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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO
13d-1(a) AND AMENDMENTS THERETO FILED
PURSUANT TO RULE 13d-2(a)
(AMENDMENT NO.____)(1)
Alternate Marketing Networks, Inc.
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(Name of Issuer)
Common Stock, no par value
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(Title of Class of Securities)
01245P
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(CUSIP Number)
William A. Niese
The Times Mirror Company, Times Mirror Square, Los Angeles, California 90053
(213) 237-3700
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
August 20, 1999
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition that is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box [ ].
Note: Schedules filed in paper format shall include a signed
original and five copies of the schedule, including all exhibits. See
Rule 13d-7(b) for other parties to whom copies are to be sent.
(Continued on following pages)
(Page 1 of 5 Pages)
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(1) The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not
be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
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13D
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CUSIP No. 01245P PAGE 2 OF 5 PAGES
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
The Times Mirror Company
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
N/A
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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7 SOLE VOTING POWER
689,552
NUMBER OF ----------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 0
EACH ----------------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 689,552
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10 SHARED DISPOSITIVE POWER
0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
689,552
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ]
N/A
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
16.6%
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14 TYPE OF REPORTING PERSON*
CO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
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13D
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CUSIP No. 01245P PAGE 3 OF 5 PAGES
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Item 1. Security and Issuer.
This statement relates to the Common Stock, no par value (the
"Common Stock"), of Alternate Marketing Networks, Inc., a Michigan corporation
("AMNI"). The principal executive offices of AMNI are located at One Ionia S.W.,
Suite 300, Grand Rapids, MI 49503.
Item 2. Identity and Background.
This Schedule 13D is being filed by The Times Mirror Company, a
Delaware corporation ("TMC"), to report that TMC has entered into two agreements
to purchase certain shares of Common Stock of AMNI, as further described in Item
3 below. As such, TMC may be deemed to be a beneficial owner of such shares of
Common Stock under Rule 13d-3 of the Securities Act of 1933, as amended (the
"Act").
The principal business of TMC is the publication of the Los
Angeles Times, Newsday, The Baltimore Sun, The Hartford Courant, The Morning
Call, The (Stamford) Advocate and Greenwich Time; a wide array of professional
information for the aviation, training and health improvement markets, and
consumer magazines.
The principal business and office address of TMC is Times Mirror
Square, Los Angeles, California 90053.
During the last five years, TMC has not (i) been convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors) or
(ii) been a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such a proceeding was or is subject to
a judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to, federal or state securities laws or finding
any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
On August 20, 1999, (a) TMC and AMNI entered into a Stock
Purchase Agreement (the "AMNI Agreement") providing for the issuance by AMNI to
TMC of 350,000 shares of Common Stock (the "AMNI Shares") in exchange for
$1,050,000 and (b) TMC and Edelson Technology Partners II, L.P., a Delaware
limited partnership ("Edelson"), entered into a Stock Purchase Agreement (the
"Edelson Agreement," and together with the AMNI Agreement, the "Agreements")
providing for the purchase by TMC of 339,552 shares of Common Stock held by
Edelson (the "Edelson Shares," and together with the AMNI Shares, the "Shares")
for a purchase price of $933,768. The source of funds used to purchase the
Shares is the working capital of TMC. The closing of the transactions
contemplated by the AMNI Agreement is subject to standard terms and conditions,
including the execution of a shareholder agreement and a registration rights
agreement, as further described in Item 6 below. TMC shall file an amendment to
this Schedule 13D upon the closing of the transactions contemplated by the
Agreements (the "Closing Date") and in connection therewith will file a copy of
such executed shareholder agreement and registration rights agreement as
exhibits thereto.
Item 4. Purpose of Transaction.
TMC and AMNI intend to enter into a Shareholder Agreement (the
"Shareholder Agreement") on or before the Closing Date, pursuant to which the
number of seats on the Board of Directors shall be increased from four to five.
TMC shall have the right to nominate a director to fill the newly-created board
seat. In addition, on the Closing Date, Harry Edelson shall resign as a director
of AMNI and TMC shall have the right to nominate a director to fill the vacancy
on the Board created by Harry Edelson's resignation.
TMC may purchase additional shares of Common Stock in the future
through open-market purchases, privately-negotiated transactions or otherwise.
The statement in the prior sentence shall not be considered a tender offer to
purchase any additional shares of Common Stock.
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13D
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CUSIP No. 01245P PAGE 4 OF 5 PAGES
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Other than as described above pursuant to the Shareholder
Agreement, TMC has no plans or proposals that relate to or would result in any
of the actions described in subparagraphs (a) through (j) of Item 4 of Schedule
13D (although it reserves the right to develop such plans).
Item 5. Interest in Securities of the Issuer.
(a) On the Closing Date, TMC will beneficially own 689,552
shares of Common Stock of AMNI, which will represent 16.6%
of the issued and outstanding shares of Common Stock of
AMNI (which is based on the number of securities
outstanding as contained in the most recently available
filing with the Commission by AMNI).
(b) TMC has the sole power to vote and direct the vote of the
Shares.
(c) TMC will acquire the 689,552 shares of Common Stock of
AMNI on the Closing Date as more fully described in Item 3
above.
(d) No other person is known to have the right to receive or
the power to direct the receipt of dividends from, or the
proceeds from the sale of, such securities.
Item 6. Contracts, Arrangements, Understandings or Relationships With
Respect to Securities of the Issuer.
