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EXHIBIT 10.5
AMENDED AND RESTATED MANAGEMENT SUBSCRIPTION
AND STOCKHOLDERS AGREEMENT
This Amended and Restated Management Subscription and Stockholders
Agreement (the "Agreement") is entered into as of February 1, 2000, by and
between Liberty Group Publishing, Inc., a Delaware corporation (the "Company"),
Green Equity Investors II, L.P., a Delaware limited partnership ("GEI"), and the
person identified on Annex A attached hereto (hereinafter referred to as the
"Management Investor"), with reference to the following facts:
WHEREAS, GEI is the principal shareholder of the Company;
WHEREAS, Management Investor is a key employee of the Company or one of
its subsidiaries and, accordingly, as an incentive to the Management Investor,
the Company has previously issued, and may from time to time hereafter desire to
issue, uncertificated shares of the Company's common stock (collectively, the
"Common Stock") to the Management Investor as set forth herein;
WHEREAS, the Company, GEI and the Management Investor are parties to
that certain Management Subscription and Stockholders Agreement entered into as
of March ___, 1998 (the "Original Agreement"); and
WHEREAS, the Company, GEI and the Management Investor desire to amend
and restate the Original Agreement in its entirety to be in the form of this
Agreement.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto agree as follows:
1. Management Investor Representations.
(a) Investment Risk. The Management Investor represents and
acknowledges that (i) as a result of the Management Investor's (A) existing
relationship with the Company and by virtue of being an executive of business
enterprises acquired by the Company, and (B) experience in financial matters,
the Management Investor is properly able to evaluate the capital structure of
the Company, the business of the Company and its subsidiaries and the risks
inherent therein; (ii) the Management Investor has been given the opportunity to
obtain any additional information or documents from and to ask questions, and
receive answers of, the officers and representatives of the Company and its
subsidiaries to the extent necessary to evaluate the merits and risks related to
an investment in the Company; (iii) the Management Investor has been and will
be, to the extent the Management Investor deems necessary, advised by legal
counsel of the Management Investor's choice at Management Investor's expense in
connection with this Agreement and the issuance and sale of Common Stock
hereunder and (iv) the purchase or issuance of Common Stock hereunder will be
consistent, in both nature
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and amount, with the Management Investor's overall investment program and
financial condition, and the Management Investor's financial condition will be
such that the Management Investor will be able to bear the economic risk of
holding unregistered Common Stock for which there is no market and to suffer a
complete loss of the Management Investor's investment therein. The Management
Investor further acknowledges that investment in the Common Stock hereunder
involves significant risks and that these risks include, without limitation, the
facts that the Company is a relatively newly-formed holding company and that the
Company will have a leveraged financial structure.
(b) Purchase for Investment.
(1) The Management Investor represents and warrants that: (A)
the Common Stock acquired by the Management Investor hereunder will be acquired
for the Management Investor's own account for investment, without any present
intention of selling or further distributing the same and the Management
Investor will not have any reason to anticipate any change in the Management
Investor's circumstances or any other particular occasion or event which would
cause the Management Investor to sell any of such Common Stock and (B) the
Management Investor is fully aware that in agreeing to sell or issue such Common
Stock to the Management Investor the Company will be relying upon the truth and
accuracy of these representations and warranties. The Management Investor agrees
that the Management Investor will not sell or otherwise dispose of any Common
Stock except in compliance with the Securities Act of 1933, as amended (the
"Act"), the rules and regulations of the Securities and Exchange Commission
thereunder, the relevant state securities laws applicable to the Management
Investor's action and the terms of this Agreement.
(2) Subject to Section 6 below, in addition to the other
restrictions provided in this Agreement, the Management Investor agrees that
prior to making any disposition of any Common Stock acquired hereunder (other
than a disposition to the Company), the Management Investor will give not less
than 10 days' advance written notice to the Company describing the manner of
such proposed disposition. The Management Investor further agrees that the
Management Investor will not effect such proposed disposition until either (A)
the Management Investor has provided to the Company, if so requested by the
Company, an opinion of counsel reasonably satisfactory in form and substance to
the Company that such proposed disposition is exempt from registration under the
Act and any applicable state securities laws or (B) a registration statement
under the Act covering such proposed disposition has been filed by the Company
under the Act and has become effective and compliance with applicable state
securities laws has been effected.
(3) The Management Investor acknowledges that no trading market
for the Common Stock exists currently or is expected to exist at any time in the
foreseeable future and that, as a result, the Management Investor may be unable
to sell any of the Common Stock acquired hereunder for an indefinite period.
Further, the Company has no obligation to register any of the Common Stock,
except as expressly provided in Section 7 of this Agreement.
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(4) The Management Investor acknowledges and agrees that nothing
herein, including the opportunity to make any equity investment in the Company,
shall be deemed to create any implication concerning the adequacy of the
Management Investor's services to any of the Company or its subsidiaries or
shall be construed as an agreement by the Company or its subsidiaries, express
or implied, to employ the Management Investor or contract for the Management
Investor's services, to restrict the right of the Company or its subsidiaries to
discharge the Management Investor or cease contracting for the Management
Investor's services or to modify, extend or otherwise affect in any manner
whatsoever the terms of any employment agreement or contract for services which
may exist between the Management Investor and the Company or its subsidiaries.
2. Grant of Management Shares and Legend on Certificates.
(a) Grant of Management Shares. The Company hereby grants to the
Management Investor the right to purchase, on the terms and conditions set forth
in this Agreement, all or any part of the number of shares of Common Stock
indicated on Annex A hereto (the "Initial Purchased Shares") at the purchase
price of $100 (the "Purchase Price") per share. In addition, the Company hereby
grants to the Management Investor the number of shares of Common Stock indicated
in Annex B hereto (the "Grant Shares"). All shares of Common Stock issued
hereunder (including, but not limited to, the Initial Purchased Shares, the
Grant Shares and any additional shares of Common Stock issued to the Management
Investor from time to time hereafter, whether as a dividend or other
distribution with respect to or in replacement of shares of Common Stock, as a
result of a stock dividend, stock split or subdivision, stock combination or
recapitalization, upon the exercise or conversion of other securities issued to
the Management Investor or otherwise) shall be subject to all of the terms and
restrictions contained in this Agreement, including, without limitation, those
in Sections 1(b), 3, 4, 8 and 9, and shall be uncertificated shares. Subject to
the limitations set forth in Section 2(b), the Management Investor shall be
entitled, upon written request to the Company, to have a certificate issued to
him or her representing Common Stock issued hereunder.
(b) Legend on Certificates. Each stock certificate issued to the
Management Investor upon written request to the Company representing Common
Stock issued hereunder shall bear the following (or substantially equivalent)
legends on the face or reverse side thereof:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS
THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT COVERING
SUCH SECURITIES, THE SALE IS MADE IN ACCORDANCE WITH RULE 144 OR ANY
SUCCESSOR RULE UNDER THE ACT OR LIBERTY GROUP PUBLISHING, INC. (THE
"COMPANY") RECEIVES AN
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OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT AN EXEMPTION
FROM SUCH REGISTRATION IS AVAILABLE. THE SECURITIES REPRESENTED BY
THIS CERTIFICATE ARE SUBJECT TO AN AMENDED AND RESTATED MANAGEMENT
SUBSCRIPTION AND STOCKHOLDERS AGREEMENT DATED AS OF FEBRUARY ___,
2000, BETWEEN THE PURCHASER PARTY THERETO AND THE COMPANY, A COPY OF
WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY, AND THE
SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE VOTED,
TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE
DISPOSED OF UNLESS SUCH VOTING, TRANSFER, SALE, ASSIGNMENT, PLEDGE,
HYPOTHECATION OR OTHER DISPOSITION COMPLIES WITH THE PROVISIONS OF
SUCH AGREEMENT.
