHARES, ETC. .......... 89
Section 12.01. Section 338(h)(10) Election.......... 89
Section 12.02. Liability for Taxes; Preparation
of Returns......................... 90
Section 12.03. Tax Sharing Agreements............... 92
Section 12.04. Assistance and Cooperation........... 92
Section 12.05. Definitions.......................... 92
Section 12.06. Controversies........................ 94
ARTICLE TWELVE-A TAX MATTERS RELATING TO THE TRANSFER
OF THE ▇▇▇▇▇▇▇'▇ SHARES............ 95
Section 12A.01. Section 338(h)(10) Election.......... 95
Section 12A.02. Liability for Taxes; Preparation
of Returns......................... 95
Section 12A.03. Tax Sharing Agreements............... 97
Section 12A.04. Assistance and Cooperation........... 97
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Section 12A.05. Definitions.......................... 97
Section 12A.06. Controversies........................ 98
ARTICLE THIRTEEN TERMINATION.......................... 99
Section 13.01. Events of Termination................ 99
Section 13.02. Return of Confidential Information... 99
Section 13.03. Effects of Termination............... 100
Section 13.04. Survival of Representations.......... 100
ARTICLE FOURTEEN MISCELLANEOUS........................ 101
Section 14.01. Expenses............................. 101
Section 14.02. Attorneys' Fees...................... 101
Section 14.03. Amendments........................... 101
Section 14.04. Assignment........................... 101
Section 14.05. No Third-Party Beneficiaries......... 101
Section 14.06. Notices.............................. 101
Section 14.07. Counterparts......................... 102
Section 14.08. Entire Agreement..................... 102
Section 14.09. Fees................................. 102
Section 14.10. Severability......................... 102
Section 14.11. Dispute Resolution; Equitable
Enforcement........................ 102
Section 14.12. No Consequential or Punitive
Damages............................ 105
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TABLE OF SCHEDULES
Schedule 2.02(a)(i) ▇▇▇▇▇ Assets
Schedule 2.02(a)(ii) International Assets
Schedule 2.02(b) Assumed Liabilities
Schedule 4.02(a)(v) International Asset Transfers and
Related Accounting Adjustments
Schedule 5.03 Breach or Default
Schedule 5.08 Equity Interests
Schedule 5.09(a) TMHE Financial Statements
Schedule 5.09(b) ▇▇▇▇▇ Financial Statements
Schedule 5.09(c) International and ▇▇▇▇▇ Information
Schedule 5.09(d)-1 Pro Forma Balance Sheet of TMHE
Schedule 5.09(d)-2 Pro Forma Statement of Assets Conveyed
and Liabilities Assumed of ▇▇▇▇▇'▇
College Text Business
Schedule 5.12 Liens
Schedule 5.13(a) TMHE Owned Property
Schedule 5.13(b) TMHE Leased Property
Schedule 5.14(a) College Publishing Business Trademarks
Schedule 5.14(b) Top 100 College Publishing Business
Publications
Schedule 5.14(c) Licenses
Schedule 5.14(d) Claims
Schedule 5.15(a) Employment, Independent Contractor and
Consulting Agreements
Schedule 5.15(b) Collective Bargaining Agreements
Schedule 5.15(c) Non-Competition Agreements
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Schedule 5.15(d) Agreements with Affiliates, Officers,
Directors or Employees
Schedule 5.15(e) Leases of TMHE Property
Schedule 5.15(f) Personal Property Leases
Schedule 5.15(g) Supply and Service Agreements
Schedule 5.15(h) Indebtedness
Schedule 5.15(i) Guarantees
Schedule 5.15(j) Partnerships and Joint Ventures
Schedule 5.15(k) College Publishing Business Author
Contracts
Schedule 5.15(l) Other Agreements
Schedule 5.16 Litigation; Decrees
Schedule 5.17(a) Employee Benefit Plans
Schedule 5.17(b) Noncompliance with ERISA
Schedule 5.17(c) Multiemployer Plan Liabilities
Schedule 5.17(e) Employee Welfare Benefit Plans
Schedule 5.18 Changes or Events
Schedule 5.20 Employee and Labor Relations
Schedule 5.22(a) Distribution Agreements
Schedule 5.22(b) Certain Translation Agreements
Schedule 6.02 Breach or Default
Schedule 6.08(a) ▇▇▇▇▇▇▇'▇ Financial Statements
Schedule 6.11 Liens
Schedule 6.12(a) ▇▇▇▇▇▇▇'▇ Owned Property
Schedule 6.12(b) ▇▇▇▇▇▇▇'▇ Leased Property
Schedule 6.13(a) ▇▇▇▇▇▇▇'▇ Trademarks
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Schedule 6.13(b) Top 25 ▇▇▇▇▇▇▇'▇ Publications
Schedule 6.13(c) Licenses
Schedule 6.13(d) Claims
Schedule 6.14(a) Employment, Independent Contractor and
Consulting Agreements
Schedule 6.14(b) Collective Bargaining Agreements
Schedule 6.14(c) Non-Competition Agreements
Schedule 6.14(d) Agreements with Affiliates, Officers,
Directors or Employees
Schedule 6.14(e) Leases of ▇▇▇▇▇▇▇'▇ Property
Schedule 6.14(f) Personal Property Leases
Schedule 6.14(g) Supply and Service Agreements
Schedule 6.14(h) Indebtedness
Schedule 6.14(i) Guarantees
Schedule 6.14(j) Partnerships and Joint Ventures
Schedule 6.14(k) ▇▇▇▇▇▇▇'▇ Author Contracts
Schedule 6.14(l) Other Agreements
Schedule 6.15 Litigation; Decrees
Schedule 6.16(a) Employee Benefit Plans
Schedule 6.16(b) Noncompliance with ERISA
Schedule 6.16(c) Multiemployer Plan Liabilities
Schedule 6.16(e) Employee Welfare Benefit Plan
Schedule 6.17 Changes or Events
Schedule 6.19 Employee and Labor Matters
Schedule 7.03 Exceptions to Ordinary Conduct
Schedule 7.04 Insurance
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Schedule 8.03 Exceptions to Ordinary Conduct
Schedule 8.04 Insurance
Schedule 9.01(a) Tax Reimbursement Rates
Schedule 9.01(b) Tax Reimbursement Rates
Schedule 10.01(a) List of ▇▇▇▇▇'▇ College Text Business
Employees
Schedule 10.04 ▇▇▇▇▇▇-▇▇▇▇ Severance Obligations
Schedule 10A.01(a)-1 List of ▇▇▇▇▇▇▇'▇ Employees not
Transferred
Schedule 10A.04 Times Mirror Severance Obligations
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TABLE OF EXHIBITS
Exhibit A Form of ▇▇▇▇▇ Transition Services
Agreement
Exhibit B Form of TMIP Transition Services
Agreement
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EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT (the "Agreement") is dated as
of July 3, 1996, by and among THE TIMES MIRROR COMPANY, a Dela-
ware corporation ("Times Mirror"), ▇▇▇▇▇-YEAR BOOK, INC., a
Missouri corporation and a wholly-owned subsidiary of Times
Mirror ("▇▇▇▇▇"), and The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., a New
York corporation ("▇▇▇▇▇▇-▇▇▇▇").
RECITALS
A. Times Mirror Higher Education Group, Inc., a
Delaware corporation ("TMHE"), is engaged, through several di-
visions, in the business of publishing college textbooks and
other educational materials.
B. Times Mirror owns all of the outstanding common
stock, par value $1.00 per share (the "TMHE Shares"), of TMHE.
▇. ▇▇▇▇▇ owns certain assets (as more fully de-
scribed herein, the "▇▇▇▇▇ Assets") devoted solely and exclu-
sively to ▇▇▇▇▇'▇ college-level life and physical science text
publishing business ("▇▇▇▇▇'▇ College Text Business").
D. On the terms and subject to the conditions set
forth herein (i) Times Mirror desires to sell to ▇▇▇▇▇▇-▇▇▇▇,
and ▇▇▇▇▇▇-▇▇▇▇ desires to purchase, the TMHE Shares and (ii)
▇▇▇▇▇ desires to sell, and ▇▇▇▇▇▇-▇▇▇▇ desires to purchase, the
▇▇▇▇▇ Assets and to assume certain liabilities (as more fully
described herein, the "▇▇▇▇▇ Liabilities") of ▇▇▇▇▇ relating
solely and exclusively to ▇▇▇▇▇'▇ College Text Business.
▇. ▇▇▇▇▇▇▇'▇/▇▇▇▇▇▇-▇▇▇▇, Inc., a Delaware corpora-
tion ("▇▇▇▇▇▇▇'▇"), is engaged in the business of publishing
legal citation materials.
▇. ▇▇▇▇▇▇-▇▇▇▇ owns all of the outstanding common
stock, $1.00 par value (the "▇▇▇▇▇▇▇'▇ Shares"), of ▇▇▇▇▇▇▇'▇.
G. On the terms and subject to the conditions set
forth herein, ▇▇▇▇▇▇-▇▇▇▇ desires to sell to Times Mirror, and
Times Mirror desires to purchase, the ▇▇▇▇▇▇▇'▇ Shares.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and
of the representations, warranties and agreements set forth
below, the parties hereto agree as follows:
ARTICLE ONE
DEFINITIONS
As used in this Agreement, the following terms have
the meanings set forth below:
Section 1.01 Definitions.
"AGREEMENT" is defined in the Preamble.
"APPRAISER" is defined in Section 12.01(c)(ii).
"▇▇▇▇▇ AND PROBUS PLANS" is defined in Section 10.05.
"BUSINESS DAY" means any day other than a Saturday,
Sunday, holiday or day on which financial institutions in the
State of New York are required or permitted by law to be
closed.
"CERCLA" is defined within the definition of "Envi-
ronmental Law" in this Section 1.01.
"CLOSING" is defined in Section 3.01.
"CLOSING DATE" is defined in Section 3.01.
"CODE" means the Internal Revenue Code of 1986, as
amended.
"COLLEGE PUBLISHING BUSINESS" means the higher educa-
tion publishing business consisting of TMHE and the TMHE Sub-
sidiaries, the ▇▇▇▇▇ Assets and the International Assets.
"COLLEGE PUBLISHING BUSINESS CLOSING DATE BALANCE
SHEET" is defined in Section 7.01(c).
"COLLEGE PUBLISHING BUSINESS CONFIDENTIALITY AGREE-
MENT" is defined in Section 7.03.
"COLLEGE PUBLISHING BUSINESS CONTRACTS" is defined in
Section 5.15.
"COLLEGE PUBLISHING BUSINESS COPYRIGHTS" is defined
in Section 5.14(b).
"COLLEGE PUBLISHING BUSINESS EMPLOYEE" means (i) all
persons actively employed on the Closing Date either by TMHE,
the TMHE Subsidiaries or by ▇▇▇▇▇ solely and exclusively in
connection with ▇▇▇▇▇'▇ College Text Business, and (ii) any
person not so actively employed but who is, as of the Closing
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Date, with respect to either TMHE, the TMHE Subsidiaries or
▇▇▇▇▇'▇ College Text Business, on any authorized leave of ab-
sence, on either short- or long-term disability leave, on
worker's compensation leave, or on vacation.
"COLLEGE PUBLISHING BUSINESS INTELLECTUAL PROPERTY"
is defined in Section 5.14(b).
"COLLEGE PUBLISHING BUSINESS PERSONNEL" means all
College Publishing Business Employees and College Publishing
Business Retirees.
"COLLEGE PUBLISHING BUSINESS PLANS" is defined in
Section 5.17(a).
"COLLEGE PUBLISHING BUSINESS POST-RETIREMENT PLAN"
means any plan, program, arrangement or agreement, whether for-
mal or informal, to provide post-retirement medical benefits to
former employees of TMHE or the TMHE Subsidiaries or ▇▇▇▇▇
solely and exclusively in connection with ▇▇▇▇▇'▇ College Text
Business and their eligible beneficiaries that is maintained,
contributed to or required to be contributed to by Times Mir-
ror, TMHE or the TMHE Subsidiaries or ▇▇▇▇▇.
"COLLEGE PUBLISHING BUSINESS RETIREES" means all per-
sons formerly employed by TMHE or the TMHE Subsidiaries or by
▇▇▇▇▇ solely and exclusively in connection with ▇▇▇▇▇'▇ College
Text Business and their beneficiaries who are receiving or ▇▇▇-
gible to receive post-retirement medical benefits under any
College Publishing Business Post-Retirement Plan as of the
Closing Date.
"COLLEGE PUBLISHING BUSINESS TAX LIABILITIES" is de-
fined in Section 12.05(a).
"COLLEGE PUBLISHING BUSINESS TRADEMARKS" is defined
in Section 5.14(a).
"COLLEGE PUBLISHING BUSINESS TRANSFERRED EMPLOYEES"
is defined in Section 10.01(a).
"CONFIDENTIAL OFFERING MEMORANDUM" is defined in Sec-
tion 8.09.
"CONSOLIDATED TAX RETURNS" is defined in Section
12.05(b).
"DAMAGES" is defined in Section 11.01.
"DOJ" is defined in Section 9.05.
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"ENFORCEABILITY EXCEPTIONS" is defined in Section
5.01.
"ENVIRONMENTAL LAW" means any applicable statute,
regulation, rule, ordinance, code, license or order, of any
government agency, department, commission, board, bureau or
instrumentality of the United States, states and political
subdivisions thereof or any foreign jurisdiction, and all ap-
plicable judicial and administrative and regulatory decrees,
judgments and orders, relating to the environment, including,
without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act ("CERCLA"), 42 U.S.C. Sections
9601 et seq., as amended by the Superfund Amendments and ▇▇▇▇-
thorization Act of 1986; the Resource Conservation and Recovery
Act, 42 U.S.C. Sections 6901 et seq.; the Federal Water Pollu-
tion Control Act, 42 U.S.C. Sections 1251 et seq.; the National
Environmental Policy Act, 42 U.S.C. Sections 4321 et seq.; the
Refuse Act, 33 U.S.C. Sections 401 et seq.; the Federal Insec-
ticide, Fungicide and Rodenticide Act, 7 U.S.C. Sections 136 et
seq.; the Emergency Planning and Community Right to Know Act,
42 U.S.C. Sections 11001 et seq.; the Occupational Safety and
Health Act of 1970; the Hazardous Materials Transportation Act,
49 U.S.C. Sections 1801 et seq.; and the Toxic Substances Con-
trol Act, 15 U.S.C. Sections 2601 et seq. and other legal re-
quirements having similar subject matter.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended.
"ERISA AFFILIATE" means any entity that is a member
of a controlled group for purposes of Section 4001(a)(14) of
ERISA.
"EXCLUDED ASSETS" is defined in Section 2.02(a)(ii).
"FTC" is defined in Section 9.05.
"GAAP" is defined in Section 5.09(a).
"HAZARDOUS MATERIAL" means any material, substance,
compound, solid, liquid or gas, or any radiation, emission or
release of energy in any form, whether naturally occurring,
man-made or the product of any process (1) which is or may un-
der certain conditions be toxic, harmful, hazardous or acutely
hazardous to public health, public safety or the environment,
(2) which is or may be defined or regulated as a "hazardous
waste", "hazardous substance", "toxic substance", pollutant or
contaminant under any Environmental Law, (3) the use, handling,
management, release, treatment, storage, transportation or dis-
posal of which is or may be regulated under any Environmental
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Law. Hazardous Materials include but are not limited to asbes-
tos, polychlorinated biphenyls, mercury, lead, petroleum and
petroleum products and derivatives, urea formaldehyde foam in-
sulation, and radon and other radioactive materials.
"HSR ACT" is defined in Section 4.01(a).
"INCOME TAXES" is defined in Section 12.05(c).
"INTERNATIONAL ASSETS" is defined in Section 2.02(a).
"INTERNATIONAL LIABILITIES" is defined in Section
2.02(b).
"IRS" means the Internal Revenue Service.
"KNOWLEDGE OF ▇▇▇▇▇▇-▇▇▇▇" means the actual knowledge
of any of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Vice President and Chief
Financial Officer of ▇▇▇▇▇▇-▇▇▇▇; ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, President of
▇▇▇▇▇▇▇'▇; ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, President - Educational and Pro-
fessional Publishing Group of ▇▇▇▇▇▇-▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Senior Vice President and General Manager, ▇▇▇▇▇▇▇'▇ Citations
Business Unit, ▇▇▇▇▇ ▇▇▇▇▇▇, Director of Human Resources of
▇▇▇▇▇▇▇'▇, and ▇▇▇▇▇▇ ▇▇ ▇▇▇▇, Vice President Human Resources -
Educational and Professional Publishing Group of ▇▇▇▇▇▇-▇▇▇▇.
"KNOWLEDGE OF TIMES MIRROR" means the actual knowl-
edge of any of E. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Senior Vice President and
Chief Financial Officer of Times Mirror; ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Senior Vice President of Times Mirror and Chairman and Chief
Executive Officer of ▇▇▇▇▇; G. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Chairman and
Chief Executive Officer of TMHE; ▇▇▇▇▇ ▇. ▇▇▇▇▇, Executive Vice
President and Chief Operating Officer of TMHE; ▇▇▇▇▇▇▇ ▇▇▇▇,
President and Chief Executive Officer of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇;
▇▇▇▇▇▇▇ ▇▇▇▇, President and Chief Executive Officer of Wm. ▇.
▇▇▇▇▇ Publishers; ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Executive Vice President
and General Manager of ▇▇▇▇▇ & Benchmark Publishers; ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, Senior Vice President - Human Resources of Times
Mirror; and ▇▇▇▇ ▇▇▇▇▇▇▇, Vice President - Human Resources of
TMHE.
"LIENS" is defined in Section 5.07.
"LOSSES" means all damage, loss (including any dimi-
nution in the value of assets), liability and expense (includ-
ing, without limitation, reasonable expenses of investigation
and reasonable attorneys' fees and expenses in connection with
any action, suit or proceeding). For purposes of Section
11.02, Losses shall mean all claims, damages, losses (including
any diminution in the value of real properties), penalties,
-5-
fines, liabilities and expenses (including, without limitation,
fees incurred for the services of attorneys, consultants, engi-
neers, contractors, experts, laboratories and all costs in-
curred in connection with any investigation, cleanup, reme-
diation, removal, abatement, closure and monitoring, action,
suit or proceeding), resulting from a violation of any Environ-
mental Law.
"▇▇▇▇▇▇-▇▇▇▇" is defined in the Preamble.
"▇▇▇▇▇▇-▇▇▇▇ DEFINED CONTRIBUTION PLANS" is defined
in Section 10A.05.
"▇▇▇▇▇▇-▇▇▇▇ PLANS" is defined in Section 6.16(a).
"▇▇▇▇▇▇-▇▇▇▇ RETIREMENT PLAN" is defined in Section
10A.06.
"▇▇▇▇▇" is defined in the Preamble.
"▇▇▇▇▇ ASSETS" is defined in the Recitals and in Sec-
tion 2.02(a)(i).
"▇▇▇▇▇ LIABILITIES" is defined in the Recitals and in
Section 2.02(b).
"▇▇▇▇▇ STATEMENT" is defined in Section 5.09(b).
"▇▇▇▇▇ TRANSITION SERVICES AGREEMENT" means the ▇▇▇▇-
sition Services Agreement to be entered into by and between
▇▇▇▇▇ and ▇▇▇▇▇▇-▇▇▇▇, substantially in the form attached here-
to as Exhibit A.
"▇▇▇▇▇'▇ COLLEGE TEXT BUSINESS" is defined in the
Recitals.
"PERMITTED LIENS" means (i) mechanics', carriers',
workmen's, warehousemen's, repairmen's or other like liens
arising or incurred in the ordinary course of business, (ii)
liens arising under original purchase price conditional sales
contracts and equipment leases with third parties entered into
in the ordinary course of business, (iii) liens for Taxes and
other governmental charges which are not due and payable or
which may thereafter be paid without penalty, and (iv) other
imperfections of title, restrictions or encumbrances, if any,
which liens, imperfections of title, restrictions or encum-
brances do not materially impair the continued use and opera-
tion of the specific assets to which they relate.
-6-
"PRE-CLOSING TAX PERIOD" is defined in Section
12.05(a).
"RECORDS" is defined in Section 9.06(a).
"REPLACEMENT PLANS" is defined in Section 10A.03.
"RESTRICTED PERIOD" is defined in Section 7.06(a).
"SECURITIES ACT" is defined in Section 5.21.
"▇▇▇▇▇▇▇'▇" is defined in the Recitals.
"▇▇▇▇▇▇▇'▇ BALANCE SHEET" is defined in Section 6.08.
"▇▇▇▇▇▇▇'▇ CLOSING DATE BALANCE SHEET" is defined in
Section 8.01(b).
"▇▇▇▇▇▇▇'▇ CONFIDENTIALITY AGREEMENT" is defined in
Section 7.08.
"▇▇▇▇▇▇▇'▇ CONTRACTS" is defined in Section 6.14.
"▇▇▇▇▇▇▇'▇ COPYRIGHTS" is defined in Section 6.13(b).
"▇▇▇▇▇▇▇'▇ ELECTIONS" is defined in Section
12A.01(a).
"▇▇▇▇▇▇▇'▇ EMPLOYEE" means (i) all persons actively
employed on the Closing Date by ▇▇▇▇▇▇▇'▇, and (ii) any person
not so actively employed but who is, as of the Closing Date,
with respect to ▇▇▇▇▇▇▇'▇, on any authorized leave of absence,
on either short or long-term disability leave, on worker's com-
pensation leave, or on vacation.
"▇▇▇▇▇▇▇'▇ INTELLECTUAL PROPERTY" is defined in Sec-
tion 6.13(b).
"▇▇▇▇▇▇▇'▇ LEASED PROPERTIES" is defined in Section
6.12(b).
"▇▇▇▇▇▇▇'▇ OWNED PROPERTIES" is defined in Section
6.12(a).
"▇▇▇▇▇▇▇'▇ PERSONNEL" means all ▇▇▇▇▇▇▇'▇ Employees
and ▇▇▇▇▇▇▇'▇ Retirees.
"▇▇▇▇▇▇▇'▇ POST-RETIREMENT PLAN" means any plan, pro-
gram, arrangement or agreement, whether formal or informal, to
provide post-retirement medical benefits to, among others,
-7-
former employees of ▇▇▇▇▇▇▇'▇ and their eligible beneficiaries
that is maintained, contributed to or required to be contrib-
uted to by ▇▇▇▇▇▇-▇▇▇▇ or ▇▇▇▇▇▇▇'▇.
"▇▇▇▇▇▇▇'▇ PROPERTIES" is defined in Section 6.12(b).
"▇▇▇▇▇▇▇'▇ RETIREES" means all persons formerly em-
ployed by ▇▇▇▇▇▇▇'▇ and their beneficiaries who are receiving
or eligible to receive post-retirement medical benefits under
any ▇▇▇▇▇▇-▇▇▇▇ Post-Retirement Plan as of the Closing Date.
"▇▇▇▇▇▇▇'▇ SECTION 338 FORMS" is defined in Section
12A.01(b).
"▇▇▇▇▇▇▇'▇ SHARES" is defined in the Recitals.
"▇▇▇▇▇▇▇'▇ TAX LIABILITIES" is defined in Section
12A.05.
"▇▇▇▇▇▇▇'▇ TRADEMARKS" is defined in Section 6.13(a).
"▇▇▇▇▇▇▇'▇ TRANSFERRED EMPLOYEES" is defined in Sec-
tion 10A.01(a).
"STRADDLE PERIOD" is defined in Section 12.05(d).
"TAXES" means all federal, state, local and foreign
income, gross receipts, license, payroll, employment, excise,
severance, stamp, occupation, premium, windfall profits, envi-
ronmental, customs, duties, capital stock, franchise, profits,
withholding, social security (or similar), unemployment, dis-
ability, real property, personal property, sales, use, trans-
fer, registration, value added, VAT, alternative or add-on min-
imum, estimated, or other tax of any kind whatsoever, including
any interest, penalty, or addition thereto.
"TAX AUDIT" is defined in Section 12.06
"TAX RETURN" is defined in Section 12.05(e).
"THIRD-PARTY CLAIM" is defined in Section 11.08.
"TIMES MIRROR" is defined in the Preamble.
"TM 401(K) PLAN" is defined in Section 10.05.
"TM PENSION PLAN" is defined in Section 10.06.
"TMHE" is defined in the Recitals.
-8-
"TMHE BALANCE SHEET" is defined in Section 5.09(a).
"TMHE ELECTIONS" is defined in Section 12.01(a).
"TMHE LEASED PROPERTIES" is defined in Section
5.13(b).
"TMHE OWNED PROPERTY" is defined in Section 5.13(a).
"TMHE PROPERTIES" is defined in Section 5.13(b).
"TMHE SHARES" is defined in Recitals.
"TMHE SUBSIDIARIES" is defined in Section 5.05.
"TMIP" means Times Mirror International Publishers-
U.S., Inc., a Delaware corporation.
"TMIP ENTITIES" means TMIP, its direct and indirect
subsidiaries and Times Mirror Singapore Pte. Ltd., a Singapore
corporation.
"TMIP TRANSITION SERVICES AGREEMENT" means the ▇▇▇▇-
sition Services Agreement to be entered into by and between
TMIP and ▇▇▇▇▇▇-▇▇▇▇, substantially in the form attached hereto
as Exhibit B.
"TOP 25 ▇▇▇▇▇▇▇'▇ PUBLICATIONS" is defined in Section
6.13(b).
"TOP 100 COLLEGE PUBLISHING BUSINESS PUBLICATIONS" is
defined in Section 5.14(b).
"TRANSACTION-RELATED EXPENSES" means any expenses of
TMHE or ▇▇▇▇▇ or ▇▇▇▇▇▇▇'▇ incurred in connection with the con-
summation of the transactions contemplated hereby, including
performance bonuses and severance expenses of TMHE or ▇▇▇▇▇ or
▇▇▇▇▇▇▇'▇ and employee benefits payable under any employee ben-
efit plans on or prior to the Closing Date and fees and ex-
penses of auditors, legal counsel and financial advisors to
TMHE or ▇▇▇▇▇ or ▇▇▇▇▇▇▇'▇.
Section 1.02. Interpretation of this Agreement.
(a) Construction. Unless the context of this Agree-
ment clearly requires otherwise, references to the plural in-
clude the singular, the singular includes the plural, the part
includes the whole, "including" is not limiting, and "or" has
the inclusive meaning represented by the phrase "and/or." The
words "hereof," "herein," "hereby," "hereunder" and similar
-9-
terms in this Agreement refer to this Agreement as a whole (in-
cluding the Preamble, the Recitals, the Schedules and the Ex-
hibits) and not to any particular provision of this Agreement.
Article, section, exhibit, schedule, recital and preamble ref-
erences in this Agreement are to those portions of this Agree-
ment unless otherwise specified.
(b) Governing Law. This Agreement shall be governed
by and construed in accordance with the internal laws of the
State of New York applicable to agreements made and to be per-
formed entirely within such State.
(c) Headings, Exhibits and Schedules. The headings
contained in this Agreement, in any Exhibit or Schedule hereto
and in the Table of Contents to this Agreement, are for refer-
ence purposes only and shall not affect in any way the meaning
or interpretation of this Agreement. Any capitalized terms
used in any Exhibit or Schedule but not otherwise defined
therein shall have the meaning as defined in this Agreement.
Any matter disclosed in one Schedule hereto shall be deemed
incorporated by reference into each other Schedule hereto and
disclosed in each such Schedule to the extent that the relevan-
cy of such matter to each such other Schedule is apparent from
the disclosure included on the Schedule.
(d) Representation By Counsel; Interpretation.
Times Mirror, ▇▇▇▇▇ and ▇▇▇▇▇▇-▇▇▇▇ each acknowledge that each
party to this Agreement has been represented by counsel in con-
nection with this Agreement and the transactions contemplated
by this Agreement. Accordingly, any rule of law, including but
not limited to Section 1654 of the California Civil Code or any
comparable provision of New York law, or any legal decision
that would require interpretation of any claimed ambiguities in
this Agreement against the party that drafted it has no ap-
plication and is expressly waived. The provisions of this
Agreement shall be interpreted in a reasonable manner to effect
the intent of ▇▇▇▇▇▇-▇▇▇▇, Times Mirror and ▇▇▇▇▇.
ARTICLE TWO
PURCHASE AND SALE
Section 2.01. Purchase and Sale of the TMHE Shares.
On the terms and subject to the conditions of this Agreement,
Times Mirror will sell, transfer and deliver, or cause to be
sold, transferred and delivered, to ▇▇▇▇▇▇-▇▇▇▇, and ▇▇▇▇▇▇-
▇▇▇▇ will purchase from Times Mirror, free and clear of all
liens, claims, encumbrances, security interests, options,
charges and restrictions of any kind, the TMHE Shares.
-10-
Section 2.02. Purchase and Sale of the ▇▇▇▇▇ Assets
and International Assets; Assumption of the ▇▇▇▇▇ Liabilities
and International Liabilities.
(a) Purchase and Sale of the ▇▇▇▇▇ Assets and Inter-
national Assets.
(i) On the terms and subject to the conditions
of this Agreement, (A) ▇▇▇▇▇ shall sell, convey, transfer
and assign to ▇▇▇▇▇▇-▇▇▇▇ (or one or more subsidiaries of
▇▇▇▇▇▇-▇▇▇▇ designated by ▇▇▇▇▇▇-▇▇▇▇), and ▇▇▇▇▇▇-▇▇▇▇
(or one or more subsidiaries of ▇▇▇▇▇▇-▇▇▇▇ designated by
▇▇▇▇▇▇-▇▇▇▇) will purchase from ▇▇▇▇▇, all right, title
and interest in the ▇▇▇▇▇ Assets as of the Closing Date,
including, without limitation, those that are listed or
described on Schedule 2.02(a)(i), and (B) Times Mirror
shall cause the TMIP Entities to sell, convey, transfer
and assign to ▇▇▇▇▇▇-▇▇▇▇ (or one or more subsidiaries of
▇▇▇▇▇▇-▇▇▇▇ designated by ▇▇▇▇▇▇-▇▇▇▇), and ▇▇▇▇▇▇-▇▇▇▇
(or one or more subsidiaries of ▇▇▇▇▇▇-▇▇▇▇ designated by
▇▇▇▇▇▇-▇▇▇▇) will purchase from the TMIP Entities, all
right, title and interest of the TMIP Entities as of the
Closing Date in the assets of the TMIP Entities listed or
described on Schedule 2.02(a)(ii) (the "International
Assets").
(ii) Notwithstanding anything herein to the
contrary, the ▇▇▇▇▇ Assets shall not include (A) any
technology, including software and hardware, used in the
development, production, publication or distribution of
electronic products or (B) any trademarks, trade names or
service marks or applications therefor registered or filed
in the name of or used by ▇▇▇▇▇ other than as set forth on
Schedule 5.14(a) (collectively, the "Excluded Assets").
(b) Assumption of the ▇▇▇▇▇ Liabilities and Interna-
tional Liabilities. ▇▇▇▇▇▇-▇▇▇▇ shall assume as of the Closing
Date and shall pay, perform and discharge when due, and shall
indemnify ▇▇▇▇▇ against and hold ▇▇▇▇▇ harmless from, all of
the obligations and liabilities of any kind or nature, whether
absolute, contingent, known or unknown, disclosed or undis-
closed, accrued or otherwise of ▇▇▇▇▇, relating solely and ex-
clusively to ▇▇▇▇▇'▇ College Text Business and the ▇▇▇▇▇ Assets
as of the Closing Date (the "▇▇▇▇▇ Liabilities"), including,
without limitation, those listed or described on Schedule
2.02(b). ▇▇▇▇▇▇-▇▇▇▇ shall assume as of the Closing Date and
shall pay, perform and discharge when due, and shall indemnify
the TMIP Entities against and hold the TMIP Entities harmless
from, the liabilities of the TMIP Entities listed or described
on Schedule 2.02(b) (the "International Liabilities"). This
-11-
assumption of the ▇▇▇▇▇ Liabilities and the International Li-
abilities shall not include liabilities arising in connection
with violations of any Environmental Law. Notwithstanding any-
thing in this paragraph to the contrary, ▇▇▇▇▇▇-▇▇▇▇ shall not
assume any Tax liabilities of ▇▇▇▇▇ or any Tax liabilities re-
lating to the TMIP Entities.
Section 2.03. Cash Payment. In partial consider-
ation for the ▇▇▇▇▇▇▇'▇ Shares, Times Mirror shall pay to
▇▇▇▇▇▇-▇▇▇▇ $25 million, payable as set forth in Section
3.01(b)(i).
Section 2.04. Purchase and Sale of the ▇▇▇▇▇▇▇'▇
Shares. On the terms and subject to the conditions of this
Agreement, ▇▇▇▇▇▇-▇▇▇▇ will sell, transfer and deliver, or
cause to be sold, transferred and delivered, to Times Mirror,
and Times Mirror will purchase from ▇▇▇▇▇▇-▇▇▇▇, free and clear
of all liens, claims, encumbrances, security interests, op-
tions, charges and restrictions of any kind, the ▇▇▇▇▇▇▇'▇
Shares.
Section 2.05. Employee Benefit and Employee Matters
and Tax Matters Handled Separately. The foregoing provisions
of this Article Two do not relate to, with respect to TMHE, the
TMHE Subsidiaries, ▇▇▇▇▇ or ▇▇▇▇▇▇▇'▇, employee benefit and
employee matters, which are addressed in Articles 10 and 10-A.
Tax matters are further addressed in Articles 12 and 12-A.