Shareholder Agreement. Pursuant to the Shareholder Agreement, in
the event that AMNI desires to issue and sell additional shares of Common Stock
in a public or private offering for cash (an "Offering"), TMC shall have the
right to purchase such number of shares to maintain its then current percentage
ownership interest in AMNI and to prevent any dilution of its percentage
ownership interest in AMNI that would otherwise occur as a result of any such
Offering. In addition to the right of TMC to purchase shares of Common Stock in
order to maintain its percentage ownership interest in AMNI as described in the
prior sentence, TMC shall also have a preemptive right to purchase additional
shares of Common Stock, so long as the shares of Common Stock sold to TMC, when
aggregated with the shares already held by Times Mirror, do not result in TMC
owning 45% or more of the outstanding shares of Common Stock.
Registration Rights Agreement. On the Closing Date, TMC and AMNI
will be parties to a Registration Rights Agreement, dated as of the Closing Date
(the "Registration Rights Agreement"). Under the Registration Rights Agreement,
if TMC requests that AMNI register the Shares in an underwritten offering, AMNI
shall be required to register such shares under the Act as expeditiously as
practicable. TMC will have two such demand registration rights.
AMNI will bear all expenses incident to any registration effected
pursuant to the Registration Rights Agreement, including the fees and expenses
of a single counsel retained by TMC; however, TMC will be responsible for the
underwriting discounts and commissions in connection with any of the Shares sold
by TMC. TMC will be entitled to customary indemnification from AMNI against
certain liabilities, including liabilities under the Act.
In addition, the Registration Rights Agreement will grant TMC a
"piggyback" registration right to include its Shares on a pro rata basis in any
registration effected for the account of AMNI or any other person. All fees,
costs and expenses of such registration (other than underwriting discounts and
commissions) will be borne by AMNI. TMC will be entitled to customary
indemnification from AMNI against certain liabilities, including liabilities
under the Act.
Item 7. Material to be Filed as Exhibits.
(a) Stock Purchase Agreement, dated as of August 20, 1999, by
and among The Times Mirror Company and Alternate Marketing
Networks, Inc.
(b) Stock Purchase Agreement, dated as of August 20, 1999 by
and between The Times Mirror Company and Edelson
Technology Partners II, L.P.
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13D
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CUSIP No. 01245P PAGE 5 OF 5 PAGES
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SIGNATURE
After reasonable inquiry and to the best of their knowledge and
belief, each of the undersigned certifies that the information set forth in this
statement is true, complete and correct.
THE TIMES MIRROR COMPANY
0
By: /s/ Edward L. Blood August 31, 1999
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Edward L. Blood
Title: Vice President, Strategic Planning
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EXHIBIT (A)
STOCK PURCHASE AGREEMENT
DATED AS OF AUGUST 20, 1999
BY AND BETWEEN
ALTERNATE MARKETING NETWORKS, INC.
AND
THE TIMES MIRROR COMPANY
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TABLE OF CONTENTS
<TABLE>
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ARTICLE 1 PURCHASE AND SALE...........................................................1
SECTION 1.1. Purchase and Sale of the Shares..............................1
SECTION 1.2. Purchase Price...............................................1
SECTION 1.3. Closing......................................................1
(a) Times Mirror's Deliveries at Closing................................1
(b) AMNI's Deliveries at Closing........................................2
ARTICLE 2 CONDITIONS TO CLOSING.......................................................2
SECTION 2.1. Conditions to All Parties' Obligations.......................2
(a) Governmental Approvals..............................................2
(b) No Order............................................................2
(c) Listed on NASDAQ....................................................2
SECTION 2.2. Conditions to AMNI's Obligations.............................2
(a) Representations, Warranties and Covenants...........................2
SECTION 2.3. Conditions to Times Mirror's Obligations.....................3
(a) Representations, Warranties and Covenants............................3
(b) Certificate of Good Standing.........................................3
(c) Resolutions..........................................................3
(d) Third-Party Consents.................................................3
(e) Ancillary Agreements.................................................3
(f) Edelson Stock Purchase Agreement.....................................3
(g) Legal Opinion........................................................4
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF AMNI......................................4
SECTION 3.1. Organization and Good Standing of AMNI.......................4
SECTION 3.2. Authority....................................................4
SECTION 3.3. No Breach....................................................5
SECTION 3.4. Consents and Approvals.......................................5
SECTION 3.5. Capital Stock of AMNI........................................5
(a) Authorized Capital Stock of AMNI....................................5
(b) Subsidiaries........................................................6
(c) Registered Common Stock.............................................6
(d) Shares..............................................................6
(e) No Appraisal Rights.................................................6
SECTION 3.6. SEC Reports; Financial Statements............................6
(a) SEC Reports; Audited Financial Statements...........................6
(b) Amendments to SEC Reports...........................................7
SECTION 3.7. Litigation; Decrees..........................................7
SECTION 3.8. Absence of Changes or Events.................................7
SECTION 3.9. Compliance with Applicable Laws..............................7
</TABLE>
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(a) General.............................................................7
(b) Hazardous Materials.................................................8
(c) Notices of Certain Environmental Matters............................8
(d) Definitions.........................................................8
SECTION 3.10. Employee Benefit Plans......................................9
SECTION 3.11. Taxes.......................................................9
(a) Tax Returns and Taxes...............................................9
(b) Tax Claims..........................................................9
(c) Definitions.........................................................9
SECTION 3.12. Brokers.....................................................10
SECTION 3.13. Year 2000...................................................10
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF TIMES MIRROR..............................10
SECTION 4.1. Organization and Good Standing of Times Mirror...............10
SECTION 4.2. Authority....................................................10
SECTION 4.3. No Breach....................................................10
SECTION 4.4. Consents and Approvals.......................................11
SECTION 4.5. Brokers......................................................11
SECTION 4.6. Acquisition of Additional Stock..............................11
ARTICLE 5 COVENANTS OF AMNI...........................................................11
SECTION 5.1. Access.......................................................11