Any stock certificate issued at any time in exchange or substitution for any
certificates bearing such legends (except a new certificate issued upon the
completion of a public distribution of Common Stock represented thereby) shall
also bear such (or substantially equivalent) legends, unless the Common Stock
represented by such certificate is no longer subject to the provisions of this
Agreement and, in the opinion of counsel for the Company, the Common Stock
represented thereby need no longer be subject to restrictions pursuant to the
Act or applicable state securities law. The Company shall not be required to
transfer on its books any certificate for Common Stock in violation of the
provisions of this Agreement.
3. Transfer of Stock.
(a) Prohibition on Transfer. Subject to the provisions of Section 6,
the Management Investor agrees that the Management Investor will not, on or
prior to the tenth anniversary of this Agreement, directly or indirectly, sell,
pledge, give, bequeath, transfer, assign or in any other way whatsoever encumber
or dispose of (a "transfer') any Common Stock (or any interest therein) acquired
hereunder, except for transfers (i) pursuant to this Section 3 or Sections 4, 7,
8, or 9 of this Agreement or (ii) as may be specifically authorized by the Board
of Directors of the Company in its sole discretion (either of (i) or (ii), a
"Permitted Transfer").
(b) Transfer Procedure; Right of First Refusal. The Management
Investor agrees that the Management Investor will not, after the lapse of the
restriction in clause (a) of this Section 3, transfer any Common Stock (or
interest therein) acquired hereunder, except for Permitted Transfers or
transfers in accordance with the following:
(1) If the Management Investor shall have received a bona fide
arm's length written offer (a "Bona Fide Offer") which the Management
Investor desires to
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accept from an independent party unrelated to the Management Investor (the
"Outside Party") for the purchase of such Common Stock for consideration
consisting entirely of cash, then the Management Investor shall give a
notice in writing (the "Option Notice") to the Company setting forth such
desire, which notice shall set forth at least the name and address of the
Outside Party and the price and terms of the Bona Fide Offer and be
accompanied by a copy of the Bona Fide Offer.
(2) Upon the giving of such Option Notice, the Company shall
have an option (transferable, in the sole discretion of the Board of
Directors of the Company, to GEI or to a subsidiary) to purchase all of the
Common Stock specified in the Option Notice, said option to be exercised
within thirty (30) days after the giving of such Option Notice, by giving a
counter-notice (the "Election Notice") to the Management Investor.
(3) If the Company (or GEI or a subsidiary, if applicable)
elects to purchase all of such Common Stock, it shall be obligated to
purchase, and the Management Investor shall be obligated to sell, such
Common Stock at the cash price and terms indicated in the Bona Fide Offer,
except that the closing of the purchase by the Company (or GEI or a
subsidiary, if applicable) shall be held on a business day within sixty
(60) days after the giving of the Election Notice at 10:30 a.m., Central
Standard Time, at the principal executive office of the Company, or at such
other time and place as may be mutually agreed to by the Company (or GEI or
a subsidiary) and the Management Investor.
(4) If an Election Notice is not delivered by the Company (or
GEI or a subsidiary, if applicable) within the period specified above, the
Management Investor thereafter, at any time within a period of sixty (60)
days from the giving of said Option Notice, may transfer all of the
provisions of this Agreement and, as a condition precedent to the
completion of such transfer of Common Stock to such Outside Party, shall
execute and deliver to the Company a written consent to such effect in form
and substance satisfactory to the Company; provided, however, that in the
event the Management Investor has not so transferred said Common Stock to
the Outside Party within said three-month period, then said Common Stock
thereafter shall continue to be subject to all of the restrictions
contained in this Agreement.
(b) No Waiver by Company. Any election in any instance by the
Company (or GEI or a subsidiary, if applicable) not to exercise its rights of
first refusal under this Section 3 shall not constitute a waiver of such rights
with respect to any other proposed transfer of Common Stock.
(c) Transfer to Related Transferees. Notwithstanding anything to the
contrary contained in clauses (a) through (c) of this Section 3, the Management
Investor may transfer the Management Investor's Common Stock without restriction
to the Management Investor's Related Transferees (as defined below) provided
that each such Related Transferee shall first (i) execute a written consent in
form and substance satisfactory to the Company to be
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bound by all of the provisions of this Agreement and (ii) give a duplicate
original of such consent to the Company. The "Related Transferee" of the
Management Investor shall consist of the Management Investor's spouse, the
Management Investor's adult lineal descendants, the adult spouses of such lineal
descendants, trusts solely for the benefit of the Management Investor's spouse
or the Management Investor's minor or adult lineal descendants and, in the event
of death, the Management Investor's personal representatives (in their
capacities as such), estate and named beneficiaries. In the event of any
transfer by the Management Investor to his Related Transferees of all or any
part of the Management Investor's Common Stock (or in the event of any
subsequent transfer by any such Related Transferee to another Related Transferee
of the Management Investor), such Related Transferees shall receive and hold
said Common Stock subject to the terms of this Agreement and the rights and
obligations hereunder of the Management Investor from whom such Common Stock was
originally transferred as though said Common Stock was still owned by the
Management Investor, and such Related Transferees shall be deemed Management
Investors for the purposes of this Agreement (except as stated in Sections 13(b)
and (c) hereof). There shall be no further transfer of such Common Stock by a
Related Transferee except between and among such Related Transferee, the
Management Investor to whom such Related Transferee is related and the other
Related Transferees of the Management Investor, or except as permitted by this
Agreement.
4. Company "Call" Option.
(a) Upon the termination of the Management Investor's employment or
cessation of services as director with the Company or any of its subsidiaries
for any reason (including without limitation Voluntary Termination, a Just Cause
Dismissal, Involuntary Termination Without Cause or the Retirement, death or
Permanent Disability of the Management Investor (as such terms are defined in
Section 5 below)) (a "Call Purchase Event"), subject to the provisions of
Section 6 and this Section 4, the Company may, at its option exercisable by
written notice (a "Purchase Notice") delivered to the Management Investor (or in
the case of a deceased Management Investor, the Management Investor's personal
representative) within ninety (90) days after the applicable Call Purchase Event
(or, in the event the applicable Call Purchase Event is the death of the
Management Investor, within thirty (30) days after the appointment and
qualification of the deceased Management Investor's personal representative, if
later), elect to purchase and, upon the giving of such notice, the Company shall
be obligated to purchase and the Management Investor (and the Related
Transferees, if any, of the Management Investor or, in the case of a deceased
Management Investor, his personal representative) (the "Seller" shall be
obligated to sell, all, or any lesser portion indicated in the Purchase Notice,
of the Common Stock held by the Management Investor (and his Related
Transferees, if any) at a per share price equal to:
(1) in the case of Voluntary Termination or a Just Cause
Dismissal, the lower of the Purchase Price or the Fair Market Value (as
such term is defined in Section 5 below); or
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(2) in the case of any other termination (including without
limitation Involuntary Termination Without Cause, death, Retirement or
Permanent Disability), the Fair Market Value.