ARTICLE THREE
CLOSING
Section 3.01. Closing. The closing (the "Closing")
of the purchase and sale of the ▇▇▇▇▇▇▇'▇ Shares, the TMHE
Shares, the ▇▇▇▇▇ Assets and the International Assets and the
assumption of the ▇▇▇▇▇ Liabilities and the International Li-
abilities shall be effective as of 12:01 a.m. on the first day
of the calendar month after the satisfaction or waiver of the
conditions to Closing set forth in Article 4. The date on
which the Closing shall be effective is hereinafter referred to
as the "Closing Date." The Closing shall be held at the of-
fices of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ at 10:00 a.m. on the Closing Date or, if the
Closing Date is not a Business Day, on the Business Day next
succeeding the Closing Date.
(a) ▇▇▇▇▇▇-▇▇▇▇ Deliveries at Closing. At the Clos-
ing, ▇▇▇▇▇▇-▇▇▇▇ shall deliver to Times Mirror (acting on its
own behalf and as agent for ▇▇▇▇▇ and the TMIP Entities) (i)
certificates representing the ▇▇▇▇▇▇▇'▇ Shares, duly endorsed
-12-
in blank, or accompanied by stock powers duly endorsed in
blank, in proper form for transfer, (ii) instruments of assump-
tion in form and substance reasonably satisfactory to Times
Mirror, ▇▇▇▇▇ and their counsel evidencing and effecting the
assumption by ▇▇▇▇▇▇-▇▇▇▇ of the ▇▇▇▇▇ Liabilities and the In-
ternational Liabilities, and (iii) such other documents as are
specifically required by this Agreement.
(b) Times Mirror Deliveries at Closing. At the
Closing, Times Mirror shall deliver or cause to be delivered to
▇▇▇▇▇▇-▇▇▇▇ (i) by wire transfer (to a bank account designated
at least two Business Days prior to the Closing Date in writing
by ▇▇▇▇▇▇-▇▇▇▇) immediately available funds in the amount set
forth in Section 2.03, (ii) certificates representing the TMHE
Shares, duly endorsed in blank, or accompanied by stock powers
duly endorsed in blank, in proper form for transfer, (iii) such
appropriately executed instruments of sale and assignment in
form and substance reasonably satisfactory to ▇▇▇▇▇▇-▇▇▇▇ and
its counsel evidencing and effecting the sale and transfer to
▇▇▇▇▇▇-▇▇▇▇ (or one or more subsidiaries of ▇▇▇▇▇▇-▇▇▇▇ desig-
nated by ▇▇▇▇▇▇-▇▇▇▇) of the International Assets (it being
understood that such instruments shall not require or permit
Times Mirror to make any additional representations, warranties
or covenants, expressed or implied, or disclaimers not con-
tained in this Agreement), and (iv) such other documents as are
specifically required by this Agreement.
(c) ▇▇▇▇▇ Deliveries at Closing. At the Closing,
▇▇▇▇▇ shall deliver or cause to be delivered such appropriately
executed instruments of sale and assignment in form and sub-
stance reasonably satisfactory to ▇▇▇▇▇▇-▇▇▇▇ and its counsel
evidencing and effecting the sale and transfer to ▇▇▇▇▇▇-▇▇▇▇
of the ▇▇▇▇▇ Assets (it being understood that such instruments
shall not require or permit ▇▇▇▇▇ to make any additional repre-
sentations, warranties or covenants, expressed or implied, or
disclaimers not contained in this Agreement), and such other
documents as are specifically required by this Agreement.
(d) Delivery of the ▇▇▇▇▇ Assets. The ▇▇▇▇▇ Assets
will be in the possession of ▇▇▇▇▇ on the Closing Date. Prior
to the Closing, (A) ▇▇▇▇▇ will provide ▇▇▇▇▇▇-▇▇▇▇ with a
schedule setting forth in reasonable detail the location of all
of the tangible ▇▇▇▇▇ Assets that will be in the possession or
control of ▇▇▇▇▇ on the Closing Date, (B) ▇▇▇▇▇ will consult
with ▇▇▇▇▇▇-▇▇▇▇ regarding the costs of transferring possession
of the ▇▇▇▇▇ Assets to ▇▇▇▇▇▇-▇▇▇▇ or one or more of its desig-
nated subsidiaries and (C) ▇▇▇▇▇ and ▇▇▇▇▇▇-▇▇▇▇ shall agree on
reasonable procedures to transfer possession of such ▇▇▇▇▇ As-
sets from ▇▇▇▇▇ to ▇▇▇▇▇▇-▇▇▇▇, as soon as practicable on or
-13-
after the Closing Date (except that those ▇▇▇▇▇ Assets neces-
sary or convenient for the performance of ▇▇▇▇▇'▇ obligations
under the ▇▇▇▇▇ Transition Services Agreement will be trans-
ferred as soon as practicable after the Termination Date
thereof (as defined therein)), it being understood that the
cost of transferring such ▇▇▇▇▇ Assets shall be borne by
▇▇▇▇▇▇-▇▇▇▇.
(e) Delivery of the International Assets. The In-
ternational Assets will be in the possession or control of the
TMIP Entities on the Closing Date. Prior to the Closing, (A)
Times Mirror will provide ▇▇▇▇▇▇-▇▇▇▇ with a schedule setting
forth in reasonable detail the location of all of the tangible
International Assets that will be in the possession or control
of the TMIP Entities on the Closing Date, (B) Times Mirror will
consult with ▇▇▇▇▇▇-▇▇▇▇ regarding the costs of transferring
possession of the International Assets to ▇▇▇▇▇▇-▇▇▇▇ or one or
more of its designated subsidiaries and (C) Times Mirror and
▇▇▇▇▇▇-▇▇▇▇ shall agree on reasonable procedures to transfer
possession of such International Assets from the TMIP Entities
to ▇▇▇▇▇▇-▇▇▇▇, as soon as practicable on or after the Closing
Date (except that those International Assets necessary or con-
venient for the performance of TMIP's obligations under the
TMIP Transition Services Agreement will be transferred as soon
as practicable after the Termination Date thereof (as defined
therein)), it being understood that the cost of transferring
such International Assets shall be borne by ▇▇▇▇▇▇-▇▇▇▇.
(f) Assignment of Contracts and Rights. Anything in
this Agreement to the contrary notwithstanding, this Agreement
shall not constitute an agreement to assign any of the ▇▇▇▇▇
Assets, the International Assets or any asset of TMHE, the TMHE
Subsidiaries or ▇▇▇▇▇▇▇'▇ or any claim or right or any benefit
arising thereunder or resulting therefrom if an attempted as-
signment thereof, without the consent of a third party thereto,
would constitute a breach or other contravention thereof or in
any way adversely affect the rights of ▇▇▇▇▇▇-▇▇▇▇ or Times
Mirror or any of their affiliates thereunder. ▇▇▇▇▇▇-▇▇▇▇ and
Times Mirror will use reasonable efforts, and will cause their
affiliates to use reasonable efforts (but without any payment
of money by ▇▇▇▇▇▇-▇▇▇▇ or Times Mirror or their affiliates) to
obtain the consent of the other parties to any such asset or
any claim or right or any benefit arising thereunder for the
assignment thereof as permitted hereby. If such consent is not
obtained, or if an attempted assignment thereof would be inef-
fective or would adversely affect the rights of the transferor
thereunder so that the transferee would not in fact receive all
such rights, the transferor and the transferee will cooperate
in a mutually agreeable arrangement under which the transferee
would obtain the benefits and assume the obligations thereunder
-14-
in accordance with this Agreement, including subcontracting,
sublicensing or subleasing to the transferee, or under which
the transferor would enforce for the benefit of the transferee,
with the transferee assuming the transferor's obligations, any
and all rights of the transferor against a third party thereto.
The transferor will pay promptly to the transferee when re-
ceived all monies received by the transferor after the Closing
Date under any of the such assets or any claim or right or any
benefit arising thereunder.
Provided that ▇▇▇▇▇▇-▇▇▇▇ and its affiliates (includ-
ing ▇▇▇▇▇▇▇'▇) use reasonable efforts to obtain such consents,
Times Mirror agrees that neither ▇▇▇▇▇▇-▇▇▇▇ nor its affiliates
shall have any liability whatsoever arising out of or relating
to the failure to obtain any consents that may have been or may
be required in connection with the transactions contemplated by
this Agreement or because of the default, acceleration or ter-
mination of any asset of ▇▇▇▇▇▇▇'▇ as a result thereof, to the
extent such matters are disclosed on Schedule 6.02 or are not
material to ▇▇▇▇▇▇▇'▇. Times Mirror further agrees that no
condition shall be deemed not to be satisfied as a result of
(i) the failure to obtain any such consent or as a result of
any such default, acceleration or termination or (ii) any law-
suit, action, claim, proceeding or investigation commenced or
threatened by or on behalf of any persons arising out of or
relating to the failure to obtain any such consent or any such
default, acceleration or termination, in each case to the
extent such matters are disclosed on Schedule 6.02 or are not
material to ▇▇▇▇▇▇▇'▇.
Provided that Times Mirror and its affiliates (in-
cluding TMHE and ▇▇▇▇▇) use reasonable efforts to obtain such
consents, ▇▇▇▇▇▇-▇▇▇▇ agrees that neither Times Mirror nor its
affiliates shall have any liability whatsoever arising out of
or relating to the failure to obtain any consents that may have
been or may be required in connection with the transactions
contemplated by this Agreement or because of the default,
acceleration or termination of any asset included in the Col-
lege Publishing Business as a result thereof, to the extent
such matters are disclosed on Schedule 5.03 or are not material
to the College Publishing Business. ▇▇▇▇▇▇-▇▇▇▇ further agrees
that no condition shall be deemed not to be satisfied as a
result of (i) the failure to obtain any such consent or as a
result of any such default, acceleration or termination or (ii)
any lawsuit, action, claim, proceeding or investigation com-
menced or threatened by or on behalf of any persons arising out
of or relating to the failure to obtain any such consent or any
such default, acceleration or termination, in each case to the
extent such matters are disclosed on Schedule 5.03 or are not
material to the College Publishing Business.
-15-
ARTICLE FOUR
CONDITIONS TO CLOSING
Section 4.01. Conditions to All Parties' Obliga-
tions. The respective obligations of parties hereto to consum-
mate the Closing shall be subject to the satisfaction (or
waiver by each party) as of the Closing of the following condi-
tions:
(a) HSR Act; Other Governmental Approvals. Any
waiting period applicable to the consummation of the transac-
tions contemplated hereby under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust
Improvements Act of 1976, as amended, and the rules and regula-
tions thereunder (the "HSR Act") shall have expired or have
been terminated, and any other governmental notice or approvals
necessary to consummate such transactions shall have been ei-
ther filed or received.
(b) No Order. No federal, state or foreign govern-
mental authority or other agency or commission or court of com-
petent jurisdiction shall have enacted, issued, promulgated,
enforced or entered any statute, rule, regulation, injunction
or other order (whether temporary, preliminary or permanent)
which remains in effect, and which has the effect of making the
transactions contemplated hereby illegal or otherwise prohibit-
ing consummation of the transactions contemplated by this
Agreement.
(c) Government Litigation. No action or proceeding
shall have been commenced or threatened (as evidenced by a com-
munication between the person or an authorized representative
of the entity threatening such action and one of the parties
hereto) by any court, administrative agency or commission or
other governmental or regulatory agency or authority that seeks
to prevent, or impose material damages in connection with, the
transactions contemplated hereby.
Section 4.02. Conditions to ▇▇▇▇▇▇-▇▇▇▇'▇ Obliga-
tions. (a) Subject to paragraph (b) of this Section 4.02, the
obligations of ▇▇▇▇▇▇-▇▇▇▇ to consummate the Closing are sub-
ject to the satisfaction (or waiver by ▇▇▇▇▇▇-▇▇▇▇) as of the
Closing of the following conditions:
(i) Representations, Warranties and Covenants. The
representations and warranties of Times Mirror and ▇▇▇▇▇ made
in this Agreement shall be true and correct in all material
respects as of the date of this Agreement and, except as spe-
cifically contemplated by this Agreement, on and as of the
Closing Date, as though made on and as of the Closing Date, and
Times Mirror and ▇▇▇▇▇ shall have performed or complied with,
-16-
or shall have caused to be performed or complied with, in all
material respects, all obligations and covenants required by
this Agreement to be performed or complied with by Times Mir-
ror, ▇▇▇▇▇ or any other affiliate of Times Mirror by the time
of the Closing; and ▇▇▇▇▇▇-▇▇▇▇ shall have received from Times
Mirror and ▇▇▇▇▇ a certificate dated the Closing Date and
signed by an authorized officer of each of Times Mirror and
▇▇▇▇▇ confirming the foregoing.
(ii) Certificate of Good Standing. ▇▇▇▇▇▇-▇▇▇▇ shall
have received from Times Mirror and ▇▇▇▇▇ certificates issued
by the appropriate governmental authority of the jurisdiction
of incorporation or organization, as the case may be, of each
of Times Mirror, TMHE, ▇▇▇▇▇ and the corporations or other en-
tities set forth on Schedule 5.08, evidencing its good standing
in its respective jurisdiction of incorporation or organization
as of a date not more than ten days prior to the Closing Date.
(iii) Resolutions. ▇▇▇▇▇▇-▇▇▇▇ shall have received
(1) from Times Mirror certified copies of resolutions duly
adopted by the Board of Directors of Times Mirror authorizing
the execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby, and
(2) from ▇▇▇▇▇ certified copies of resolutions duly adopted by
the Board of Directors of ▇▇▇▇▇ authorizing the execution, de-
livery and performance of this Agreement and the consummation
of the transactions contemplated hereby, and all such resolu-
tions shall not have been revoked and shall remain in full
force and effect.
(iv) Instruments of Sale and Assignment. The TMIP
Entities shall have executed and delivered the instruments of
sale and assignment referred to in Section 3.01(b) and ▇▇▇▇▇
shall have executed and delivered the instruments of sale and
assignment referred to in Section 3.01(c).
(v) Accounting Adjustments. Times Mirror shall have
caused the accounting adjustments described on Schedule
4.02(a)(v) to be made.
(vi) Transition Services Agreements. ▇▇▇▇▇ shall
have executed and delivered the ▇▇▇▇▇ Transition Services
Agreement and Times Mirror shall have caused TMIP to execute
and deliver the TMIP Transition Services Agreement.
(vii) Opinion of Counsel. ▇▇▇▇▇▇-▇▇▇▇ shall have re-
ceived an opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP as to (1) the
due authorization of this Agreement by Times Mirror and ▇▇▇▇▇,
(2) the valid execution and delivery of this Agreement by Times
Mirror and ▇▇▇▇▇ and (3) the enforceability of this Agreement
-17-
against Times Mirror and ▇▇▇▇▇, in each case subject to custom-
ary limitations and based upon certificates of public officials
and officers of Times Mirror and ▇▇▇▇▇ as to matters of fact.
(b) The language of Section 4.02(a) notwithstanding,
the condition to the obligations of ▇▇▇▇▇▇-▇▇▇▇ to consummate
the Closing contained in Section 4.02(a)(i) shall be deemed
satisfied if Times Mirror and ▇▇▇▇▇ deliver to ▇▇▇▇▇▇-▇▇▇▇ a
certificate dated the Closing Date and signed by an authorized
officer of each of Times Mirror and ▇▇▇▇▇ setting forth any
failure of the condition set forth in Section 4.02(a)(i) and
undertaking to indemnify ▇▇▇▇▇▇-▇▇▇▇ with respect to any Losses
resulting from such failure as provided in Section 11.03; pro-
vided, however, that the foregoing shall not apply to any fail-
ure of such condition to be satisfied resulting from a breach
of Sections 5.09, 5.14, 5.15(b), (c), (j) and (l), 5.16(b),
5.18 or 5.22(a); and provided further that the indemnification
provided in this paragraph shall not be limited by the $10
million and $100 million thresholds contained in Section 11.03.
Section 4.03. Conditions to Times Mirror's and
▇▇▇▇▇'▇ Obligations. (a) Subject to paragraph (b) of this
Section 4.03, the obligations of Times Mirror and ▇▇▇▇▇ to
consummate the Closing are subject to the satisfaction (or
waiver by Times Mirror and ▇▇▇▇▇) as of the Closing of the fol-
lowing conditions:
(i) Representations, Warranties and Covenants. The
representations and warranties of ▇▇▇▇▇▇-▇▇▇▇ made in this
Agreement shall be true and correct in all material respects as
of the date of this Agreement and, except as specifically con-
templated by this Agreement, on and as of the Closing Date as
though made on and as of the Closing Date, and ▇▇▇▇▇▇-▇▇▇▇
shall have performed or complied with, or shall have caused to
be performed or complied with, in all material respects, all
obligations and covenants required by this Agreement to be per-
formed or complied with by ▇▇▇▇▇▇-▇▇▇▇ or any affiliate of
▇▇▇▇▇▇-▇▇▇▇ by the time of the Closing; and Times Mirror and
▇▇▇▇▇ shall have received from ▇▇▇▇▇▇-▇▇▇▇ a certificate dated
the Closing Date and signed by an authorized officer of ▇▇▇▇▇▇-
▇▇▇▇ confirming the foregoing.
(ii) Certificate of Good Standing. Times Mirror and
▇▇▇▇▇ shall have received from ▇▇▇▇▇▇-▇▇▇▇ a certificate issued
by the appropriate governmental authority of the state of in-
corporation of each of ▇▇▇▇▇▇-▇▇▇▇ and ▇▇▇▇▇▇▇'▇, evidencing
its good standing in its respective state of incorporation as
of a date not more than ten days prior to the Closing Date.
-18-
(iii) Resolutions. Times Mirror and ▇▇▇▇▇ shall have
received from ▇▇▇▇▇▇-▇▇▇▇ certified copies of resolutions duly
adopted by the Board of Directors of ▇▇▇▇▇▇-▇▇▇▇ authorizing
the execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby and
such resolutions shall not have been revoked and shall remain
in full force and effect.
(iv) Instruments of Assumption. ▇▇▇▇▇▇-▇▇▇▇ shall
have executed and delivered the instruments of assumption of
the ▇▇▇▇▇ Liabilities and the International Liabilities.
(v) Release of Guaranties. Either (1) the guaranty
made by Times Mirror with respect to the $300,000 loan made to
▇.▇. ▇▇▇▇▇ Communications, Inc. by the City of Dubuque, Iowa
under its Community Economic Betterment Account; and the guar-
anty made by Times Mirror with respect to the $300,000 loan
made to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Communications, Inc. by the City of
Dubuque, Iowa under its Community Development Block Grant
Program, each shall have been released or (2) ▇▇▇▇▇▇-▇▇▇▇ shall
have agreed to indemnify Times Mirror against any liability
arising under such guaranties.
(vi) Opinion of Counsel. Times Mirror shall have
received an opinion of Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇ as to (1)
the due authorization of this Agreement by ▇▇▇▇▇▇-▇▇▇▇, (2) the
valid execution and delivery of this Agreement by ▇▇▇▇▇▇-▇▇▇▇
and (3) the enforceability of this Agreement against ▇▇▇▇▇▇-
▇▇▇▇, in each case subject to customary limitations and based
upon certificates of public officials and officers of ▇▇▇▇▇▇-
▇▇▇▇ as to matters of fact.
(b) The language of Section 4.03(a) notwithstanding,
the condition to the obligations of Times Mirror and ▇▇▇▇▇ to
consummate the Closing contained in Section 4.03(a)(i) shall be
deemed satisfied if ▇▇▇▇▇▇-▇▇▇▇ delivers to Times Mirror and
▇▇▇▇▇ a certificate dated the Closing Date and signed by an
authorized officer of ▇▇▇▇▇▇-▇▇▇▇ setting forth any failure of
the condition set forth in Section 4.03(a)(i) and undertaking
to indemnify Times Mirror and ▇▇▇▇▇ with respect to any Losses
resulting from such failure as provided in Section 11.04; pro-
vided, however, that the foregoing shall not apply to any fail-
ure of such condition to be satisfied resulting from a breach
of Sections 6.08, 6.13, 6.14(b), (c), (j) and (l), 6.15(b) or
6.17; and provided further that the indemnification provided in
this paragraph shall not be limited by the $10 million and $100
million thresholds contained in Section 11.04.
-19-
ARTICLE FIVE
REPRESENTATIONS AND WARRANTIES OF TIMES MIRROR AND ▇▇▇▇▇
Times Mirror, as to Times Mirror and the College Pub-
lishing Business, and ▇▇▇▇▇, with respect to ▇▇▇▇▇'▇ College
Text Business, represent and warrant to ▇▇▇▇▇▇-▇▇▇▇ as follows:
Section 5.01. Organization and Authority of Times
Mirror. Times Mirror is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware. Times Mirror has all requisite corporate power and
authority to execute and deliver this Agreement and to consum-
mate the transactions contemplated hereby. All necessary cor-
porate action required to have been taken by or on behalf of
Times Mirror by applicable law or its charter documents has
been taken to authorize (a) the approval, execution and deliv-
ery on behalf of Times Mirror of this Agreement and (b) the
performance by Times Mirror of its obligations under this
Agreement and the consummation of the transactions contemplated
hereby. This Agreement constitutes a valid and binding agree-
ment of Times Mirror, enforceable against it in accordance with
its terms, except (i) as the same may be limited by applicable
bankruptcy, insolvency, moratorium or similar laws of general
application relating to or affecting creditors' rights, includ-
ing, without limitation, the effect of statutory or other laws
regarding fraudulent conveyances and preferential transfers,
and (ii) for the limitations imposed by general principles of
equity (the foregoing exceptions set forth in clauses (i) and
(ii) being referred to as the "Enforceability Exceptions").
Section 5.02. Organization and Authority of ▇▇▇▇▇.
▇▇▇▇▇ is a corporation duly organized, validly existing and in
good standing under the laws of the State of Missouri. ▇▇▇▇▇
has all requisite corporate power and authority to execute and
deliver this Agreement and to consummate the transactions con-
templated hereby. All necessary corporate action required to
have been taken by or on behalf of ▇▇▇▇▇ by applicable law or
its charter documents has been taken to authorize (a) the ap-
proval, execution and delivery on behalf of ▇▇▇▇▇ of this
Agreement and (b) the performance by ▇▇▇▇▇ of its obligations
under this Agreement and the consummation of the transactions
contemplated hereby. This Agreement constitutes a valid and
binding agreement of ▇▇▇▇▇, enforceable against it in accor-
dance with its terms, except as the same may be limited by the
Enforceability Exceptions.
Section 5.03. No Breach. The execution and delivery
of this Agreement by Times Mirror and ▇▇▇▇▇ do not, and the
consummation of the transactions to which any of Times Mirror,
▇▇▇▇▇, TMHE or any other affiliate of Times Mirror is a party
-20-
contemplated hereby will not, (i) violate or conflict with the
Charter or Bylaws of Times Mirror, ▇▇▇▇▇, TMHE or any such af-
filiate or (ii) except as set forth on Schedule 5.03 hereto,
constitute a material breach or default or give rise to any
lien, third-party right of termination, cancellation, material
modification or acceleration under any material agreement, un-
derstanding or undertaking to which Times Mirror, ▇▇▇▇▇, TMHE
or any such affiliate is a party or by which any of them is
bound, or any material law, rule or regulation to which any of
them or any material portion of the assets of any of them is
subject.
Section 5.04. Governmental Consents and Approvals.
Neither the execution and delivery of this Agreement by Times
Mirror and ▇▇▇▇▇ nor the consummation of the transactions to
which any of Times Mirror, ▇▇▇▇▇, TMHE or any other affiliate
of Times Mirror is a party contemplated hereby will require any
consent, approval, authorization or permit of, or filing with
or notification to, any governmental or regulatory authority,
except (i) for notification pursuant to, and expiration or ter-
mination of the waiting period under, the HSR Act and (ii)
where the failure to obtain such consent, approval, authoriza-
tion or permit, or to make such filing or notification, would
not prevent Times Mirror, ▇▇▇▇▇, TMHE or any such affiliate
from performing its respective obligations under this Agreement
without having a material adverse effect on the business,
financial condition or results of operations of the College
Publishing Business, taken as a whole.
Section 5.05. Organization and Standing of TMHE and
its Subsidiaries. TMHE is a corporation duly organized and
validly existing under the laws of the State of Delaware. Each
of the subsidiaries of TMHE listed on Schedule 5.08 is duly
organized and validly existing under the laws of the jurisdic-
tion in which it is organized. (The entities referred to on
Schedule 5.08, other than ▇▇▇▇ Ridge Parkway Limited Partner-
ship, are referred to herein as the "TMHE Subsidiaries.") Each
of TMHE and the TMHE Subsidiaries has all requisite corporate
power and authority and, to the Knowledge of Times Mirror, pos-
sesses all governmental franchises, licenses, permits, authori-
zations and approvals necessary to enable it to carry on its
business as presently conducted other than such franchises,
licenses, permits, authorizations and approvals the lack of
which would not have a material adverse effect on the business,
financial condition or results of operations of TMHE and the
TMHE Subsidiaries taken as a whole. Each of TMHE and the TMHE
Subsidiaries is duly qualified and in good standing to do busi-
ness in each jurisdiction in which the nature of its business
or the ownership, leasing or holding of its properties makes
such qualification necessary, except such jurisdictions where
-21-
the failure to be so qualified or in good standing would not
have a material adverse effect on the business, financial con-
dition or results of operations of TMHE or the TMHE Subsidiar-
ies taken as a whole. Times Mirror has made available to
▇▇▇▇▇▇-▇▇▇▇ true and complete copies of (i) the Certificate of
Incorporation, as amended to date, and the Bylaws, as in effect
on the date of this Agreement, of TMHE and (ii) the stock cer-
tificates and transfer records and the minute books of TMHE.
Section 5.06. Capital Stock of TMHE. The authorized
capital stock of TMHE consists of 1,000 shares of common stock,
par value $1.00 per share, of which 200 shares, constituting
the TMHE Shares, are duly authorized and validly issued and
outstanding, fully paid and nonassessable. Except for the TMHE
Shares, there are no shares of capital stock or other equity
securities of TMHE outstanding. The TMHE Shares have not been
issued in violation of, and none of the TMHE Shares is subject
to, any preemptive or subscription rights. There are no out-
standing warrants, options, "phantom" stock rights, agreements,
convertible or exchangeable securities or other commitments
(other than this Agreement) pursuant to which Times Mirror or
TMHE is or may become obligated to issue, sell, purchase, re-
turn or redeem any shares of capital stock or other securities
of TMHE, and no equity securities of TMHE are reserved for is-
suance for any purpose. Other than this Agreement, the TMHE
Shares are not subject to any voting trust agreement or other
contract, agreement, arrangement, commitment or understanding,
including any such agreement, arrangement, commitment or under-
standing restricting or otherwise relating to the voting, divi-
dend rights or disposition of the TMHE Shares.
Section 5.07. Title to and Transfer of the TMHE
Shares. Times Mirror is the record and beneficial owner of the
TMHE Shares and has good and marketable title thereto, free and
clear of any liens, claims, encumbrances, security interests,
options, charges and restrictions of any kind. Assuming
▇▇▇▇▇▇-▇▇▇▇ has the requisite power and authority to be the
lawful owner of the TMHE Shares, upon delivery to ▇▇▇▇▇▇-▇▇▇▇
at the Closing of certificates representing the TMHE Shares,
duly endorsed by Times Mirror for transfer to ▇▇▇▇▇▇-▇▇▇▇, and
the completion of the other deliveries at the Closing contem-
plated by Article 2, good and marketable title to the TMHE
Shares will pass to ▇▇▇▇▇▇-▇▇▇▇, free and clear of any mort-
gages, liens, claims, encumbrances, security interests, op-
tions, charges and restrictions of any kind ("Liens") other
than those arising from acts of ▇▇▇▇▇▇-▇▇▇▇ or its affiliates.
Section 5.08. Equity Interests. Except as set forth
on Schedule 5.08, TMHE does not directly or indirectly own any
capital stock of or other equity interests in any corporation,
-22-
partnership or other entity. Except as set forth on Schedule
5.08, TMHE owns all of the equity interests in the TMHE Subsid-
iaries. The equity interests in the TMHE Subsidiaries have not
been issued in violation of, and none of such interests is sub-
ject to, any preemptive or subscription rights. There are no
outstanding warrants, options, "phantom" stock rights, agree-
ments, convertible or exchangeable securities or other commit-
ments (other than this Agreement) pursuant to which Times
Mirror or any affiliate thereof is or may become obligated to
issue, sell, purchase, return or redeem any shares of capital
stock or other securities of any TMHE Subsidiary, and no equity
securities of any TMHE Subsidiary are reserved for issuance for
any purpose. Other than this Agreement, the equity interests
in the TMHE Subsidiaries are not subject to any voting trust
agreement or other contract, agreement, arrangement, commitment
or understanding, including any such agreement, arrangement,
commitment or understanding restricting or otherwise relating
to the voting, dividend rights or disposition of the such in-
terests.
Section 5.09. Financial Statements.
(a) TMHE Financial Statements. The financial state-
ments set forth on Schedule 5.09(a), which consist of (i) the
audited consolidated balance sheet of TMHE and the notes there-
to as of December 31, 1995 and the audited consolidated state-
ments of operations, shareholder's equity and cash flows and
the notes thereto for the year then ended, audited by Ernst &
Young LLP, whose report thereon is included therewith, and (ii)
the unaudited condensed consolidated balance sheet of TMHE and
the notes thereto as of March 31, 1996 (the "TMHE Balance
Sheet") and the unaudited condensed consolidated statements of
operations, shareholder's equity and cash flows for the three-
month period then ended, were prepared in accordance with gen-
erally accepted accounting principles ("GAAP") and present
fairly, in all material respects, TMHE's consolidated financial
position and the consolidated results of its operations and
cash flows as of the dates thereof and for the periods covered
thereby. The TMHE Balance Sheet and the unaudited condensed
consolidated statements of operations, shareholder's equity and
cash flows referred to in clause (ii) above were prepared on a
basis consistent with the audited consolidated financial state-
ments of TMHE for the year ended December 31, 1995, except that
Times Mirror's intercompany account balance with TMHE as of
March 31, 1996 was contributed to the capital of TMHE, and
include all adjustments that management considers necessary for
a fair presentation of the results of operations for such
period.
-23-
(b) ▇▇▇▇▇ Statements. The statements set forth on
Schedule 5.09(b), which consist of the unaudited statement of
assets conveyed and liabilities assumed related to ▇▇▇▇▇'▇ Col-
lege Text Business as of March 31, 1996 (the "▇▇▇▇▇ Statement")
and the unaudited statement of profit and loss for the three-
month period then ended, were prepared in accordance with the
assumptions set forth in the notes thereto and present fairly,
in all material respects, ▇▇▇▇▇'▇ College Text Business' assets
conveyed and liabilities assumed and the results of operations
related thereto as of the date thereof and for the period cov-
ered thereby.
(c) Additional Financial Information. The unaudited
financial information relating to the 1995 revenues and gross
margin of ▇▇▇▇▇'▇ College Text Business and the international
portion of the College Publishing Business set forth on Sched-
ule 5.09(c) was prepared in a manner consistent with the state-
ment of profit and loss referred to in Section 5.09(b) and is
accurate in all material respects.
(d) Pro Formas. The pro forma consolidated balance
sheet of TMHE and the pro forma statement of assets conveyed
and liabilities assumed related to ▇▇▇▇▇'▇ College Text Busi-
ness are set forth on Schedule 5.09(d)-1 and 5.09(d)-2, respec-
tively. As more fully described in the notes thereto:
(i) the pro forma consolidated balance sheet of
TMHE and the pro forma statement of assets conveyed and
liabilities assumed related to ▇▇▇▇▇'▇ College Text Busi-
ness include accounts receivable and reserves for doubtful
accounts and returns attributable to the international
sales of TMHE and of ▇▇▇▇▇'▇ College Text Business, as the
case may be, which accounts receivable and reserves are
reflected on the books of the TMIP Entities;
(ii) the pro forma consolidated balance sheet of
TMHE excludes the assets related to the manufacturing op-
erations located in Dubuque, Iowa; and
(iii) the pro forma consolidated balance sheet of
TMHE reflects the contribution by Times Mirror to the cap-
ital of TMHE of its intercompany advance balance with
Times Mirror, which is consistent with the treatment of
the intercompany advance balance in the financial state-
ments set forth in accordance with Schedule 5.09(a)(ii).
(e) Accruals. Neither TMHE nor ▇▇▇▇▇, with respect
to ▇▇▇▇▇'▇ College Text Business, has made, on or after July 1,
-24-
1996, any accrual or provision for sales returns, inventory
obsolescence, bad debts, Taxes or other items, other than with
respect to the current period and consistent with past prac-
▇▇▇▇, except as referenced in the last paragraph of Section
9.01(a)(ii).
Section 5.10. Nonforeign Certification. Neither
Times Mirror nor ▇▇▇▇▇ is a "foreign person" within the meaning
of Section 1445 of the Code.
Section 5.11. Taxes. TMHE and the TMHE Subsidiaries
have filed or caused to be filed in a timely manner (within any
applicable extension periods) with the appropriate Tax author-
ity all material Tax returns, reports and forms they are re-
quired to have filed and have paid or provided for all material
Taxes they are required to have paid. There are no material
Tax liens or assessments against TMHE or the TMHE Subsidiaries
or any property or assets of TMHE or the TMHE Subsidiaries or
with respect to the ▇▇▇▇▇ Assets or the International Assets,
other than Permitted Liens.
Section 5.12. Assets Other than Real Property. TMHE
and the TMHE Subsidiaries have good title to all assets re-
flected on the TMHE Balance Sheet or thereafter acquired, ex-
cept for inventory and assets having a fair market value not
exceeding $20,000 sold or otherwise disposed of since the date
of the TMHE Balance Sheet in the ordinary course of business
consistent with past practice, and ▇▇▇▇▇ has good title to all
the assets included in the ▇▇▇▇▇ Assets reflected on the ▇▇▇▇▇
Statement or thereafter acquired, except for inventory that may
be sold or otherwise disposed of after the date of the ▇▇▇▇▇
Statement in the ordinary course of business consistent with
past practice, in each case free and clear of all Liens, except
(a) such as are disclosed on Schedule 5.12 and (b) Permitted
Liens. The TMIP Entities have good title to the International
Assets, except for inventory sold or otherwise disposed of
since the date hereof in the ordinary course of business
consistent with past practice, free and clear of all Liens,
except (a) such as are disclosed on Schedule 5.12 and (b) Per-
mitted Liens.