SECTION 5.2. Ordinary Conduct.............................................11
(a) Common Stock........................................................11
(b) Dividends...........................................................12
(c) Redemption or Acquisition of Capital Stock..........................12
(d) Stock Issuances.....................................................12
(e) Reorganizations.....................................................12
(f) Asset Dispositions..................................................12
(g) Charter and Bylaws..................................................12
(h) Agreements..........................................................12
SECTION 5.3. Acquisition of Additional Shares of Common Stock by
Times Mirror; Shareholder Approval.........................12
ARTICLE 6 MUTUAL COVENANTS............................................................13
SECTION 6.1. Publicity....................................................13
SECTION 6.2. Further Assurances...........................................13
ARTICLE 7 TERMINATION; AMENDMENT; WAIVER..............................................13
SECTION 7.1. Termination..................................................13
SECTION 7.2. Effects of Termination.......................................14
ARTICLE 8 INDEMNIFICATION..............................................................14
SECTION 8.1. Indemnification..............................................14
(a) Indemnification by AMNI.............................................14
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(b) Indemnification by Times Mirror.....................................14
SECTION 8.2. Losses Net of Insurance......................................14
SECTION 8.3. Termination of Indemnification...............................15
SECTION 8.4. Claims for Indemnification...................................15
SECTION 8.5. Defense of Claims............................................15
ARTICLE 9 MISCELLANEOUS................................................................16
SECTION 9.1. Expenses.....................................................16
SECTION 9.2. Attorneys' Fees..............................................16
SECTION 9.3. Assignment...................................................16
SECTION 9.4. No Third-Party Beneficiaries.................................17
SECTION 9.5. Notices......................................................17
SECTION 9.6. Counterparts; Facsimile......................................17
SECTION 9.7. Entire Agreement.............................................18
SECTION 9.8. Severability.................................................18
SECTION 9.9. Amendment....................................................18
SECTION 9.10. Extension; Waiver...........................................18
SECTION 9.11. Dispute Resolution; Equitable Enforcement...................18
(a) Arbitration.........................................................18
(b) Equitable Enforcement...............................................18
SECTION 9.12. Interpretation of this Agreement............................19
(a) Construction........................................................19
(b) Governing Law.......................................................19
(c) Headings, Exhibits and Schedules....................................19
(d) Representation By Counsel; Interpretation...........................20
</TABLE>
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TABLE OF EXHIBITS
<TABLE>
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Exhibit A...............................................Terms of Registration Rights Agreement
Exhibit B.......................................................Terms of Shareholder Agreement
Exhibit C........................................................Terms of Strategic Agreements
Exhibit D..................................Items to be Addressed in Opinion of Counsel to AMNI
</TABLE>
TABLE OF SCHEDULES
3.1 Foreign Jurisdictions
3.3 AMNI Consents
3.5 Capitalization
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TABLE OF DEFINED TERMS
<TABLE>
<CAPTION>
Cross Reference
Term in Agreement Page
<S> <C> <C>
Agreement...................................................... Preamble.................... 1
AMNI Material Adverse Effect................................... Section 3.1................. 4
AMNI........................................................... Preamble.................... 1
Applicable Laws................................................ Section 3.9(a).............. 7
Benefit Plans.................................................. Section 3.10................ 8
Closing Date................................................... Section 1.3................. 1
Closing........................................................ Section 1.3................. 1
Code........................................................... Section 3.10................ 8
Common Stock................................................... Section 3.5(a).............. 5
Contracts...................................................... Section 3.3................. 4
Edelson Shares................................................. Section 2.3(f).............. 3
Edelson Stock Purchase Agreement............................... Section 2.3(f).............. 3
Enforceability Exceptions...................................... Section 3.2................. 4
Environmental Law.............................................. Section 3.9(d)(ii).......... 8
Exchange Act................................................... Section 3.6(a).............. 6
Hazardous Material............................................. Section 3.9(d)(i)........... 7
Losses......................................................... Section 8.1(a)............. 13
NASDAQ......................................................... Section 2.1(c).............. 2
Purchase Price................................................. Section 1.2................. 1
Registration Rights Agreement.................................. Section 2.3(e).............. 3
SEC Reports.................................................... Section 3.6(a).............. 6
Securities Act................................................. Section 3.6(a).............. 6
Share or Shares................................................ Recitals.................... 1
Shareholder Agreement.......................................... Section 2.3(e).............. 3
Strategic Agreements........................................... Section 2.3(e).............. 3
Tax or Taxes................................................... Section 3.11(c)(i).......... 8
Tax Return..................................................... Section 3.11(c)(ii)......... 8
Times Mirror................................................... Preamble.................... 1
Transaction Documents.......................................... Section 3.2................. 4
</TABLE>
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") dated as of August 20,
1999 is by and between THE TIMES MIRROR COMPANY, a Delaware corporation ("Times
Mirror"), and ALTERNATE MARKETING NETWORKS, INC., a Michigan corporation
("AMNI").
RECITALS
WHEREAS, on the terms and subject to the conditions set forth herein,
AMNI desires to sell to Times Mirror, and Times Mirror desires to purchase from
AMNI, 350,000 shares of common stock, no par value, of AMNI (individually, a
"Share" and collectively, the "Shares").
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements herein contained and
intending to be legally bound hereby, Times Mirror and AMNI hereby agree as
follows:
ARTICLE 1
PURCHASE AND SALE
SECTION 1.1. Purchase and Sale of the Shares. On the terms and subject
to the conditions of this Agreement, AMNI will sell, transfer and deliver to
Times Mirror, and Times Mirror will purchase from AMNI, free and clear of all
liens, claims, encumbrances, security interests, options, charges and
restrictions of any kind, the Shares.