(b) If the Company does not elect to exercise its option set forth
in paragraph (a) of this Section 4, the Company shall give written notice that
it is not so electing to GEI within the time periods specified in paragraph (a)
of this Section 4 for the giving of the Purchase Notice. Upon receipt of such
notice from the Company, GEI shall have the option, exercisable by written
notice (a "GEI Purchase Notice") delivered to the Management Investor (or, in
the case of a deceased Management Investor, the Management Investor's personal
representative) within fifteen (15) days after receipt of such notice from the
Company, to purchase from the Seller (and, upon the giving of the GEI Purchase
Notice, GEI shall be obligated to purchase and the Seller shall be obligated to
sell) all, or any lesser portion indicated in the GEI Purchase Notice, of the
Common Stock held by the Seller at the per share price set forth in paragraph
(a) of this Section 4.
(c) In the event a purchase of shares of Common Stock pursuant to
this Section 4 shall be prohibited by law or would cause a default under the
terms of any indenture or loan agreement or other instrument to which the
Company or any of its subsidiaries may be a party, the obligations of the Seller
and the Company pursuant to this Section 4 shall be suspended and no such
default would be caused; provided, however, that (x) the purchase price to be
paid by the Company for the shares shall accrue interest at the lowest rate
necessary to prevent the imputation of interest or original issue discount under
the Internal Revenue Code of 1986, as amended, reduced by any dividends or
distributions on such Common Stock during the period of such suspension, which
interest shall likewise be paid when such prohibition first lapses or is waived
and no such default would be caused and (y) in the event of any such suspension,
if GEI so elects and no violation of law would be caused and no default under
the terms of any indenture or loan agreement or other instrument to which the
Company or any of its subsidiaries may be a party would result, the Company
shall transfer its obligations under this Section 4 to GEI or to a subsidiary,
in which case GEI or the subsidiary (as the case may be) and the Management
Investor (and the Related Transferees, if any, of the Management Investor) shall
be obligated to complete the purchase of shares of Common Stock pursuant to this
Section 4.
5. Purchase Price, Closing and Terms of Payment for "Call" Sales.
(a) For purposes of this Agreement, the "Fair Market Value" of each
share of Common Stock shall be determined as of the time of the Call Purchase
Event by the Board of Directors of the Company in the exercise of its reasonable
discretion; provided, however, that such determination shall be based upon the
Company as a going concern and shall not discount the value of such shares
either because they are subject to the restrictions set forth in this Agreement
or because they constitute only a minority interest in the Company. Upon
delivery of notice of such Fair Market Value to the Seller of Common Stock
pursuant to Section 4 (which shall indicate, in a general fashion, the factors
considered by the Board of Directors in determining such amount), such Seller
shall have ten (10) business days in which
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to notify the Company in writing of any disagreement. If no written notice of
disagreement is given, the Fair Market Value as determined by the Board of
Directors of the Company shall be conclusive. If written notice is given of a
disagreement, the Company and such Seller shall mutually agree upon an
independent appraiser experienced in making valuations of such sort which shall
make a determination of the Fair Market Value. Such determination shall be
final, binding and nonappealable upon the Company and such Seller. The costs and
expenses incurred in connection with the determination made by the independent
appraiser shall be borne equally by the Company and by the Seller.
(b) For purposes of this Agreement, the Management Investor shall be
deemed to be "Permanently Disabled" if the Management Investor becomes unable to
engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of
not less than twelve (12) months. The Company, at its option and expense, shall
be entitled to retain a physician to confirm the existence of such incapacity or
disability and the determination of such physician shall be binding upon the
Company and the Management Investor; provided, however, that if the Management
Investor disagrees with such determination of Permanent Disability within
fifteen (15) days of being notified of it, the Management Investor and the
Company shall jointly agree upon an independent physician (or, if they are
unable to agree upon such physician, they shall each select a physician and
those two physicians shall select the independent physician) who shall make the
determination, whose decision shall be binding upon the Company and the
Management Investor.
(c) For the purposes of this Agreement, the Management Investor
shall be deemed to be "Involuntarily Terminated Without Cause" upon the later of
the termination of the Management Investor's employment by, or removal or
failure to be reelected as a director of, the Company or any of its
subsidiaries, unless such termination, removal or failure to be reelected is due
to Retirement, death, Permanent Disability or a Just Cause Dismissal.
"Retirement" shall mean retirement in accordance with the retirement policies or
practices of the Company or its subsidiaries applicable to executives or
directors, as the case may be, but in no event at an age of less than seventy
(70). "Voluntary Termination" shall mean the termination by the Management
Investor of his employment with, or his resignation or refusal to stand for
reelection as a director of, the Company or any of its subsidiaries, for any
reason other than death, Permanent Disability, or Retirement. A "Just Cause
Dismissal" shall mean termination of the Management Investor's employment with,
or service as a director of, the Company or any of its subsidiaries as a result
of any of the following (each, a "Cause"):
(1) the Management Investor commits any act of fraud,
intentional misrepresentation or serious misconduct in connection with the
business of the Company or its subsidiaries, including but not limited to,
falsifying any documents or agreements (regardless of form); or
(2) the Management Investor materially violates any rule or
policy of the Company or its subsidiaries (A) for which violation an
employee may be terminated pursuant to the written policies of the Company
or its subsidiaries reasonably applicable
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to an executive employee, or (B) which violation results in material damage
to the Company or its subsidiaries, or (C) which, after written notice to
do so, the Management Investor fails to correct within a reasonable time;
or
(3) the Management Investor willfully breaches or habitually
neglects any material aspect of the Management Investor's duties (A) as
described in the Management Investor's employment contract, or (B) in the
ordinary course of the Management Investor's employment or service as a
director, or (C) assigned to the Management Investor by the Company or its
subsidiaries, which assignment was reasonable in light of the Management
Investor's position with the Company or its subsidiaries (all of the
foregoing duties, "Duties"); or
(4) the Management Investor fails, after written notice,
adequately to perform any Duties and such failure is reasonably likely to
have an adverse impact upon the Company, its subsidiaries or the operations
of any of them; or
(5) the Management Investor materially fails to comply with a
direction from the Board of Directors of the Company or its subsidiaries
with respect to a material matter, which direction was reasonable in light
of the Management Investor's position with the Company or its subsidiaries;
or
(6) while employed by the Company or its subsidiaries, and
without the written approval of the Chief Executive Officer of the Company
(or, in case the Management Investor is such Chief Executive Officer,
approval of the Company's Board of Directors), the Management Investor
performs services for any other corporation or person which competes with
the Company or its subsidiaries; or
(7) the Management Investor is convicted by a court of competent
jurisdiction of a felony (other than a traffic or moving violation) or any
crime involving dishonesty; or
(8) any other action or condition that may result in termination
of an employee for cause pursuant to any generally applied standard, of
which standard the Management Investor knew or reasonably should have
known, adopted in good faith by the Board of Directors of the Company or
its subsidiaries from time to time but prior to such action or condition;
or
(9) any willful breach by the Management Investor of his or her
fiduciary duties as a director of the Company or any of its subsidiaries.