This Section 5.12 does not relate to real property or
interests in real property, which is the subject of Section
5.13, or to College Publishing Business Intellectual Property,
which is the subject of Section 5.14.
-25-
Section 5.13. Real Property.
(a) Owned Property. Schedule 5.13(a) sets forth a
complete list of all real property and interests in real prop-
erty owned in fee by TMHE or the TMHE Subsidiaries ("TMHE Owned
Properties").
(b) Leased Property. Schedule 5.13(b) sets forth a
complete list of all real property and interests in real prop-
erty leased by TMHE or the TMHE Subsidiaries ("TMHE Leased
Properties," and together with the TMHE Owned Properties, "TMHE
Properties") and identifies any leases relating thereto.
(c) Title to Real Property. TMHE or the TMHE Sub-
sidiaries have (i) good and marketable fee title to all TMHE
Owned Property and (ii) good and marketable title to the lease-
hold estates in all TMHE Leased Property, in each case free and
clear of all mortgages, liens, security interests, easements,
covenants, rights-of-way and other similar restrictions of any
nature whatsoever, except (A) Permitted Liens, (B) easements,
covenants, rights-of-way and other similar restrictions of
record, and (C) (x) zoning, building and other similar restric-
tions, (y) Liens that have been placed by any developer, land-
lord or other third party on property over which TMHE or the
TMHE Subsidiaries have easement rights or on any TMHE Leased
Property and subordination or similar agreements relating
thereto and (z) unrecorded easements, covenants, rights-of-way
or other similar restrictions, none of which items set forth in
clauses (x), (y) and (z) above materially impairs the continued
use in TMHE's business and operation of the property to which
they relate. The TMHE Properties are the only real property
interests included in the College Publishing Business.
Section 5.14. Intellectual Property.
(a) Trademarks. Schedule 5.14(a) sets forth a true
and complete list of all registered United States and foreign
trademarks, trade names, service marks and applications there-
for (collectively, "College Publishing Business Trademarks"),
(i) that are registered or filed in the name of TMHE or the
TMHE Subsidiaries or (ii) that are registered or filed in the
name of ▇▇▇▇▇ and are used solely and exclusively in ▇▇▇▇▇'▇
College Text Business or (iii) that are used solely and exclu-
sively in connection with the International Assets. Schedule
5.14(a) contains a list of all federal and foreign jurisdic-
tions in which such trademarks are registered or applied for
and all registration and application numbers. All of the Col-
lege Publishing Business Trademarks are owned by College Pub-
lishing Business free and clear of all Liens.
-26-
(b) Copyrights. Schedule 5.14(b) sets forth (i) a
true and complete list of the United States and foreign copy-
rights with respect to the top 25 publications (based on rev-
enue for the year ended December 31, 1995) of each of the three
principal divisions of TMHE and (ii) a true and complete list
of the United States and foreign copyrights with respect to the
top 25 publications (based on revenue for the year ended Decem-
ber 31, 1995) of ▇▇▇▇▇'▇ College Text Business (together, the
"Top 100 College Publishing Business Publications"). TMHE
owns, free and clear of all Liens, the copyrights to or other-
wise has all rights sufficient to produce, reproduce, publish,
distribute and sell all of the publications of TMHE and ▇▇▇▇▇
owns, free and clear of all Liens, the copyrights to or other-
wise has all rights sufficient to produce, reproduce, publish,
distribute and sell all of the publications included in the
▇▇▇▇▇ Assets (collectively, the "College Publishing Business
Copyrights," and with College Publishing Business Trademarks,
"College Publishing Business Intellectual Property"), except
where any failures to own such College Publishing Business
Copyrights or to otherwise have such rights, taken in the ag-
gregate, would not have a material adverse effect on the busi-
ness, financial condition or results of operations of the divi-
sion of TMHE or ▇▇▇▇▇'▇ College Text Business to which they
relate.
(c) Licenses. Except as disclosed on Schedule
5.14(c), none of TMHE, Times Mirror, ▇▇▇▇▇ or any of the TMIP
Entities has licensed exclusively to any third party the right
to use or exploit any of the Top 100 College Publishing Busi-
ness Publications in any jurisdiction.
(d) Claims. Except as set forth on Schedule
5.14(d), no claims are pending or, to the Knowledge of Times
Mirror, threatened in writing against the College Publishing
Business by any person with respect to the ownership, validity,
enforceability or use of any College Publishing Business Trade-
▇▇▇▇ listed on Schedule 5.14(a), the "Wm. ▇. ▇▇▇▇▇" and "▇▇▇▇▇
& Benchmark" trademarks or any of the College Publishing Busi-
ness Copyrights or otherwise challenging or questioning the
validity or effectiveness of any such College Publishing Busi-
ness Trademark or College Publishing Business Copyright except
for any such claims that, taken in the aggregate, would not
have a material adverse effect on the business, financial con-
dition or results of operations of the division of TMHE or
▇▇▇▇▇'▇ College Text Business to which they relate. Except as
set forth on Schedule 5.14(d), no claims are pending or, to the
Knowledge of Times Mirror, threatened in writing against TMHE
or the TMHE Subsidiaries or any of the TMIP Entities, with re-
spect to the International Assets and International Liabili-
ties, or ▇▇▇▇▇, with respect to ▇▇▇▇▇'▇ College Text Business,
by any person in which such person alleges that any activities
-27-
or conduct of business of the College Publishing Business,
infringes upon the intellectual property rights of any third
party or that any product packaging infringes upon a propri-
etary packaging design of any third party except for any such
claims that, taken in the aggregate, would not have a material
adverse effect on the business, financial condition or results
of operations of the division of TMHE or ▇▇▇▇▇'▇ College Text
Business to which they relate.
(e) Neither Times Mirror nor any affiliate of Times
Mirror (other than TMHE or ▇▇▇▇▇) owns any patents, technology
or copyrights used solely and exclusively in the creation or
publication of the works of the College Publishing Business,
other than any such item being conveyed to ▇▇▇▇▇▇-▇▇▇▇ hereun-
der.
Section 5.15. Contracts. Schedules 5.15(a) through
5.15(l) set forth a true and complete list of each of the fol-
lowing types of contracts to which TMHE or any of the TMHE Sub-
sidiaries or ▇▇▇▇▇, with respect to ▇▇▇▇▇'▇ College Text Busi-
ness, or the TMIP Entities, with respect to the International
Assets and International Liabilities, is a party ("College Pub-
lishing Business Contracts"):
(a) Employment, Independent Contractor and Consult-
ing Agreements. (i) Any employment agreement, employment con-
tract or any agreement or contract providing for the payment of
any severance compensation to any College Publishing Business
Employee or for the provision, vesting and/or acceleration of
any employee benefits following a change of ownership or con-
trol of TMHE or ▇▇▇▇▇ (other than any enhanced benefits de-
scribed in Sections 10.02, 10.04 or 10.05 hereof) and (ii) any
independent contractor or consulting agreement (except those
described in Section 5.15(k)) and (iii) that has an aggregate
liability after the Closing Date in excess of $100,000 and is
not terminable by notice of less than 60 calendar days for a
cost of less than $100,000;
(b) Collective Bargaining Agreement. Any employee
collective bargaining agreement or other contract with any la-
bor union;
(c) Non-Competition Agreements. Any covenant or
agreement that restricts the ability of TMHE, any of the TMHE
Subsidiaries, ▇▇▇▇▇ (with respect to ▇▇▇▇▇'▇ College Text Busi-
ness) or any of the TMIP Entities (with respect to the Interna-
tional Assets) to compete in any line of business in any place
in the world;
-28-
(d) Agreements with Affiliates, Officers, Directors
or Employees. Any agreement or contract between TMHE or any of
the TMHE Subsidiaries or ▇▇▇▇▇, with respect to ▇▇▇▇▇'▇ College
Text Business, or the TMIP Entities, with respect to the Inter-
national Assets and International Liabilities, on the one hand,
and Times Mirror or any affiliate of Times Mirror, any officer,
director or employee of TMHE or any of the TMHE Subsidiaries,
▇▇▇▇▇, or any of the TMIP Entities, on the other hand (other
than contracts that will terminate at or prior to the Closing
and employment agreements covered by paragraph (a) above);
(e) Leases of TMHE Property. Any lease or similar
agreement under which TMHE or any TMHE Subsidiary is a lessor
or sublessor of, or makes available for use by any third party,
any TMHE Property;
(f) Personal Property Leases. Any lease or similar
agreement under which (i) TMHE, any of the TMHE Subsidiaries,
▇▇▇▇▇ (with respect to ▇▇▇▇▇'▇ College Text Business) or any of
the TMIP Entities (with respect to the International Assets),
is lessee of, or holds or uses, any machinery, equipment, ve-
hicle or other tangible personal property owned by a third
party or (ii) the College Publishing Business is a lessor or
sublessor of, or makes available for use by any third party,
any tangible personal property owned or leased by the College
Publishing Business, in any such case which has an aggregate
liability after the Closing Date in excess of $150,000 and is
not terminable by notice of less than 60 calendar days for a
cost of less than $150,000;
(g) Supply and Service Agreements. (i) Any con-
tinuing agreement or contract for the future purchase by the
College Publishing Business of materials, supplies or equipment
(other than purchase contracts and orders for inventory in the
ordinary course of business consistent with past practice) or
(ii) any advertising agreement or arrangement (including any
advertising agreements or arrangements to which any of Times
Mirror or the College Publishing Business is a party and that
is applicable to the College Publishing Business), in any such
case which has an aggregate liability after the Closing Date in
excess of $150,000 and is not terminable by notice of less than
60 calendar days for a cost of less than $150,000;
(h) Indebtedness. Any agreement or contract under
which TMHE, any of the TMHE Subsidiaries, ▇▇▇▇▇, with respect
to the ▇▇▇▇▇ Liabilities, or any of the TMIP Entities, with
respect to the International Liabilities, has borrowed or
loaned any money or issued any note, bond, indenture or other
evidence of indebtedness or directly or indirectly guaranteed
indebtedness, liabilities or obligations of others (other than
-29-
endorsements for the purpose of collection in the ordinary
course of business), or any other note, bond, indenture or
other evidence of indebtedness;
(i) Guarantees. Any agreement or contract under
which any other person has directly or indirectly guaranteed
indebtedness, liabilities or obligations of TMHE, the TMHE Sub-
sidiaries, ▇▇▇▇▇ (with respect to ▇▇▇▇▇'▇ College Text Busi-
ness) and the TMIP Entities (with respect to the International
Assets) (other than endorsements for the purpose of collection
in the ordinary course of business);
(j) Partnerships and Joint Ventures. Any partner-
ship agreement or other joint venture agreement to which TMHE,
any of the TMHE Subsidiaries, ▇▇▇▇▇ (with respect to ▇▇▇▇▇'▇
College Text Business) or any of the TMIP Entities (with re-
spect to the International Assets), is a party;
(k) College Publishing Business Author Contracts.
Any agreement or contract under which the College Publishing
Business is obligated to pay royalties to any person in connec-
tion with the reproduction, publication or distribution of any
works; and
(l) Other Agreements. Any other agreement, con-
tract, lease, license, commitment or instrument to which TMHE,
any of the TMHE Subsidiaries, ▇▇▇▇▇ (with respect to ▇▇▇▇▇'▇
College Text Business) or any of the TMIP Entities (with re-
spect to the International Assets), is a party or by or to
which TMHE or any of its assets or its business or, in the case
of ▇▇▇▇▇, any of the ▇▇▇▇▇ Assets or ▇▇▇▇▇'▇ College Text Busi-
ness, or any of the International Assets is bound or subject
which in any case has an aggregate liability after the Closing
Date in excess of $200,000 and is not terminable by notice of
less than 60 calendar days for a cost of less than $200,000
(other than purchase contracts and orders for inventory in the
ordinary course of business consistent with past practice).
Except as disclosed on Schedule 2.02(a)(i), Schedule 5.15 or
the other schedules hereto, TMHE, the TMHE Subsidiaries, ▇▇▇▇▇
(with respect to ▇▇▇▇▇'▇ College Text Business) and the TMIP
Entities (with respect to the International Assets), have per-
formed all material obligations required to be performed by
them to date under the College Publishing Business Contracts
and are not in breach or default in any material respect there-
under and, to the Knowledge of Times Mirror, no other party to
any of the College Publishing Business Contracts is in breach
or default in any material respect thereunder.
-30-
Section 5.16. Litigation; Decrees. (a) Schedule
5.16 sets forth a list, as of the date of this Agreement, of
all pending, and, to the Knowledge of Times Mirror, threatened
lawsuits or claims (other than lawsuits or claims related to
Taxes with respect to which Times Mirror is obligated to indem-
nify ▇▇▇▇▇▇-▇▇▇▇ pursuant to Section 11.01) with respect to
which Times Mirror or any of its affiliates has contacted in
writing the defendant or has been contacted in writing by the
claimant or by counsel for the claimant by or against (a) TMHE
or any of its properties, assets, operations or businesses or
(b) ▇▇▇▇▇ and that relate to ▇▇▇▇▇'▇ College Text Business, or
(c) the TMIP Entities and that relate to the International
Assets, and, in the case of clauses (a), (b) and (c) which (i)
involve a claim by or against the College Publishing Business,
as applicable, of more than $250,000, (ii) seek any injunctive
relief or (iii) relate to the transactions contemplated by this
Agreement. Except as disclosed on Schedule 5.16, none of TMHE,
the TMHE Subsidiaries or ▇▇▇▇▇, with respect to ▇▇▇▇▇'▇ College
Text Business, or the TMIP Entities, with respect to the Inter-
national Assets, is subject to any judgment, order or decree of
any court, administrative agency or commission or other govern-
mental authority or instrumentality, domestic or foreign, ap-
plicable to the College Publishing Business which is material
to the College Publishing Business taken as a whole.
(b) There is no lawsuit or claim pending against
Times Mirror, TMHE, ▇▇▇▇▇ (with respect to the ▇▇▇▇▇ Assets) or
the TMIP Entities (with respect to the International Assets)
that (i) with respect to the College Publishing Business, could
reasonably be expected to result in liability in excess of
$10,000,000; (ii) seeks injunctive relief that, if granted,
could reasonably be expected to have a material adverse effect
on the College Publishing Business or (iii) relates primarily
to the transactions contemplated hereby.
Section 5.17. Employee and Related Matters; ERISA.
(a) Schedule 5.17(a) sets forth each employee pen-
sion, retirement, profit sharing, stock bonus, stock option,
stock purchase, incentive, deferred compensation, hospitaliza-
tion, medical, dental, vision, life insurance, accidental death
and dismemberment insurance, business travel insurance, cafete-
ria and flexible spending, sick pay, disability, severance,
golden parachute or other plan, fund, program, policy, contract
or arrangement (including any contracts or agreements with cer-
tain employees of the College Publishing Business that relate
to the transactions contemplated by this Agreement) providing
employee benefits that is maintained, contributed to or re-
quired to be contributed to by Times Mirror or any of its affi-
liates in which any College Publishing Business Personnel has
participated or under which any College Publishing Business
-31-
Personnel has accrued and remains entitled to any benefits (the
"College Publishing Business Plans"). Times Mirror has made
available to ▇▇▇▇▇▇-▇▇▇▇ true, complete and correct copies of
(i) each College Publishing Business Plan (or, in the case of
any unwritten Times Mirror Plans, descriptions thereof), (ii)
the most recent annual report on Form 5500 filed with the IRS
with respect to each College Publishing Business Plan (if any
such report was required), (iii) the most recent summary plan
description for each College Publishing Business Plan for which
such a summary plan description is required, (iv) each trust
agreement and group annuity contract relating to any College
Publishing Business Plan, and (v) all other material documents
relating to the College Publishing Business Plans. Neither
TMHE, ▇▇▇▇▇ nor any corporation or trade or business (whether
or not incorporated) which would be treated as its ERISA Affi-
liate is liable for any amount under Title IV of ERISA (except
for premiums to the Pension Benefit Guaranty Corporation aris-
ing in the ordinary course) and no fact or event exists which
could reasonably give rise to such liability. Except as dis-
closed on Schedule 5.17(a), no College Publishing Business Per-
sonnel is entitled to any benefit under any College Publishing
Business Plan by reason of the transactions contemplated here-
by, including, but not limited to, severance, stay-pay or re-
tention bonuses, nor any acceleration, vesting, distribution or
increase in benefits or obligations to fund benefits, and no
College Publishing Business Plan includes any common stock or
other security issued by Times Mirror or any ERISA Affiliate of
TMHE among its assets.
(b) Compliance with ERISA and the Code. None of
Times Mirror, TMHE, any TMHE Subsidiary, any of the College
Publishing Business Plans or any trust created thereunder, or
any trustee or administrator thereof, has engaged in a trans-
action in connection with which TMHE or any TMHE Subsidiary
would be subject to either a material liability or civil pen-
alty assessed pursuant to Sections 409, 502(i) or 502(l) of
ERISA or a material Tax imposed pursuant to Section 4971, 4972,
4974, 4975, 4976 or 4980B of the Code. Except as described on
Schedule 5.17(b), each of the College Publishing Business Plans
has been operated and administered in all material respects in
accordance with its terms and applicable laws, including, but
not limited to, ERISA and the Code. Except as disclosed on
Schedule 5.17(b), each College Publishing Business Plan in-
tended to be a qualified plan under Code Section 401 has re-
ceived a favorable determination letter to that effect (a copy
of which has been delivered to ▇▇▇▇▇▇-▇▇▇▇) covering all of the
provisions applicable to tax qualified plans introduced by the
Tax Reform Act of 1986 and nothing has occurred since the issu-
ance of such letter that would adversely affect the Tax quali-
fication of any such College Publishing Business Plan. There
-32-
are no pending or, to the Knowledge of College Publishing Busi-
ness, threatened claims by or on behalf of any of the College
Publishing Business Plans by any employee, former employee or
beneficiary covered under any such College Publishing Business
Plan or otherwise involving any such College Publishing Busi-
ness Plan (other than individual claims for benefits arising in
the ordinary course).
(c) Multiemployer Plan Liabilities. Except as dis-
closed on Schedule 5.17(c), none of Times Mirror, TMHE, any
TMHE Subsidiary or any ERISA Affiliate of TMHE is, or has been
within the last six years, obligated to contribute, on behalf
of any current or former employee of TMHE or any TMHE Subsidi-
ary, to a multiemployer plan (as defined in Section 3(37) of
ERISA) and no such ERISA Affiliate of TMHE is liable or rea-
sonably expected to be liable for any withdrawal liability un-
der Section 4201 of ERISA.
(d) Accumulated Funding Deficiencies; Liens. None
of the College Publishing Business Plans or any trust estab-
lished thereunder has any accumulated funding deficiency (as
defined in Section 302 of ERISA and Section 412 of the Code),
whether or not waived, as of the last day of the most recent
fiscal year of each of the College Publishing Business Plans.
No contribution failure has occurred with respect to any Col-
lege Publishing Business Plan sufficient to give rise to a lien
under Section 302(f) of ERISA.
(e) Employee Welfare Benefit Plans. With respect to
any College Publishing Business Plan that is an employee wel-
fare benefit plan, except as disclosed on Schedule 5.17(e), (i)
no such College Publishing Business Plan is funded through a
welfare benefits fund, as such term is defined in Section
419(e) of the Code and (ii) each such College Publishing Busi-
ness Plan that is a group health plan, as such term is defined
in Section 5000(b)(1) of the Code, complies with the applicable
requirements of Section 4980B(f) of the Code.
Section 5.18. Absence of Changes or Events. Except
as set forth on Schedule 5.18, since the date of the TMHE Bal-
ance Sheet and the ▇▇▇▇▇ Statement, there has not been a mate-
rial adverse change in the business, financial condition or
results of operations of the College Publishing Business, taken
as a whole, other than changes relating to the economy in gen-
eral or the College Publishing Business industry in general and
not specifically relating to the College Publishing Business.
Except for the accounting adjustments contemplated by Schedule
4.02(a)(v) and Section 5.09(d) and except as disclosed on
Schedule 5.18, since the date of the TMHE Balance Sheet and the
▇▇▇▇▇ Statement, Times Mirror has caused the College Publishing
-33-
Business to be conducted in the ordinary course, and none of
Times Mirror, TMHE, any of the TMHE Subsidiaries, ▇▇▇▇▇ (with
respect to ▇▇▇▇▇'▇ College Text Business) or any of the TMIP
Entities (with respect to the International Assets) has taken
any action that, if taken after the date of this Agreement,
would constitute a breach of any of the covenants set forth in
Article 7.
Section 5.19. Compliance with Applicable Laws. Ex-
cept as previously disclosed by Times Mirror to ▇▇▇▇▇▇-▇▇▇▇ in
writing:
(a) General. To the Knowledge of Times Mirror,
TMHE, the TMHE Subsidiaries, ▇▇▇▇▇ (with respect to ▇▇▇▇▇'▇
College Text Business) and the TMIP Entities (with respect to
the International Assets and the International Liabilities) are
in compliance with all applicable statutes, laws, ordinances,
rules, orders and regulations of any governmental authority or
instrumentality, domestic or foreign, except for any such inci-
dents of noncompliance that in the aggregate would not have a
material adverse effect on the business, financial condition or
results of operation of the College Publishing Business, taken
as a whole. This Section 5.19 does not relate to matters with
respect to Taxes or any other taxes. This Section 5.19(a) does
not relate to environmental matters, which are the subject of
Sections 5.19(b), 5.19(c) and 5.19(d).
(b) Hazardous Materials.
(i) Except in compliance with the Environmental
Laws, there are no Hazardous Materials present at, upon, under,
over or within TMHE Properties or which have been released or
transported to or from TMHE Properties, or disposed of off-
site.
(ii) No actions have been taken, are in the process
of being taken, or have been threatened, which could subject
the TMHE Properties or business, the ▇▇▇▇▇ College Text Busi-
ness or the International Assets to claims or liens under any
Environmental Laws.
(c) Notices of Certain Environmental Matters. No
notice, notification, demand, request for information, cita-
tion, summons, decree, complaint or order has been issued or
filed, no penalty has been assessed and no investigation or
review is pending or threatened by any governmental authority,
foreign, federal, state or local, in connection with the
present or past business or properties of TMHE, the TMHE Sub-
sidiaries, the ▇▇▇▇▇ College Text Business or the International
-34-
Assets with respect to any alleged violation or liability under
any Environmental Law.
(d) Environmental Permits. Times Mirror has all the
necessary permits under the Environmental Laws necessary to
operate TMHE Properties and business in accordance with the
Environmental Laws and has at all times complied with all such
permits. ▇▇▇▇▇ has at all times operated the ▇▇▇▇▇ College
Text Business in accordance with the Environmental Laws and
TMIP has at all times operated its business connected with the
International Assets in accordance with the Environmental Laws.
Section 5.20. Employee and Labor Relations. Except
as set forth on Schedule 5.20, (a) there is no labor strike,
dispute, or work stoppage or lockout pending or, to the Knowl-
edge of Times Mirror, threatened against or affecting TMHE, any
of the TMHE Subsidiaries, ▇▇▇▇▇ (with respect to ▇▇▇▇▇'▇ Col-
lege Text Business) or any of the TMIP Entities (with respect
to the International Assets); (b) to the Knowledge of Times
Mirror, no union organizing campaign is in progress with re-
spect to the employees of TMHE, any of the TMHE Subsidiaries,
▇▇▇▇▇ (with respect to ▇▇▇▇▇'▇ College Text Business) or any of
the TMIP Entities (with respect to the International Assets);
(c) there is no unfair labor practice charge or complaint
against TMHE, any of the TMHE Subsidiaries, ▇▇▇▇▇ (with respect
to ▇▇▇▇▇'▇ College Text Business) or any of the TMIP Entities
(with respect to the International Assets), pending or, to the
Knowledge of Times Mirror, threatened before the National Labor
Relations Board; (d) there is no pending or, to the Knowledge
of Times Mirror, threatened grievance that would have a mate-
rial adverse effect on the business, financial condition or
results of operations of TMHE, any of the TMHE Subsidiaries,
▇▇▇▇▇ (with respect to ▇▇▇▇▇'▇ College Text Business) or any of
the TMIP Entities (with respect to the International Assets),
taken as a whole; and (e) no charges with respect to or relat-
ing to TMHE, any of the TMHE Subsidiaries, ▇▇▇▇▇ (with respect
to ▇▇▇▇▇'▇ College Text Business) or any of the TMIP Entities
(with respect to the International Assets), are pending before
the Equal Employment Opportunity Commission or any state agency
responsible for the prevention of unlawful employment practices
as to which there is a reasonable likelihood of adverse deter-
mination, other than those which, if so determined, would not
have a material adverse effect on the business, financial con-
dition and results of operations of the College Publishing
Business, taken as a whole.
Section 5.21. Securities Act of 1933; Sufficiency of
Information. The ▇▇▇▇▇▇▇'▇ Shares purchased by Times Mirror
pursuant to this Agreement are being acquired for investment
only and not with a view to any public distribution thereof,
-35-
and Times Mirror will not offer to sell or otherwise dispose of
the ▇▇▇▇▇▇▇'▇ Shares so acquired by it in violation of any of
the registration requirements of the Securities Act of 1933, as
amended (the "Securities Act"). Times Mirror confirms that it
is an accredited investor within the meaning of Rule 501(a)
under the Securities Act. Times Mirror has been afforded ac-
cess to such financial and non-financial information material
of ▇▇▇▇▇▇▇'▇, its business and the ▇▇▇▇▇▇▇'▇ Shares, and has
been afforded an opportunity to ask questions and receive an-
swers concerning the terms and conditions of the purchase and
sale of the ▇▇▇▇▇▇▇'▇ Shares and to obtain information nec-
▇▇▇▇▇▇ to verify the accuracy of the financial and non-▇▇▇▇▇-
cial information furnished to it by ▇▇▇▇▇▇-▇▇▇▇.
Section 5.22. International Assets.
(a) Distribution Agreements. Except as set forth on
Schedule 5.22(a), the International Assets do not include, and
neither TMIP nor any TMIP Entity is a party to, nor is any In-
ternational Asset affected by, any exclusive distribution
agreement or arrangement having a term exceeding one year,
whether written or oral, with any entity or individual other
than a TMIP Entity. With respect to any such distribution
agreement or arrangement, whether written or oral, Schedule
5.22(a) sets forth the term thereof, the territory and the
works covered thereby.
(b) Translation Agreements. Except as set forth on
Schedule 5.22(b), each translation agreement relating to the
College Publishing Business grants translation rights with re-
spect to one edition only of the work subject to such agree-
ment.
ARTICLE SIX
REPRESENTATIONS AND WARRANTIES OF ▇▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇-▇▇▇▇ hereby represents and warrants to Times
Mirror and ▇▇▇▇▇ as follows:
Section 6.01. Organization and Authority. ▇▇▇▇▇▇-
▇▇▇▇ is a corporation duly organized, validly existing and in
good standing under the laws of the state of New York. ▇▇▇▇▇▇-
▇▇▇▇ has all requisite corporate power and authority to execute
and deliver this Agreement and to consummate the transactions
contemplated hereby. All necessary corporate action required
to have been taken by or on behalf of ▇▇▇▇▇▇-▇▇▇▇ by applicable
law or its charter documents has been taken to authorize (i)
the approval, execution and delivery on behalf of ▇▇▇▇▇▇-▇▇▇▇
of this Agreement and (ii) the performance by ▇▇▇▇▇▇-▇▇▇▇ of
-36-
its obligations under this Agreement and the consummation of
the transactions contemplated hereby. This Agreement consti-
tutes a valid and binding agreement of ▇▇▇▇▇▇-▇▇▇▇, enforceable
against ▇▇▇▇▇▇-▇▇▇▇ in accordance with its terms, except as the
same may be limited by the Enforceability Exceptions.
Section 6.02. No Breach. The execution and delivery
of this Agreement by ▇▇▇▇▇▇-▇▇▇▇ do not, and the consummation
of the transactions contemplated hereby by ▇▇▇▇▇▇-▇▇▇▇ or Shep-
ard's will not, (i) violate or conflict with the Charter or
Bylaws of ▇▇▇▇▇▇-▇▇▇▇ or ▇▇▇▇▇▇▇'▇ or (ii) constitute a mate-
rial breach or default or (iii) except as set forth on Schedule
6.02 hereto, give rise to any Lien, third-party right of termi-
nation, cancellation, material modification or acceleration
under any material agreement, understanding or undertaking to
which ▇▇▇▇▇▇-▇▇▇▇ or ▇▇▇▇▇▇▇'▇ is a party or by which either of
them is bound, or any material law, rule or regulation to which
either of them or any material portion of the assets of either
of them is subject.
Section 6.03. Governmental Consents and Approvals.
Neither the execution and delivery of this Agreement by ▇▇▇▇▇▇-
▇▇▇▇ nor the consummation of the transactions to which ▇▇▇▇▇▇-
▇▇▇▇ or ▇▇▇▇▇▇▇'▇ is a party contemplated hereby will require
any consent, approval, authorization or permit of, or filing
with or notification to, any governmental or regulatory author-
ity, except (i) for notification pursuant to, and expiration or
termination of the waiting period under HSR Act and (ii) where
the failure to obtain such consent, approval, authorization or
permit, or to make such filing or notification, would not pre-
vent ▇▇▇▇▇▇-▇▇▇▇ or ▇▇▇▇▇▇▇'▇ from performing its obligations
under this Agreement without having a material adverse effect
on the business, financial condition or results of operations
of ▇▇▇▇▇▇▇'▇.
Section 6.04. Organization and Standing of
▇▇▇▇▇▇▇'▇. ▇▇▇▇▇▇▇'▇ is a corporation duly organized and val-
idly existing under the laws of the State of Delaware.
▇▇▇▇▇▇▇'▇ has all requisite corporate power and authority and,
to the Knowledge of ▇▇▇▇▇▇-▇▇▇▇, possesses all governmental
franchises, licenses, permits, authorizations and approvals
necessary to enable it to carry on its business as presently
conducted other than such franchises, licenses, permits, autho-
rizations and approvals the lack of which would not have a ma-
terial adverse effect on the business, financial condition or
results of operations of ▇▇▇▇▇▇▇'▇. ▇▇▇▇▇▇▇'▇ is duly quali-
fied and in good standing to do business in each jurisdiction
in which the nature of its business or the ownership, leasing
-37-
or holding of its properties makes such qualification neces-
sary, except such jurisdictions where the failure be so quali-
fied or in good standing would not have a material adverse ef-
fect on the business, financial condition or results of opera-
tions of ▇▇▇▇▇▇▇'▇. ▇▇▇▇▇▇-▇▇▇▇ has made available to Times
Mirror true and complete copies of (i) the Certificate of In-
corporation and the Bylaws, as in effect on the date of this
Agreement, of ▇▇▇▇▇▇▇'▇ and (ii) the stock certificates and
transfer records and the minute book of ▇▇▇▇▇▇▇'▇.
Section 6.05. Capital Stock of ▇▇▇▇▇▇▇'▇. The au-
thorized capital stock of ▇▇▇▇▇▇▇'▇ consists of 1,000 shares of
common stock, par value $1.00 per share, of which 1,000 shares,
constituting the ▇▇▇▇▇▇▇'▇ Shares, are duly authorized and val-
idly issued and outstanding, fully paid and nonassessable. Ex-
cept for the ▇▇▇▇▇▇▇'▇ Shares, there are no shares of capital
stock or other equity securities of ▇▇▇▇▇▇▇'▇ outstanding. The
▇▇▇▇▇▇▇'▇ Shares have not been issued in violation of, and none
of the ▇▇▇▇▇▇▇'▇ Shares is subject to, any preemptive or sub-
scription rights. There are no outstanding warrants, options,
"phantom" stock rights, agreements, convertible or exchangeable
securities or other commitments (other than this Agreement)
pursuant to which ▇▇▇▇▇▇-▇▇▇▇ or ▇▇▇▇▇▇▇'▇ is or may become
obligated to issue, sell, purchase, return or redeem any shares
of capital stock or other securities of ▇▇▇▇▇▇▇'▇, and no eq-
uity securities of ▇▇▇▇▇▇▇'▇ are reserved for issuance for any
purpose. Other than this Agreement, the ▇▇▇▇▇▇▇'▇ Shares are
not subject to any voting trust agreement or other contract,
agreement, arrangement, commitment or understanding, including
any such agreement, arrangement, commitment or understanding
restricting or otherwise relating to the voting, dividend
rights or disposition of the ▇▇▇▇▇▇▇'▇ Shares.
Section 6.06. Title to and Transfer of the ▇▇▇▇▇▇▇'▇
Shares. ▇▇▇▇▇▇-▇▇▇▇ is the record and beneficial owner of the
▇▇▇▇▇▇▇'▇ Shares and has good and marketable title thereto,
free and clear of any Liens. Assuming Times Mirror has the
requisite power and authority to be the lawful owner of the
▇▇▇▇▇▇▇'▇ Shares, upon delivery to Times Mirror at the Closing
of certificates representing the ▇▇▇▇▇▇▇'▇ Shares, duly en-
dorsed by ▇▇▇▇▇▇-▇▇▇▇ for transfer to Times Mirror, and the
completion of the other deliveries at the Closing contemplated
by Article 2, good and marketable title to the ▇▇▇▇▇▇▇'▇ Shares
will pass to Times Mirror, free and clear of any liens, claims,
encumbrances, security interests, options, charges and restric-
tions of any kind other than those arising from acts of Times
Mirror or its affiliates.