SECTION 1.2. Purchase Price. In consideration of the sale, transfer and
delivery of the Shares, Times Mirror shall pay to AMNI one million, fifty
thousand dollars ($1,050,000) in cash (the "Purchase Price"), payable as set
forth in Section 1.3(a)(i).
SECTION 1.3. Closing. The closing of the purchase and sale of the Shares
(the "Closing") will take place on September 10, 1999 (the "Closing Date") at
the offices of Gibson, Dunn & Crutcher LLP, 333 South Grand Avenue, Los Angeles,
California 90071, unless another time, date or place is agreed to in writing by
the parties hereto.
(a) Times Mirror's Deliveries at Closing. At the Closing, Times
Mirror shall deliver to AMNI (i) by wire transfer (to a bank account designated
at least two business days prior to the Closing Date in writing by AMNI)
immediately available funds in an amount equal to the Purchase Price and (ii)
such other documents as are specifically required by this Agreement.
(b) AMNI's Deliveries at Closing. At the Closing, AMNI shall
deliver or cause to be delivered to Times Mirror (i) a certificate representing
the Shares and (ii) such other documents as are specifically required by this
Agreement.
1
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ARTICLE 2
CONDITIONS TO CLOSING
SECTION 2.1. Conditions to All Parties' Obligations. The respective
obligations of the parties hereto to consummate the Closing shall be subject to
the satisfaction (or waiver by each party in writing) on or before the Closing
Date of the following conditions:
(a) Governmental Approvals. Any notice or approvals to or of any
federal, state or foreign governmental authority with respect to the
transactions contemplated hereby shall have been either filed or received.
(b) No Order. No federal, state or foreign governmental authority
or other agency or commission or court of competent 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 prohibiting consummation of the
transactions contemplated by this Agreement.
(b) Listed on NASDAQ. The Common Stock of AMNI shall not have
ceased trading on or been delisted from the NASDAQ SmallCap Market ("NASDAQ"),
and no event shall have occurred which would cause the Common Stock of AMNI to
cease trading on or to be delisted from NASDAQ.
SECTION 2.2. Conditions to AMNI's Obligations. The obligations of AMNI
to consummate the Closing are subject to the satisfaction (or waiver by AMNI in
writing) on or before the Closing Date of the following conditions:
(a) Representations, Warranties and Covenants. The
representations and warranties of Times Mirror made in this Agreement shall be
true and correct in all material respects as of the date of this Agreement and,
except as specifically contemplated by this Agreement, on and as of the Closing
Date, as though made on and as of the Closing Date, and Times Mirror 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 performed or complied with by Times Mirror by the time of the
Closing; and AMNI shall have received from Times Mirror a certificate dated the
Closing Date and signed by an authorized officer of Times Mirror confirming the
foregoing.
SECTION 2.3. Conditions to Times Mirror's Obligations. The obligations
of Times Mirror to consummate the Closing are subject to the satisfaction (or
waiver by Times Mirror in writing) on or before the Closing Date of the
following conditions:
(a) Representations, Warranties and Covenants. The
representations and warranties of AMNI made in this Agreement shall be true and
correct in all material respects as of the date of this Agreement and on and as
of the Closing Date, as though made on and as of the Closing Date, and AMNI
shall have performed or complied in all material respects with all
2
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obligations and covenants required by this Agreement to be performed or complied
with by AMNI or any affiliate of AMNI by the time of the Closing; and Times
Mirror shall have received from AMNI a certificate dated the Closing Date and
signed by an authorized officer of AMNI confirming the foregoing.
(b) Certificate of Good Standing. Times Mirror shall have
received from AMNI a certificate as to AMNI issued by the Secretary of State of
the State of Michigan and the appropriate governmental authority of each other
state in which AMNI is qualified to do business, evidencing its good standing in
each such state as of a date not more than ten days prior to the Closing Date.
(c) Resolutions. Times Mirror shall have received from AMNI
certified copies of resolutions duly adopted by the Board of Directors of AMNI
authorizing the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby, and all such resolutions
shall not have been revoked and shall remain in full force and effect.
(d) Third-Party Consents. AMNI shall have obtained in writing any
third-party consents required under any of the Contracts that are indicated with
an asterisk on Schedule 3.3 to which AMNI is a party.
(e) Ancillary Agreements. AMNI shall have executed and delivered
to Times Mirror (i) a Registration Rights Agreement (the "Registration Rights
Agreement"), consistent with the terms and conditions set forth on Exhibit A,
dated as of the Closing Date, (ii) a Shareholder Agreement (the "Shareholder
Agreement"), consistent with the terms and conditions set forth on Exhibit B,
dated as of the Closing Date, and (iii) one or more strategic agreements
(collectively, the "Strategic Agreements") based on the terms and conditions set
forth in Exhibit C.
(f) Edelson Stock Purchase Agreement. That certain Stock Purchase
Agreement (the "Edelson Stock Purchase Agreement") by and between Times Mirror
and Edelson Technology Partners II, L.P., a Delaware limited partnership, dated
as of the date hereof, with respect to the purchase by Times Mirror of 339,552
shares of Common Stock held by Edelson Technology Partners II, L.P. (the
"Edelson Shares"), shall have been executed and delivered by the other party
thereto, on terms mutually acceptable to the parties thereto.