In the event that there is a dispute between the Management Investor and the
Company as to whether "Cause" for termination exists: (x) such termination shall
nonetheless be effective, (y) such dispute shall be subject to arbitration
pursuant to Section 13(f) hereof and (z) the payments or deliveries, if any, to
be made by the Company or GEI or any subsidiary in connection with a sale or
purchase of the Common Stock held by the Management Investor
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pursuant to Section 4 shall be delayed until the final resolution of such
dispute in such arbitration.
(b) The closing for all purchases and sales of Common Stock provided
for in Section 4 hereof shall be at the principal executive offices of the
Company at 10:30 a.m., Central Standard Time, on the later of (A) the sixtieth
day after the giving of the applicable Purchase Notice or GEI Purchase Notice
and (B) the thirtieth day after the final determination of the Fair Market Value
of the Common Stock as set forth above; provided, however, that if the
Management Investor (or a Related Transferee) who has become obligated to sell
shares of Common Stock hereunder is deceased on the closing date and such
deceased person's personal representative shall not have been appointed and
qualified by such date, then the closing shall be postponed until the tenth day
after the appointment and qualification of such personal representative. If the
aforesaid closing date falls on a day which is not a business day, then the
closing shall be held on the next succeeding business day.
(c) The purchase price for the purchase and sale of Common Stock
pursuant to the provisions hereof shall be paid in cash, by certified or by
official bank check.
(d) The Seller or Sellers of shares of Common Stock sold pursuant to
Section 4 hereof, if such shares are represented by one or more certificates
issued by the Company, shall cause such certificated shares to be delivered to
the Company at the closing free and clear of all liens, charges or encumbrances
of any kind. Such Seller or Sellers shall take all actions as the Company shall
request as necessary to vest in the Company at such closing all shares sold
pursuant to Section 4 hereof, whether in certificated or uncertificated form,
free and clear of all liens, charges and encumbrances incurred, voluntarily or
involuntarily, by or through Seller. At each closing pursuant to Section 4, the
Company shall deliver to the Seller reasonable assurances to the effect that the
Company's or a subsidiary's purchase of shares thereat has been duly and validly
authorized and complies with applicable state securities laws.
6. Termination and Lapse of Rights and Restrictions; Application to
Other Stock.
(a) The provisions of Sections 1(b) (ii), 3(a), 3(b), 4, 8 and 9 of
this Agreement shall lapse and be of no further effect with respect to shares of
Common Stock upon the commencement of the public trading of the Company's Common
Stock (or any capital stock exchanged for or distributed upon such Common Stock
as described in paragraph (b) of this Section 6) on any national securities
exchange, on the NASDAQ National Market System or on the NASDAQ "Small Cap"
Issues System.
(b) In the event any capital stock of the Company or any other
corporation shall be distributed on, with respect to, or in exchange for shares
of Common Stock of the Company as a stock dividend, stock split, spin-off,
reclassification or recapitalization in connection with any merger or
reorganization, the restrictions, rights and options set forth in Sections 3, 4,
8 and 9 shall apply with respect to such other capital stock to the same extent
as
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they are, or would have been applicable, to the Common Stock acquired hereunder
on, or with respect to, which such other capital stock was distributed.
7. Piggyback Registration Rights.
(a) As used in this Agreement, the term "Holder" means the
Management Investor, a Related Transferee of the Management Investor or an
Outside Party.
(b) Subject to the provisions herein, if the Company at any time
proposes to include all or any part of GEI's Common Stock in a public offering
of Common Stock registered under the Act (other than registration (x) on Forms
S-4 or S-8 or any successor forms thereto or (y) filed in connection with an
exchange offer), the Company shall give written notice of the proposed
registration to each Holder at least thirty (30) days prior to the filing
thereof, and each Holder shall have the right to request that all or any part of
its shares of Common Stock be included in such registration by giving written
notice to the Company within fifteen (15) days after the giving of such notice
by the Company (any Holder giving the Company a notice requesting that shares of
Common Stock owned by it be included in such proposed registration being
hereinafter referred to in this Section 7 as a "Registering Holder"); provided,
however, that (i) if the registration is in whole or in part an underwritten
primary registration on behalf of the Company and the managing underwriters of
such offering determine that the aggregate amount of securities of the Company
which all Registering Holders and all other security holders of the Company,
pursuant to contractual rights to participate in such registration ("Other
Holder"), propose to include in such registration statement exceeds the maximum
amount of securities that should be included therein, the Company will include
in such registration, first, the shares which the Company proposes to sell and,
second, the shares of such Registering Holders and other securities to be sold
for the account of Other Holders, pro rata among all such Registering Holders
and Other Holders, taken together, on the basis of the relative equity interests
in the Company of all Registering Holders and Other Holders who have requested
that securities owned by them be so included (it being agreed and understood,
however, that such underwriters shall have the right to eliminate entirely the
participation in such registration of all Registering Holders and Other
Holders), and (ii) if the registration is an underwritten secondary registration
on behalf of any of the Other Holders pursuant to demand registration rights
(other than such right of GEI or its Affiliates (defined below)) and the
managing underwriters determine that the aggregate amount of securities which
all Registering Holders and all Other Holders propose to include in such
registration exceeds the maximum amount of securities that should be included
therein, the Company will include in such registration, first, the securities to
be sold for the account of the Other Holders demanding registration (but only to
the extent such Other Holders are entitled to demand inclusion thereof) second,
any securities to be sold for the account of the Company, and, third, the shares
of such Registering Holders and other securities to be sold for the account of
the Other Holders electing to include (but not being entitled to demand
inclusion of) securities in such registration, pro rata among all such
Registering Holders and Other Holders, taken together, on the basis of relative
equity interests in the Company of all Registering Holders and such Other
Holders who have requested that securities owned by them be included (it being
agreed and understood, however, that such underwriters shall have the right to
eliminate entirely the participation therein of all
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such Registering Holders and Other Holders not entitled to demand inclusion of
securities in such registration). Shares of Common Stock proposed to be
registered and sold for the account of any Registering Holder shall be sold to
prospective underwriters selected or approved by the Company on the terms and
subject to the conditions of one or more underwriting agreements negotiated
between the Company and/or Other Holders demanding registration and the
prospective underwriters. For the purposes hereof, an "Affiliate" of any person
or entity means any other person or entity controlling, controlled by or under
common control with such person or entity; provided, however, that none of the
Management Stockholders (defined below) or any of their Affiliates shall be
deemed to be an Affiliate of GEI. "Management Stockholders" means, collectively,
all holders of capital stock or other securities issued by the Company who are
also employees of the Company or its subsidiaries.
In the event the Company proposes to register any of its Common Stock
under the Act on Form S-8 (or any successor thereto), if the Company determines
that it is permissible to do so and will not result in material added costs to
the Company from such registration, the Company shall, at a Registering Holder's
request, include in such registration a portion of such Registering Holder's
shares of Common Stock equal to the portion, if any, of GEI's shares of Common
Stock held as of the date of this Agreement sold by GEI in private transactions
from the date hereof to the date of such request.
The Registering Holders shall be permitted to withdraw all or a part of
the shares of Common Stock held by such Registering Holders which were to be
included in such registration at any time prior to the effective date of such
registration. The Company shall not be required to maintain the effectiveness of
the registration statement for such registration beyond the earlier to occur of
120 days after the effective date thereof or consummation of the distribution by
the Registering Holders included in such registration statement. The Company may
withdraw any registration statement at any time before it becomes effective, or
postpone the offering of securities, without obligation or liability to any
Holder.