-38-
Section 6.07. Equity Interests. ▇▇▇▇▇▇▇'▇ does not
directly or indirectly own any capital stock of or other equity
in any corporation, partnership or other entity.
Section 6.08. ▇▇▇▇▇▇▇'▇ Financial Statements. (a)
The financial statements set forth on Schedule 6.08, which con-
sist of (i) the unaudited balance sheet of ▇▇▇▇▇▇▇'▇ and the
notes thereto as of December 31, 1995 and the unaudited state-
ment of operations and the notes thereto for the year then
ended, and (ii) the unaudited condensed balance sheet of Shepa-
rd's and the notes thereto as of March 31, 1996 (the "▇▇▇▇▇▇▇'▇
Balance Sheet") and the unaudited condensed statement of opera-
tions for the three-month period then ended, were prepared in
accordance with GAAP, and present fairly, in all material re-
spects, ▇▇▇▇▇▇▇'▇ financial position and the results of its
operations as of the date thereof and for the periods covered
thereby. ▇▇▇▇▇▇▇'▇ Balance Sheet and the unaudited condensed
statements of operations referred to in clause (ii) above were
prepared on a basis consistent with the financial statements of
▇▇▇▇▇▇▇'▇ for the year ended December 31, 1995, and include all
adjustments that management considers necessary for a fair pre-
sentation of the results of operations for such period.
(b) Accruals. ▇▇▇▇▇▇▇'▇ has not made, on or after
July 1, 1996, any accrual or provision for sales returns, in-
ventory obsolescence, bad debts, Taxes or other items, other
than with respect to the current period and consistent with
past practice.
Section 6.09. Nonforeign Certification. ▇▇▇▇▇▇-▇▇▇▇
is not a "foreign person" within the meaning of Section 1445 of
the Code.
Section 6.10. Taxes. ▇▇▇▇▇▇▇'▇ has filed or caused
to be filed in a timely manner (within any applicable extension
periods) with the appropriate Tax authority all material Tax
returns, reports and forms it is required to have filed and has
paid or provided for all material Taxes it is required to have
paid. There are no material Tax liens or assessments against
▇▇▇▇▇▇▇'▇ or any property or assets of ▇▇▇▇▇▇▇'▇, other than
Permitted Liens.
Section 6.11. Assets Other than Real Property.
▇▇▇▇▇▇▇'▇ has good title to all assets reflected on the Shep-
ard's Balance Sheet or thereafter acquired, except for inven-
tory and assets having a fair market value not exceeding
$20,000 sold or otherwise disposed of since the date of the
▇▇▇▇▇▇▇'▇ Balance Sheet in the ordinary course of business con-
sistent with past practice, free and clear of all Liens, except
-39-
(a) such as are disclosed on Schedule 6.11 and (b) Permitted
Liens.
This Section 6.11 does not relate to real property or
interests in real property, which is the subject of Section
6.12, or to ▇▇▇▇▇▇▇'▇ Intellectual Property, which is the sub-
ject of Section 6.13.
Section 6.12. Real Property.
(a) Owned Property. Schedule 6.12(a) sets forth a
complete list of all real property and interests in real prop-
erty owned in fee by ▇▇▇▇▇▇▇'▇ ("▇▇▇▇▇▇▇'▇ Owned Properties").
(b) Leased Property. Schedule 6.12(b) sets forth a
complete list of all real property and interests in real prop-
erty leased by ▇▇▇▇▇▇▇'▇ ("▇▇▇▇▇▇▇'▇ Leased Properties," and
together with the ▇▇▇▇▇▇▇'▇ Owned Properties, "▇▇▇▇▇▇▇'▇ Prop-
erties") and identifies any leases relating thereto.
(c) Title to Real Property. ▇▇▇▇▇▇▇'▇ has (i) good
and marketable fee title to all ▇▇▇▇▇▇▇'▇ Owned Property and
(ii) good and marketable title to the leasehold estates in all
Leased Property, in each case free and clear of all Liens,
except (A) Permitted Liens, (B) easements, covenants, rights-
of-way and other similar restrictions of record, and (C) (x)
zoning, building and other similar restrictions, (y) Liens that
have been placed by any developer, landlord or other third
party on property over which ▇▇▇▇▇▇▇'▇ has easement rights or
on any ▇▇▇▇▇▇▇'▇ Leased Property and subordination or similar
agreements relating thereto and (z) unrecorded easements, cov-
enants, rights-of-way or other similar restrictions, none of
which items set forth in clauses (x), (y) and (z) above materi-
ally impairs the continued use in ▇▇▇▇▇▇▇'▇ business and opera-
tion of the property to which they relate.
Section 6.13. Intellectual Property.
(a) Trademarks. Schedule 6.13(a) sets forth a true
and complete list of all registered United States and foreign
trademarks, trade names, service marks and applications there-
for (collectively, "▇▇▇▇▇▇▇'▇ Trademarks"), that are registered
or filed in the name of ▇▇▇▇▇▇▇'▇. Schedule 6.13(a) contains a
list of all federal and foreign jurisdictions in which such
trademarks are registered or applied for and all registration
and application numbers. Except as set forth on Schedule
6.13(a), all of the ▇▇▇▇▇▇▇'▇ Trademarks are owned by ▇▇▇▇▇▇▇'▇
free and clear of all Liens.
-40-
(b) Copyrights. Schedule 6.13(b) sets forth a true
and complete list of the United States and foreign copyrights
with respect to the top 25 publications (based on revenue for
the year ended December 31, 1995) of ▇▇▇▇▇▇▇'▇ (the "Top 25
▇▇▇▇▇▇▇'▇ Publications"). ▇▇▇▇▇▇▇'▇ owns, free and clear of
all Liens, the copyrights to or otherwise has all rights suf-
ficient to produce, reproduce, publish, distribute and sell all
of the publications of ▇▇▇▇▇▇▇'▇ (collectively, the "▇▇▇▇▇▇▇'▇
Copyrights," and with ▇▇▇▇▇▇▇'▇ Trademarks, "▇▇▇▇▇▇▇'▇ Intel-
lectual Property"), and ▇▇▇▇▇▇▇'▇ citation databases, except
where any failures to own such ▇▇▇▇▇▇▇'▇ Copyrights or to
otherwise have such rights, taken in the aggregate, would not
have a material adverse effect on the business, financial
condition or results of operations of ▇▇▇▇▇▇▇'▇.
(c) Licenses. Except as disclosed on Schedule
6.13(c), neither ▇▇▇▇▇▇▇'▇ nor ▇▇▇▇▇▇-▇▇▇▇ has licensed exclu-
sively to any third party the right to use or exploit any of
the Top 25 ▇▇▇▇▇▇▇'▇ Publications in any jurisdiction.
(d) Claims. Except as set forth on Schedule
6.13(d), no claims are pending or, to the Knowledge of ▇▇▇▇▇▇-
▇▇▇▇, threatened in writing against ▇▇▇▇▇▇▇'▇ by any person
with respect to the ownership, validity, enforceability or use
of any ▇▇▇▇▇▇▇'▇ Trademark listed on Schedule 6.13(a) or any of
▇▇▇▇▇▇▇'▇ Copyrights or otherwise challenging or questioning
the validity or effectiveness of any such ▇▇▇▇▇▇▇'▇ Trademark
or ▇▇▇▇▇▇▇'▇ Copyrights except for any such claims that, taken
in the aggregate, would not have a material adverse effect on
the business, financial condition or results of operations of
▇▇▇▇▇▇▇'▇. Except as set forth on Schedule 6.13(d), no claims
are pending or, to the Knowledge of ▇▇▇▇▇▇-▇▇▇▇, threatened in
writing against ▇▇▇▇▇▇▇'▇ by any person in which such person
alleges that any activities or conduct of business of ▇▇▇▇▇▇▇'▇
infringes upon the intellectual property rights of any third
party or that any product packaging infringes upon a proprie-
tary packaging design of any third party except for any such
claims that, taken in the aggregate, would not have a material
adverse effect on the business, financial condition or results
of operations of ▇▇▇▇▇▇▇'▇, taken as a whole.
(e) Neither ▇▇▇▇▇▇-▇▇▇▇ nor any affiliate of ▇▇▇▇▇▇-
▇▇▇▇ (other than ▇▇▇▇▇▇▇'▇) owns any patents, technology or
copyrights used solely and exclusively in the creation or pub-
lication of ▇▇▇▇▇▇▇'▇ citation products.
Section 6.14. Contracts. Schedules 6.14(a) through
6.14(l) set forth a true and complete list of each of the fol-
lowing types of contracts to which ▇▇▇▇▇▇▇'▇ is a party
("▇▇▇▇▇▇▇'▇ Contracts"):
-41-
(a) Employment, Independent Contractor and Consult-
ing Agreements. (i) Any employment agreement, employment con-
tract or any agreement or contract providing for the payment of
any severance compensation to any ▇▇▇▇▇▇▇'▇ Employee or for the
provision, and/or acceleration of any employee benefits follow-
ing a change of ownership or control of ▇▇▇▇▇▇▇'▇ (other than
any enhanced benefits described in Section 10A.02, 10A.04 or
10A.05 hereof) and (ii) any independent contractor or consult-
ing agreement (except those described in Section 6.14(k)) and
(iii) that has an aggregate liability after the Closing Date in
excess of $100,000 and is not terminable by notice of less than
60 calendar days for a cost of less than $100,000;
(b) Collective Bargaining Agreements. Any employee
collective bargaining agreement or other contract with any la-
bor union;
(c) Non-Competition Agreements. Any covenant or
agreement that restricts the ability of ▇▇▇▇▇▇▇'▇ to compete in
any line of business in any place in the world;
(d) Agreements with Affiliates, Officers, Directors
or Employees. Any agreement or contract between ▇▇▇▇▇▇▇'▇, on
the one hand, and ▇▇▇▇▇▇-▇▇▇▇ or any affiliate of ▇▇▇▇▇▇-▇▇▇▇,
or any officer, director or employee of ▇▇▇▇▇▇▇'▇, on the other
hand (other than Contracts that will terminate at or prior to
the Closing and employment agreements covered by paragraph (a)
above);
(e) Leases of ▇▇▇▇▇▇▇'▇ Property. Any lease or sim-
ilar agreement under which ▇▇▇▇▇▇▇'▇ is a lessor or sublessor
of, or makes available for use by any third party, any
▇▇▇▇▇▇▇'▇ Property;
(f) Personal Property Leases. Any lease or similar
agreement under which (i) ▇▇▇▇▇▇▇'▇ is lessee of, or holds or
uses, any machinery, equipment, vehicle or other tangible per-
▇▇▇▇▇ property owned by a third party or (ii) ▇▇▇▇▇▇▇'▇ is a
lessor or sublessor of, or makes available for use by any third
party, any tangible personal property owned or leased by
▇▇▇▇▇▇▇'▇, in any such case which has an aggregate liability
after the Closing Date in excess of $150,000 and is not termi-
nable by notice of less than 60 calendar days for a cost of
less than $150,000;
(g) Supply and Service Agreements. (i) Any con-
tinuing agreement or contract for the future purchase by
▇▇▇▇▇▇▇'▇ of materials, supplies or equipment (other than pur-
chase contracts and orders for inventory in the ordinary course
-42-
of business consistent with past practice) or (ii) any adver-
tising agreement or arrangement (including any advertising
agreements or arrangements to which any of ▇▇▇▇▇▇-▇▇▇▇ or
▇▇▇▇▇▇▇'▇ is a party and that is applicable to ▇▇▇▇▇▇▇'▇), in
any such case which has an aggregate liability after the Clos-
ing Date in excess of $150,000 and is not terminable by notice
of less than 60 calendar days for a cost of less than $150,000;
(h) Indebtedness. Any agreement or contract under
which ▇▇▇▇▇▇▇'▇ has borrowed or loaned any money or issued any
note, bond, indenture or other evidence of indebtedness or di-
rectly or indirectly guaranteed indebtedness, liabilities or
obligations of others (other than endorsements for the purpose
of collection in the ordinary course of business), or any other
note, bond, indenture or other evidence of indebtedness;
(i) Guarantees. Any agreement or contract under
which any other person has directly or indirectly guaranteed
indebtedness, liabilities or obligations of ▇▇▇▇▇▇▇'▇ (other
than endorsements for the purpose of collection in the ordinary
course of business);
(j) Partnerships and Joint Ventures. Any partner-
ship agreement or other joint venture agreement to which
▇▇▇▇▇▇▇'▇ is a party;
(k) ▇▇▇▇▇▇▇'▇ Author Contracts. Any agreement or
contract under which ▇▇▇▇▇▇▇'▇ is obligated to pay royalties to
any person in connection with the reproduction, publication or
distribution of any works; and
(l) Other Agreements. Any other agreement, con-
tract, lease, license, commitment or instrument to which
▇▇▇▇▇▇▇'▇ is a party or by or to which ▇▇▇▇▇▇▇'▇ or any of its
assets or its business is bound or subject which in any case
has an aggregate liability after the Closing Date in excess of
$200,000 and is not terminable by notice of less than 60 calen-
dar days for a cost of less than $200,000 (other than purchase
contracts and orders for inventory in the ordinary course of
business consistent with past practice).
Except as disclosed on Schedule 6.14 or the other schedules
hereto, ▇▇▇▇▇▇▇'▇ has performed all material obligations re-
quired to be performed by it to date under the Contracts and it
is not in breach or default in any material respect thereunder
and, to the Knowledge of ▇▇▇▇▇▇-▇▇▇▇, no other party to any of
the ▇▇▇▇▇▇▇'▇ Contracts is in breach or default in any material
respect thereunder.
-43-
Section 6.15. Litigation; Decrees. (a) Schedule
6.15 sets forth a list, as of the date of this Agreement, of
all pending, and to the Knowledge of ▇▇▇▇▇▇-▇▇▇▇, threatened
lawsuits or claims (other than lawsuits or claims related to
Taxes with respect to which ▇▇▇▇▇▇-▇▇▇▇ is obligated to indem-
nify Times Mirror pursuant to Section 11.01) with respect to
which ▇▇▇▇▇▇-▇▇▇▇ or any of its affiliates has contacted in
writing the defendant or has been contacted in writing by the
claimant or by counsel for the claimant by or against ▇▇▇▇▇▇▇'▇
or any of its properties, assets, operations or businesses and
which (i) involve a claim by or against ▇▇▇▇▇▇▇'▇ of more than
$250,000, (ii) seek any injunctive relief or (iii) relate to
the transactions contemplated by this Agreement. Except as
disclosed on Schedule 6.15, ▇▇▇▇▇▇▇'▇ is not subject to any
judgment, order or decree of any court, administrative agency
or commission or other governmental authority or instrumental-
ity, domestic or foreign, applicable to ▇▇▇▇▇▇▇'▇ which is ma-
terial to the business of ▇▇▇▇▇▇▇'▇ taken as a whole.
(b) There is no lawsuit or claim pending against
▇▇▇▇▇▇-▇▇▇▇ or ▇▇▇▇▇▇▇'▇ that (i) with respect to ▇▇▇▇▇▇▇'▇,
could reasonably be expected to result in liability in excess
of $10,000,000; (ii) seeks injunctive relief that, if granted,
could reasonably be expected to have a material adverse effect
on the business of ▇▇▇▇▇▇▇'▇ or (iii) relates primarily to the
transactions contemplated hereby.
Section 6.16. Employee and Related Matters; ERISA.
(a) Schedule 6.16(a) sets forth each employee pen-
sion, retirement, profit sharing, stock bonus, stock option,
stock purchase, incentive, deferred compensation, hospitaliza-
tion, medical, dental, vision, life insurance, accidental death
and dismemberment insurance, business travel insurance, cafete-
ria and flexible spending, sick pay, disability, severance,
golden parachute or other plan, fund, program, policy, contract
or arrangement (including any contracts or agreements with cer-
tain employees of ▇▇▇▇▇▇▇'▇ that relate to the transactions
contemplated by this Agreement) providing employee benefits
that is maintained, contributed to or required to be contrib-
uted to by ▇▇▇▇▇▇-▇▇▇▇ or any of its affiliates in which any
▇▇▇▇▇▇▇'▇ Personnel has participated or under which any Shep-
ard's Personnel has accrued and remains entitled to any ben-
efits (the "▇▇▇▇▇▇-▇▇▇▇ Plans"). ▇▇▇▇▇▇-▇▇▇▇ has made avail-
able to Times Mirror true, complete and correct copies of (i)
each ▇▇▇▇▇▇-▇▇▇▇ Plan (or, in the case of any unwritten ▇▇▇▇▇▇-
▇▇▇▇ Plans, descriptions thereof), (ii) the most recent annual
report on Form 5500 filed with the IRS with respect to each
▇▇▇▇▇▇-▇▇▇▇ Plan (if any such report was required), (iii) the
most recent summary plan description for each ▇▇▇▇▇▇-▇▇▇▇ Plan
-44-
for which such a summary plan description is required, and (iv)
all other material documents relating to the ▇▇▇▇▇▇-▇▇▇▇ Plans.
As soon as practicable after the signing of this Agreement,
▇▇▇▇▇▇-▇▇▇▇ shall provide to Times Mirror a true complete and
accurate copy of each trust agreement and group annuity con-
tract relating to any ▇▇▇▇▇▇-▇▇▇▇ Plan. Neither ▇▇▇▇▇▇▇'▇ nor
any corporation or trade or business (whether or not incor-
porated) which would be treated as its ERISA Affiliate is li-
able for any amount under Title IV of ERISA (except for premi-
ums to the Pension Benefit Guaranty Corporation arising in the
ordinary course) and no fact or event exists which could rea-
sonably give rise to such liability. Except as disclosed on
Schedule 6.16(a), no ▇▇▇▇▇▇▇'▇ Personnel is entitled to any
benefit under any ▇▇▇▇▇▇-▇▇▇▇ Plan by reason of the transac-
tions contemplated hereby, including, but not limited to, sev-
erance, stay-pay or retention bonuses, nor any acceleration,
vesting, distribution or increase in benefits or obligations to
fund benefits, and no ▇▇▇▇▇▇-▇▇▇▇ Plan includes any common
stock or other security issued by ▇▇▇▇▇▇-▇▇▇▇ or any ERISA Af-
filiate of ▇▇▇▇▇▇▇'▇ among its assets.
(b) Compliance with ERISA and the Code. None of
McGraw-Hill, Shepard's, any of the ▇▇▇▇▇▇-▇▇▇▇ Plans or any
trust created thereunder, or any trustee or administrator
thereof, has engaged in a transaction in connection with which
▇▇▇▇▇▇▇'▇ would be subject to either a material liability or
civil penalty assessed pursuant to Section 409, 502(i) or
502(l) of ERISA or a material Tax imposed pursuant to Section
4971, 4972, 4974, 4975, 4976 or 4980B of the Code. Except as
described on Schedule 6.16(b), each of the ▇▇▇▇▇▇-▇▇▇▇ Plans
has been operated and administered in all material respects in
accordance with its terms and applicable laws, including, but
not limited to, ERISA and the Code. Except as disclosed on
Schedule 6.16(b), each ▇▇▇▇▇▇-▇▇▇▇ Plan intended to be a
qualified plan under Code Section 401 has received a favorable
determination letter to that effect (a copy of which has been
delivered to Times Mirror) covering all of the provisions ap-
plicable to tax qualified plans introduced by the Tax Reform
Act of 1986 and nothing has occurred since the issuance of such
letter that would adversely affect the Tax qualification of any
such ▇▇▇▇▇▇-▇▇▇▇ Plan. There are no pending or, to the
Knowledge of ▇▇▇▇▇▇-▇▇▇▇, threatened claims by or on behalf of
any of the ▇▇▇▇▇▇-▇▇▇▇ Plans, by any employee, former employee
or beneficiary covered under any such Plan, or otherwise
involving any such ▇▇▇▇▇▇-▇▇▇▇ Plan (other than individual
claims for benefits arising in the ordinary course).
(c) Multiemployer Plan Liabilities. Except as dis-
closed on Schedule 6.16(c) none of ▇▇▇▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇'▇ or
any ERISA Affiliate of ▇▇▇▇▇▇▇'▇ is, or has been within the
-45-
last six years, obligated to contribute, on behalf of any cur-
rent or former employee of ▇▇▇▇▇▇▇'▇, to a multiemployer plan
(as defined in Section 3(37) of ERISA) and no such ERISA Af-
filiate of ▇▇▇▇▇▇▇'▇ is liable or reasonably expected to be
liable for any withdrawal liability under Section 4201 of
ERISA.
(d) Accumulated Funding Deficiencies; Liens. None
of the ▇▇▇▇▇▇-▇▇▇▇ Plans or any trust established thereunder
has any accumulated funding deficiency (as defined in Section
302 of ERISA and Section 412 of the Code), whether or not
waived, as of the last day of the most recent fiscal year of
each of the ▇▇▇▇▇▇-▇▇▇▇ Plans. No contribution failure has
occurred with respect to any ▇▇▇▇▇▇-▇▇▇▇ Plan sufficient to
give rise to a lien under Section 302(f) of ERISA.
(e) Employee, Welfare Benefit Plans. With respect
to any Plan that is an employee welfare benefit plan, except as
disclosed on Schedule 6.16(e), (i) no such ▇▇▇▇▇▇-▇▇▇▇ Plan is
funded through a welfare benefits fund, as such term is defined
in Section 419(e) of the Code and (ii) each such ▇▇▇▇▇▇-▇▇▇▇
Plan that is a group health plan, as such term is defined in
Section 5000(b)(1) of the Code, complies with the applicable
requirements of Section 4980B(f) of the Code.
Section 6.17. Absence of Changes or Events. Except
as set forth on Schedule 6.17, since the date of ▇▇▇▇▇▇▇'▇ ▇▇▇-
ance Sheet, there has not been a material adverse change in the
business, financial condition or results of operations of
▇▇▇▇▇▇▇'▇, other than changes relating to the economy in gen-
eral or the legal citations business in general and not speci-
fically relating to ▇▇▇▇▇▇▇'▇. Except as disclosed on Schedule
6.17, since the date of the ▇▇▇▇▇▇▇'▇ Balance Sheet, ▇▇▇▇▇▇-
▇▇▇▇ has caused the business of ▇▇▇▇▇▇▇'▇ to be conducted in
the ordinary course, and neither of ▇▇▇▇▇▇-▇▇▇▇ nor ▇▇▇▇▇▇▇'▇
has taken any action that, if taken after the date of this
Agreement, would constitute a breach of any of the covenants
set forth in Article 7.
Section 6.18. Compliance with Applicable Laws. Ex-
cept as previously disclosed by ▇▇▇▇▇▇-▇▇▇▇ to Times Mirror in
writing:
(a) General. To the Knowledge of ▇▇▇▇▇▇-▇▇▇▇,
▇▇▇▇▇▇▇'▇ is in compliance with all applicable statutes, laws,
ordinances, rules, orders and regulations of any governmental
authority or instrumentality, domestic or foreign, except for
any such incidents of noncompliance that in the aggregate would
not have a material adverse effect on the business, financial
condition or results of operation of ▇▇▇▇▇▇▇'▇, taken as a
-46-
whole. This Section 6.18 does not relate to matters with re-
spect to Taxes or any other taxes. This Section 6.18(a) does
not relate to environmental matters, which are the subject of
Sections 6.18(b), 6.18(c) and 6.18(d).
(b) Hazardous Materials.
(i) Except in compliance with the Environmental
Laws, there are no Hazardous Materials present at, upon, under,
over or within ▇▇▇▇▇▇▇'▇ Properties or which have been released
or transported to or from ▇▇▇▇▇▇▇'▇ Properties, or disposed of
off-site.
(ii) No actions have been taken, are in the process
of being taken, or have been threatened, which could subject
the ▇▇▇▇▇▇▇'▇ Properties or business to claims or liens under
any Environmental Laws.
(c) Notices of Certain Environmental Matters. No
notice, notification, demand, request for information, cita-
tion, summons, decree, complaint or order has been issued or
filed, no penalty has been assessed and no investigation or
review is pending or threatened by any governmental authority,
foreign, federal, state or local, in connection with the
present or past business or properties of ▇▇▇▇▇▇▇'▇ with re-
spect to any alleged violation of or liability under any Envi-
ronmental Law.
(d) Environmental Permits. ▇▇▇▇▇▇-▇▇▇▇ has all the
necessary permits under the Environmental Laws necessary to
operate ▇▇▇▇▇▇▇'▇ Properties or business in accordance with the
Environmental Laws and has at all times complied with all such
permits. ▇▇▇▇▇▇-▇▇▇▇ has at all times operated ▇▇▇▇▇▇▇'▇ in
accordance with the Environmental Laws.
Section 6.19. Employee and Labor Relations. Except
as set forth on Schedule 6.19, (a) there is no labor strike,
dispute, or work stoppage or lockout pending or, to the Knowl-
edge of ▇▇▇▇▇▇-▇▇▇▇, threatened against or affecting ▇▇▇▇▇▇▇'▇;
(b) to the Knowledge of ▇▇▇▇▇▇-▇▇▇▇, no union organizing cam-
paign is in progress with respect to the employees of
▇▇▇▇▇▇▇'▇; (c) there is no unfair labor practice charge or com-
plaint against ▇▇▇▇▇▇▇'▇, pending or, to the Knowledge of
▇▇▇▇▇▇-▇▇▇▇, threatened before the National Labor Relations
Board; (d) there is no pending or, to the Knowledge of ▇▇▇▇▇▇-
▇▇▇▇, threatened grievance that would have a material adverse
effect on the business, financial condition or results of op-
erations of ▇▇▇▇▇▇▇'▇, taken as a whole; and (e) no charges
with respect to or relating to ▇▇▇▇▇▇▇'▇, are pending before
the Equal Employment Opportunity Commission or any state agency
-47-
responsible for the prevention of unlawful employment practices
as to which there is a reasonable likelihood of adverse deter-
mination, other than those which, if so determined, would not
have a material adverse effect on the business, financial con-
dition and results of operations of ▇▇▇▇▇▇▇'▇, taken as a
whole.
Section 6.20. Securities Act of 1933; Sufficiency of
Information. The TMHE Shares purchased by ▇▇▇▇▇▇-▇▇▇▇ pursuant
to this Agreement are being acquired for investment only and
not with a view to any public distribution thereof, and ▇▇▇▇▇▇-
▇▇▇▇ will not offer to sell or otherwise dispose of the TMHE
Shares so acquired by it in violation of any of the registra-
tion requirements of the Securities Act. ▇▇▇▇▇▇-▇▇▇▇ confirms
that it is an accredited investor within the meaning of Rule
501(a) under the Securities Act. ▇▇▇▇▇▇-▇▇▇▇ has been afforded
access to such financial and non-financial information material
of TMHE, its business and the TMHE Shares, of the TMHE Subsid-
iaries and their businesses, of ▇▇▇▇▇ and ▇▇▇▇▇'▇ College Text
Business, and of the TMIP Entities and the International Assets
and International Liabilities, and has been afforded an op-
portunity to ask questions and receive answers concerning the
terms and conditions of the purchase and sale of the College
Publishing Business and to obtain information necessary to ver-
ify the accuracy of the financial and non-financial information
furnished to it by Times Mirror and ▇▇▇▇▇.
Section 6.21. Certain Material Contracts. (a) With
respect to any Lien, third-party right of termination, cancel-
lation, material modification or acceleration (collectively,
"Contractual Change") arising under any of the contracts set
forth on Schedule 6.02 (the "Certain Contracts") as a result of
the execution and delivery of this Agreement, or the consumma-
tion of the transactions contemplated hereby, by ▇▇▇▇▇▇-▇▇▇▇ or
▇▇▇▇▇▇▇'▇ or any failure to obtain consent required under the
Certain Contracts to the terms of the transactions contemplated
by this Agreement, or the initial subsequent assignment of any
of the Certain Contracts to any person, no such Contractual
Change or such failure to obtain consent (i) will have a mate-
rial adverse effect on the business, financial condition or
results of operations of ▇▇▇▇▇▇▇'▇ (a "Material Adverse Effect
on ▇▇▇▇▇▇▇'▇") other than resulting from (x) the loss of rev-
enue associated with such contract or (y) the loss of the gen-
eral reputational or general strategic benefit derived from
association with the other party to such contract, (ii) will
result in the loss or abridgement of, or any Lien upon, any of
▇▇▇▇▇▇▇'▇ Intellectual Property, (iii) will trigger any perfor-
▇▇▇▇▇ or payment obligation on the part of ▇▇▇▇▇▇▇'▇ or (iv)
will in any way restrict, limit or constrain ▇▇▇▇▇▇▇'▇ ability
to deal with third parties from and after the Closing Date or
-48-
otherwise conduct the business of ▇▇▇▇▇▇▇'▇ substantially as it
is conducted as of the date hereof, other than (A) in the case
of clauses (ii), (iii) or (iv), any loss, abridgement, Lien,
obligation, restriction, limitation or constraint that would
not have a Material Adverse Effect on ▇▇▇▇▇▇▇'▇, or (B) in the
case of clauses (i), (ii), (iii) or (iv), and with respect to a
failure to obtain consent, any monetary damages or equitable
remedies arising from the application of customary contract law
rather than contractual provisions expressly imposing specific
remedies.
(b) Any information, data, services or products ac-
quired or used by ▇▇▇▇▇▇▇'▇ in producing, publishing and dis-
tributing its products which is provided pursuant to any of the
Certain Contracts can be obtained from alternative sources in a
manner that would not have a Material Adverse Effect on
▇▇▇▇▇▇▇'▇.
(c) There are no contracts, agreements, understand-
ings or undertakings of ▇▇▇▇▇▇▇'▇ which would restrict the
ability of ▇▇▇▇▇▇▇'▇ to use any of ▇▇▇▇▇▇▇'▇ Intellectual Prop-
erty or citation information databases in connection with the
sale, marketing or distribution of the products of any person,
including ▇▇▇▇▇▇▇'▇, in any medium now or hereafter invented,
except for restrictions that do not have a Material Adverse
Effect on ▇▇▇▇▇▇▇'▇.
(d) There are no joint product development agree-
ments or agreements providing for any rights of first refusal
or similar rights with respect to development of new products
on an exclusive basis, except for any such agreements or rights
of first refusal or similar rights that do not have a Material
Adverse Effect on ▇▇▇▇▇▇▇'▇.
ARTICLE SEVEN
COVENANTS OF TIMES MIRROR AND ▇▇▇▇▇
Times Mirror and ▇▇▇▇▇ covenant and agree as follows:
Section 7.01. June 30 and Closing Date Financial
Statements.
(a) June 30 Financial Statements. As soon as prac-
ticable and in any event not later than August 31, 1996, Times
Mirror shall deliver to ▇▇▇▇▇▇-▇▇▇▇ (i) the unaudited condensed
consolidated balance sheet of TMHE and the notes thereto as of
June 30, 1996 and the unaudited condensed consolidated state-
ments of operations, shareholder's equity and cash flows for
the six-month period ended June 30, 1996, (ii) the unaudited
-49-
statement of assets conveyed and liabilities assumed related to
▇▇▇▇▇'▇ College Text Business as of June 30, 1996 and the unau-
dited condensed statement of profit and loss for the six-month
period then ended and (iii) the unaudited statement of assets
conveyed and liabilities assumed related to the International
Assets and International Liabilities, by legal entity, as of
June 30, 1996 and the unaudited statement of revenues and gross
margin for the six-month period then ended. The financial
statements of TMHE referred to in clause (i) of the previous
sentence shall be prepared in accordance with GAAP, applied in
a manner consistent with that applied in the preparation of the
financial statements set forth on Schedule 5.09(a)(ii) and
shall present fairly, in all material respects, TMHE's
consolidated financial position and the consolidated results of
its operations, shareholder's equity and cash flows as of the
date thereof and for the period covered thereby. The statement
of assets conveyed and liabilities assumed referred to in
clauses (ii) and (iii) of the first sentence of this paragraph
shall be prepared in accordance with the assumptions set forth
in the notes thereto and shall present fairly, in all material
respects, such assets and liabilities and the results of opera-
tions or revenues and gross margin, as applicable, related
thereto as of the date thereof and for the period covered
thereby. The statements described in this Section 7.01(a)
shall be accompanied by a certificate of the Chief Financial
Officer of TMHE and ▇▇▇▇▇, respectively, confirming preparation
of such statements as described above.
(b) Closing Date Income and Profit and Loss State-
ments. As soon as practicable and in any event not later than
45 days after the Closing Date, Times Mirror shall deliver to
▇▇▇▇▇▇-▇▇▇▇ (i) the unaudited condensed consolidated statement
of income of TMHE (the "TMHE Income Statement"), (ii) the unau-
dited condensed statement of profit and loss of ▇▇▇▇▇'▇ College
Text Business (the "▇▇▇▇▇ P & L Statement"), each for the pe-
riod from July 1, 1996 to the Closing Date, (iii) the unaudited
statement of assets conveyed and liabilities assumed related to
the International Assets and International Liabilities, by
legal entity, as of the Closing Date and the unaudited state-
ment of revenues and gross margin for the period from July 1,
1996 to the Closing Date, and (iv) the unaudited statement of
balances and activity related to the intercompany accounts of
TMHE and of ▇▇▇▇▇, with respect to ▇▇▇▇▇'▇ College Text Busi-
ness, with Times Mirror for the period from July 1, 1996 to the
Closing Date. The TMHE Income Statement and the ▇▇▇▇▇ P & L
Statement shall be prepared in a manner consistent with that
applied in the preparation of the statements provided pursuant
to Section 7.01(a)(i) and Section 7.01(a)(ii), respectively,
and, except for the items discussed in Section 5.09(d), shall
-50-
present fairly, in all material respects, the results of opera-
tions of TMHE or of ▇▇▇▇▇'▇ College Text Business, as the case
may be, for the period covered thereby. The statements de-
scribed in this Section 7.01(b) shall be accompanied by a cer-
tificate of the Chief Financial Officer of TMHE and ▇▇▇▇▇,
respectively, confirming that the statements have been prepared
as described above.