(g) Legal Opinion. Times Mirror shall have received the opinions
of Moss & Barnett, legal counsel to AMNI, and Bergesen and Clark, PLC, special
counsel to AMNI as to matters of Michigan law, as to the matters set forth in
Exhibit D.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF AMNI
AMNI hereby represents and warrants to Times Mirror as follows:
3
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SECTION 3.1. Organization and Good Standing of AMNI. AMNI and each of
its subsidiaries is a corporation duly organized and validly existing under the
laws of its incorporation. Each of AMNI and each of its subsidiaries has all
requisite corporate power and authority and 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, authorizations and approvals, the lack of which would not,
individually or in the aggregate, have a material adverse effect on the
business, financial condition, prospects or results of operations of AMNI and
its subsidiaries, taken as a whole (an "AMNI Material Adverse Effect"). Each of
AMNI and each of its subsidiaries is duly qualified and in good standing to do
business in the jurisdictions set forth on Schedule 3.1, which jurisdictions
constitute 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 the failure be so qualified or in
good standing would not have an AMNI Material Adverse Effect.
SECTION 3.2. Authority. AMNI has all requisite corporate power and
authority to execute and deliver this Agreement, the Registration Rights
Agreement, the Shareholder Agreement and the Strategic Agreements (collectively,
the "Transaction Documents") and to consummate the transactions contemplated
hereby and thereby. All necessary corporate action required to have been taken
by or on behalf of AMNI by applicable law or its charter documents has been
taken to authorize (a) the approval, execution and delivery on behalf of AMNI of
the Transaction Documents and (b) the performance by AMNI of its obligations
under the Transaction Documents and the consummation of the transactions
contemplated hereby and thereby. Each of the Transaction Documents constitutes a
valid and binding agreement of AMNI, 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, including 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 3.3. No Breach. The execution and delivery of each of the
Transaction Documents by AMNI do not, and the consummation of the transactions
to which AMNI is a party contemplated hereby and thereby will not, (i) violate
or conflict with the Articles of Incorporation or Bylaws of AMNI or (ii) except
as set forth on Schedule 3.3 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 note, bond, mortgage, indenture, lease,
license, contract, agreement or other instrument or obligation to which AMNI or
any of its subsidiaries is now a party or by which any of them or any of their
respective properties or assets may be bound (collectively, "Contracts"), or
violate or conflict with any law, rule or regulation to which AMNI or any of its
subsidiaries or any material portion of AMNI's or any of its subsidiaries'
assets is subject.
SECTION 3.4. Consents and Approvals. Neither the execution and delivery
of the Transaction Documents by AMNI nor the consummation of the transactions to
which AMNI is a
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party contemplated hereby or thereby will require any consent, approval,
authorization or permit of, or filing with or notification to, any governmental
or regulatory authority, except where the failure to obtain such consent,
approval, authorization or permit, or to make such filing or notification would
not have an AMNI Material Adverse Effect.
SECTION 3.5. Capital Stock of AMNI.
(a) Authorized Capital Stock of AMNI. The authorized capital
stock of AMNI consists of 8,000,000 shares of common stock, no par value
("Common Stock") of which, as of August 20, 1999, 3,809,677 shares of Common
Stock were issued and outstanding, and 2,000,000 shares of preferred stock, no
par value, none of which have been issued or are outstanding. All of the shares
of Common Stock are duly authorized and validly issued and outstanding, fully
paid and nonassessable. Except for the outstanding shares of Common Stock and
except as set forth on Schedule 3.5, there are no shares of capital stock or
other equity securities of AMNI outstanding. The shares of Common Stock have not
been issued in violation of, and none of the shares of Common Stock is subject
to, any preemptive or subscription rights. Except as set forth on Schedule 3.5,
there are no outstanding warrants, options, "phantom" stock rights, agreements,
convertible or exchangeable securities or other commitments (other than this
Agreement) pursuant to which AMNI is or may become obligated to issue, sell,
purchase, return or redeem any shares of capital stock or other securities of
AMNI, and no equity securities of AMNI are reserved for issuance for any
purpose. AMNI is not a party to any agreement pursuant to which the shares of
Common Stock are subject to any voting trust agreement or other contract,
agreement, arrangement, commitment or understanding restricting or otherwise
relating to the voting, dividend rights or disposition of the shares of Common
Stock other than (i) this Agreement and (ii) certain options to purchase Common
Stock granted by the shareholders of AMNI to certain third parties.
(b) Subsidiaries. All of the outstanding capital stock of AMNI's
subsidiaries is owned by AMNI, free and clear of any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind, or any other limitation or
restriction. All of the shares of capital stock of each of AMNI's subsidiaries
are duly authorized and validly issued and outstanding, fully paid and
nonassessable. Except for the outstanding shares of the capital stock of each
subsidiary and except as set forth on Schedule 3.5, there are no shares of
capital stock or other equity securities of any of AMNI's subsidiaries
outstanding. The shares of capital stock of each of AMNI's subsidiaries have not
been issued in violation of, and none of such shares of capital stock is subject
to, any preemptive or subscription rights. Except as set forth on Schedule 3.5,
there are no outstanding warrants, options, "phantom" stock rights, agreements,
convertible or exchangeable securities or other commitments pursuant to which
any of AMNI's subsidiaries is or may become obligated to issue, sell, purchase,
return or redeem any shares of capital stock or other securities of such
subsidiary, and no equity securities of such subsidiary are reserved for
issuance for any purpose. The shares of capital stock of each of AMNI's
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 shares of such
capital stock.
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(c) Registered Common Stock. The Common Stock constitutes the
only class of equity securities of AMNI or its subsidiaries registered or
required to be registered under the Exchange Act.
(d) Shares. The Shares, when issued and sold to Times Mirror, in
accordance with the terms of this Agreement and against payment therefore as
described herein, will be duly and validly issued, fully paid and nonassessable.
(e) No Appraisal Rights. The holders of shares of Common Stock
shall not be entitled to appraisal rights as a result of the consummation of the
sale of the Shares by AMNI to Times Mirror as contemplated by this Agreement.
SECTION 3.6. SEC Reports; Financial Statements.