(c) The registration rights sets forth in this Section 7 shall
terminate and be of no further effect with respect to the Common Stock held by a
Holder: (i) at such time as the Company has filed, and there has become
effective, one registration statement in which all Registering Holders have been
afforded the opportunity to include all shares of such class of securities held
by them or (ii) if earlier, after an initial public offering, all shares of
Common Stock acquired hereunder and held by the Management Investor are eligible
for sale pursuant to the provisions of Rule 144 under the Act.
(d) In connection with any registration of shares under the Act
pursuant to this Section 7, the Company will furnish each Holder whose shares of
Common Stock are registered thereunder with a copy of the registration statement
and all amendments thereto and will supply each such Holder with copies of any
prospectus included therein (including a preliminary prospectus and all
amendments and supplements thereto), in such quantities as may be reasonably
necessary for the purpose of the proposed sale or distribution covered by such
registration. The Company shall not, however, be required to maintain the
registration statement and to supply copies of a prospectus for a period beyond
120 days after the effective
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date of such registration statement, at the end of such period, the Company may
deregister any shares of Common Stock covered by such registration statement and
not then sold or distributed. In connection with any such registration of shares
of Common Stock, the Company will, at the request of the managing underwriter
with respect thereto, use its best efforts to qualify such registered shares for
sale under the securities laws of such state as is reasonably required to permit
the distribution of such registered shares; provided, however, that the Company
shall not be required in connection therewith or as condition thereof to qualify
as a foreign corporation or to execute a general consent to service of process
in any jurisdiction or become subject to taxation in any jurisdiction.
(e) Notwithstanding any other provision of this Section 7, Holder
agrees that in the event of an underwritten public offering of Common Stock for
the account of the Company, such Holder will not offer for public sale (other
than as part of such underwritten public offering) any shares of Common Stock
during the ten (10) days prior to, and such number of days (not in excess of
180) after, the effective date of the registration statement in connection with
such public offering as the underwriters and the Company may request in writing,
without the consent of the underwriters; provided, however, that, in the case of
death of a Holder, if consented to by the underwriters, a Holder shall be
permitted to offer for public sale prior to the expiration of such period shares
of Common Stock reasonably necessary to generate funds of the payment of estate
taxes.
(f) Except as otherwise required by state securities laws or the
rules and regulations promulgated thereunder, all expenses, disbursements and
fees incurred by the Company in connection with carrying out its obligations
under this Section 7 shall be borne by the Company; provided, however, that each
Holder shall pay (i) all costs and expenses of counsel for such Holder, if such
counsel is not also counsel for the Company, (ii) all underwriting discounts,
commissions and expenses and all transfer taxes with respect to the shares of
Common Stock sold by such Holder and (iii) all other expenses incurred by such
Holder and incidental to the sale and delivery of the shares of Common Stock to
be sold by such Holder.
(g) It shall be a condition of each Holder's rights hereunder to
have shares of Common Stock owned by such Holder registered that:
(1) such Holder shall cooperate with the Company by supplying
information and executing documents relating to such Holder or the
securities of the Company owned by such Holder in connection with such
registration;
(2) such Holder shall enter into any undertakings and take such
other action relating to the conduct of the proposed offering which the
Company or the underwriters may reasonably request as being necessary to
insure compliance with federal and state securities laws and the rules or
other requirements of the National Association of Securities Dealers, Inc.
or which the Company or the underwriters may reasonably request to
otherwise effectuate the offering; and
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(3) such Holder shall execute and deliver an agreement to
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the registration statement, any underwriter (as
defined in the Act) and each person, if any who controls the Company or
such underwriter within the meaning of the Act, against such losses,
claims, damages or liabilities (including reimbursement for legal and other
expenses) to which the Company or any such director, officer, underwriter
or controlling person may become subject under the Act or otherwise, in
such manner as is customary for registration of the type then proposed and,
in any event, equivalent in scope to indemnities given by the Company in
connection with such registration, but only with respect to written
information furnished by such Holder in his or her capacity as a selling
shareholder in connection with such registration.
(h) In the event of any registration under the Act of any shares of
Common Stock pursuant to this Section 7, the Company hereby agrees to indemnify
and hold harmless each Holder disposing of such shares against such losses,
claims, damages or liabilities (including reimbursement for legal and other
expenses) to which such Holder may become subject under the Act or otherwise, in
such manner as is customary for registrations of the type then proposed, but not
with respect to written information furnished by such Holder in his capacity as
a selling shareholder in connection with such registration.
8. Tag-Along Rights.
(a) Right to Participate in Sale. If GEI enters into an agreement to
transfer, sell or otherwise dispose of (such transfer, sale or other disposition
being referred to as a "Tag-Along Sale") a majority of its shares of Common
Stock of the Company held on the date hereof, then GEI shall afford the Holder
the opportunity to participate proportionately in such Tag-Along Sale in
accordance with this Section 8. The Holder shall have the right, but not the
obligation (except as provided in Section 9), to participate in such Tag-Along
Sale. The number of shares of Common Stock that the Holder will be entitled to
include in such Tag-Along Sale (the "Management Investor's Allotment") shall be
determined by multiplying (i) the number of shares of Common Stock held by the
Holder on the Tag-Along Sale Date (as defined below), by (ii) a fraction, the
numerator or which shall equal the number of shares of Common Stock proposed by
GEI to be sold or otherwise disposed of pursuant to the Tag-Along Sale and the
denominator of which shall equal the total number of shares of Common Stock that
are beneficially owned by (a) GEI and (b) any holder of shares of Common Stock
(including the Holder) that has the right to "tag-along" in the Tag-Along Sale
on the Tag-Along Sale Date. The "Tag Along Notice Date" shall be the date that
the Tag-Along Sale Notice (as defined below) is first delivered, mailed or sent
by courier, Telex or telecopy to the Holder.
(b) Limitation on Management Investor Representations; Indemnity.
Any sales of shares of Common Stock by a Holder as a result of the "Tag-Along
Rights" granted to the Holder pursuant to this agreement shall be on the same
terms and conditions as the proposed Tag-Along Sale by GEI; provided, however,
that in negotiating a Tag-Along Sale, GEI shall use its reasonable, good faith
efforts to provide (i) that the only representation and warranty which the
Holder shall be required to make in connection with any transfer is a warranty
with
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respect to the Holder's own ability to convey title thereto free and clear of
liens, encumbrances or adverse claims and (ii) that the warranty made in
connection with any transfer is the several liability of the Holder (and not
joint with any other person) and that such liability is limited to the amount of
proceeds actually received by such Holder.
(c) Sale Notice. GEI shall provide the Holder with written notice
(the Tag-Along Sale Notice") not more than sixty (60) nor less than twenty (20)
days prior to the proposed date of the Tag-Along Sale (the "Tag-Along Sale
Date"). Each Tag-Along Sale Notice shall set forth: (i) the name and address of
each proposed transferee or purchaser of shares in the Tag-Along Sale; (ii) the
number of shares proposed to be transferred or sold by GEI; (iii) the proposed
amount and form of consideration to be paid for such shares and the terms and
conditions of payment offered by each proposed transferee or purchaser; (iv) the
aggregate number of shares of Common Stock held of record as of the close of
business on the day immediately preceding the Tag-Along Notice Date by GEI; (v)
the Management Investor's Allotment assuming the Holder elected to sell the
maximum number of shares of Common Stock possible; (vi) confirmation that the
proposed purchaser or transferee has been informed of the "Tag-Along Rights"
provided for herein and has agreed to purchase shares of Common Stock (including
Vested Shares) in accordance with the terms hereof and (vii) the Tag-Along Sale
Date.