(c) Closing Date Balance Sheet. As soon as practi-
cable and in any event not later than 45 days after the Closing
Date, Times Mirror shall deliver to ▇▇▇▇▇▇-▇▇▇▇ an unaudited
balance sheet for each of (1) TMHE and the TMHE Subsidiaries
consolidated, (2) the ▇▇▇▇▇ Assets and the ▇▇▇▇▇ Liabilities
and (3) the International Assets and International Liabilities,
by legal entity, as of the Closing Date (the "College Publish-
ing Business Closing Date Balance Sheets"). The College Pub-
lishing Business Closing Date Balance Sheets (i) shall be pre-
pared in accordance with the assumptions set forth in the notes
thereto and, with respect to TMHE and the TMHE Subsidiaries, in
accordance with GAAP and on a basis consistent with the Decem-
ber 31, 1995 balance sheet of TMHE included in Schedule
5.09(a), (ii) shall reflect the accounting adjustments de-
scribed in Section 5.09(d) and (iii) shall not reflect any pur-
chase accounting adjustments attributable to the transactions
provided for in this Agreement. The balance sheets described
in this Section 7.01(c) shall be accompanied by a certificate
of the Chief Financial Officer of TMHE and ▇▇▇▇▇, respectively,
confirming that the balance sheets have been prepared as de-
scribed above.
(d) The financial information provided pursuant to
this Section 7.01 shall include the manufacturing operations of
TMHE located in Dubuque, Iowa.
Section 7.02. Access. Prior to the Closing, Times
Mirror and ▇▇▇▇▇ and their officers, directors, employees, ad-
visors, representatives and authorized agents will, and Times
Mirror will cause TMHE and the TMIP Entities and their offic-
ers, directors, employees, advisors, representatives and autho-
rized agents to, provide ▇▇▇▇▇▇-▇▇▇▇ and its representatives,
employees, counsel and accountants during scheduled appoint-
ments approved by Times Mirror (which approval shall not be
unreasonably withheld) occurring during normal business hours
and in a manner not unreasonably disruptive to the conduct of
the College Publishing Business or any of Times Mirror's,
TMHE's, the TMIP Entities' or ▇▇▇▇▇'▇ officers, directors, em-
ployees, advisors, representatives or authorized agents, access
to the personnel, properties, books and records of TMHE, of
▇▇▇▇▇ relating to ▇▇▇▇▇'▇ College Text Business and to the TMIP
Entities relating to the International Assets and International
-51-
Liabilities, including, without limitation, (i) access to Col-
lege Publishing Business Employees for the purpose of pre-
enrolling such College Publishing Business Employees in any
employee benefit or welfare plans of ▇▇▇▇▇▇-▇▇▇▇, (ii) access
for purposes of conducting a preliminary environmental assess-
ment and any additional boring and sampling or other environ-
mental assessment work as ▇▇▇▇▇▇-▇▇▇▇ may deem appropriate and
(iii) access for purposes of conducting preliminary facilities
reviews; provided, however, that all information and documen-
tation made available to ▇▇▇▇▇▇-▇▇▇▇ pursuant to the terms of
this Section 7.02 shall be subject to the terms of the Confi-
dentiality Agreement dated June 19, 1996 between ▇▇▇▇▇▇-▇▇▇▇
and Times Mirror (the "College Publishing Business Confiden-
tiality Agreement").
Section 7.03. Ordinary Conduct. Except as contem-
plated by this Agreement or set forth on Schedule 7.03, from
the date of this Agreement to the Closing Date, Times Mirror
and ▇▇▇▇▇ shall cause the College Publishing Business to be
conducted in the ordinary course in substantially the same man-
ner as presently conducted and will make all reasonable efforts
substantially consistent with past practices to preserve the
relationships with authors, customers, suppliers and others
with whom the College Publishing Business deals. Except as con-
templated by this Agreement, Times Mirror will not permit TMHE
or the TMHE Subsidiaries to do any of the following, ▇▇▇▇▇ will
not take any action described in paragraphs (d)-(i) and (k)-(p)
with respect to ▇▇▇▇▇'▇ College Text Business, and Times Mirror
will not permit any of the TMIP Entities to take any action
described in paragraphs (d)-(i) and (k)-(p) with respect to the
International Assets and International Liabilities, without the
prior written consent of ▇▇▇▇▇▇-▇▇▇▇:
(a) Charter. Amend its Charter or By-laws;
(b) Dividends. Declare or pay any non-cash
dividend or make any other non-cash distributions to Times
Mirror, whether or not upon or in respect of any shares of
its capital stock;
(c) Capital Stock. Redeem or otherwise acquire
any shares of its capital stock or issue any capital stock
or any option, warrant or right relating thereto or any
securities convertible into or exchangeable for any shares
of its capital stock;
(d) Employee Matters. Adopt or amend in any
material respect any Plan or collective bargaining agree-
ment, except as required by law;
-52-
(e) Compensation. (i) Grant to any executive
officer or employee any increase in compensation or ben-
efits or any rights to receive severance payments or other
benefits upon a termination of employment or a change of
ownership or control of the employer, except (A) as may be
required under the express terms of existing written
agreements, (B) in the ordinary course of business consis-
tent with past practice; provided that the exception set
forth in this clause (B) shall not apply to enhanced sev-
erance benefits, or (C) any increases, payments or ben-
efits for which Times Mirror shall be solely obligated,
(ii) enter into any employment agreement or amend any ex-
isting employment agreement, or (iii) terminate any execu-
tive officer or employee other than in the ordinary course
of business consistent with past practice;
(f) Indebtedness. Incur or assume any liabili-
ties, obligations or indebtedness for borrowed money or
guarantee any such liabilities, obligations or indebt-
edness, other than any indebtedness owing to Times Mirror
or any other person incurred in the ordinary course of
business consistent with past practice; provided that in
no event shall TMHE or the TMHE Subsidiaries, or ▇▇▇▇▇,
with respect to ▇▇▇▇▇'▇ College Text Business, or the TMIP
Entities, with respect to the International Liabilities,
incur, assume or guarantee any long-term indebtedness for
borrowed money;
(g) Encumbrances. Permit, allow or suffer any
of its assets to be subjected to any Lien, other than Per-
mitted Liens;
(h) Cancellation of Indebtedness. Except as
provided in Section 7.07, cancel any indebtedness owing to
TMHE, any of the TMHE Subsidiaries, ▇▇▇▇▇ (with respect to
▇▇▇▇▇'▇ College Text Business) or any of the TMIP Entities
(with respect to the International Assets), or waive any
claims or rights, other than cancellations or waivers in
the ordinary course of business that individually cover
indebtedness, claims or rights having a value of less than
$50,000 and, in the aggregate, cover indebtedness, claims
or rights having a value of less than $250,000;
(i) Related Party Transactions. Except for (i)
dividends or distributions not prohibited under clause (b)
above, (ii) indebtedness not prohibited by clause (f)
above and (iii) intercompany transactions in the ordinary
course of business and consistent with past practice, pay,
loan or advance any amount to, or sell, transfer or lease
-53-
any of its assets to, or enter into any agreement or ar-
rangement with Times Mirror or any affiliate of Times Mir-
ror that would continue in effect after the Closing;
(j) Accounting Polices. Make any change in any
method of accounting or accounting practice or policy
other than those required by GAAP;
(k) Reorganizations. Acquire or agree to ac-
quire by merging or consolidating with, or by purchasing
the stock of, or a substantial portion of the assets of,
or by any other manner, any business or any corporation,
partnership, association or other business organization or
division thereof or otherwise acquire or agree to acquire
any assets (other than inventory);
(l) Capital Expenditures. Make or incur any
capital expenditures other than those made or incurred in
accordance with Times Mirror's fiscal year 1996 capital
expenditure budget with respect to the College Publishing
Business heretofore disclosed to ▇▇▇▇▇▇-▇▇▇▇;
(m) Asset Dispositions. Sell, lease or other-
wise dispose of, or agree to sell, lease or otherwise dis-
pose of, any of its assets, except for sales of inventory
in the ordinary course of business and except for sales,
leases or dispositions of assets that, in the aggregate,
have a fair value of less than $500,000;
(n) Material Agreements. Enter into (i) any
agreement, whether or not in the ordinary course of busi-
ness, that calls for payments in excess of $500,000 and
will not be fully performed within 12 months, (ii) any au-
thor contract calling for advances or pre-publication
costs in excess of $500,000, (iii) any royalty guarantees
or (iv) the proposed agreement between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
and Pennsylvania State University;
(o) Accruals. Make any accrual or provision
for sales returns, inventory obsolescence, bad debts,
Taxes or other items, other than with respect to the
period from July 1 to Closing and consistent with past
practices, except as referenced in the last paragraph of
Section 9.01(a)(ii); or
(p) Commitments. Agree, whether in writing or
otherwise, to do any of the foregoing.
-54-
Section 7.04. Insurance. Times Mirror shall keep,
or cause to be kept, all insurance policies presently main-
tained relating to TMHE, the TMHE Subsidiaries and their prop-
erties, to ▇▇▇▇▇, with respect to ▇▇▇▇▇'▇ College Text Business
or the ▇▇▇▇▇ Assets, and to the TMIP Entities, with respect to
the International Assets, or suitable replacements therefor, in
full force and effect through the close of business on the
Closing Date. Schedule 7.04 sets forth all the insurance poli-
cies presently owned and maintained by TMHE or the TMHE Sub-
sidiaries. Any and all additional insurance policies presently
maintained relating to TMHE or the TMHE Subsidiaries and their
properties or ▇▇▇▇▇'▇ College Text Business and the ▇▇▇▇▇ As-
sets or the International Assets are maintained by Times Mirror
or ▇▇▇▇▇. Neither ▇▇▇▇▇▇-▇▇▇▇ nor TMHE will have any rights
under any such insurance policies from and after the Closing
Date with the exception of such policies that do not name Times
Mirror or any of its other subsidiaries as named insureds.
Section 7.05. Resignations. On the Closing Date,
Times Mirror shall cause to be delivered to ▇▇▇▇▇▇-▇▇▇▇ duly
signed resignations, effective immediately after the Closing
Date, of all members of the Boards of Directors of TMHE or of
the TMHE Subsidiaries and shall take such other action as is
necessary to accomplish the foregoing.
Section 7.06. Non-Competition. Times Mirror cov-
enants and agrees that, if the Closing shall occur,
(a) for a period of thirty-six (36) months following
the Closing Date (the "Restricted Period"), Times Mirror and
its affiliates will not, directly or indirectly, anywhere in
the world, (1) engage in any business or activity which com-
petes with or is substantially similar to (i) the business of
TMHE and the TMHE Subsidiaries in any media (except the health
management seminar business of ▇▇▇▇▇ Professional Publishing),
or (ii) the ▇▇▇▇▇ College Text Business in any media; or (iii)
otherwise in the college textbook market in any media in the
disciplines published by TMHE, the TMHE Subsidiaries, or the
▇▇▇▇▇ College Text Business except for those works within such
disciplines which are not sold primarily for the core college
level, such as those works currently published by the ▇▇▇▇▇
medical/nursing division, e.g., the text entitled Human Anatomy
& Physiology by ▇▇▇▇▇▇ ▇. Marieb (the businesses referred to in
clauses (i), (ii) and (iii) being referred to in this Section
7.06 as the "Competing Business"); or (2) become the beneficial
owner of more than 5% of the common stock (or analogous equity
interest) of any company or other organization that derives
more than 5% of its consolidated revenue from the Competing
Business; provided, however, that the foregoing restrictions
shall not apply to (1) the business of publishing educational
-55-
textbooks and related supplementary materials which are prima-
rily marketed to (i) nurses and nursing students, dentists and
dentistry students, veterinarians and veterinary medicine stu-
dents, nutritionists, dieticians and physicians and medical
students, including, but not limited to, textbooks and related
supplementary materials in the basic medical sciences of anat-
omy, physiology, biochemistry, microbiology, pathology, pharma-
cology, neurosciences and other pre-med and/or graduate level
basic science texts, (ii) participants in the allied health and
related disciplines, (iii) participants in the vocational nurs-
ing, nursing assistance and home care fields, (iv) consumers
and participants in the consumer health market, (v) partici-
pants in the first aid, safety, cardiopulmonary resuscitation
and other emergency services, and (vi) participants in
swimming, diving and lifeguarding activities; and (2) any
business conducted by Times Mirror or any Times Mirror
affiliate in the newspaper, magazine, legal publishing,
aviation related publishing and training business;
(b) during the Restricted Period, Times Mirror and
its Affiliates shall not solicit the employment of any manage-
rial, marketing, editorial or sales employee of Times Mirror or
any of its affiliates who becomes an employee of ▇▇▇▇▇▇-▇▇▇▇ or
any of its affiliates in connection with the transactions con-
templated by this Agreement;
(c) during the Restricted Period, Times Mirror and
its Affiliates shall not take any action for the purpose of
interfering with the relationship, insofar as it relates to the
Competing Business, between ▇▇▇▇▇▇-▇▇▇▇ (or any affiliates of
▇▇▇▇▇▇-▇▇▇▇) and any author, customer or supplier of ▇▇▇▇▇▇-
▇▇▇▇ (or any affiliate of ▇▇▇▇▇▇-▇▇▇▇); and
(d) until the tenth anniversary of the Closing, nei-
ther Times Mirror nor any of its affiliates shall use the name
"▇▇▇▇▇" in the Competing Business.
Times Mirror agrees that the covenant not to compete set forth
in paragraph (a) above is reasonable with respect to its dura-
tion, geographical area and scope. Notwithstanding any other
provision of this Agreement, if any of the provisions of this
Section 7.06 or the application of any provision of this Sec-
tion 7.06 to any jurisdiction or time period shall be held in-
valid or unenforceable, the remaining portion of the provisions
of this Section 7.06 or the application of such portion thereof
as is held invalid or unenforceable to jurisdictions or time
periods other than those as to which it is held invalid or un-
enforceable, shall not be affected thereby. It is the intent
-56-
and agreement of Times Mirror and ▇▇▇▇▇▇-▇▇▇▇ that the provi-
sions of this Section 7.06 be given maximum force, effect and
application permissible under applicable law.
Section 7.07. Intercompany Accounts. Immediately
prior to the Closing, Times Mirror will cause all intercompany
accounts between TMHE or any of the TMHE Subsidiaries, on the
one side, and Times Mirror or any of its subsidiaries or af-
filiates (other than TMHE and the TMHE Subsidiaries), on the
other side, to be contributed to capital (in the case of inter-
company payables on the books of TMHE, its subsidiaries or
▇▇▇▇▇) or eliminated (in the case of intercompany receivables
on the books of TMHE, its subsidiaries or ▇▇▇▇▇). Neither the
▇▇▇▇▇ Assets nor the International Assets will include any
account receivable from Times Mirror or any of its affiliates,
and neither the ▇▇▇▇▇ Liabilities nor the International Lia-
bilities will include any account payable to Times Mirror or
any of its affiliates. The foregoing shall not apply to trade
accounts receivable on the books of TMHE and ▇▇▇▇▇ due from the
TMIP Entities.
Section 7.08. Confidentiality. Times Mirror ac-
knowledges that the information being provided to it by ▇▇▇▇▇▇-
▇▇▇▇ is subject to the terms of a confidentiality agreement
dated June 19, 1996 between ▇▇▇▇▇▇-▇▇▇▇ and Times Mirror (the
"▇▇▇▇▇▇▇'▇ Confidentiality Agreement"), the terms of which are
incorporated herein by reference. Effective upon, and only
upon, the Closing, the ▇▇▇▇▇▇▇'▇ Confidentiality Agreement will
terminate only with respect to information relating solely to
▇▇▇▇▇▇▇'▇, and Times Mirror acknowledges that any and all other
information provided to it by ▇▇▇▇▇▇-▇▇▇▇ or its representa-
tives concerning any other subsidiary of ▇▇▇▇▇▇-▇▇▇▇ or any
other operations of ▇▇▇▇▇▇-▇▇▇▇ shall remain subject to the
terms and conditions of the ▇▇▇▇▇▇▇'▇ Confidentiality Agreement
after the Closing Date.
Section 7.09. No Additional Representations. Times
Mirror acknowledges that none of ▇▇▇▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇'▇ or any
other person has made any representation or warranty, expressed
or implied, as to the accuracy or completeness of any informa-
tion regarding ▇▇▇▇▇▇▇'▇ except as expressly set forth in this
Agreement or the schedules hereto, and none of ▇▇▇▇▇▇-▇▇▇▇,
▇▇▇▇▇▇▇'▇ or any other person will have or be subject to any
liability or indemnification obligation to Times Mirror or any
other person resulting from the distribution to Times Mirror,
or Times Mirror's use of, any such information, including,
without limitation, any information, document, or material made
available to Times Mirror in certain "data rooms," management
presentations or in any other form in expectation of the trans-
actions contemplated by this Agreement.
-57-
Section 7.10. Performance of Obligations by Times
Mirror After Closing Date. On and after the Closing Date,
Times Mirror shall, or shall cause ▇▇▇▇▇▇▇'▇ to, duly, promptly
and faithfully pay, perform and discharge when due, subject to
any available defenses and rights of set-off, all obligations
and liabilities of whatever kind and nature, primary or second-
ary, direct or indirect, absolute or contingent, known or un-
known, whether or not accrued, whether arising before, on or
after the Closing Date, of ▇▇▇▇▇▇▇'▇, including, without lim-
itation, any such obligation or liabilities contained in each
of the ▇▇▇▇▇▇▇'▇ Contracts or any agreement, lease, license,
permit, plan or commitment binding on ▇▇▇▇▇▇▇'▇ or any of its
assets that, because it fails to meet the relevant threshold
amount or term, is not included within the definition of
▇▇▇▇▇▇▇'▇ Contracts, or any plan, fund, program, policy, con-
tract or arrangement described in Section 6.16, but not re-
quired to be set forth on Schedule 6.16(a); provided, however,
that the foregoing shall not apply to any obligation or lia-
bility that ▇▇▇▇▇▇-▇▇▇▇ agrees to bear under this Agreement.
Section 7.11. Name Change. Times Mirror shall take
all measures necessary to cause ▇▇▇▇▇▇▇'▇ to change the name of
▇▇▇▇▇▇▇'▇ to remove the word "▇▇▇▇▇▇-▇▇▇▇" therefrom effective
immediately after the Closing.
Section 7.12. Grant of License. At the Closing,
▇▇▇▇▇ shall ▇▇▇▇▇ to ▇▇▇▇▇▇-▇▇▇▇ a perpetual, royalty-free
license to all technology and related documentation in the
possession or control of ▇▇▇▇▇ and existing as of the Closing
necessary to run the software included in such technology and
to develop, produce, publish, license, sell, or distribute any
works included in the ▇▇▇▇▇ Assets (including revisions to the
works included in the ▇▇▇▇▇ Assets) containing said technology.
▇▇▇▇▇▇-▇▇▇▇'▇ rights under the license granted pursuant to this
Section 7.12 shall be limited to the development, production,
publication licensing, sale and distribution of the works
referred to in this Section 7.12. As part of the license
arrangement during the period of the ▇▇▇▇▇ Transition Services
Agreement, ▇▇▇▇▇ will provide reasonable support with respect
to the software in order to enable ▇▇▇▇▇▇-▇▇▇▇ to continue
publishing the effected works.
In the event that the technology licensed hereunder
includes third-party software or technology for which ▇▇▇▇▇ is
obligated to pay a royalty, ▇▇▇▇▇▇-▇▇▇▇ shall, to the extent it
does not obtain its own third-party license, be responsible for
the payment of royalties due such third party with respect to
the sale of works referred to in this Section.
-58-
Section 7.13. Purchase of Limited Partner Interest.
(a) At the election of ▇▇▇▇▇▇-▇▇▇▇, Times Mirror shall pur-
chase the limited partner interest owned as of the Closing by
TMHE in ▇▇▇▇ Ridge Parkway Limited Partnership (the "Partner-
ship Interest"), for $7.5 million. Such election may be exer-
cised by ▇▇▇▇▇▇-▇▇▇▇ by giving written notice to Times Mirror
on or after January 1, 1998 and on or before January 31, 1998.
If such election is made, a closing shall take place on the
fifth Business Day after notice is given to Times Mirror, at
which (i) ▇▇▇▇▇▇-▇▇▇▇ will convey, or cause to be conveyed, to
Times Mirror the Partnership Interest, free and clear of all
Liens and (ii) Times Mirror will pay $7.5 million to ▇▇▇▇▇▇-
▇▇▇▇ in immediately available funds.
(b) In the event that the sale to Times Mirror of
the Partnership Interest pursuant to paragraph (a) of this Sec-
tion 7.13 takes place, Times Mirror will pay to ▇▇▇▇▇▇-▇▇▇▇ at
the closing of such purchase an amount equal to the net present
value (at such time), computed at a discount rate of 7%, of the
excess of the amount payable (based upon a rate of $28.25 per
square foot) under the lease between ▇▇▇▇ Ridge Parkway Limited
Partnership, as lessor, and TMHE, as lessee, over the amount
that would be payable thereunder assuming a rate of $14.50 per
square foot, for the period beginning January 1, 1998 and
extending for the term of such lease.
ARTICLE EIGHT
COVENANTS OF ▇▇▇▇▇▇-▇▇▇▇
Section 8.01. June 30 and Closing Date Financial
Statements.
(a) June 30 Financial Statements. As soon as prac-
ticable and in any event not later than August 31, 1996,
▇▇▇▇▇▇-▇▇▇▇ shall deliver to Times Mirror (i) the unaudited
condensed balance sheet of ▇▇▇▇▇▇▇'▇ and the notes thereto as
of June 30, 1996 and the unaudited condensed statements of op-
erations for the six-month period ended June 30, 1996. The
financial statements of ▇▇▇▇▇▇▇'▇ referred to in this paragraph
shall be prepared in accordance with GAAP, applied in a manner
consistent with that applied in the preparation of the ▇▇▇▇▇-
cial statements set forth on Schedule 6.08 and shall present
fairly, in all material respects, the financial position and
the results of operations of ▇▇▇▇▇▇▇'▇ as of the date thereof
and for the period covered thereby. The statements described
in this paragraph shall be accompanied by a certificate of the
Chief Financial Officer of ▇▇▇▇▇▇▇'▇ confirming preparation of
such statements as described above.
-59-
(b) Closing Date Income Statement. As soon as prac-
ticable and in any event not later than 45 days after the
Closing Date, ▇▇▇▇▇▇-▇▇▇▇ shall deliver to Times Mirror (i) the
unaudited condensed statement of income of ▇▇▇▇▇▇▇'▇ (the
"▇▇▇▇▇▇▇'▇ Income Statement") for the period from July 1, 1996
to the Closing Date and (ii) the unaudited statement of bal-
ances and activity related to the intercompany accounts of
▇▇▇▇▇▇▇'▇ with ▇▇▇▇▇▇-▇▇▇▇ for the period from July 1, 1996 to
the Closing Date. ▇▇▇▇▇▇▇'▇ Income Statement shall be prepared
in a manner consistent with that applied in the preparation of
the statements provided pursuant to Section 8.01(a) and shall
present fairly, in all material respects, the results of opera-
tions of ▇▇▇▇▇▇▇'▇ for the period covered thereby. The state-
ments described in this Section 8.01(b) shall be accompanied by
a certificate of the Chief Financial officer of ▇▇▇▇▇▇▇'▇ con-
firming that the statements have been prepared as described
above.
(c) Closing Date Balance Sheet. As soon as practi-
cable and in any event not later than 45 days after the Closing
Date, ▇▇▇▇▇▇-▇▇▇▇ shall deliver to Times Mirror an unaudited
balance sheet for ▇▇▇▇▇▇▇'▇ as of the Closing Date (the "Shep-
ard's Closing Date Balance Sheet"). The ▇▇▇▇▇▇▇'▇ Closing Date
Balance Sheet (i) shall be prepared in accordance with GAAP and
on a basis consistent with the December 31, 1995 balance sheet
of ▇▇▇▇▇▇▇'▇ included in Schedule 6.08 and (ii) shall not re-
flect any purchase accounting adjustments attributable to the
transactions provided for in this Agreement. The balance sheet
described in this Section 8.01(c) shall be accompanied by a
certificate of the Chief Financial Officer of ▇▇▇▇▇▇▇'▇ con-
firming that the balance sheet has been prepared as described
above.
Section 8.02. Access. Prior to the Closing, ▇▇▇▇▇▇-
▇▇▇▇ and its officers, directors, employees, advisors, repre-
sentatives and authorized agents will, and ▇▇▇▇▇▇-▇▇▇▇ will
cause ▇▇▇▇▇▇▇'▇ and its officers, directors, employees, advi-
sors, representatives and authorized agents to, provide Times
Mirror and its representatives, employees, counsel and accoun-
tants during scheduled appointments approved by ▇▇▇▇▇▇-▇▇▇▇
(which approval shall not be unreasonably withheld) occurring
during normal business hours and in a manner not unreasonably
disruptive to the conduct of the business of ▇▇▇▇▇▇▇'▇ or any
of the officers, directors, employees, advisors, representa-
tives or authorized agents of ▇▇▇▇▇▇-▇▇▇▇ or ▇▇▇▇▇▇▇'▇, access
to the personnel, properties, books and records of ▇▇▇▇▇▇▇'▇,
including, without limitation, (i) access to ▇▇▇▇▇▇▇'▇ Employ-
ees for the purpose of pre-enrolling such ▇▇▇▇▇▇▇'▇ Employees
in any employee benefit or welfare plans of Times Mirror, (ii)
access for purposes of conducting a preliminary environmental
-60-
assessment and any additional boring and sampling or other en-
vironmental assessment work as Times Mirror may deem appropri-
ate and (iii) access for purposes of conducting preliminary
facilities reviews; provided, however, that all information and
documentation made available to Times Mirror pursuant to the
terms of this Section 8.02 shall be subject to the terms of the
▇▇▇▇▇▇▇'▇ Confidentiality Agreement. Access afforded to Times
Mirror under this Section 8.02 shall also be afforded, subject
to the same restrictions, to ▇▇▇▇ Elsevier Inc.
Section 8.03. Ordinary Conduct. Except as contem-
plated by this Agreement or set forth on Schedule 8.03, from
the date of this Agreement to the Closing Date, ▇▇▇▇▇▇-▇▇▇▇
will cause the business of ▇▇▇▇▇▇▇'▇ to be conducted in the
ordinary course in substantially the same manner as presently
conducted and will make all reasonable efforts substantially
consistent with past practices to preserve their relationships
with customers, suppliers and others with whom ▇▇▇▇▇▇▇'▇ deals.
Except as contemplated by this Agreement, ▇▇▇▇▇▇-▇▇▇▇ will not
permit ▇▇▇▇▇▇▇'▇ to do any of the following without the prior
written consent of Times Mirror:
(a) Charter. Amend its Charter or By-laws;
(b) Dividends. Declare or pay any non-cash
dividend or make any other non-cash distributions to
▇▇▇▇▇▇-▇▇▇▇, whether or not upon or in respect of any
shares of its capital stock;
(c) Capital Stock. Redeem or otherwise acquire
any shares of its capital stock or issue any capital stock
or any option, warrant or right thereto or any securities
convertible into or exchangeable for any of its capital
stock;
(d) Employee Matters. Adopt or amend in any
material respect any ▇▇▇▇▇▇▇'▇ Plan or collective bargain-
ing agreement, except as required by law;
(e) Compensation. (i) Grant to any executive
officer or employee any increase in compensation or ben-
efits or any rights to receive severance payments or other
benefits upon a termination of employment or a change of
ownership or control of the employer, except (A) as may be
required under the express terms of existing written
agreements, (B) in the ordinary course of business consis-
tent with past practice or (C) any increases, payments or
benefits for which ▇▇▇▇▇▇-▇▇▇▇ shall be solely obligated,
-61-
(ii) enter into any employment agreement or amend any ex-
isting employment agreement, or (iii) terminate any execu-
tive officer or employee other than in the ordinary course
of business consistent with past practice;
(f) Indebtedness. Incur or assume any liabili-
ties, obligations or indebtedness for borrowed money or
guarantee any such liabilities, obligations or indebt-
edness, other than any indebtedness owing to ▇▇▇▇▇▇-▇▇▇▇
or any other person incurred in the ordinary course of
business consistent with past practice; provided that in
no event shall ▇▇▇▇▇▇▇'▇ incur, assume or guarantee any
long-term indebtedness for borrowed money;
(g) Encumbrances. Permit, allow or suffer any
of its assets to be subjected to any Lien, other than
Permitted Liens;
(h) Cancellation of Indebtedness. Except as
provided in Section 8.07, cancel any indebtedness owing to
▇▇▇▇▇▇▇'▇ or waive any claims or rights, other than
cancellations or waivers in the ordinary course of
business that individually cover indebtedness, claims or
rights having a value of less than $50,000 and, in the
aggregate, cover indebtedness, claims or rights having a
value of less than $250,000;
(i) Related Party Transactions. Except for (i)
dividends or distributions not prohibited under clause (b)
above, (ii) indebtedness not prohibited by clause (f)
above and (iii) intercompany transactions in the ordinary
course of business and consistent with past practice, pay,
loan or advance any amount to, or sell, transfer or lease
any of its assets to, or enter into any agreement or ar-
rangement with ▇▇▇▇▇▇-▇▇▇▇ or any affiliate of ▇▇▇▇▇▇-▇▇▇▇
that would continue in effect after the Closing;
(j) Accounting Polices. Make any change in any
method of accounting or accounting practice or policy
other than those required by GAAP;
(k) Reorganizations. Acquire or agree to ac-
quire by merging or consolidating with, or by purchasing
the stock of, or a substantial portion of the assets of,
or by any other manner, any business or any corporation,
partnership, association or other business organization or
division thereof or otherwise acquire or agree to acquire
any assets (other than inventory);
-62-
(l) Capital Expenditures. Make or incur any
capital expenditures other than those made or incurred in
accordance with ▇▇▇▇▇▇-▇▇▇▇'▇ fiscal year 1996 capital
expenditure budget with respect to ▇▇▇▇▇▇▇'▇ heretofore
disclosed to Times Mirror;
(m) Asset Dispositions. Sell, lease or other-
wise dispose of, or agree to sell, lease or otherwise dis-
pose of, any of its assets, except for sales of inventory
in the ordinary course of business and except for sales,
leases or dispositions of assets that, in the aggregate,
have a fair value of less than $500,000;
(n) Material Agreements. Enter into any agree-
ments, whether or not in the ordinary course of business,
that calls for payments in excess of $500,000 and will not
be fully performed within 12 months;
(o) Accruals. Make any accrual or provision
for sales returns, inventory obsolescence, bad debts,
Taxes or other items, other than with respect to the
period from July 1 to Closing and consistent with past
practices; or
(p) Commitments. Agree, whether in writing or
otherwise, to do any of the foregoing.
Section 8.04. Insurance. ▇▇▇▇▇▇-▇▇▇▇ shall keep, or
cause to be kept, all insurance policies presently maintained
relating to ▇▇▇▇▇▇▇'▇ and its properties or suitable replace-
ments therefor in full force and effect through the close of
business on the Closing Date. Schedule 8.04 sets forth all the
insurance policies presently owned and maintained by ▇▇▇▇▇▇▇'▇.
Any and all additional insurance policies presently maintained
relating to ▇▇▇▇▇▇▇'▇ and its properties are maintained by
▇▇▇▇▇▇-▇▇▇▇. Neither ▇▇▇▇▇▇-▇▇▇▇ nor ▇▇▇▇▇▇▇'▇ will have any
rights under any such insurance policies from and after the
Closing Date with the exception of such policies that do not
name ▇▇▇▇▇▇-▇▇▇▇ or any of its other subsidiaries as named in-
sureds.
Section 8.05. Resignations. On the Closing Date,
▇▇▇▇▇▇-▇▇▇▇ shall cause to be delivered to Times Mirror duly
signed resignations, effective immediately after the Closing
Date, of all members of the Board of Directors of ▇▇▇▇▇▇▇'▇ and
shall take such other action as is necessary to accomplish the
foregoing.
Section 8.06. Non-Competition. ▇▇▇▇▇▇-▇▇▇▇ cov-
enants and agrees that, if the Closing shall occur,
-63-
(a) during the Restricted Period, ▇▇▇▇▇▇-▇▇▇▇ and
its affiliates will not, directly or indirectly, anywhere in
the world, (1) engage in any business or activity which com-
petes with or is substantially similar to the legal citations
business of ▇▇▇▇▇▇▇'▇ (such business being referred to in this
Section 8.06 as the "Competing Business"); or (2) become the
beneficial owner of more than 5% of the common stock (or analo-
gous equity interest) of any company or other organization that
derives more than 5% of its consolidated revenue from the Com-
peting Business;
(b) during the Restricted Period, ▇▇▇▇▇▇-▇▇▇▇ and
its Affiliates shall not solicit the employment of any manage-
rial, marketing, editorial or sales employee of ▇▇▇▇▇▇-▇▇▇▇ or
any of its affiliates who becomes an employee of Times Mirror
or any of its affiliates in connection with the transactions
contemplated by this Agreement; and
(c) during the Restricted Period, ▇▇▇▇▇▇-▇▇▇▇ and
its Affiliates shall not take any action for the purpose of
interfering with the relationship, insofar as it relates to the
Competing Business, between Times Mirror (or any affiliates of
Times Mirror) and any author, customer or supplier of Times
Mirror (or any affiliate of Times Mirror).