(a) SEC Reports; Audited Financial Statements. AMNI has filed all
required forms, reports and documents ("SEC Reports") with the SEC since
December 31, 1995, each of which has complied in all material respects with all
applicable requirements of the Securities Act of 1933, as amended (the
"Securities Act"), and the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), each as in effect on the dates such forms, reports and
documents were filed. None of such SEC Reports, including, without limitation,
any financial statements or schedules included or incorporated by reference
therein, contained when filed any untrue statement of a material fact or omitted
to state a material fact required to be stated or incorporated by reference
therein or necessary in order to make the statements therein in light of the
circumstances under which they were made not misleading. The audited
consolidated financial statements of AMNI included in the SEC Reports were
prepared in accordance with GAAP and present fairly the consolidated financial
position of AMNI and its consolidated subsidiaries as of the dates thereof and
their consolidated results of operations and changes in financial position for
the periods then ended.
(b) Amendments to SEC Reports. AMNI has heretofore made available
or promptly will make available to Times Mirror a complete and correct copy of
any amendments or modifications which are required to be filed with the SEC but
have not yet been filed with the SEC to any SEC Reports.
SECTION 3.7. Litigation; Decrees. As of the date of this Agreement,
there are no pending and, to the knowledge of AMNI, threatened, lawsuits or
claims with respect to which AMNI or any of its subsidiaries has contacted in
writing the defendant or has been contacted in writing by the claimant or by
counsel for the claimant by or against AMNI or any of its subsidiaries or any of
the properties, assets, operations or businesses or AMNI or any of its
subsidiaries and which (a) involve a claim by or against AMNI or any of its
subsidiaries of more than $50,000, (b) seek any injunctive relief or (c) relate
to the transactions contemplated by this Agreement. Except as publicly disclosed
by AMNI in the SEC Reports, neither AMNI nor any of its subsidiaries is in
default under any judgment, order or decree of any court, administrative agency
or commission or other governmental authority or instrumentality, domestic or
foreign, applicable to AMNI or any of its subsidiaries or any of the properties,
assets, operations or
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businesses of AMNI or any of its subsidiaries, except where such default would
not have an AMNI Material Adverse Effect.
SECTION 3.8. Absence of Changes or Events. Except as publicly disclosed
by AMNI in the SEC Reports, since June 30, 1999, there has not been an AMNI
Material Adverse Effect, other than changes relating to the economy in general
or the industries in which AMNI conducts its business in general and not
specifically relating to AMNI. Except as contemplated by this Agreement, since
June 30, 1999, the business of AMNI and its subsidiaries has been conducted in
the ordinary course.
SECTION 3.9. Compliance with Applicable Laws.
(a) General. AMNI and each of its subsidiaries is in compliance
with all applicable statutes, laws, ordinances, rules, orders and regulations of
any governmental authority or instrumentality, domestic or foreign
(collectively, "Applicable Laws"), except for any such incidents of
noncompliance that would not have an AMNI Material Adverse Effect. This Section
3.9 does not relate to matters with respect to Taxes or any other taxes, which
are the subjects of Section 3.11. This Section 3.9(a) does not relate to
environmental matters, which are the subjects of Sections 3.9(b), 3.9(c) and
3.9(d).
(b) Hazardous Materials. There has been no release of any
Hazardous Material to soil or water originating at, on, or from any of the real
property of AMNI during the period that AMNI or any of its divisions or
subsidiaries has owned, operated on or leased such real property, except for any
such releases that would not have an AMNI Material Adverse Effect.
(c) Notices of Certain Environmental Matters. AMNI has not
received written notice of any alleged violation of Environmental Law or
liability for any release of any Hazardous Material in connection with the
present or past business or properties of AMNI or any of its subsidiaries, and
there exists no writ, injunction, decree, order or judgment outstanding, nor any
lawsuit, proceeding, citation, summons or government agency investigation
relating thereto, except for any such matters that would not have an AMNI
Material Adverse Effect.
(d) Definitions. For purposes of Sections 3.9(b) and 3.9(c):
(i) "Hazardous Material" means any chemical substance the
presence of which requires investigation or remediation under any
federal, state or local statute, regulation, ordinance, order, or common
law; or which is defined as a "hazardous waste" or "hazardous substance"
under any federal, state or local statute, regulation or ordinance,
including the Comprehensive Environmental Response, Compensation and
Liability Act (42 U.S.C. Section 9601 et seq.) or the Resource
Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.); or which
is toxic, explosive, corrosive, flammable, infectious, radioactive,
carcinogenic, mutagenic, or otherwise hazardous and is regulated as such
by any governmental authority, agency, department, commission, board,
agency or instrumentality of the United States or state or any political
subdivision thereof.
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(ii) "Environmental Law" means any applicable statute,
regulation, rule, ordinance, code, license or order, of any governmental
agency, department, commission, board, bureau or instrumentality of the
United States, states and political subdivisions thereof and all
applicable judicial and administrative and regulatory decrees, judgments
and orders relating to the protection of human health or the environment
with respect to Hazardous Materials.
SECTION 3.10. Employee Benefit Plans. With respect to each employee
benefit plan, program, arrangement and contract (including, without limitation,
any "employee benefit plan," as defined in Section 3(3) of ERISA) maintained or
contributed to by AMNI or any of its subsidiaries or with respect to which AMNI
or any of its subsidiaries could incur liability under Section 4069, 4212(c) or
4204 of ERISA (the "Benefit Plans") no event has occurred and, to the knowledge
of AMNI, there currently exists no condition or set of circumstances in
connection with which AMNI or any of its subsidiaries could be subject to any
liability under the terms of the Benefit Plans, ERISA, the Internal Revenue Code
of 1986, as amended (the "Code" or any other Applicable Law which would have an
AMNI Material Adverse Effect.