(d) Tag-Along Notice. If the Holder wishes to participate in the
Tag-Along Sale, the Holder shall provide written notice (the "Tag-Along Notice")
to GEI no less than ten (10) days prior to the Tag-Along Sale Date. The
Tag-Along Notice shall set forth the number of shares of Common Stock that such
Holder elects to include in the Tag-Along Sale, which shall not exceed the
Management Investor's Allotment. The Tag-Along Notice shall also specify the
aggregate number of additional shares of Common Stock owned of record as of the
close of business on the day immediately preceding the Tag-Along Notice Date by
such Holder, if any, which such Holder desires also to include in the Tag-Along
Sale ("Additional Shares") in the event there is any undersubscription for the
entire amount of all Management Investors' Allotments of all shares that may be
included by persons having, and pursuant to, tag-along rights relative to GEI
(collectively, the "Management Investors' Allotments"). In the event there is an
under-subscription by all holders of Management Investors' Allotments for the
entire amount of the Management Investors' Allotments, GEI shall apportion the
unsubscribed Management Investors' Allotments to such holders whose tag-along
apportionment shall be on a pro rata basis among such holders in accordance with
the number of Additional Shares specified by all such holders in their Tag-Along
Notice. The Tag-Along Notices given by the Holder shall constitute the Holder's
binding agreement to sell such shares of Common Stock on the terms and
conditions applicable to the Tag-Along Sale, subject to the provisions of
Section 8(b) above; provided, however, that in the event that there is any
material change in the terms and conditions of such Tag-Along Sale applicable to
the Holder after the Holder gives the Tag-Along Notice, then, notwithstanding
anything herein to the contrary, the Holder shall have the right to withdraw
from participation in the Tag-Along Sale with respect to all of its shares of
Common Stock affected thereby. If the purchaser does not consummate the purchase
of all of such shares on the same terms and conditions applicable to GEI (except
as otherwise provided herein) then GEI shall not consummate the Tag-Along Sale
of any of its shares to such
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transferee or purchaser, unless the shares of the Holder and GEI are reduced or
limited pro rata in proportion to the respective number of shares actually sold
in any such Tag-Along Sale.
If a Tag-Along Notice is not received by GEI from the Holder prior to
the ten-day period specified above, GEI shall have the right to sell or
otherwise transfer the number of shares specified in the Tag-Along Notice to the
proposed purchaser or transferee without any participation by such Holder, but
only on terms and conditions which are no more favorable in any material respect
to GEI than as stated in the Tag-Along Notice to the Holder and only if such
Tag-Along Sale occurs on a date within sixty (60) business days of the Tag-Along
Sale Date.
(e) Authority to Record Transfer/Delivery of Certificates. On the
Tag-Along Sale Date, the Holder, if a participant therein, authorizes the
Company (or the Company's transfer agent, if any) to record in the Company's
books and records the transfer of all of the Holder's shares of Common Stock
which are not represented by one or more certificates issued by the Company,
from the Holder to the purchaser in the Tag-Along Sale. On the Tag-Along Sale
Date, the Holder, if a participant therein, shall also deliver all certificates,
if any, issued by the Company which represent shares of the Company's Common
Stock, duly endorsed for transfer with signatures guaranteed, to the purchaser
in the Tag-Along Sale, in the manner and at the address indicated in the
Tag-Along Notice against delivery of the purchase price for such shares;
provided, however, that in the event the Company has possession of any such
certificate(s) pursuant to this Agreement, upon the written request of the
Holder at least five (5) business days in advance of the Tag-Along Sale Date,
the Company shall deliver such certificate(s) to the purchaser at the time and
in the manner described above.
(f) Exempt Transfers. The provisions of this Section 8 shall not
apply to (i) any bona fide underwritten offering of Common Stock pursuant to an
effective registration statement under the Act or any bona fide public
distribution of Common Stock pursuant to Rule 144 thereunder, provided that any
such sale complies with the provisions of this Agreement; (ii) any transfer,
sale or other disposition by GEI to one of its Affiliates (except that (A) prior
to any such disposition, the party receiving such shares of Common Stock shall
agree in writing to be bound by the terms of this Agreement applicable to GEI as
if such transferee were an original party hereto and (B) any such shares of
Common Stock shall continue to be subject to this Agreement); (iii) any
redemption by the Company of its Common Stock or (iv) any GEI Distribution (as
defined in Section 14).
9. Drag-Along Sales.
(a) Right to Require Sale. Notwithstanding any other provision
hereof, if GEI agrees to sell 100% of the shares of Common Stock held by it to a
third person who is not an affiliate of GEI (a "Third Party") or if GEI agrees
to sell a portion of its shares pursuant to a transaction in which more than 50%
of the total Common Stock of the Company will be sold to a Third Party (either
of such sales, a "Drag-Along Sale"), then, upon the demand of GEI, each Holder
hereby agrees to sell to such Third Party the same percentage of the total
number of shares of Common Stock held by such Holder on the date of the
Drag-Along Notice, as the
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number of shares GEI is selling in the Drag-Along Sales bears to the total
number of shares held be GEI as of the date of the Drag-Along Notice (the "Sale
Percentage"), at the same price and on the same terms and conditions as GEI has
agreed to with such Third Party; provided, however, that GEI shall use its
reasonable, good faith efforts to provide that (i) the only representation and
warranty which the Holder shall be required to make in connection with the
Drag-Along Sale is a representation and warranty with respect to the Holder's
own ownership of the shares of Common Stock to be sold by it and its ability to
convey title thereto free and clear of liens, encumbrances or adverse claims and
(ii) that the liability of any other Holder with respect to any representation
and warranty made in connection with the Drag-Along Sale is the several
liability of such other Holder (and not joint with any other person) and that
such liability is limited to the amount of proceeds actually received by such
other Holder in the Drag-Along Sale; provided further, that the Holder shall not
be obligated to participate in any Drag-Along Sale unless the Holder is provided
an opinion of counsel to the effect that the Drag-Along Sale is not in violation
of applicable federal or state securities or other laws or, if the Holder is not
provided with an opinion with respect to any matters contemplated by this
proviso, GEI shall (in addition to the indemnification contemplated below)
indemnify the Holder for any violation. If the Drag-Along Sale is in the form of
a merger transaction, the Holder agrees to vote his or her shares of Common
Stock in favor of such merger and not to exercise any rights of appraisal or
dissent afforded under applicable law.
(b) Drag-Along Notice. Prior to making any Drag-Along Sale, if GEI
elects to exercise the option described in this Section 9, GEI shall provide the
Holder with written notice (the "Drag-Along Notice") not more than sixty (60)
nor less than twenty (20) days prior to the proposed date of the Drag-Along Sale
(the "Drag-Along Sale Date"). The Drag-Along Notice shall set forth: (i) the
name and address of the Third Party; (ii) the proposed amount and form of
consideration to be paid per share and the terms and conditions of payment
offered by the Third Party; (iii) the aggregate number of shares of Common Stock
held by GEI as of the date that the Drag-Along Notice is first delivered, mailed
or sent by courier, telex or telecopy to the Holder; (iv) the sale percentage;
(v) the Drag-Along Sale Date and (vi) confirmation that the proposed Third Party
has agreed to purchase the Management Investor's shares of Common Stock in
accordance with the terms hereof.