▇▇▇▇▇▇-▇▇▇▇ agrees that the covenant not to compete set forth
in paragraph (a) above is reasonable with respect to its dura-
tion, geographical area and scope. Notwithstanding any other
provision of this Agreement, if any of the provisions of this
Section 8.06 or the application of any provision of this Sec-
tion 8.06 to any jurisdiction or time period shall be held in-
valid or unenforceable, the remaining portion of the provisions
of this Section 8.06 or the application of such portion thereof
as is held invalid or unenforceable to jurisdictions or time
periods other than those as to which it is held invalid or un-
enforceable, shall not be affected thereby. It is the intent
and agreement of Times Mirror and ▇▇▇▇▇▇-▇▇▇▇ that the provi-
sions of this Section 8.06 be given maximum force, effect and
application permissible under applicable law.
Section 8.07. Intercompany Accounts. Immediately
prior to the Closing, ▇▇▇▇▇▇-▇▇▇▇ will cause all intercompany
accounts between ▇▇▇▇▇▇▇'▇, on the one side, and ▇▇▇▇▇▇-▇▇▇▇ or
any of its subsidiaries or affiliates (other than ▇▇▇▇▇▇▇'▇),
on the other side, to be contributed to capital (in the case of
intercompany payables on the books of ▇▇▇▇▇▇▇'▇) or eliminated
(in the case of intercompany receivables on the books of
▇▇▇▇▇▇▇'▇). The assets of ▇▇▇▇▇▇▇'▇ will not include any
account receivable from ▇▇▇▇▇▇-▇▇▇▇ or any of its affiliates,
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and the liabilities of ▇▇▇▇▇▇▇'▇ will not include any account
payable to ▇▇▇▇▇▇-▇▇▇▇ or any of its affiliates.
Section 8.08. Confidentiality. ▇▇▇▇▇▇-▇▇▇▇ acknowl-
edges that the information being provided to it by Times Mirror
is subject to the terms of the College Publishing Business Con-
fidentiality Agreement, the terms of which are incorporated
herein by reference. Effective upon, and only upon, the Clos-
ing, the College Publishing Business Confidentiality Agreement
will terminate only with respect to information relating solely
to TMHE, the ▇▇▇▇▇ Assets and the ▇▇▇▇▇ Liabilities and the
International Assets and International Liabilities, and ▇▇▇▇▇▇-
▇▇▇▇ acknowledges that any and all other information provided
to it by Times Mirror, ▇▇▇▇▇ or TMIP, or Times Mirror's or
▇▇▇▇▇'▇ or TMIP's representatives concerning ▇▇▇▇▇ or any of
the TMIP Entities (other than information relating solely to
the ▇▇▇▇▇ Assets, the ▇▇▇▇▇ Liabilities, the International As-
sets and the International Liabilities), any other subsidiary
of Times Mirror or any other operations of Times Mirror shall
remain subject to the terms and conditions of the College Pub-
lishing Business Confidentiality Agreement after the Closing
Date.
Section 8.09. No Additional Representations.
▇▇▇▇▇▇-▇▇▇▇ acknowledges that none of Times Mirror, TMHE, ▇▇▇▇▇
or any other person has made any representation or warranty,
expressed or implied, as to the accuracy or completeness of any
information regarding the College Publishing Business except as
expressly set forth in this Agreement or the schedules hereto,
and none of Times Mirror, TMHE, ▇▇▇▇▇ or any other person will
have or be subject to any liability or indemnification obliga-
tion to ▇▇▇▇▇▇-▇▇▇▇ or any other person resulting from the dis-
tribution to ▇▇▇▇▇▇-▇▇▇▇, or ▇▇▇▇▇▇-▇▇▇▇'▇ use of, any such
information, including, without limitation, the Confidential
Offering Memorandum prepared by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorpo-
rated dated April 1996 (the "Confidential Offering Memorandum")
(except as provided in Section 5.09(c)) and any information,
document, or material made available to ▇▇▇▇▇▇-▇▇▇▇ in certain
"data rooms," management presentations or in any other form in
expectation of the transactions contemplated by this Agreement.
Section 8.10. Performance of Obligations by ▇▇▇▇▇▇-
▇▇▇▇ After Closing Date. On and after the Closing Date,
▇▇▇▇▇▇-▇▇▇▇ shall, or shall cause TMHE to, duly, promptly and
faithfully pay, perform and discharge when due, subject to any
available defenses and rights of set-off, (i) all obligations
and liabilities of whatever kind and nature, primary or second-
ary, direct or indirect, absolute or contingent, known or un-
known, whether or not accrued, whether arising before, on or
after the Closing Date, of TMHE, including, without limitation,
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any such obligation or liabilities contained in each of the
College Publishing Business Contracts or any agreement, lease,
license, permit, plan or commitment binding on TMHE or any of
its assets that, because it fails to meet the relevant thresh-
old amount or term, is not included within the definition of
Contracts, or any plan, fund, program, policy, contract or
arrangement described in Section 5.17, but not required to be
set forth on Schedule 5.17(a); provided, however, that the
foregoing shall not apply to any obligation or liability that
Times Mirror or ▇▇▇▇▇ agrees to bear under this Agreement; and
(ii) all of the ▇▇▇▇▇ Liabilities and the International Lia-
bilities.
Section 8.11. Name Change. ▇▇▇▇▇▇-▇▇▇▇ shall take
all measures necessary to cause TMHE to change the name of TMHE
to remove the words "Times Mirror" therefrom effective imme-
diately after the Closing.
Section 8.12. Transitional Services. At the
Closing, ▇▇▇▇▇▇-▇▇▇▇ and ▇▇▇▇▇▇▇'▇ shall enter into a mutually
satisfactory agreement providing for services needed to effect
an orderly transition of ownership of ▇▇▇▇▇▇▇'▇.
ARTICLE NINE
MUTUAL COVENANTS
Each of Times Mirror and ▇▇▇▇▇▇-▇▇▇▇ covenants and
agrees as follows:
Section 9.01. Post-Closing Adjustment. (a) Within
five days after delivery by Times Mirror of the TMHE Income
Statement and the ▇▇▇▇▇ P & L Statement pursuant to Section
7.01(b),
(i) if the sum of (1)(A) the income before income
taxes of TMHE shown on the TMHE Income Statement plus (B) the
income before income taxes of ▇▇▇▇▇'▇ College Text Business
shown on the ▇▇▇▇▇ P & L Statement plus (C) Transaction-Related
Expenses of TMHE or ▇▇▇▇▇ (to the extent such were recorded as
expenses on the TMHE Income Statement or ▇▇▇▇▇ P & L Statement)
plus (D) $3.6 million minus the sum of (2)(A) the net change in
the intercompany account balance (without taking into account
any charges representing Transaction-Related Expenses to such
balance or any charge relating to income taxes) on the books of
TMHE with Times Mirror for the period from July 1, 1996 to the
Closing Date plus (B) the net change in the intercompany ac-
count balance (if any) (without taking into account any charges
representing Transaction-Related Expenses to such balance or
any charge relating to income taxes) reflected in the records
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of ▇▇▇▇▇, with respect to ▇▇▇▇▇'▇ College Text Business, with
Times Mirror for the period from July 1, 1996 to the Closing
Date plus (C) income taxes on the amount in clause (1)(A), (B)
and (C) using a federal rate of 35% and the rates, as
appropriate, for the States of California, Illinois and
Connecticut set forth in Schedule 9.01(a) (net of federal bene-
fit) plus (D) $1.7 million is greater than zero, Times Mirror
shall pay to ▇▇▇▇▇▇-▇▇▇▇, in immediately available funds, the
amount equal to such difference; and
(ii) if the sum of (1)(A) the income before income
taxes of TMHE shown on the TMHE Income Statement plus (B) the
income before income taxes of ▇▇▇▇▇'▇ College Text Business
shown on the ▇▇▇▇▇ P & L Statement plus (C) Transaction-Related
Expenses of TMHE or ▇▇▇▇▇ (to the extent such were recorded as
expenses on the TMHE Income Statement or ▇▇▇▇▇ P & L Statement)
plus (D) $3.6 million minus the sum of (2)(A) the net change in
the intercompany account balance (without taking into account
any charges representing Transaction-Related Expenses to such
balance or any charge relating to income taxes) on the books of
TMHE with Times Mirror for the period from July 1, 1996 to the
Closing Date plus (B) the net change in the intercompany ac-
count balance (if any) (without taking into account any charges
representing Transaction-Related Expenses to such balance or
any charge relating to income taxes) reflected in the records
of ▇▇▇▇▇, with respect to ▇▇▇▇▇'▇ College Text Business, with
Times Mirror for the period from July 1, 1996 to the Closing
Date plus (C) income taxes on the amount in clause (1)(A), (B)
and (C) using a federal rate of 35% and the rates, as
appropriate, for the States of California, Illinois and
Connecticut set forth in Schedule 9.01(a) (net of federal
benefit) plus (D) $1.7 million is less than zero, ▇▇▇▇▇▇-▇▇▇▇
shall pay to Times Mirror, in immediately available funds, the
amount equal to such difference.
For purposes of the calculations in this Section
9.01(a), intercompany payables to Times Mirror on the books of
TMHE and ▇▇▇▇▇, with respect to ▇▇▇▇▇'▇ College Text Business,
shall be positive amounts and intercompany receivables on the
books of TMHE and the records of ▇▇▇▇▇, with respect to ▇▇▇▇▇'▇
College Text Business, shall be negative amounts, and any cash
distributions from TMHE or ▇▇▇▇▇, with respect to ▇▇▇▇▇'▇
College Text Business, shall be recorded in the intercompany
account of TMHE or ▇▇▇▇▇, as the case may be, as intercompany
receivables. From the period from July 1, 1996 to Closing, no
advances to or distributions from TMHE or ▇▇▇▇▇, with respect
to ▇▇▇▇▇'▇ College Text Business, shall be made other than from
or to Times Mirror.
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The accrual of additional reserves for bad debt or
sales returns with respect to TMIP accounts receivable trans-
ferred to TMHE or ▇▇▇▇▇'▇ College Text Business pursuant to
Schedule 4.02(a)(v) plus additional reserves for bad debts or
sales returns on the books of TMHE relating to International
Direct Sales as defined in Schedule 4.02(a)(v) shall not be
taken into account in the calculation of income before taxes or
reflected in the intercompany accounts.
Furthermore, the credit to the intercompany account
of TMHE and ▇▇▇▇▇'▇ College Text Business with Times Mirror on
account of the transfer of the statutory receivables from Times
Mirror to TMHE and ▇▇▇▇▇'▇ College Text Business shall not be
taken into account in computing the net change in the
intercompany account balance of TMHE and ▇▇▇▇▇'▇ College Text
Business with Times Mirror.
(a) Within five days after delivery by ▇▇▇▇▇▇-▇▇▇▇
of the ▇▇▇▇▇▇▇'▇ Income Statement pursuant to Section 8.01(b),
(i) if the sum of (1)(A) the income before income
taxes of ▇▇▇▇▇▇▇'▇ shown on the ▇▇▇▇▇▇▇'▇ Income Statement plus
(B) Transaction-Related Expenses of ▇▇▇▇▇▇▇'▇ (to the extent
such were recorded as expenses on the ▇▇▇▇▇▇▇'▇ Income State-
ment) minus the sum of (2)(A) the net change in the intercom-
pany account balance (without taking into account any charges
representing Transaction-Related Expenses to such balance or
any charge relating to income taxes) on the books of ▇▇▇▇▇▇▇'▇
with ▇▇▇▇▇▇-▇▇▇▇ for the period from July 1, 1996 to the Clos-
ing Date plus (B) income taxes on the amount in clause (1) us-
ing a federal rate of 35% and the rates, as appropriate, for
the States of California, Colorado and Michigan, set forth in
Schedule 9.01(b) (net of federal benefit) is greater than zero,
▇▇▇▇▇▇-▇▇▇▇ shall pay to Times Mirror, in immediately available
funds, the amount equal to such difference; and
(ii) if the sum of (1)(A) the income before income
taxes of ▇▇▇▇▇▇▇'▇ shown on the ▇▇▇▇▇▇▇'▇ Income Statement plus
(B) Transaction-Related Expenses of ▇▇▇▇▇▇▇'▇ (to the extent
such were recorded as expenses on the ▇▇▇▇▇▇▇'▇ Income State-
ment) minus the sum of (2)(A) the net change in the intercom-
pany account balance (without taking into account any charges
representing Transaction-Related Expenses to such balance or
any charge relating to income taxes) on the books of ▇▇▇▇▇▇▇'▇
with ▇▇▇▇▇▇-▇▇▇▇ for the period from July 1, 1996 to the Clos-
ing Date plus (B) income taxes on the amount in clause (1) us-
ing a federal rate of 35% and the rates, as appropriate, for
the States of California, Colorado and Michigan set forth in
Schedule 9.01(b) (net of federal benefit) is less than zero,
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Times Mirror shall pay to ▇▇▇▇▇▇-▇▇▇▇, in immediately available
funds, the amount equal to such difference.
For purposes of the calculations in this Section
9.01(b), intercompany payables to ▇▇▇▇▇▇-▇▇▇▇ on the books of
▇▇▇▇▇▇▇'▇ shall be positive amounts and intercompany
receivables on the books of ▇▇▇▇▇▇▇'▇ shall be negative
amounts, and any cash distributions from ▇▇▇▇▇▇▇'▇ shall be
recorded in the intercompany account of ▇▇▇▇▇▇▇'▇ as
intercompany receivables. From the period from July 1, 1996 to
Closing, no advances to or distributions from ▇▇▇▇▇▇▇'▇ shall
be made other than from or to ▇▇▇▇▇▇-▇▇▇▇.
(c) Any net amount owed to Times Mirror or ▇▇▇▇▇▇-
▇▇▇▇ under Section 9.01 shall be deemed an adjustment to the
amount paid under Section 2.03.
(d) All calculations under this Section 9.01 shall
(i) be made prior to the transactions contemplated by Sections
7.07 and 8.07 and (ii) shall give no effect to any action that
constitutes a breach of this Agreement.
Section 9.02. Use of Names.
(a) ▇▇▇▇▇ grants to ▇▇▇▇▇▇-▇▇▇▇ and TMHE the right
to leave ▇▇▇▇▇'▇ name on the inventory included in the ▇▇▇▇▇
Assets in the form it appears thereon on the Closing Date, and
to continue to use such name with respect to each publication
included within the ▇▇▇▇▇ Assets until all inventory of such
publication existing on the Closing Date has been sold; pro-
vided, however, that the ▇▇▇▇▇ name shall not be used on any
subsequent revision of such publication. Nothing in this Sec-
tion 9.02 shall be construed to grant to ▇▇▇▇▇▇-▇▇▇▇ or TMHE
any rights whatsoever in ▇▇▇▇▇'▇ name.
(b) Times Mirror grants to ▇▇▇▇▇▇-▇▇▇▇ and TMHE the
right to use Times Mirror's name on the inventory included in
the College Publishing Business in the form it appears thereon
on the Closing Date, and to continue to use such name with re-
spect to each publication included within the College Publish-
ing Business until all inventory of such publication existing
on the Closing Date has been sold; provided, however, that the
Times Mirror name shall not be used on any subsequent revision
of such publication. Nothing in this Section 9.02 shall be
construed to grant to ▇▇▇▇▇▇-▇▇▇▇ or TMHE any rights whatsoever
in Times Mirror's name.
(c) ▇▇▇▇▇▇-▇▇▇▇ grants to Times Mirror and ▇▇▇▇▇▇▇'▇
the right to use ▇▇▇▇▇▇-▇▇▇▇'▇ name on the inventory included
in the assets of ▇▇▇▇▇▇▇'▇ in the form it appears thereon on
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the Closing Date, and to continue to use such name with respect
to each publication included within the assets of ▇▇▇▇▇▇▇'▇
until all inventory of such publication existing on the Closing
Date has been sold; provided, however, that the ▇▇▇▇▇▇-▇▇▇▇
name shall not be used on any subsequent revision of such pub-
lication. Nothing in this Section 9.02 shall be construed to
grant to Times Mirror or ▇▇▇▇▇▇▇'▇ any rights whatsoever in
▇▇▇▇▇▇-▇▇▇▇'▇ name.
Section 9.03. Cooperation. ▇▇▇▇▇▇-▇▇▇▇, Times Mir-
ror and ▇▇▇▇▇ shall cooperate with each other and shall cause
their respective officers, employees, affiliates, agents, audi-
tors and representatives to cooperate with each other after the
Closing to ensure (i) the orderly transfer of TMHE, the ▇▇▇▇▇
Assets, the ▇▇▇▇▇ Liabilities, the International Assets and the
International Liabilities from Times Mirror, ▇▇▇▇▇ or the TMIP
Entities, as the case may be, to ▇▇▇▇▇▇-▇▇▇▇ (or one or more
subsidiaries of ▇▇▇▇▇▇-▇▇▇▇) designated by ▇▇▇▇▇▇-▇▇▇▇ and (ii)
the orderly transfer of ▇▇▇▇▇▇▇'▇ from ▇▇▇▇▇▇-▇▇▇▇ to Times
Mirror, and to minimize any disruption to the respective busi-
nesses of ▇▇▇▇▇, TMHE or ▇▇▇▇▇▇▇'▇ that might result from the
transactions contemplated hereby. No party shall be required
by this Section 9.03 to take any action that would unreasonably
interfere with the conduct of its business.
Section 9.04. Publicity. Times Mirror and ▇▇▇▇▇▇-
▇▇▇▇ agree that, from the date of this Agreement through the
Closing Date, no public release or announcement concerning the
transactions contemplated hereby shall be issued by either
party without the prior consent of the other party (which con-
sent shall not be unreasonably withheld), except as such re-
lease or announcement may be required by law or the rules or
regulations of any United States or foreign securities ex-
change, in which case the party required to make the release or
announcement shall allow the other party reasonable time to
comment on such release or announcement in advance of such is-
suance. Following the Closing, Times Mirror and ▇▇▇▇▇▇-▇▇▇▇
shall consult with each other with respect to the preparation
of any filing with the Securities and Exchange Commission that
describes or reflects the transactions provided for in this
Agreement, through and including the Form 10-Q (if any) and
Form 10-K (unless the Closing occurs after December 31, 1996)
covering the period in which the Closing occurs.
Section 9.05. Antitrust Notification. Each of Times
Mirror and ▇▇▇▇▇▇-▇▇▇▇ will as promptly as practicable, but in
no event later than ten Business Days following the execution
and delivery of this Agreement, file with the United States
Federal Trade Commission (the "FTC") and the United States De-
partment of Justice ("DOJ") the notification and report form,
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if any, required for the transactions contemplated hereby and
any supplemental information requested in connection therewith
pursuant to the HSR Act. Any such notification and report form
and supplemental information will be in substantial compliance
with the requirements of the HSR Act. Each of ▇▇▇▇▇▇-▇▇▇▇ and
Times Mirror shall furnish to the other such necessary informa-
tion and reasonable assistance as the other may request in con-
nection with its preparation of any filing or submission which
is necessary under the HSR Act. Times Mirror and ▇▇▇▇▇▇-▇▇▇▇
shall keep each other apprised of the status of any communica-
tions with, and inquiries or requests for additional informa-
tion from, the FTC and the DOJ and shall comply promptly with
any such inquiry or request. Each of Times Mirror and ▇▇▇▇▇▇-
▇▇▇▇ will use its best efforts to obtain any clearance required
under the HSR Act for the consummation of the transactions con-
templated hereby; provided, however, that nothing herein shall
require (i) ▇▇▇▇▇▇-▇▇▇▇ or any of its subsidiaries to divest or
hold separate any portion of its assets, the assets of TMHE,
the ▇▇▇▇▇ Assets or the International Assets or (ii) Times Mir-
ror or any of its subsidiaries to divest or hold separate any
portion of its assets or the assets of ▇▇▇▇▇▇▇'▇.
Section 9.06. Records.
(a) On the Closing Date, Times Mirror and ▇▇▇▇▇
shall deliver or cause to be delivered to ▇▇▇▇▇▇-▇▇▇▇ all orig-
inal agreements, documents, books, records and files (collec-
tively, "Records"), in the possession of Times Mirror, ▇▇▇▇▇ or
the TMIP Entities relating to the business and operations of
TMHE or the TMHE Subsidiaries, to the extent not then in the
possession of TMHE, or relating solely and exclusively to
▇▇▇▇▇'▇ College Text Business, the International Assets or the
International Liabilities subject to the following exceptions:
(i) ▇▇▇▇▇ may retain Records until the Termination
Date of the ▇▇▇▇▇ Transition Services Agreement (as such
term is defined therein) and each of the TMIP Entities may
retain Records until the Termination Date of the TMIP
Transition Services Agreement (as such term is defined
therein), in each case to the extent necessary or conve-
nient for the performance of its respective obligations
thereunder;
(ii) ▇▇▇▇▇▇-▇▇▇▇ recognizes that certain Records may
contain incidental information relating to TMHE or ▇▇▇▇▇'▇
College Text Business or may relate primarily to subsid-
iaries or divisions of Times Mirror other than TMHE or
businesses of TMHE previously sold, and that Times Mirror
or ▇▇▇▇▇, as the case may be, may retain such Records and
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shall provide copies of the relevant portions thereof to
▇▇▇▇▇▇-▇▇▇▇;
(iii) Times Mirror may retain all Records prepared in
connection with the sale of the TMHE Shares and the ▇▇▇▇▇
Assets, including bids received from other parties and
analyses relating to TMHE and ▇▇▇▇▇'▇ College Text Busi-
ness; and
(iv) Times Mirror may retain any Tax returns, reports
or forms, and ▇▇▇▇▇▇-▇▇▇▇ shall be provided with copies of
such returns, reports or forms only to the extent that
they relate to TMHE's or the TMHE Subsidiaries' separate
returns or separate Tax liability.
(b) On the Closing Date, ▇▇▇▇▇▇-▇▇▇▇ shall deliver
or cause to be delivered to Times Mirror all Records in the
possession of ▇▇▇▇▇▇-▇▇▇▇ relating to the business and opera-
tions of ▇▇▇▇▇▇▇'▇ to the extent not then in the possession of
▇▇▇▇▇▇▇'▇, subject to the following exceptions:
(i) Times Mirror recognizes that certain
Records may contain incidental information relating
to ▇▇▇▇▇▇▇'▇ or may relate primarily to subsidiaries
or divisions of ▇▇▇▇▇▇-▇▇▇▇ other than ▇▇▇▇▇▇▇'▇ or
businesses of ▇▇▇▇▇▇▇'▇ previously sold, and that
▇▇▇▇▇▇-▇▇▇▇ may retain such Records and shall provide
copies of the relevant portions thereof to Times Mir-
ror;
(ii) ▇▇▇▇▇▇-▇▇▇▇ may retain all Records prepared
in connection with the sale of the ▇▇▇▇▇▇▇'▇ Shares,
including analyses relating to the business of
▇▇▇▇▇▇▇'▇; and
(iii) ▇▇▇▇▇▇-▇▇▇▇ may retain any Tax returns,
reports or forms, and Times Mirror shall be provided
with copies of such returns, reports or forms only to
the extent that they relate to the separate returns
or separate Tax liability of ▇▇▇▇▇▇▇'▇.
(c) After the Closing, upon reasonable written no-
▇▇▇▇, ▇▇▇▇▇▇-▇▇▇▇, Times Mirror and ▇▇▇▇▇ agree to furnish or
cause to be furnished to each other and their representatives,
employees, counsel and accountants access, during normal busi-
ness hours, to such information (including Records pertinent to
▇▇▇▇▇▇▇'▇, TMHE, the TMHE Subsidiaries, ▇▇▇▇▇'▇ College Text
Business, the International Assets and the International Li-
abilities) and assistance relating to ▇▇▇▇▇▇▇'▇, TMHE, the TMHE
Subsidiaries, ▇▇▇▇▇'▇ College Text Business, the International
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Assets and the International Liabilities as is reasonably nec-
▇▇▇▇▇▇ for financial reporting and accounting matters, the
preparation and filing of any Tax returns, reports or forms or
the defense of any Tax Claim or assessment; provided, however,
that such access does not unreasonably disrupt the normal op-
erations of Times Mirror, McGraw-Hill, Shepard's, TMHE or
▇▇▇▇▇.
Section 9.07. Further Assurances. From time to
time, as and when requested by either party hereto, the other
party shall execute and deliver, or cause to be executed and
delivered, all such documents and instruments and shall take,
or cause to be taken, all such further or other actions as such
other party may reasonably deem necessary or desirable to con-
summate the transactions contemplated by this Agreement.
Section 9.08. Provision of Audited Financials.
▇▇▇▇▇▇-▇▇▇▇ shall furnish to Times Mirror, at ▇▇▇▇▇▇-▇▇▇▇'▇
expense, audited financial statements of ▇▇▇▇▇▇▇'▇ that, in the
reasonable judgment of Ernst & Young, are required to be filed
by Times Mirror with the Securities and Exchange Commission in
connection with the transactions contemplated hereby. Times
Mirror shall furnish to ▇▇▇▇▇▇-▇▇▇▇, at Times Mirror's expense,
audited financials of the College Publishing Business that, in
the reasonable judgment of Ernst & Young, are required to be
filed by ▇▇▇▇▇▇-▇▇▇▇ with the Securities and Exchange Commis-
sion in connection with the transactions contemplated hereby.
ARTICLE TEN
EMPLOYEE AND RELATED MATTERS
WITH RESPECT TO COLLEGE
PUBLISHING BUSINESS
Section 10.01. Continuation of Employment.
(a) Offers of Employment. Schedule 10.01(a) con-
tains a complete and accurate list of each ▇▇▇▇▇'▇ College Text
Business Employee who will be employed by ▇▇▇▇▇▇-▇▇▇▇ on the
Closing Date. Except as otherwise provided herein, on or after
the Closing Date, ▇▇▇▇▇▇-▇▇▇▇ shall offer employment to (or
cause TMHE to offer employment to or to continue to employ) all
College Publishing Business Employees who are actively employed
immediately prior to the Closing Date by TMHE, a TMHE Subsid-
iary or ▇▇▇▇▇, subject to the terms and conditions set forth in
this Article 10. In addition, each College Publishing Business
Employee who is on an authorized leave of absence, short- or
long-term disability leave, worker's compensation leave or va-
cation leave as of the Closing Date shall be offered employment
with ▇▇▇▇▇▇-▇▇▇▇ or TMHE following the expiration of the leave
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of absence to the extent that Times Mirror, TMHE or a TMHE Sub-
sidiary was obligated to offer employment to such employees
upon their return to work following such leave, subject to the
terms and conditions set forth in this Article 10. All persons
who are offered employment in accordance with the terms of this
Section 10.01(a) and who are employed by TMHE, a TMHE Subsid-
iary or ▇▇▇▇▇▇-▇▇▇▇ on or after the Closing Date are collec-
tively referred to herein as the "College Publishing Business
Transferred Employees." Notwithstanding anything contained
herein to the contrary, on and after the Closing Date, ▇▇▇▇▇▇-
▇▇▇▇ and TMHE shall have no obligation to employ Mr. G.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and any employee of ▇▇▇▇▇'▇ College Text Busi-
ness who is not listed on Schedule 10.01(a) and Times Mirror
shall retain all responsibility for any obligations with re-
spect to such employees who are not College Publishing Business
Transferred Employees, including the obligation to pay sever-
ance. For a period of one year following the Closing Date,
▇▇▇▇▇▇-▇▇▇▇ shall not offer employment to any College Publish-
ing Business Employee who is not employed by ▇▇▇▇▇▇-▇▇▇▇ as of
the Closing Date. In addition, nothing contained in this Ar-
ticle 10 shall be construed to prevent, limit or restrict in
any way ▇▇▇▇▇▇-▇▇▇▇'▇ right to terminate any College Publishing
Business Transferred Employee following the Closing Date.
(b) WARN Act and Other Matters. ▇▇▇▇▇▇-▇▇▇▇ shall
be fully responsible for any liability arising under the Worker
Adjustment and Retraining Notification Act arising in connec-
tion with the termination of the employment of any College Pub-
lishing Business Transferred Employee on or after the Closing
Date.
Section 10.02. Times Mirror's Benefit Plans and Em-
ployee Related Liabilities. Times Mirror agrees to continue,
or cause one or more of its affiliates to continue, coverage of
College Publishing Business Personnel under the College Pub-
lishing Business Plans in accordance with their terms up to the
Closing Date. As of the Closing Date, each College Publishing
Business Transferred Employee shall cease to be covered by each
of the College Publishing Business Plans. Except with respect
to the liabilities under the College Publishing Business Plans
that are expressly assumed by ▇▇▇▇▇▇-▇▇▇▇ under this Article
10, Times Mirror (and not TMHE or the TMHE Subsidiaries) shall
remain obligated for all benefits and benefit entitlements un-
der the College Publishing Business Plans which were earned or
accrued by College Publishing Business Transferred Employees
and College Publishing Business Retirees prior to the Closing
Date and for all employment or employment related liabilities
or claims relating to facts or events that occurred prior to
the Closing Date.
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Section 10.03. ▇▇▇▇▇▇-▇▇▇▇'▇ Benefit Plans. On the
Closing Date, each College Publishing Business Transferred Em-
ployee shall be covered by the employee benefit plans of
▇▇▇▇▇▇-▇▇▇▇ applicable to similarly situated employees of
▇▇▇▇▇▇-▇▇▇▇. For purposes of ▇▇▇▇▇▇-▇▇▇▇'▇ employee benefit
plans, ▇▇▇▇▇▇-▇▇▇▇ shall credit each College Publishing Busi-
ness Transferred Employee with full credit for employment with
Times Mirror, TMHE and ▇▇▇▇▇ prior to the Closing Date for pur-
poses of eligibility and vesting under ▇▇▇▇▇▇-▇▇▇▇ plans; pro-
vided, however, that in no event shall ▇▇▇▇▇▇-▇▇▇▇ be obligated
to grant credit for service to any College Publishing Business
Transferred Employee for purposes of benefit accrual under any
▇▇▇▇▇▇-▇▇▇▇ plan (including, but not limited to, any defined
benefit pension plan sponsored, maintained or contributed to by
▇▇▇▇▇▇-▇▇▇▇). Nothing contained in this Article Ten shall ob-
ligate or commit ▇▇▇▇▇▇-▇▇▇▇ to continue any of its benefit
plans after the Closing Date or to maintain in effect any such
plan or any level or type of benefits.
Section 10.04. Severance Obligations. ▇▇▇▇▇▇-▇▇▇▇
shall assume (or cause TMHE to assume) responsibility for the
obligations which become payable on or after the Closing Date
to the College Publishing Business Transferred Employees pursu-
ant to the individual severance agreements or severance plans
which are described in Schedule 10.04, other than (i) those
obligations set forth in Schedule 10.04 that are designated as
retention or stay-pay, performance bonuses, enhanced profit-
sharing contributions and (ii) any agreement or arrangement
covering Mr. G. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, which will remain obligations
of Times Mirror. On or before the Closing Date, Times Mirror
shall pay to each College Publishing Business Transferred Em-
ployee all retention or stay-pay and performance bonuses pay-
able, including those payable under the plans or agreements de-
scribed in Schedule 10.04, to the extent determinable, or as
soon as practicable after the Closing Date with respect to
amounts that are not determinable as of the Closing Date. In
addition, on or before the Closing Date, TMHE shall make the
enhanced profit-sharing contribution to the Wm. ▇. ▇▇▇▇▇
Company Publishers Employees' Profit Sharing Retirement and Tax
Deferred Investment Plan contemplated in Schedule 10.04. Such
contribution shall be considered a Transaction-Related Expense.
Section 10.05. Defined Contribution Plans. On or
prior to the Closing Date, Times Mirror shall cause TMHE to
transfer the sponsorship of the Wm. ▇. ▇▇▇▇▇ Company Publishers
Employees' Profit Sharing Retirement and Tax Deferred Invest-
ment Plan and the Probus Publishing Company 401(k) Savings and
Investment Plan (the "▇▇▇▇▇ and ▇▇▇▇▇▇ Plans") to Times Mirror
and, on or prior to the Closing Date, Times Mirror shall assume
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unconditionally from TMHE the sponsorship of the ▇▇▇▇▇ and Pro-
bus Plans, including, without limitation, the obligation to pay
all benefits contemplated by such ▇▇▇▇▇ and ▇▇▇▇▇▇ Plans and
all obligations with respect to administration, reporting and
disclosure. As of the Closing Date, Times Mirror shall cause
the interests of all College Publishing Business Transferred
Employees in the ▇▇▇▇▇ and Probus Plans and the Times Mirror
Savings Plus Plan (the "TM 401(k) Plan") to become fully vested
and nonforfeitable. As soon as practicable following the Clos-
ing Date, Times Mirror shall cause the ▇▇▇▇▇ and ▇▇▇▇▇▇ Plans
and the TM 401(k) Plan to distribute all or a portion of the
account balances of each College Publishing Business Trans-
ferred Employee who so elects in accordance with the terms of
such plans. Subject to the provisions of the applicable
▇▇▇▇▇▇-▇▇▇▇ plan and Times Mirror's provision of evidence rea-
sonably satisfactory to ▇▇▇▇▇▇-▇▇▇▇ that the ▇▇▇▇▇ and Probus
Plans and the TM 401(k) Plan are qualified under Section 401(a)
of the Code, ▇▇▇▇▇▇-▇▇▇▇ shall permit the defined contribution
plan applicable to each College Publishing Business Transferred
Employee to accept an "eligible rollover contribution" (within
the meaning of Section 401(a)(31) of the Code) in cash of all
or a portion of the account balance distributed to such College
Publishing Business Transferred Employee under the ▇▇▇▇▇ and
Probus Plans or the TM 401(k) Plan, as the case may be; pro-
vided, however, that nothing contained herein shall obligate
▇▇▇▇▇▇-▇▇▇▇ to accept rollovers in the form of Times Mirror
stock. Any amounts rolled over to ▇▇▇▇▇▇-▇▇▇▇'▇ defined con-
tribution plan as contemplated in this Section 10.05 shall be
held and administered in all respects in accordance with the
provisions of such ▇▇▇▇▇▇-▇▇▇▇ plan as in effect from time to
time.