SECTION 3.11. Taxes.
(a) Tax Returns and Taxes. Except as publicly disclosed in the
SEC Reports, AMNI and its subsidiaries have filed or caused to be filed in a
timely manner (within any applicable extension periods) with the appropriate Tax
authorities all Tax Returns they are required to have filed and have paid or
provided for all Taxes they are required to have paid, except where the failure
to have filed such a Tax Return or paid or provided for such Taxes would not
have an AMNI Material Adverse Effect. Except as publicly disclosed in the SEC
Reports, there are no material Tax liens or assessments against AMNI or any
property or assets of AMNI, other than liens for Taxes that are not due and
payable or which may thereafter be paid without penalty.
(b) Tax Claims. Except as publicly disclosed in the SEC Reports,
no material claim for assessment or collection of Taxes is presently being
asserted against AMNI or any of its subsidiaries and neither AMNI nor any of its
subsidiaries is a party to any pending action, proceeding, or investigation by
any governmental taxing authority nor does AMNI have knowledge of any such
threatened action, proceeding or investigation.
(c) Definitions. For purposes of this Agreement:
(i) "Tax" (including "Taxes") means all federal, state,
local, foreign and other net income, gross income, gross receipts,
sales, use, ad valorem, transfer, franchise, profits, license, lease,
withholding, payroll, employment, excise, stamp, premium, property or
other taxes of any kind whatsoever, together with any interest and any
penalties, additions to tax or additional amounts with respect thereto;
and
(ii) "Tax Return" means any return, report, statement or
information statement required to be filed with respect to Taxes.
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SECTION 3.12. Brokers. No broker, finder or investment banker is
entitled to any brokerage finder's or other fee or commission in connection with
the transactions contemplated by this Agreement based upon arrangements made by
or on behalf of AMNI.
SECTION 3.13. Year 2000. All of the material computer software, computer
firmware, computer hardware (whether general or special purpose), and other
similar or related items of automated, computerized, and/or software system(s)
that are used or relied on by each of AMNI and each of its subsidiaries in the
operation of its business will not malfunction, will not cease to function, will
not generate incorrect data, and will not produce incorrect results when
processing, providing, and/or receiving (a) date-related data into and between
the twentieth and twenty-first centuries and (b) date-related data in connection
with any valid date in the twentieth and twenty-first centuries.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF TIMES MIRROR
Times Mirror hereby represents and warrants to AMNI as follows:
SECTION 4.1. Organization and Good Standing 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 and, to the knowledge of Times Mirror, 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, authorizations and approvals the lack
of which would not prevent Times Mirror from performing its obligations under
the Transaction Documents.
SECTION 4.2. Authority. Times Mirror has all requisite corporate power
and authority to execute and deliver the Transaction Documents and to consummate
the transactions to which Times Mirror is a party contemplated hereby and
thereby. All necessary corporate 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 delivery on behalf of Times Mirror
of the Transaction Documents and (b) the performance by Times Mirror of its
obligations under the Transaction Documents and the consummation of the
transactions contemplated hereby and thereby. Each of the Transaction Documents
constitutes a valid and binding agreement of Times Mirror, enforceable against
it in accordance with its terms, except as the same may be limited by the
Enforceability Exceptions.
SECTION 4.3. No Breach. The execution and delivery of the Transaction
Documents by Times Mirror do not, and the consummation of the transactions to
which Times Mirror is a party contemplated hereby and thereby will not, (a)
violate or conflict with the Certificate of Incorporation or Bylaws of Times
Mirror or (b) constitute a breach or default or give rise to any lien,
third-party right of termination, cancellation, material modification or
acceleration under any material agreement, understanding or undertaking to which
Times Mirror is a party or by which it is bound, or violate or conflict with any
law, rule or regulation to which it or any material portion of its assets is
subject, other than such violations, conflicts, breaches, defaults,
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liens or third-party rights, the existence of which would not prevent Times
Mirror from performing its obligations under the Transaction Documents.
SECTION 4.4. Consents and Approvals. Neither the execution and delivery
of the Transaction Documents by Times Mirror nor the consummation of the
transactions to which Times Mirror is a party contemplated hereby and thereby
will require any consent, approval, authorization or permit of, or filing with
or notification to, any governmental or regulatory authority, except where the
failure to obtain such consent, approval, authorization or permit, or to make
such filing or notification, would not prevent Times Mirror from performing its
obligations under the Transaction Documents.
SECTION 4.5. Brokers. No broker, finder or investment banker is entitled
to any brokerage finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of Times Mirror.
SECTION 4.6. Acquisition of Additional Stock. Times Mirror does not have
any present intention to acquire, either directly or through any of its
affiliates (as such term is defined under the Securities Act), shares of Common
Stock in an amount which, in the aggregate, would result in ownership by Times
Mirror and its affiliates of 45% or more of the Common Stock of AMNI.
ARTICLE 5
COVENANTS OF AMNI
SECTION 5.1. Access. Prior to the Closing, AMNI and its officers,
directors, employees, advisors, representatives and authorized agents will
provide Times Mirror and its representatives, employees, counsel and
accountants, reasonable access to the personnel, properties, books and records
of AMNI.