(c) Authority to Record Transfer/Delivery of Certificates. The
Company (or the Company's transfer agent, if any) shall record in the Company's
books and records the transfer of the Sale Percentage of the Holder's shares of
Common Stock which is not represented by one or more certificates issued by the
Company, from the Holder to the Third Party, on the Drag-Along Sale Date. If any
part of the Sale Percentage of the Holder's shares of Common Stock is
represented by one or more certificates issued by the Company, the Holder shall
deliver such certificate or certificates for such shares, duly endorsed for
transfer with signatures guaranteed, to such Third Party on the Drag-Along Sale
Date in the manner and at the address indicated in the Drag-Along Notice against
delivery of the purchase price for the shares; provided, however, that in the
event the Company has possession of any such certificate(s) pursuant to this
Agreement, upon the written request of the Holder at least five (5) business
days in advance of the Drag-Along Sale Date, the Company shall deliver such
certificate(s) to the purchaser at the time and in the manner described above.
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(d) Consideration. The provisions of this Section 9 shall apply
regardless of the form of consideration received in the Drag-Along Sale.
10. Noncompetition.
(a) Management Investor covenants and agrees that Management
Investor will not, during the period of his employment with the Company or any
of the Company's subsidiaries, and for a period of three (3) years after the
termination of such employment, without the prior written consent of the
Company, individually or in partnership or in conjunction with or as an
employee, officer, director, manager or agent of any other person, firm,
corporation or other entity, either directly or indirectly, undertake or carry
on or be engaged or have any financial or other interest in, or in any other
manner advise or assist any person, firm, corporation or other entity engaged or
interested in, any newspaper publishing business or any other business involving
the printing or publication of any newspaper, flyer, shopper, circular or other
publication carrying advertising, or any other business involving the
solicitation of local advertising, or any advertising agency business, or any
job printing business, carried on in any community or communities described in
Annex B attached hereto or within a radius of fifty (50) miles of the center
point of any such community.
(b) Management Investor further covenants and agrees to refrain,
for a period of three (3) years following the termination of Management
Investor's employment by or on behalf of the Company or any of the Company's
subsidiaries, for whatever reason, from (i) selling, or attempting to sell, any
advertising which is or is intended to be distributed or disseminated within any
community or communities listed in Annex C hereto or within a fifty (50) mile
radius of the center point of any such community to any person, firm,
corporation or other entity which, at the termination of such employment, was a
purchaser of advertising from one or more of the newspapers or other
publications of the Company or any of the Company's subsidiaries; (ii) inducing,
or attempting to induce, any person, firm or corporation to cease, discontinue
or fail to renew any advertising contract, agreement or arrangement with one or
more of the newspapers or other publications of the Company or any of the
Company's subsidiaries; and (iii) soliciting, employing, diverting or taking
away, or attempting to solicit, employ, divert or take away, any person who, at
the time of such termination or at any time during the six (6) month period
prior to such termination, was employed by or on behalf of the Company or any of
the Company's subsidiaries.
(c) Management Investor further agrees and warrants that the
covenants contained in this Section 10 are reasonable, that valid consideration
has been and will be received therefor and that the agreements set forth herein
are the result of arm's length negotiation between the parties hereto.
Management Investor believes that he will be able to earn an adequate livelihood
for himself and his dependents if the covenants contained in this Section 10 are
enforced against him.
(d) If any of the provisions of or covenants contained in this
Section 10 is hereafter construed to be invalid or unenforceable in any
jurisdiction, the same shall not affect the remainder of the provisions or the
enforceability thereof in any other jurisdiction, which
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shall be given full force and effect, without regard to the invalidity or
unenforceability in such other jurisdiction. If any of the provisions of or
covenants contained in this Section 10 is held to be unenforceable in any
jurisdiction because of the duration or geographical scope thereof, the parties
agree (i) that the court making such determination shall have the power to
reduce the duration and/or geographical scope of such provision or covenant and,
in its reduced form, said provision or covenant shall be enforceable, provided,
however, that the determination of such court shall not affect the
enforceability of this Section 10 in any other jurisdiction, and (ii) that if
the court making such determination shall not have the power, or shall refuse to
exercise its power, to reduce the duration and/or geographical scope of such
provision or covenant, then the Management Investor shall, in further
consideration of stock sold pursuant to this Agreement, and without the
requirement of any further consideration, enter into a new Noncompetition
Agreement substantially in the form of this Section 10 but containing such
reduced duration and/or geographical scope as shall be determined by the
Company, in its sole discretion.
11. Notices. All notices or other communications under this Agreement
shall be given in writing and shall be deemed duly given and received on the
third full business day following the day of the mailing thereof by registered
or certified mail or when delivered personally or sent by facsimile transmission
as follows:
(a) if to the Company, at its principal executive offices at the
time of the giving of such notice, or at such other place as the Company shall
have designated by notice as herein provided to the Management Investor,
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇;
(b) if to the Management Investor, at the address of the Management
Investor as it appears in Annex A or at such other place as the Management
Investor shall have designated by notice as herein provided to the Company;
(c) if to GEI, at its principal executive offices at the time of
the giving of such notice, or at such other place as GEI shall have designated
by notice as herein provided to the Company.
12. Specific Performance. Due to the fact that the securities of the
Company cannot be readily purchased or sold in the open market and because
damages to the Company and its Subsidiaries will be difficult to ascertain and
remedies at law to the Company and its Subsidiaries will be inadequate and for
other reasons, the parties will be irreparably damaged in the event that this
Agreement is not specifically enforced. In the event of a breach or threatened
breach of the terms, covenants and/or conditions of this Agreement by any of the
parties hereto, the other parties shall, in addition to all other remedies, be
entitled (without any bond or other security being required) to a temporary
and/or permanent injunction, without showing any actual damage or that monetary
damages would not provide an adequate remedy, and/or a decree for specific
performance, in accordance with the provisions hereof.
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13. Miscellaneous.
(a) Except as provided in the last sentence of this paragraph, this
writing constitutes the entire agreement of the parties with respect to the
subject matter hereof and may not be modified or amended except by a written
agreement signed by the Company, GEI and the Management Investor; provided,
however, that any of the provisions of this Agreement (except as hereinafter
provided) may be modified, amended or eliminated by agreement of the Company,
GEI and a majority in interest (on the basis of the number of shares of Common
Stock then owned by the Management Investor and/or his Related Transferees) of
all of the Management Investors and all holders of securities pursuant to
agreements in forms substantially similar to this Agreement, which agreement
shall bind the Management Investor whether or not the Management Investor has
agreed thereto; provided, further, that no modification or amendment which would
materially adversely affect the rights of the Management Investor under Sections
3, 4, 5, 6, 7, 8, 9, 10 or 13(a) of this Agreement shall be effective as to the
Management Investor if the Management Investor shall not have consented in
writing thereto. Anything in this Agreement to the contrary notwithstanding, any
modification or amendment of this Agreement by a written agreement signed by, or
binding upon, the Management Investor shall be valid and binding upon any and
all persons or entities who may, at any time, have or claim any rights under or
pursuant to this Agreement in respect of Common Stock acquired hereunder is
subject to, and the Company and the Management Investor agree to be bound by,
all of the terms and conditions of this Agreement.