Section 10.06. Defined Benefit Plans. As of the
Closing Date, the College Publishing Business Transferred Em-
ployees shall cease to accrue benefits under the Times Mirror
Pension Plan (the "TM Pension Plan") and TMHE shall cease to be
a participating employer thereunder. Times Mirror shall take,
or cause to be taken, all action as may be necessary (i) to
effect such cessation of participation and (ii) to cause the
College Publishing Business Transferred Employees' benefits
under the TM Pension Plan to become fully vested as of the
Closing Date. No assets or liabilities with respect to the
College Publishing Business Transferred Employees shall be
transferred as a result of this Agreement from the TM Pension
Plan to any plan or arrangement established or maintained by
▇▇▇▇▇▇-▇▇▇▇ for the benefit of the College Publishing Business
Transferred Employees. As of the Closing Date, eligible Col-
lege Publishing Business Transferred Employees who were covered
by the TM Pension Plan immediately prior to the Closing Date
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shall be eligible to participate in a ▇▇▇▇▇▇-▇▇▇▇ defined ben-
efit pension plan and shall receive credit for purposes of ▇▇▇-
gibility and vesting (but not for benefit accrual) under such
plan for all service with Times Mirror, TMHE, the TMHE Subsi-
diaries and ▇▇▇▇▇ prior to the Closing Date. ▇▇▇▇▇▇-▇▇▇▇ and
Times Mirror shall provide each other with such records and
information as may be necessary or appropriate to carry out
their obligations under this Section 10.06 or for purposes of
the administration of ▇▇▇▇▇▇-▇▇▇▇'▇ defined benefit plan.
Section 10.07. Welfare Benefits.
(a) Times Mirror agrees to continue coverage of Col-
lege Publishing Business Personnel under the Times Mirror Group
Benefit Plan and other Plans which are welfare benefit plans up
to the Closing Date and to provide benefits to or reimburse
covered College Publishing Business Personnel for eligible
health care and other eligible welfare benefit expenses and
services incurred up to the Closing Date in accordance with the
terms of such Plan.
(b) In connection with ▇▇▇▇▇▇-▇▇▇▇'▇ obligation to
provide welfare benefits to the eligible College Publishing
Business Transferred Employees under its plans pursuant to Sec-
tion 10.03, ▇▇▇▇▇▇-▇▇▇▇ shall cause each ▇▇▇▇▇▇-▇▇▇▇ group
health plan to waive any pre-existing condition exclusions
thereunder with respect to the College Publishing Business
Transferred Employees to the extent that such employees are
enrolled in the applicable group health plan of Times Mirror as
of the Closing Date. Notwithstanding any other provision
herein to the contrary, Times Mirror will retain all of its
obligations to provide post-retirement medical coverage to (i)
College Publishing Business Transferred Employees who, as of
the Closing Date, (a) have been credited with at least ten
consecutive years of service after attaining age 40 under the
applicable College Publishing Business Post-Retirement Plan,
(b) have attained at least age 60 and (c) are otherwise ▇▇▇-
gible for such benefits under the terms of the applicable Col-
lege Publishing Business Post-Retirement Plan in effect as of
the Closing Date, and (ii) College Publishing Business Retirees
with respect to expenses and services incurred by such indi-
viduals on or after the Closing Date in accordance with the
terms of the applicable College Publishing Business Post-
Retirement Plan as in effect from time to time with respect to
similarly situated retirees or employees of Times Mirror; pro-
vided, however, that in order for any College Publishing Busi-
ness Transferred Employee to be eligible to participate in any
College Publishing Business Post-Retirement Plan, such employee
must expressly elect to participate therein as of his retire-
ment date with ▇▇▇▇▇▇-▇▇▇▇.
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(c) With respect to any welfare benefit plans main-
tained at the TMHE level, ▇▇▇▇▇▇-▇▇▇▇ and Times Mirror agree to
negotiate mutually beneficial transitional arrangements with
respect to the benefits provided thereunder, which arrangements
may result in terminating such plans as of the Closing Date or
providing for the continuation of such plans following the
Closing Date by TMHE for eligible College Publishing Business
Transferred Employees.
(d) For purposes of this Section 10.07, an expense
or service is deemed to be incurred when the medical services
are performed, or, with respect to welfare benefits other than
medical or dental benefits, when the event giving rise to such
expense or service occurs.
Section 10.08. Modifications. None of Times Mirror,
TMHE, the TMHE Subsidiaries or ▇▇▇▇▇ will change the employment
status of any College Publishing Business Employee so as to
promise employment for any specified term of employment.
Section 10.09. Mutual Cooperation. ▇▇▇▇▇▇-▇▇▇▇ and
Times Mirror agree, in a complete, diligent and timely manner,
to exchange such employee census, actuarial or other data as
shall be reasonably necessary to calculate benefits under any
plan and to take any and all actions as shall be reasonably
necessary or advisable to effect the provisions of this Article
10.
Section 10.10. Employee Benefits Indemnity. For a
period of three years following the Closing Date:
(a) ▇▇▇▇▇▇-▇▇▇▇ shall indemnify and hold Times Mir-
ror and ▇▇▇▇▇ harmless from any Losses Times Mirror or
▇▇▇▇▇ may incur as a result of (i) ▇▇▇▇▇▇-▇▇▇▇'▇ failure
to honor any obligation expressly assumed under this Ar-
ticle 10 by ▇▇▇▇▇▇-▇▇▇▇ or a breach by ▇▇▇▇▇▇-▇▇▇▇ of any
covenant of ▇▇▇▇▇▇-▇▇▇▇ set forth in this Article 10 and
(ii) any actions taken by ▇▇▇▇▇▇-▇▇▇▇ with respect to any
College Publishing Business Transferred Employee on or
after the Closing Date; and
(b) Times Mirror and ▇▇▇▇▇ shall indemnify and hold
▇▇▇▇▇▇-▇▇▇▇ and TMHE harmless from any Losses ▇▇▇▇▇▇-▇▇▇▇
or TMHE may incur as a result of (i) Times Mirror's or
▇▇▇▇▇'▇ failure to honor any obligations expressly re-
tained or assumed under this Article 10 by Times Mirror or
▇▇▇▇▇ or a breach by Times Mirror or ▇▇▇▇▇ of any covenant
of Times Mirror or ▇▇▇▇▇ set forth in this Article 10,
(ii) any actions taken by Times Mirror or ▇▇▇▇▇ with re-
spect to any College Publishing Business Employee prior to
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the Closing Date or any College Publishing Business Re-
tiree and (iii) any failure of any representation or war-
ranty of Times Mirror or ▇▇▇▇▇ contained in Section 5.17
to be true and correct as of the Closing Date.
Section 10.11. Third-Party Claims. Nothing in this
Agreement is intended, or shall be construed, to confer upon
any person, other than the parties hereto and their successors
and permitted assigns, any rights or remedies by reason of this
Article 10.
ARTICLE TEN-A
EMPLOYEE AND RELATED MATTERS
WITH RESPECT TO ▇▇▇▇▇▇▇'▇
Section 10A.01. Continuation of Employment.
(a) Offers of Employment. Except as otherwise pro-
vided herein, on or after the Closing Date, Times Mirror shall
offer employment to (or cause ▇▇▇▇▇▇▇'▇ to offer employment to
or to continue to employ) all ▇▇▇▇▇▇▇'▇ Employees who are ac-
tively employed immediately prior to the Closing Date by Shep-
ard's, subject to the terms and conditions set forth in this
Article 10A. In addition, each ▇▇▇▇▇▇▇'▇ Employee who is on an
authorized leave of absence, short- or long-term disability
leave, worker's compensation leave or vacation leave as of the
Closing Date shall be offered employment with Times Mirror or
▇▇▇▇▇▇▇'▇ following the expiration of the leave of absence to
the extent that ▇▇▇▇▇▇-▇▇▇▇ or ▇▇▇▇▇▇▇'▇ was obligated to offer
employment to such employees upon their return to work follow-
ing such leave, subject to the terms and conditions set forth
in this Article 10A. All persons who are offered employment in
accordance with the terms of this Section 10A.01(a) and who are
employed by ▇▇▇▇▇▇▇'▇ or Times Mirror on or after the Closing
Date are collectively referred to herein as the "▇▇▇▇▇▇▇'▇
Transferred Employees." Notwithstanding anything contained
herein to the contrary, on and after the Closing Date, Times
Mirror and ▇▇▇▇▇▇▇'▇ shall have no obligation to employ each of
▇▇▇▇▇▇▇'▇ Employees identified on Schedule 10A.01(a)-1 and
▇▇▇▇▇▇-▇▇▇▇ shall retain all responsibility for any obligations
with respect to such employees. In addition, nothing contained
in this Article 10A shall be construed to prevent, limit or re-
strict in any way Times Mirror's right to terminate any Shep-
ard's Transferred Employee following the Closing Date.
(a) WARN Act and Other Matters. Times Mirror shall
be fully responsible for any liability arising under the Worker
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Adjustment and Retraining Notification Act arising in connec-
tion with the termination of the employment of any ▇▇▇▇▇▇▇'▇
Transferred Employee on or after the Closing Date.
Section 10A.02 ▇▇▇▇▇▇-▇▇▇▇'▇ Benefit Plans and Em-
ployee Related Liabilities. ▇▇▇▇▇▇-▇▇▇▇ agrees to continue
coverage of ▇▇▇▇▇▇▇'▇ Personnel under the ▇▇▇▇▇▇-▇▇▇▇ Plans in
accordance with their terms up to the Closing Date. As of the
Closing Date, each ▇▇▇▇▇▇▇'▇ Transferred Employee shall cease
to be covered by each of the ▇▇▇▇▇▇-▇▇▇▇ Plans. Except with
respect to the liabilities under the ▇▇▇▇▇▇-▇▇▇▇ Plans that are
expressly assumed by Times Mirror under this Article 10A,
▇▇▇▇▇▇-▇▇▇▇ (and not ▇▇▇▇▇▇▇'▇) shall remain obligated for all
benefits and benefit entitlements under the ▇▇▇▇▇▇-▇▇▇▇ Plans
which were earned or accrued by ▇▇▇▇▇▇▇'▇ Transferred Employees
and ▇▇▇▇▇▇▇'▇ Retirees prior to the Closing Date and for all
employment or employment related liabilities or claims relating
to facts or events that occurred prior to the Closing Date.
Section 10A.03. Times Mirror's Benefit Plans. On
the Closing Date, each ▇▇▇▇▇▇▇'▇ Transferred Employee shall be
covered by employee benefit plans maintained, sponsored or con-
tributed to by Times Mirror or one or more of its affiliates
that provide benefits that in the aggregate are comparable to
those provided to similarly situated employees of the publish-
ing industry (the "Replacement Plans"). For purposes of the
Replacement Plans, Times Mirror shall credit each ▇▇▇▇▇▇▇'▇
Transferred Employee with full credit for employment with
▇▇▇▇▇▇-▇▇▇▇ and ▇▇▇▇▇▇▇'▇ prior to the Closing Date for pur-
poses of eligibility and vesting. In no event shall Times Mir-
ror be obligated to grant credit for service to any ▇▇▇▇▇▇▇'▇
Transferred Employee for purposes of benefit accrual under any
Replacement Plan (including, but not limited to, any Replace-
ment Plan that is a defined benefit pension plan). Nothing
contained in this Article 10A shall obligate or commit Times
Mirror to continue any of the Replacement Plans after the Clos-
ing Date or to maintain in effect any such plan or any level or
type of benefits.
Section 10A.04. Severance Obligations. Times Mirror
shall assume (or cause ▇▇▇▇▇▇▇'▇ to assume) responsibility for
the obligations which become payable on or after the Closing
Date to the ▇▇▇▇▇▇▇'▇ Transferred Employees pursuant to the
individual severance agreements or severance plans which are
described in Schedule 10A.04, other than those obligations set
forth in Schedule 10A.04 that are designated as retention or
stay-pay, performance bonuses, and any obligation pursuant to
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any plan, agreement or arrangement which will remain obliga-
tions of ▇▇▇▇▇▇-▇▇▇▇. On or before the Closing Date, ▇▇▇▇▇▇-
▇▇▇▇ shall pay to each ▇▇▇▇▇▇▇'▇ Transferred Employee all re-
tention or stay-pay and performance bonuses payable under the
plans or agreements described in Schedule 10A.04, to the extent
determinable, or as soon as practicable after the Closing Date
with respect to amounts that are not determinable as of the
Closing Date.
Section 10A.05. Defined Contribution Plans. As of
the Closing Date, ▇▇▇▇▇▇-▇▇▇▇ shall cause the interests of all
▇▇▇▇▇▇▇'▇ Transferred Employees in the Employee Retirement Ac-
count Plan of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. and Its Subsid-
iaries ("ERAP") and the Savings Incentive Plan of The ▇▇▇▇▇▇-
▇▇▇▇ Companies, Inc. and Its Subsidiaries (the "SIP," and with
the ERAP, the "▇▇▇▇▇▇-▇▇▇▇ Defined Contribution Plans") to be-
come fully vested and nonforfeitable. As soon as practicable
following the Closing Date, ▇▇▇▇▇▇-▇▇▇▇ shall cause the ▇▇▇▇▇▇-
▇▇▇▇ Defined Contribution Plans to distribute all or a portion
of the account balances of each ▇▇▇▇▇▇▇'▇ Transferred Employee
who so elects in accordance with the terms of such plans. Sub-
ject to the provisions of the applicable Replacement Plan and
▇▇▇▇▇▇-▇▇▇▇'▇ provision of evidence reasonably satisfactory to
Times Mirror that the ▇▇▇▇▇▇-▇▇▇▇ Defined Contribution Plans
are qualified under Section 401(a) of the Code, Times Mirror
shall permit the Replacement Plan that is a defined contribu-
tion plan that is applicable to each ▇▇▇▇▇▇▇'▇ Transferred Em-
ployee to accept an "eligible rollover contribution" (within
the meaning of Section 401(a)(31) of the Code) in cash of all
or a portion of the account balance distributed to such Shep-
ard's Transferred Employee under the ▇▇▇▇▇▇-▇▇▇▇ Defined Con-
tribution Plans; provided, however, that nothing contained
herein shall obligate Times Mirror to accept rollovers in the
form of ▇▇▇▇▇▇-▇▇▇▇ stock. Any amounts rolled over to such
Replacement Plan that is a defined contribution plan as contem-
plated in this Section 10A.05 shall be held and administered in
all respects in accordance with the provisions of such Replace-
ment Plan as in effect from time to time.
Section 10A.06. Defined Benefit Plans. As of the
Closing Date, the ▇▇▇▇▇▇▇'▇ Transferred Employees shall cease
to accrue benefits under the Employee Retirement Plan of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. and Its Subsidiaries (the "▇▇▇▇▇▇-
▇▇▇▇ Retirement Plan") and ▇▇▇▇▇▇▇'▇ shall cease to be a par-
ticipating employer thereunder. ▇▇▇▇▇▇-▇▇▇▇ shall take, or
cause to be taken, all action as may be necessary (i) to effect
such cessation of participation and (ii) to cause the ▇▇▇▇▇▇▇'▇
Transferred Employees' benefits under the ▇▇▇▇▇▇-▇▇▇▇ Retire-
ment Plan to become fully vested as of the Closing Date. No
assets or liabilities with respect to the ▇▇▇▇▇▇▇'▇ Transferred
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Employees shall be transferred as a result of this Agreement
from the ▇▇▇▇▇▇-▇▇▇▇ Retirement Plan to any plan or arrangement
established or maintained by Times Mirror for the benefit of
the ▇▇▇▇▇▇▇'▇ Transferred Employees. As of the Closing Date,
eligible ▇▇▇▇▇▇▇'▇ Transferred Employees who were covered by
the ▇▇▇▇▇▇-▇▇▇▇ Retirement Plan immediately prior to the Clos-
ing Date shall be eligible to participate in a Replacement Plan
that is a defined benefit pension plan and shall receive credit
for purposes of eligibility and vesting (but not for benefit
accrual) under such plan for all service with ▇▇▇▇▇▇-▇▇▇▇ and
▇▇▇▇▇▇▇'▇ prior to the Closing Date. Times Mirror and ▇▇▇▇▇▇-
▇▇▇▇ shall provide each other with such records and information
as may be necessary or appropriate to carry out their obliga-
tions under this Section 10A.06 or for purposes of the adminis-
tration of the applicable Replacement Plan.
Section 10A.07. Welfare Benefits.
(a) ▇▇▇▇▇▇-▇▇▇▇ agrees to continue coverage of
▇▇▇▇▇▇▇'▇ Personnel under the ▇▇▇▇▇▇-▇▇▇▇ group welfare benefit
plans up to the Closing Date and to provide benefits to or re-
imburse covered ▇▇▇▇▇▇▇'▇ Personnel for eligible health care
and other eligible welfare benefit expenses and services in-
curred up to the Closing Date in accordance with the terms of
such plans.
(b) In connection with Times Mirror's obligation to
provide welfare benefits to the Shepard's Transferred Employees
under one or more Replacement Plans pursuant to Section 10A.03,
to the extent permitted by the terms of the applicable Replace-
ment Plan, Times Mirror shall cause each Replacement Plan to
waive any pre-existing condition exclusions thereunder with
respect to the Shepard's Transferred Employees to the extent
that such employees are enrolled in the applicable group health
plan of McGraw-Hill as of the Closing Date. Notwithstanding
any other provision herein to the contrary, McGraw-Hill will
retain all of its obligations to provide post-retirement medi-
cal coverage to (i) Shepard's Transferred Employees who, as of
the Closing Date, (a) have been credited with at least ten
years of service under the applicable Shepard's Post-Retirement
Plan, (b) have attained at least age 55 and (c) are otherwise
eligible for such benefits under the terms of the applicable
Shepard's Post-Retirement Plan in effect as of the Closing
Date, and (ii) Shepard's Retirees with respect to expenses and
services incurred by such individuals on or after the Closing
Date in accordance with the terms of the applicable Shepard's
Post-Retirement Plan as in effect from time to time with re-
spect to similarly situated retirees or employees of McGraw-
Hill; provided, however, that in order for any Shepard's Trans-
ferred Employee to be eligible to participate in any Shepard's
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Post-Retirement Plan, such employee must expressly elect to
participate therein as of his retirement date with Times Mirror
or the College Publishing Business.
(c) With respect to any welfare benefit plans main-
tained at Shepard's level, Times Mirror and McGraw-Hill agree
to negotiate mutually beneficial transitional arrangements with
respect to the benefits provided thereunder, which arrangements
may result in terminating such plans as of the Closing Date or
providing for the continuation of such plans following the
Closing Date by Shepard's for eligible Shepard's Transferred
Employees.
(d) For purposes of this Section 10A.07, an expense
or service is deemed to be incurred when the medical services
are performed, or, with respect to welfare benefits other than
medical or dental benefits, when the event giving rise to such
expense or service occurs.
Section 10A.08. Modifications. Neither McGraw-Hill
nor Shepard's will change the employment status of any
Shepard's Employee so as to promise employment for any speci-
fied term of employment.
Section 10A.09. Mutual Cooperation. Times Mirror
and McGraw-Hill agree, in a complete, diligent and timely man-
ner, to exchange such employee census, actuarial or other data
as shall be reasonably necessary to calculate benefits under
any plan and to take any and all actions as shall be reasonably
necessary or advisable to effect the provisions of this Article
10A.
Section 10A.10. Employee Benefits Indemnity. For a
period of three years following the Closing Date:
(a) Times Mirror shall indemnify and hold McGraw-
Hill harmless from any Losses McGraw-Hill may incur as a
result of (i) Times Mirror's failure to honor any obliga-
tion expressly assumed under this Article 10A by Times
Mirror or a breach by Times Mirror of any covenant of
Times Mirror set forth in this Article 10A and (ii) any
actions taken by Times Mirror with respect to any
Shepard's Transferred Employee on or after the Closing
Date; and
(b) McGraw-Hill shall indemnify and hold Times Mir-
ror and Shepard's harmless from any Losses Times Mirror or
Shepard's may incur as a result of (i) McGraw-Hill's fail-
ure to honor any obligations expressly retained or assumed
under this Article 10A by McGraw-Hill or a breach by
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McGraw-Hill of any covenant of McGraw-Hill set forth in
this Article 10A, (ii) any actions taken by McGraw-Hill
with respect to any Shepard's Transferred Employee prior
to the Closing Date or any Shepard's Retiree and (iii) any
failure or any representation or warranty of McGraw-Hill
contained in Section 6.16 to be true and correct as of the
Closing Date.
Section 10A.11. Third-Party Claims. Nothing in this
Agreement is intended, or shall be construed, to confer upon
any person, other than the parties hereto and their successors
and permitted assigns, any rights or remedies by reason of this
Article 10A.
ARTICLE ELEVEN
INDEMNIFICATION
Section 11.01. Tax Indemnification.
(a) Times Mirror shall indemnify McGraw-Hill and its
affiliates (including TMHE and the TMHE Subsidiaries) and each
of their respective stockholders, controlling persons, offic-
ers, directors, employees and agents and hold them harmless
from any loss, liability, claim, damage, expense (including
reasonable attorneys' fees) (collectively, "Damages"), arising,
directly or indirectly, from or in connection with any College
Publishing Business Tax Liabilities (as defined in Section
12.05). Any refunds of College Publishing Business Tax Li-
abilities, other than refunds accrued on the College Publishing
Business Closing Date Balance Sheet, shall belong to Times
Mirror.
(b) McGraw-Hill shall indemnify Times Mirror and its
affiliates (including Shepard's) and each of their respective
stockholders, controlling persons, officers, directors, employ-
ees and agents and hold them harmless from any Damages arising,
directly or indirectly, from or in connection with any Shep-
ard's Tax Liabilities (as defined in Section 12A.05). Any
refunds of Shepard's Tax Liabilities, other than refunds ac-
crued on the Shepard's Closing Date Balance Sheet, shall belong
to McGraw-Hill.
Section 11.02. Environmental Indemnification;
Litigation Indemnification.
(a) Times Mirror shall indemnify McGraw-Hill, its
affiliates (including TMHE) and each of their respective offic-
ers, directors, employees, and agents and hold them harmless
from any Losses suffered or incurred by any such indemnified
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party to the extent arising from any breach of any representa-
tion or warranty of Times Mirror and Mosby set forth in Sec-
tions 5.19(b), (c) or (d); provided, however, that Times Mirror
shall not have any liability hereunder unless the aggregate of
all Losses relating thereto for which Times Mirror would, but
for this provision, be liable exceeds on a cumulative basis an
amount equal to $3,000,000 (and then only to the extent of any
such excess); and provided further, however, that Times Mir-
ror's aggregate liability under this Section 11.02(a) shall in
no event exceed $35,000,000.
(b) McGraw-Hill shall indemnify Times Mirror, its
affiliates (including Shepard's) and each of their respective
officers, directors, employees, and agents and hold them harm-
less from any Losses suffered or incurred by any such indemni-
fied party to the extent arising from any breach of any repre-
sentation or warranty of McGraw-Hill set forth in Sections
6.18(b), (c) or (d); provided, however, that McGraw-Hill shall
not have any liability hereunder unless the aggregate of all
Losses relating thereto for which McGraw-Hill would, but for
this provision, be liable exceeds on a cumulative basis an
amount equal to $3,000,000 (and then only to the extent of any
such excess); and provided further, however, that McGraw-Hill's
aggregate liability under this Section 11.02(b) shall in no
event exceed $35,000,000.
(c) Times Mirror shall indemnify McGraw-Hill, its
affiliates (including TMHE) and each of their respective offic-
ers, directors, employees, and agents and hold them harmless
from any Losses suffered or incurred by any such indemnified
party to the extent arising from violations of any Environmen-
tal Law at properties formerly owned or leased by TMHE, the
TMHE Subsidiaries, Mosby or TMIP but not owned or leased by
them as of the Closing Date.
(d) McGraw-Hill shall indemnify Times Mirror, its
affiliates (including Shepard's) and each of their respective
officers, directors, employees, and agents and hold them harm-
less from any Losses suffered or incurred by any such indemni-
fied party to the extent arising from violations of any Envi-
ronmental Law at properties formerly owned or leased by
Shepard's but not owned or leased by it as of the Closing Date.
(e) McGraw-Hill shall indemnify Times-Mirror, its
affiliates (including Shepard's) and each of their respective
officers, directors, employees, and agents and hold them harm-
less from any Losses suffered or incurred by any such indemni-
fied party to the extent arising from claims asserted by au-
thors of works transferred pursuant to the sale of Shepard's
Topical Publishing business to Thomson Legal Publishing.
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Section 11.03. Indemnification by Times Mirror and
Mosby. Times Mirror and Mosby shall jointly and severally in-
demnify McGraw-Hill, its affiliates (including TMHE) and each
of their respective officers, directors, employees and agents
and hold them harmless from any Losses suffered or incurred by
any such indemnified party (other than any relating to Taxes,
for which indemnification provisions are set forth in Section
11.01, or environmental matters, for which indemnification pro-
visions are set forth in Section 11.02 or employee benefit mat-
ters, for which indemnification provisions are set forth in
Section 10.10) to the extent arising from (i) the breach by
Times Mirror or Mosby of any covenant contained in Article 7
requiring performance on or prior to the Closing Date, (ii) any
failure of any representation or warranty of Times Mirror or
Mosby to be true and correct as of the date of this Agreement
or (iii) any failure of any representation or warranty of Times
Mirror or Mosby to be true and correct as of the Closing Date;
provided, however, that neither Times Mirror nor Mosby shall
have any liability hereunder unless the aggregate of all Losses
relating thereto for which Times Mirror or Mosby would, but for
this provision, be liable exceeds on a cumulative basis an
amount equal to $10 million (and then only to the extent of any
such excess); and provided further, however, that Times Mir-
ror's and Mosby's aggregate liability under this Section 11.03
shall in no event exceed $100 million.
Section 11.04. Indemnification by McGraw-Hill.
McGraw-Hill shall indemnify Times Mirror, its affiliates (in-
cluding Shepard's) and each of their respective officers, di-
rectors, employees and agents against and hold them harmless
from any Losses suffered or incurred by any such indemnified
party (other than any relating to Taxes, for which indemnifica-
tion provisions are set forth in Section 11.01, or environmen-
tal matters or certain litigation matters, for which indemnifi-
cation provisions are set forth in Section 11.02 or employee
benefit matters, for which indemnification provisions are set
forth in Section 10A.10) to the extent arising from (i) the
breach by McGraw-Hill of any covenant contained in Article 8
requiring performance on or prior to the Closing Date, (ii) any
failure of any representation or warranty of McGraw-Hill to be
true and correct as of the date of this Agreement or (iii) any
failure of any representation or warranty of McGraw-Hill to be
true and correct as of the Closing Date; provided, however,
that McGraw-Hill shall not have any liability hereunder unless
the aggregate of all Losses for which McGraw-Hill would, but
for this provision, be liable exceeds on a cumulative basis,
excluding liability with respect to Section 6.21, an amount
equal to $10 million or, in the case of clauses (ii) and (iii)
above with respect to Section 6.21, $5 million (and in each
case then only to the extent of any such excess); and provided,
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further, however, that McGraw-Hill's aggregate liability under
this Section 11.04, excluding liability with respect to Section
6.21, shall in no event exceed $100 million; and provided fur-
ther, however, that McGraw-Hill's liability under this Section
11.04 with respect to Section 6.21 shall in no event exceed
$100 million.
Section 11.05. Exclusive Remedy. Except for any
breach of a covenant requiring performance after the Closing
Date or any matter covered by Articles 10, 10-A, 12 or 12-A,
(i) the remedy contained in Sections 11.01, 11.02 and 11.03
constitute the sole and exclusive remedy of McGraw-Hill (and
its affiliates (including TMHE) and each of their respective
officers, directors, employees and agents) against Times Mirror
for Losses suffered or incurred in connection with this Agree-
ment and the transactions contemplated hereby and (ii) the rem-
edy contained in Sections 11.01, 11.02 and 11.04 constitute the
sole and exclusive remedy of Times Mirror (and its affiliates
(including Shepard's) and each of their respective officers,
directors, employees and agents) against McGraw-Hill for Losses
suffered or incurred in connection with this Agreement and the
transactions contemplated hereby.
Section 11.06. Losses Net of Insurance. The amount
of any Losses for which indemnification is provided under this
Article 11 shall be net of any amounts recovered or recoverable
by the indemnified party under insurance policies with respect
to such Losses.
Section 11.07. Termination of Indemnification. The
obligations to indemnify and hold harmless a party hereto, (a)
pursuant to Section 11.01, shall terminate 30 days after the
time the applicable statutes of limitations with respect to the
tax liabilities in question expire (giving effect to any exten-
sion thereof by waiver or otherwise), (b) pursuant to para-
graphs (a) and (b) of Section 11.02, shall terminate when the
applicable representation or warranty terminates pursuant to
Section 13.04, (c) pursuant to paragraphs (c), (d) and (e) of
Section 11.02, shall survive indefinitely, and (d) pursuant to
Sections 11.03 and 11.04, shall terminate on the later of March
31, 1997 and the date that is six months after the Closing
Date; provided, however, that as to clauses (a), (b) and (d)
above, such obligations to indemnify and hold harmless shall
not terminate with respect to any item as to which the person
to be indemnified or the related party hereto shall have, be-
fore the expiration of the applicable period, previously made a
claim by delivering a notice (setting forth the detailed basis
of such claim) to the indemnifying party.
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Section 11.08. Procedures Relating to Indemnifica-
tion (Except Under Section 11.01). In order for a party (the
"indemnified party") to be entitled to any indemnification pro-
vided for under this Agreement (other than under Section 11.01)
in respect of, arising out of or involving a claim or demand
made by any person, firm, governmental authority or corporation
against the indemnified party (a "Third-Party Claim"), such
indemnified party must notify the indemnifying party in writ-
ing, and in reasonable detail, of the Third-Party Claim within
10 Business Days after receipt by such indemnified party of
written notice of the Third-Party Claim; provided, however,
that failure to give such notification shall not affect the
indemnification provided hereunder except to the extent the
indemnifying party shall have been actually prejudiced as a
result of such failure (except that the indemnifying party
shall not be liable for any expenses incurred during the period
in which the indemnified party failed to give such notice).
Thereafter, the indemnified party shall deliver to the indemni-
fying party, within 5 Business Days after the indemnified par-
ty's receipt thereof, copies of all notices and documents
(including court papers) received by the indemnified party
relating to the Third-Party Claim.
If a Third-Party Claim is made against an indemnified
party, the indemnifying party will be entitled to participate
in the defense thereof and, if it so chooses, to assume the
defense thereof with counsel selected by the indemnifying party
and reasonably satisfactory to the indemnified party. Should
the indemnifying party so elect to assume the defense of a
Third-Party Claim, the indemnifying party will not be liable to
the indemnified party for legal fees and expenses subsequently
incurred by the indemnified party in connection with the de-
fense thereof. If the indemnifying party assumes such defense,
the indemnified party shall have the right to participate in
the defense thereof and to employ counsel, at its own expense,
separate from the counsel employed by the indemnifying party,
it being understood that the indemnifying party shall control
such defense. The indemnifying party shall be liable for the
fees and expenses of counsel employed by the indemnified party
for any period during which the indemnifying party has not as-
sumed the defense thereof (other than during any period in
which the indemnified party shall have failed to give notice of
the Third-Party Claim as provided above). If the indemnifying
party chooses to defend or prosecute any Third-Party Claim, all
the parties hereto shall cooperate in the defense or prosecu-
tion thereof. Such cooperation shall include the retention and
(upon the indemnifying party's request) the provision to the
indemnifying party of records and information which are reason-
ably relevant to such Third-Party Claim, and making employees
available on a mutually convenient basis to provide additional
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information and explanation of any material provided hereunder.
Whether or not the indemnifying party shall have assumed the
defense of a Third-Party Claim, the indemnified party shall not
admit any liability with respect to, or settle, compromise or
discharge, such Third-Party Claim without the indemnifying par-
ty's prior written consent (which consent shall not be unrea-
sonably withheld). All Tax Claims shall be governed by Section
12.06 and 12A.06.
For all purposes of this Article 11, an "affiliate"
of any entity shall include a joint venture to which all or
substantially all of the assets and liabilities of Shepard's
are assigned.
ARTICLE TWELVE
TAX MATTERS RELATING TO THE
TRANSFER OF TMHE SHARES, ETC.
Section 12.01. Section 338(h)(10) Election. (a)
Times Mirror and McGraw-Hill shall jointly make timely and ir-
revocable elections under Section 338(h)(10) of the Code and,
if permissible, similar elections under any applicable state or
local income tax laws with respect to the transfer of the TMHE
Shares and the shares of the TMHE Subsidiaries. Times Mirror,
McGraw-Hill, TMHE and the TMHE Subsidiaries shall report the
transfer of the TMHE Shares and the shares of the TMHE Subsid-
iaries consistent with such elections under Section 338(h)(10)
of the Code or any similar state or local tax provision (the
"TMHE Elections") and shall take no position contrary thereto
unless and to the extent required to do so pursuant to a deter-
mination (as defined in Section 1313(a) of the Code or any sim-
ilar state or local tax provision). McGraw-Hill may make elec-
tions under Section 338 of the Code (and if permissible similar
elections under any applicable state or local income tax law)
with respect to the transfer of any non-U.S. incorporated TMHE
Subsidiary. Any such election shall be considered a TMHE Elec-
tion for purposes of this Agreement.
(b) To the extent possible, Times Mirror, McGraw-
Hill and TMHE shall execute at the Closing any and all forms
necessary to effectuate the TMHE Elections (including, without
limitation, Internal Revenue Service Form 8023-A and any simi-
lar forms under applicable state and local income tax laws (the
"TMHE Section 338 Forms")). In the event, however, any TMHE
Section 338 Forms are not executed at the Closing, Times Mir-
ror, McGraw-Hill and TMHE shall prepare and complete each such
TMHE Section 338 Form no later than 15 days prior to the date
such TMHE Section 338 Form is required to be filed. Times Mir-
ror, McGraw-Hill and TMHE shall each cause the TMHE Section 338
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Forms to be duly executed by an authorized person for Times
Mirror, McGraw-Hill and TMHE in each case, and shall duly and
timely file the TMHE Section 338 Forms in accordance with ap-
plicable tax laws and the terms of this Agreement.
(c) (i) Times Mirror and McGraw-Hill agree that
they shall calculate the Modified Aggregate Deemed Sale Price
(as defined under applicable Treasury Regulations, "MADSP") of
the assets of TMHE and the TMHE Subsidiaries and the allocation
of such MADSP and amounts allocable to the Mosby Assets and the
International Assets (hereinafter collectively referred to as
the "Purchased Assets") among such assets on the one hand, and
the computation of the MADSP of the assets of Shepard's on the
other hand, in the manner set forth in clauses (ii) and (iii)
below.
(ii) Times Mirror and McGraw-Hill shall agree upon a
Big Six Accounting Firm to act as the "Appraiser". The fees
and expenses of the Appraiser shall be shared equally by Times
Mirror and McGraw-Hill. Within 150 days of Closing, the Ap-
praiser shall deliver to each of McGraw-Hill and Times Mirror a
determination of the fair market value of each of TMHE and its
Subsidiaries and the Purchased Assets (the "TM Properties") on
the one hand, and Shepard's on the other hand, a determination
of the MADSP of TMHE and the TMHE Subsidiaries and Shepard's,
and an allocation of the MADSP and the fair market value of the
Purchased Assets among the assets of the TM Properties and
Shepard's, respectively. Each such determination and alloca-
tion shall be binding upon the parties.
(iii) Times Mirror and McGraw-Hill agree to act in
accordance with the allocations determined by the Appraiser in
any relevant Tax Returns or similar filings and not to take a
position before any taxing authority or otherwise (including in
any Tax Return) inconsistent with such allocation unless and to
the extent required to do so pursuant to a determination (as
defined in Section 1313(a) of the Code or any similar state of
local law).
Section 12.021. Liability for Taxes; Preparation of
Returns.
(a) Times Mirror shall be liable for all Taxes of
TMHE and the TMHE Subsidiaries for any taxable period that ends
on or before the Closing Date, including the portion of any
Straddle Period ending on the Closing Date. Times Mirror shall
be liable for all Taxes of Mosby and the TMIP Entities. Times
Mirror shall be liable for all transfer, sales or gains Taxes
arising as a result of the transactions contemplated by this
Agreement and relating to the transfer of the TMHE Shares and
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the Purchased Assets, other than transfer or sales taxes based
upon the value of property transferred and which are imposed by
law on McGraw-Hill, which shall be paid by McGraw-Hill.
(b) McGraw-Hill and Times Mirror agree that if TMHE
or any of the TMHE Subsidiaries is permitted but not required
under applicable state or local Tax laws to treat the Closing
Date as the last day of a taxable period, McGraw-Hill and Times
Mirror shall treat such day as the last day of a taxable
period.
(c) Times Mirror shall prepare or cause to be pre-
pared and timely filed all federal, state, provincial, local
and foreign Tax Returns in respect of TMHE and the TMHE Subsid-
iaries, Mosby, the TMIP Entities, their assets or activities
that (i) are required to be filed on or before the Closing Date
or (ii) are required to be filed after the Closing Date and (A)
are Consolidated Tax Returns or (B) are with respect to Income
Taxes and are required to be filed on a separate Tax Return
basis for any tax period ending on or before the Closing Date
or (C) are required to be filed by Mosby or the TMIP Entities.
Times Mirror shall pay all Taxes shown as due on such Tax Re-
turns. McGraw-Hill shall prepare or cause to be prepared and
shall file or cause to be filed all other Tax Returns required
of TMHE and the TMHE Subsidiaries, or in respect of their as-
sets or activities. Times Mirror shall reimburse McGraw-Hill
for its share of the Taxes due with respect to such Tax Re-
turns, in accordance with Section 12.02(a) and (d) hereof. Any
such Tax Returns that include periods ending on or before the
Closing Date or that include the activities of TMHE or any of
the TMHE Subsidiaries prior to the Closing Date shall, insofar
as they relate to TMHE or any of the TMHE Subsidiaries, be on a
basis consistent with past practices for such Tax Returns filed
in respect of TMHE or any of the TMHE Subsidiaries, unless
Times Mirror or McGraw-Hill, as the case may be, concludes that
there is no reasonable basis for such position. None of
McGraw-Hill, TMHE or any of the TMHE Subsidiaries shall file
any amended Tax Returns for any periods for or in respect of
TMHE or any of the TMHE Subsidiaries with respect to which
McGraw-Hill is not obligated to prepare or cause to be prepared
the original of such Tax Returns pursuant to this Section
12.02, without the prior written consent of Times Mirror.
(d) Any Taxes for a Straddle Period of TMHE and/or
the TMHE Subsidiaries shall be apportioned between Times Mirror
and McGraw-Hill as set forth below in Section 12.05(a). To the
extent estimated Taxes have been paid prior to the Closing Date
or, in the case of Taxes other than Income Taxes, are accrued
on the Closing Date Balance Sheet with respect to a Pre-Closing
Tax Period or Straddle Period, Times Mirror's liability with
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respect thereto shall be reduced by that amount. Upon timely
notice from McGraw-Hill, Times Mirror shall pay to McGraw-Hill,
at least 10 days prior to the date any payment for Taxes as
described in this Section 12.02 is due, Times Mirror's share of
such Taxes as described in this Section 12.02.
Section 12.03. Tax Sharing Agreements. On the Clos-
ing Date, all Tax sharing agreements and arrangements between
(i) TMHE or any of the TMHE Subsidiaries, on the one side, and
(ii) Times Mirror or any of its subsidiaries or affiliates
(other than TMHE and the TMHE Subsidiaries), on the other side,
shall be terminated and have no further effect for any taxable
year or period (whether a past, present or future year or pe-
riod), and no additional payments shall be made thereunder on
or after the Closing Date in respect of a redetermination of
College Publishing Business Tax Liabilities or otherwise.
Section 12.04. Assistance and Cooperation. After
the Closing Date, each of Times Mirror and McGraw-Hill shall:
(i) assist in all reasonable respects (and cause
their respective affiliates to assist) the other party in
preparing any Tax Returns or reports which such other par-
ty is responsible for preparing and filing in accordance
with this Article 12;
(ii) cooperate in all reasonable respects in pre-
paring for any audits of, or disputes with taxing authori-
ties, regarding any Tax Returns of TMHE, Mosby, the TMIP
Entities or any TMHE Subsidiary;
(iii) make available to the other and to any taxing
authority as reasonably requested all information, rec-
ords, and documents relating to Taxes of TMHE, Mosby, the
TMIP Entities and each TMHE Subsidiary;
(iv) provide timely notice to the other in writing of
any pending or threatened tax audits or assessment of
TMHE, Mosby, the TMIP Entities and each TMHE Subsidiary
for taxable periods for which the other may have a li-
ability under this Article 12 or Article 11; and
(v) furnish the other with copies of all correspon-
dence received from any taxing authority in connection
with any tax audit or information request with respect to
any such taxable period.
Section 12.05. Definitions. For purposes of this
Agreement:
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(a) "College Publishing Business Tax Liabilities"
means (x) all liability for Taxes of TMHE, the TMHE Sub-
sidiaries, Mosby and the TMIP Entities for any taxable
period that ends on or before the Closing Date and the
portion of any Straddle Period ending on the Closing Date
including any Taxes incurred as a result of making the
TMHE Elections and any transfer, sales or gains Taxes
(other than transfer Taxes or sales Taxes based upon the
value of transferred property and imposed by law on
McGraw-Hill) arising as a result of the transactions con-
templated by this Agreement; (y) all liability for Taxes
of Mosby and the TMIP Entities, whether arising before or
after the Closing Date, including any liability arising
out of the purchase of the Mosby Assets and assumption of
the Mosby Liabilities and any liability arising out of the
purchase of the International Assets and the assumption of
the International Liabilities (other than transfer Taxes
or sales Taxes based upon the value of transferred prop-
erty and imposed by law on McGraw-Hill); and (z) all li-
ability (as a result of Treasury Regulation Section
1.1502-6(a) or otherwise) for Taxes of any stockholders of
TMHE or any other Person (including Mosby and the TMIP
Entities and other than TMHE or any of the TMHE Subsidia-
ries) which is or has ever been affiliated with TMHE or
any of the TMHE Subsidiaries, or with whom TMHE or any of
its Subsidiaries otherwise joins or has ever joined (or is
or has ever been required to join) in filing any Consoli-
dated Return, prior to the Closing Date; provided, how-
ever, that College Publishing Business Tax Liabilities
described above shall be reduced to the extent that the
aggregate reserves for Taxes (excluding deferred income
taxes) reflected on the Closing Date Balance Sheet exceeds
the aggregate liability for Taxes for periods through the
Closing Date not previously paid.
In the case of any Straddle Period:
(A) the periodic Taxes of TMHE and the TMHE Sub-
sidiaries that are not based on income or receipts (e.g.,
property Taxes) for the portion of any Straddle Period
ending on the Closing Date (the "Pre-Closing Tax Period")
shall be computed based upon the ratio of the number of
days in the Pre-Closing Tax Period and the number of days
in the entire Tax period; and
(B) Taxes of TMHE and the TMHE Subsidiaries for the
Pre-Closing Tax Period (other than Taxes described in
clause (A)) shall be computed as if such taxable period
ended as of the close of business on the Closing Date,
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and, in the case of any Taxes of TMHE and the TMHE Sub-
sidiaries attributable to the ownership by TMHE or any of
the TMHE Subsidiaries of any equity interest in any part-
nership or other "flowthrough" entity (other than the TMHE
Subsidiaries), as if a taxable period of such partnership
or the "flowthrough" entity ended as of the close of busi-
ness on the Closing Date.
(b) "Consolidated Tax Returns" means a Tax Return
with respect to combined, consolidated or unitary Taxes.
(c) "Income Taxes" means any Tax based upon or mea-
sured with respect to net income, income, gain, profits or
similar items.
(d) "Straddle Period" means any taxable period that
includes (but does not end on) the Closing Date.
(e) "Tax Return" or "Tax Returns" means any return,
report, declaration, information return, statement or
other document filed or required to be filed with any gov-
ernmental authority in connection with the determination,
assessment or collection of any Tax or the administration
of any laws, regulations or administrative requirements
relating to any Tax.
Section 12.06. Controversies. Times Mirror shall
have the right, at its own expense, to control any audit or
examination by any taxing authority ("Tax Audit"), initiate any
claim for refund, contest, resolve and defend against any as-
sessment, notice of deficiency, or other adjustment or proposed
adjustment relating to any and all Taxes for any Pre-Closing
Tax Period or any period preceding a Pre-Closing Tax Period
with respect to TMHE and the TMHE Subsidiaries and any and all
Taxes of Mosby and the TMIP Entities. McGraw-Hill shall have
the right, at its own expense, to control any other Tax Audit,
initiate any other claim for refund, and contest, resolve and
defend against any other assessment, notice of deficiency, or
other adjustment or proposed adjustment relating to Taxes with
respect to TMHE and/or the TMHE Subsidiaries; provided that,
with respect to any state and local or foreign Taxes for any
Straddle Period, McGraw-Hill shall consult with Times Mirror
with respect to the resolution of any issue that would affect
Times Mirror, and not settle any such issue, or file any
amended return relating to any such issue, without the consent
of Times Mirror, which consent shall not unreasonably be
withheld. Where consent to a settlement is withheld by the
other party pursuant to this Section 12.06, such other party
may continue or initiate any further proceedings at its own ex-
pense, provided that the liability of the first party, after
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giving effect to this Agreement, shall not exceed the liability
that would have resulted from the settlement or amended return.
Times Mirror shall furnish McGraw-Hill, TMHE and the TMHE Sub-
sidiaries with its cooperation in a manner comparable to that
described in Section 12.04 hereof to effect the purposes of
this Section 12.06.
ARTICLE TWELVE-A
TAX MATTERS RELATING TO THE
TRANSFER OF THE SHEPARD'S SHARES
Section 12A.01. Section 338(h)(10) Election.
(a) McGraw-Hill and Times Mirror shall jointly make
timely and irrevocable elections under Section 338(h)(10) of
the Code and, if permissible, similar elections under any ap-
plicable state or local income tax laws with respect to the
transfer of the Shepard's Shares. McGraw-Hill, Times Mirror
and Shepard's shall report the transfer of the Shepard's Shares
consistent with such elections under Section 338(h)(10) of the
Code or any similar state or local tax provision (the "Shep-
ard's Elections") and shall take no position contrary thereto
unless and to the extent required to do so pursuant to a deter-
mination (as defined in Section 1313(a) of the Code or any
similar state or local tax provision).
(b) To the extent possible, McGraw-Hill, Times Mir-
ror and Shepard's shall execute at the Closing any and all
forms necessary to effectuate the Shepard's Elections (includ-
ing, without limitation, Internal Revenue Service Form 8023-A
and any similar forms under applicable state and local income
tax laws (the "Shepard's Section 338 Forms")). In the event,
however, any Shepard's Section 338 Forms are not executed at
the Closing, McGraw-Hill, Times Mirror and Shepard's shall pre-
pare and complete each such Shepard's Section 338 Form no later
than 15 days prior to the date such Shepard's Section 338 Form
is required to be filed. McGraw-Hill, Times Mirror and
Shepard's shall each cause the Shepard's Section 338 Forms to
be duly executed by an authorized person for McGraw-Hill, Times
Mirror and Shepard's in each case, and shall duly and timely
file the Shepard's Section 338 Forms in accordance with ap-
plicable tax laws and the terms of this Agreement.
(c) The purchase price for the Shepard's Shares
shall be allocated in accordance with Section 12.01(c) of this
Agreement.
Section 12A.02. Liability for Taxes; Preparation of
Returns. (a) McGraw-Hill shall be liable for all Taxes of
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Shepard's for any taxable period that ends on or before the
Closing Date, including the portion of any Straddle Period end-
ing on the Closing Date. McGraw-Hill shall be liable for all
transfer, sales or gains Taxes arising as a result of the
transactions contemplated by this Agreement, other than trans-
fer or sales taxes based upon the value of property transferred
and which are imposed by law on Times Mirror, which shall be
paid by Times Mirror.
(b) Times Mirror and McGraw-Hill agree that if
Shepard's is permitted but not required under applicable state
or local Tax laws to treat the Closing Date as the last day of
a taxable period, Times Mirror and McGraw-Hill shall treat such
day as the last day of a taxable period.
(c) McGraw-Hill shall prepare or cause to be pre-
pared and timely filed all federal, state, provincial, local
and foreign Tax Returns in respect of Shepard's, its assets or
activities that (i) are required to be filed on or before the
Closing Date or (ii) are required to be filed after the Closing
Date and (A) are Consolidated Tax Returns or (B) are with re-
spect to Income Taxes and are required to be filed on a sepa-
rate Tax Return basis for any tax period ending on or before
the Closing Date. McGraw-Hill shall pay all Taxes shown as due
on such Tax Returns. Times Mirror shall prepare or cause to be
prepared and shall file or cause to be filed all other Tax Re-
turns required of Shepard's or in respect of its assets or ac-
tivities. McGraw-Hill shall reimburse Times Mirror for its
share of the Taxes due with respect to such Tax Returns, in
accordance with Section 12A.02(a) and (d) hereof. Any such Tax
Returns that include periods ending on or before the Closing
Date or that include the activities of Shepard's prior to the
Closing Date shall, insofar as they relate to Shepard's, be on
a basis consistent with past practices for such Tax Returns
filed in respect of Shepard's, unless McGraw-Hill or Times Mir-
ror, as the case may be, concludes that there is no reasonable
basis for such position. Neither Times Mirror nor Shepard's
shall file any amended Tax Returns for any periods for or in
respect of Shepard's with respect to which Times Mirror is not
obligated to prepare or cause to be prepared the original of
such Tax Returns pursuant to this Section 12A.02, without the
prior written consent of McGraw-Hill.
(d) Any Taxes for a Straddle Period of Shepard's
shall be apportioned between McGraw-Hill and Times Mirror as
set forth below in Section 12A.05. To the extent estimated
Taxes have been paid prior to the Closing Date or, in the case
of Taxes other than Income Taxes, are accrued on the Closing
Date Balance Sheet with respect to a Pre-Closing Tax Period or
Straddle Period, McGraw-Hill's liability with respect thereto
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shall be reduced by that amount. Upon timely notice from Times
Mirror, McGraw-Hill shall pay to Times Mirror at least 10 days
prior to the date any payment for Taxes as described in this
Section 12A.02 is due, McGraw-Hill's share of such Taxes as
described in this Section 12A.02.
Section 12A.03. Tax Sharing Agreements. On the
Closing Date, all Tax sharing agreements and arrangements be-
tween (i) Shepard's, on the one side, and (ii) McGraw-Hill or
any of its subsidiaries or affiliates (other than Shepard's),
on the other side, shall be terminated and have no further ef-
fect for any taxable year or period (whether a past, present or
future year or period), and no additional payments shall be
made thereunder on or after the Closing Date in respect of a
redetermination of Shepard's Tax Liabilities or otherwise.
Section 12A.04. Assistance and Cooperation. After
the Closing Date, each of McGraw-Hill and Times Mirror shall:
(i) assist in all reasonable respects (and cause
their respective affiliates to assist) the other party in
preparing any Tax Returns or reports which such other par-
ty is responsible for preparing and filing in accordance
with this Article 12A;
(ii) cooperate in all reasonable respects in pre-
paring for any audits of, or disputes with taxing authori-
ties, regarding any Tax Returns of Shepard's;
(iii) make available to the other and to any taxing
authority as reasonably requested all information,
records, and documents relating to Taxes of Shepard's;
(iv) provide timely notice to the other in writing of
any pending or threatened tax audits or assessment of
Shepard's for taxable periods for which the other may have
a liability under this Article 12A or Article 11; and
(v) furnish the other with copies of all correspon-
dence received from any taxing authority in connection
with any tax audit or information request with respect to
any such taxable period.
Section 12A.05. Definitions. For purposes of this
Agreement, "Shepard's Tax Liabilities" means (x) all liability
for Taxes of Shepard's for any taxable period that ends on or
before the Closing Date and the portion of any Straddle Period
ending on the Closing Date including any Taxes incurred as a
result of making the Shepard's Elections and any transfer,
sales or gains Taxes (other than transfer Taxes or sales Taxes
-97-
based upon the value of transferred property and imposed by law
on Times Mirror) arising as a result of the transactions con-
templated by this Agreement; and (y) all liability (as a result
of Treasury Regulation Section 1.1502-6(a) or otherwise) for
Taxes of any stockholders of Shepard's or any other Person
other than Shepard's which is or has ever been affiliated with
Shepard's, or with whom Shepard's otherwise joins or has ever
joined (or is or has ever been required to join) in filing any
Consolidated Return, prior to the Closing Date; provided, how-
ever, that Shepard's Tax Liabilities described above shall be
reduced to the extent that the aggregate reserves for Taxes
(excluding deferred income taxes) reflected on the Closing Date
Balance Sheet exceeds the aggregate liability for Taxes for
periods through the Closing Date not previously paid.
In the case of any Straddle Period:
(A) the periodic Taxes of Shepard's that are not
based on income or receipts (e.g., property Taxes) for the
Pre-Closing Tax Period shall be computed based upon the
ratio of the number of days in the Pre-Closing Tax Period
and the number of days in the entire Tax period; and
(B) Taxes of Shepard's for the Pre-Closing Tax Pe-
riod (other than Taxes described in clause (A)) shall be
computed as if such taxable period ended as of the close
of business on the Closing Date, and, in the case of any
Taxes of Shepard's attributable to the ownership by
Shepard's of any equity interest in any partnership or
other "flowthrough" entity, as if a taxable period of such
partnership or the "flowthrough" entity ended as of the
close of business on the Closing Date.
Section 12A.06. Controversies. McGraw-Hill shall
have the right, at its own expense, to control any Tax Audit,
initiate any claim for refund, contest, resolve and defend
against any assessment, notice of deficiency, or other adjust-
ment or proposed adjustment relating to any and all Taxes for
any Pre-Closing Tax Period or any period preceding a Pre-
Closing Tax Period with respect to Shepard's. Times Mirror
shall have the right, at its own expense, to control any other
Tax Audit, initiate any other claim for refund, and contest,
resolve and defend against any other assessment, notice of de-
ficiency, or other adjustment or proposed adjustment relating
to Taxes with respect to Shepard's; provided that, with respect
to any state and local or foreign Taxes for any Straddle
Period, Times Mirror shall consult with McGraw-Hill with re-
spect to the resolution of any issue that would affect McGraw-
Hill, and not settle any such issue, or file any amended return
relating to any such issue, without the consent of McGraw-Hill,
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which consent shall not unreasonably be withheld. Where con-
sent to a settlement is withheld by the other party pursuant to
this Section 12A.06, such other party may continue or initiate
any further proceedings at its own expense, provided that the
liability of the first party, after giving effect to this
Agreement, shall not exceed the liability that would have re-
sulted from the settlement or amended return. McGraw-Hill
shall furnish Times Mirror and Shepard's with its cooperation
in a manner comparable to that described in Section 12A.04
hereof to effect the purposes of this Section 12A.06.
ARTICLE THIRTEEN
TERMINATION
Section 13.01. Events of Termination. Anything con-
tained herein to the contrary notwithstanding, this Agreement
may be terminated and the transactions contemplated hereby
abandoned at any time prior to the Closing Date:
(a) by mutual written consent of Times Mirror and
McGraw-Hill;
(b) by McGraw-Hill if any of the conditions set
forth in Section 4.01 and Section 4.02 is not satisfied
or, in the reasonable, good faith determination of McGraw-
Hill, not capable of being satisfied prior to January 3,
1997, and shall not have been waived by McGraw-Hill;
(c) by Times Mirror or Mosby if any of the condi-
tions set forth in Section 4.01 and Section 4.03 is not
satisfied or, in the reasonable, good faith determination
of Times Mirror or Mosby, not capable of being satisfied
prior to January 3, 1997, and shall not have been waived
by Times Mirror or Mosby; or
(d) by any party hereto, if the Closing does not
occur on or prior to January 3, 1997.
Section 13.02. Return of Confidential Information.
In the event of termination by Times Mirror or McGraw-Hill pur-
suant to Section 13.01, written notice thereof shall forthwith
be given to the other party and the transactions contemplated
by this Agreement shall be terminated, without further action
by either party. If the transactions contemplated by this
Agreement are terminated as provided herein:
(a) McGraw-Hill shall return to Times Mirror all
documents and copies and other material received from
Times Mirror, TMHE or Mosby, and Times Mirror shall return
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to McGraw-Hill all documents and copies and material re-
ceived from McGraw-Hill or Shepard's relating to the
transactions contemplated hereby, whether obtained before
or after the execution hereof; and
(b) All confidential information received by either
of McGraw-Hill and Times Mirror with respect to the Col-
lege Publishing Business or the businesses of Shepard's,
respectively, shall be treated in accordance with the ap-
plicable Confidentiality Agreement, which shall remain in
full force and effect notwithstanding the termination of
this Agreement.
Section 13.03. Effects of Termination. If this
Agreement is terminated and the transactions contemplated here-
by are abandoned as described in Section 13.01, this Agreement
shall become void and of no further force and effect, except
for the provisions of (a) Section 7.08 and Section 8.08 relat-
ing to the obligation of each of McGraw-Hill and Times Mirror
to keep confidential certain information and data obtained by
it, (b) Section 9.04 relating to publicity, (c) Section 14.02
relating to attorneys' fees and expenses, (d) Section 14.09
relating to finders' fees and brokers' fees, (e) Section 14.11
relating to arbitration and consent to jurisdiction and (f)
this Article 13. Nothing in this Article 13 shall be deemed to
release either party from any liability for any breach by such
party of the terms and provisions of this Agreement or to im-
pair the right of either party to compel specific performance
by the other party of its obligations under this Agreement.
Section 13.04. Survival of Representations. The
representations and warranties in this Agreement and in any
other document identified as being delivered in connection with
this Agreement shall survive the Closing until the later of
March 31, 1997 and the date that is six months after the Clos-
ing Date, except that representations in Section 5.19(b)(i),
6.18(b)(i) with respect to liability under CERCLA or state
equivalents for disposal of Hazardous Materials off-site shall
survive the Closing indefinitely, and the remaining provisions
of Section 5.19(b), (c) and (d), Section 6.18(b), (c) and (d)
and Section 6.21 shall survive the Closing for one year. This
Section 13.04 shall not limit the indemnities provided in Sec-
tion 11.01, Section 11.02(c) or (d) or Articles 10, 10-A, 12
and 12-A.
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ARTICLE FOURTEEN
MISCELLANEOUS
Section 14.01. Expenses. Whether or not the trans-
actions contemplated hereby are consummated, and except as oth-
erwise provided in this Agreement, all fees, costs and expenses
incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such
fees, costs or expenses.
Section 14.02. Attorneys' Fees. Should any litiga-
tion be commenced concerning this Agreement or the rights and
duties of any party with respect to it, the party prevailing
shall be entitled, in addition to such other relief as may be
granted, to a reasonable sum for such party's attorneys' fees
and expenses determined by the court in such litigation or in a
separate action brought for that purpose.
Section 14.03. Amendments. No amendment to this
Agreement shall be effective unless it shall be in writing and
signed by all of the parties hereto.
Section 14.04. Assignment. This Agreement and the
rights and obligations hereunder shall not be assignable or
transferable by McGraw-Hill, Times Mirror or Mosby (including
by operation of law in connection with a merger, or sale of
substantially all the assets, of McGraw-Hill, Times Mirror or
Mosby) without the prior written consent of the other parties
hereto, except that any party may assign any of its rights
hereunder, including rights to indemnification, to one or more
of its direct or indirect wholly-owned subsidiaries or to any
joint venture in which such party or its direct or indirect
subsidiaries own at least 50% of the equity interest; provided,
however, that no assignment shall limit or affect the
assignor's obligations hereunder. If the Closing occurs, the
obligations of the parties hereto shall be binding on all of
their respective successors and assigns.
Section 14.05. No Third-Party Beneficiaries. Except
as provided in Article 11 and except for the rights of Reed
Elsevier Inc. set forth in Section 8.02, this Agreement is for
the sole benefit of the parties hereto and their permitted
assigns and nothing herein expressed or implied shall give or
be construed to give to any person or entity, other than the
parties hereto and such assigns, any legal or equitable rights
hereunder.
Section 14.06. Notices. All notices or other commu-
nications required or permitted to be given hereunder shall be
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in writing and shall be delivered by hand or sent prepaid tele-
copy, or sent, postage prepaid, by registered, certified or
express mail, or reputable overnight courier service and shall
be deemed given when so delivered by hand or telecopied, or if
mailed, three days after mailing (one Business Day in the case
of express mail or overnight courier service), as follows:
(i) if to McGraw-Hill,
THE MCGRAW-HILL COMPANIES, INC.
1221 Avenue of the Americas
New York, New York 10020
Attention: General Counsel
with a copy to:
WACHTELL, LIPTON, ROSEN & KATZ
51 West 52nd Street
New York, New York 10019
Attention: Elliott V. Stein
(ii) if to Times Mirror,
THE TIMES MIRROR COMPANY
Times Mirror Square
Los Angeles, California 90053
Attention: Kathleen G. McGuinness
with a copy to
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, California 90071
Attention: Peter F. Ziegler
(iii) if to Mosby,
MOSBY-YEAR BOOK, INC.
c/o The Times Mirror Company
Times Mirror Square
Los Angeles, California 90053
Attention: Kathleen G. McGuinness
with a copy to:
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, California 90071
Attention: Peter F. Ziegler
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Section 14.07. Counterparts. This Agreement may be
executed in one or more counterparts, all of which shall be
considered one and the same agreement, and shall become effec-
tive when one or more such counterparts have been signed by
each of the parties and delivered to the other party.
Section 14.08. Entire Agreement. This Agreement,
the Mosby Transition Services Agreement, the TMIP Transition
Services Agreement, the College Publishing Business Confidenti-
ality Agreement and the Shepard's Confidentiality Agreement
contain the entire agreement and understanding between the par-
ties hereto with respect to the subject matter hereof and su-
persede all prior agreements and understandings relating to
such subject matter.
Section 14.09. Fees. Each party hereto hereby rep-
resents and warrants that (a) the only brokers or finders that
have acted for such party in connection with this Agreement or
the transactions contemplated hereby or that may be entitled to
any brokerage fee, finders' fee or commission in respect there-
of are Morgan Stanley & Co. Incorporated with respect to Times
Mirror and Goldman, Sachs & Co. with respect to McGraw-Hill and
(b) such party will pay all fees or commissions which may be
payable to the firms so named.
Section 14.10. Severability. If any provision of
this Agreement or the application of any such provision to any
person or circumstance shall be held invalid, illegal or unen-
forceable in any respect by a court of competent jurisdiction,
such invalidity, illegality or unenforceability shall not af-
fect any other provision hereof.
Section 14.11. Dispute Resolution; Equitable En-
forcement.
(a) Accounting Disputes. Notwithstanding anything
to the contrary contained in this Section 14.11, any contro-
versy, dispute or claim arising under this Agreement related to
or arising out of accounting matters relating to this Agreement
shall be resolved by means of discussions between the regularly
retained independent certified public accountants of McGraw-
Hill and Times Mirror. In the event that the independent cer-
tified public accountants of each of McGraw-Hill and Times Mir-
ror are unable to resolve the dispute within 60 days after the
dispute is first submitted to them, then a third independent
certified public accountant of recognized national standing
shall be selected by the independent certified public accoun-
tants of each of McGraw-Hill and Times Mirror and the determi-
nation of such third independent certified public accountant,
with respect to the matter in dispute, shall be rendered within
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45 days after the dispute has been submitted to it and such
determination shall be final and binding on all of the parties
hereto.
(b) Arbitration. Except as otherwise provided in
Section 14.11(a) or (c), any controversy, dispute or claim
arising under this Agreement shall be settled by arbitration
conducted in New York, New York in accordance with the rules of
the American Arbitration Association as then in effect and
judgment upon any award rendered by the arbitrator may be en-
tered by any federal or state court having jurisdiction there-
of. Any such arbitration shall be conducted by a single arbi-
trator who shall be a retired judge of either the Supreme Court
of the State of New York, New York County, the United States
District Court for the Southern District of New York or the
United States Court of Appeals for the Second Circuit. The
arbitrator shall comply with all rules of law, discovery and
evidence as then in effect in the Supreme Court of the State of
New York, New York County. The parties intend that this agree-
ment to arbitrate be valid, enforceable and irrevocable.
(c) Equitable Enforcement. Notwithstanding anything
to the contrary contained in this Section 14.11, any claim by
either party for injunctive or other equitable relief, includ-
ing specific performance (including specific performance of the
agreement to resolve disputes related to or arising out of ac-
counting matters contained in Section 14.11(a) and the agree-
ment to arbitrate contained in Section 14.11(b)), may be
brought in the Supreme Court of the State of New York, New York
County, or in the United States District Court for the Southern
District of New York before or as a result of arbitration, and
any judgment, order or decree relating thereto shall have pre-
cedence over any arbitral award or proceeding. Each of McGraw-
Hill, Times Mirror and Mosby irrevocably submits to the exclu-
sive jurisdiction of (i) the Supreme Court of the State of New
York, New York County, and (ii) the United States District
Court for the Southern District of New York, for the purposes
of any suit, action or other proceeding arising out of this
Agreement or any transaction contemplated hereby. Each of
McGraw-Hill, Times Mirror and Mosby agrees to commence any ac-
tion, suit or proceeding relating hereto either in the United
States District Court for the Southern District of New York or,
if, for jurisdictional reasons, such suit, action or other pro-
ceeding may not be brought in such court, in the Supreme Court
of the State of New York, New York County. Each of McGraw-
Hill, Times Mirror and Mosby further agrees that service of any
process, summons, notice or document by U.S. registered mail to
such party's respective address set forth in Section 14.06
above shall be effective service of process for any action,
suit or proceeding in New York with respect to any matters to
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which it has submitted to jurisdiction as set forth above in
the immediately preceding sentence. Each of McGraw-Hill, Times
Mirror and Mosby irrevocably and unconditionally waives any
objection to the laying of venue of any action, suit or pro-
ceeding arising out of this Agreement or the transactions con-
templated hereby in (x) the Supreme Court of the State of New
York, New York County, or (y) the United States District Court
for the Southern District of New York, and hereby further ir-
revocably and unconditionally waives and agrees not to plead or
claim in any such court that any such action, suit or proceed-
ing brought in any such court has been brought in an incon-
venient forum.
Section 14.12. No Consequential or Punitive Damages.
Notwithstanding anything to the contrary elsewhere in this
Agreement, no party (or its affiliates) shall, in any event, be
liable to any other party (or its affiliates) for any conse-
quential damages, including, but not limited to, loss of reve-
nue or income, or loss of business reputation or opportunity,
or any punitive damages relating to the breach or alleged
breach of this Agreement.
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IN WITNESS WHEREOF, the parties have caused this
Agreement to be duly executed as of the date first written
above.
THE TIMES MIRROR COMPANY,
a Delaware corporation
By: /s/ Thomas Unterman
Name: Thomas Unterman
Title: Senior Vice President & CFO
MOSBY-YEAR BOOK, INC.,
a Missouri corporation
By: /s/ James Imbriaco
Name: James Imbriaco
Title: Secretary
THE McGRAW-HILL COMPANIES, INC.,
a New York corporation
By:_/s/ Joseph L. Dionne
Name: Joseph L. Dionne
Title: Chairman & CEO