(b) No waiver of any breach or default hereunder shall be
considered valid unless in writing, and no such waiver shall be deemed a waiver
of any subsequent breach or default of the same or similar nature. Anything in
this Agreement to the contrary notwithstanding, any waiver, consent or other
instrument under or pursuant to this Agreement signed by, or binding upon, the
Management Investor shall be valid and binding upon any and all persons or
entities (other than the Company) who may, at any time, have or claim any rights
under or pursuant to this Agreement in respect of the Common Stock acquired
hereunder.
(c) Except as otherwise expressly provided herein, this Agreement
shall be binding upon and inure to the benefit of the Company, its successors
and assigns and the Management Investor and the Management Investor's heirs,
personal representatives, successors and assigns; provided, however, that
nothing contained herein shall be construed as granting the Management Investor
the right to transfer any Common Stock acquired hereunder except in accordance
with this Agreement and any transferee shall hold such Common Stock having only
those rights and being subject to the restrictions provided for in this
Agreement.
(d) If any provision of this Agreement shall be invalid or
unenforceable, such invalidity or unenforceability shall attach only to such
provision and shall not in any manner affect or render invalid or unenforceable
any other severable provision of this Agreement, and this Agreement shall be
carried out as if any such invalid or unenforceable provision were not contained
herein.
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(e) The provisions of this Agreement shall apply to all shares of
Common Stock acquired hereunder by the Management Investor (including the
Management Investor's Related Transferees and any Outside Parties).
(f) Except as set forth in Section 12, arbitration shall be the
exclusive remedy for resolving any dispute or controversy between the Company,
any of its subsidiaries or GEI and any Management Investor, personal
representative of an Management Investor, Related Transferee, Holder or Outside
Party. Such arbitration shall be conducted in accordance with the then most
applicable rules of the American Arbitration Association. The arbitrator shall
be empowered to grant only such relief as would be available in a court of law.
In the event of any conflict between this Agreement and the rules of the
American Arbitration Association, the provisions of this Agreement shall be
determinative. If the parties are unable to agree upon an arbitrator, they shall
select a single arbitrator from a list of seven arbitrators designated by the
office of the American Arbitration Association having responsibility for the
city in which the Management Investor last resided while employed by the Company
or its subsidiaries, all of whom shall be retired judges who are actively
involved in hearing private cases or members of the National Academy of
Arbitrators. If the parties are unable to agree upon an arbitrator from such
list, they shall each strike names alternatively from the list, with the first
to strike being determined by lot. After each party has used three strikes, the
remaining name on the list shall be the arbitrator. The fees and expenses of the
arbitrator shall initially be borne equally by the parties; provided, however,
that each party shall initially be responsible for the fees and expenses of its
own representatives and witnesses. If the parties cannot agree upon a location
for the arbitration, the arbitrator shall determine the location. Judgment may
be entered on the award of the arbitrator in any court having jurisdiction. The
prevailing party in the arbitration proceeding, as determined by the arbitrator,
and in any enforcement or other court proceedings, shall be entitled to the
extent provided by law to reimbursement from the other party for all of the
prevailing party's costs (including but not limited to the arbitrator's
compensation), expenses and reasonable attorneys' fees.
(g) Should any party to this Agreement be required to commence any
litigation concerning any provision of this Agreement or the rights and duties
of the parties hereunder, the prevailing party in such proceeding shall be
entitled, in addition to such other relief as may be granted, to the reasonable
attorneys' fees and court costs incurred by reason of such litigation.
(h) The section headings contained herein are for the purposes of
convenience only and are not intended to define or limit the contents of said
sections.
(i) Each party hereto shall cooperate and shall take such further
action and shall execute and deliver such further documents as may be reasonably
requested by any other party in order to carry out the provisions and purposes
of this Agreement.
(j) The Management Investor represents that, if the Management
Investor is married, the Management Investor's spouse has signed the
Acknowledgment and Agreement of Spouse relating to the Management Investor at
the end of this Agreement.
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(k) Words in the singular shall be read and construed as though in
the plural and words in the plural shall be read and construed as though in the
singular in all cases where they would so apply.
(l) This Agreement may be executed in one or more counterparts, all
of which taken together shall be deemed one original.
(m) The Management Investor hereby irrevocably and unconditionally
consents to the jurisdiction of any Delaware State court or federal court of the
United States sitting in the State of Delaware in any action or proceeding
relating to this Agreement and consents to service of process in connection
therewith by the delivery of notice to such Management Investor's address set
forth in this Agreement.
(n) This Agreement shall be deemed to be a contract under the laws
of the State of Delaware and for all purposes shall be construed and enforced in
accordance with the internal laws of said state without regard to the principles
of conflicts of law.
14. GEI Distributions Exempt.
It is expressly understood and agreed that GEI may distribute to
its partners or equity participants, in accordance with the terms of its limited
partnership agreement, all or any part of the shares of the Company's capital
stock or other Company securities held by it (any such distribution, a "GEI
Distribution"). Notwithstanding anything to the contrary contained in this
Agreement, any GEI distribution shall not constitute a "sale," "transfer" or
"disposition" for any purpose under this Agreement and shall be exempt in all
respects from the terms and conditions of this Agreement. As an example, and
without limiting the generality of the foregoing, it is expressly understood and
agreed that a GEI Distribution shall not constitute a Tag-Along Sale for the
purposes of Section 8 hereof. Further, it is also expressly understood and
agreed that, following a GEI Distribution (i) the shares of the Company's
capital stock or other Company securities distributed to the partners or equity
participants of GEI shall in no way be subject to this Agreement and (ii) any
partner or equity participant of GEI which receives shares of the Company's
capital stock or other Company securities pursuant to a GEI Distribution shall
not be required or deemed to become a party to this Agreement or otherwise be
subject to this Agreement.
15. Original Agreement.
This Agreement amends and restates the Original Agreement in its
entirety.
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IN WITNESS WHEREOF, the parties have executed this Amended and Restated
Management Stockholders Agreement as of the first date written above.
LIBERTY GROUP PUBLISHING, INC.
By:
------------------------------------
Name:
----------------------------------
Its:
-----------------------------------
GREEN EQUITY INVESTORS II, L.P.
By: Grand Avenue Capital Partners, L.P.,
its General Partner
By: Grand Avenue Capital Corporation,
its General Partner
By:
------------------------------------
Name:
----------------------------------
Management Investor
By:
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇
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Acknowledgment and Agreement of Spouse
The undersigned, being the spouse of the Management Investor listed on
Annex A hereto, hereby agrees to be bound by the provisions of this Agreement.
By:
------------------------------------
Name:
----------------------------------
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Annex A
Name and Address
of Management Investor Number of Initial Purchased Shares
---------------------- ----------------------------------
▇▇▇▇ ▇▇▇▇ 800
▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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Annex B
Name and Address
of Management Investor Number of Grant Shares
---------------------- ----------------------
▇▇▇▇ ▇▇▇▇ 27.5
▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
27
Annex C
Communities Subject to Noncompetition Provisions
▇▇▇▇▇▇▇ City, IA
Atchison, KS
Leavenworth, KS
Crookston, MN
Camdenton, MO
Rolla, MO
St. ▇▇▇▇▇, MO
Osage Beach, MO
Waynesville, MO