SECTION 5.2. Ordinary Conduct. Except as contemplated by this Agreement,
from the date of this Agreement to the Closing Date, AMNI will conduct its
business 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 its relationships with customers, suppliers and
others with whom AMNI deals. Except as contemplated by this Agreement, from the
date of this Agreement to the Closing Date, AMNI will not do any of the
following, without the prior written consent of Times Mirror:
(a) Common Stock. Take any action that would result in a failure
to maintain the trading of the Common Stock on NASDAQ;
(b) Dividends. Declare, set aside or pay any dividend or other
distribution in respect of its capital stock;
(c) Redemption or Acquisition of Capital Stock. Redeem or
otherwise acquire any shares of its capital stock;
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(d) Stock Issuances. Authorize for issuance, issue, sell, deliver
or agree or commit to issue sell or deliver (whether through the issuance or
granting of options, warrants, commitments, subscriptions, rights to purchase or
otherwise) any stock of any class or any other securities or equity equivalents
(including, without limitation, any stock options or stock appreciation rights)
of AMNI or any of its subsidiaries, except for (i) the issuance and sale of
shares of Common Stock pursuant to options previously granted under any stock
option plans of AMNI and (ii) the issuance of options to purchase shares of
Common Stock of AMNI currently reserved for issuance and available under its
1995 Long-Term Incentive and Stock Plan and its 1995 Outside Directors and
Advisors Stock Plan, as in effect as of the date of this Agreement;
(e) Reorganizations. Acquire or agree to acquire by merging or
consolidating with, by purchasing an equity interest in or the assets of, or by
any other manner, any business or any corporation, partnership or other business
organization or division thereof, or otherwise acquire or agree to acquire any
assets of any other entity (other than the purchase of assets from suppliers,
clients or vendors in the ordinary course of business and consistent with past
practice);
(f) Asset Dispositions. Sell, lease or otherwise dispose of, or
agree to sell, lease or otherwise dispose of, any of its assets, except in the
ordinary course of business and except for sales, leases or dispositions of
assets that, in the aggregate, have a value of less than $50,000;
(g) Charter and Bylaws. Adopt or propose to adopt any amendments
to its charter documents which would have an adverse impact on the consummation
of the transactions contemplated by this Agreement; or
(h) Agreements. Agree, whether in writing or otherwise, to do any
of the foregoing.
SECTION 5.3. Acquisition of Additional Shares of Common Stock by
Times Mirror; Shareholder Approval. If Times Mirror desires to acquire shares of
Common Stock of AMNI in addition to the Shares and the Edelson Shares, AMNI
shall use its best efforts to assist Times Mirror in acquiring such additional
shares of Common Stock of AMNI from AMNI's shareholders, including but not
limited to (a) promptly preparing and filing any documents with the SEC in
connection with the commencement of any tender offer by Times Mirror, and (b)
promptly seeking the approval of AMNI's shareholders of any such purchase by
Times Mirror in accordance with the Michigan Control Share Acquisition Act.
ARTICLE 6
MUTUAL COVENANTS
SECTION 6.1. Publicity. Times Mirror and AMNI 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 any party
without the prior consent of each other party (which consent shall not be
unreasonably withheld), except as such release or announcement may be required
by law or the rules or regulations of any United States securities
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exchange, NASDAQ, or the Securities and Exchange Commission, in which case the
party required to make the release or announcement shall allow each other party
reasonable time to comment on such release or announcement in advance of such
issuance.
SECTION 6.2. Further Assurances. From time to time, as and when
requested by any party hereto, the other parties 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 requesting
party may reasonably deem necessary or desirable to consummate the transactions
contemplated by this Agreement.
ARTICLE 7
TERMINATION; AMENDMENT; WAIVER
SECTION 7.1. Termination. This Agreement may be terminated and the
transactions contemplated hereby may be abandoned at any time prior to the
Closing Date:
(a) by mutual written consent of Times Mirror and AMNI;
(b) by Times Mirror and AMNI if (i) any federal, state or foreign
governmental authority or other agency or commission or court of competent
jurisdiction shall have enacted, issued, promulgated, enforced or entered any
order, decree or ruling which remains in effect, and which has the effect of
making the transactions contemplated hereby illegal or otherwise prohibiting
consummation of the transactions contemplated by this Agreement and such order,
decree, ruling or other action is or shall have become nonappealable; (ii) the
Closing has not occurred by 60 days after the date hereof, provided that no
party may terminate this Agreement pursuant to this clause (ii) if such party's
failure to fulfill any of its obligations under this Agreement shall have been
the reason that the Closing Date shall not have occurred on or before said date;
or (iii) if the Common Stock has been delisted from NASDAQ;
(c) by Times Mirror if (i) there shall have been a breach of any
representation or warranty on the part of AMNI set forth in this Agreement or if
any representation or warranty of AMNI shall have become untrue, provided that
Times Mirror has not breached any of its obligations hereunder; or (ii) there
shall have been a breach by AMNI of any of its covenants or agreements
hereunder, provided that Times Mirror has not breached any of obligations
hereunder; or
(d) by AMNI, if (i) there shall have been a breach of any
representation or warranty on the part of Times Mirror set forth in this
Agreement or if any representation or warranty of Times Mirror shall have become
untrue, provided that AMNI has not breached any of its obligations hereunder; or
(ii) there shall have been a breach by Times Mirror of any of its covenants or
agreements hereunder, provided that AMNI has not breached any of obligations
hereunder.
SECTION 7.2. Effects of Termination. If this Agreement is terminated and
the transactions contemplated hereby are abandoned pursuant to Section 7.1, this
Agreement shall
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become void and of no further force and effect, except for the provisions of (a)
Section 6.1 relating to publicity, (b) Section 9.1 relating to expenses
generally, (c) Section 9.2 relating to attorneys' fees and expenses, (d) Section
9.5 relating to notices, (e) Section 9.11 relating to arbitration and consent to
jurisdiction and (f) this Article 7. Nothing in this Article 7 shall be deemed
to release any party from any liability for any breach by such party of the
terms and provisions of this Agreement or to impair the right of any party to
compel specific performance by any other party of its obligations under this
Agreement.
ARTICLE 8
INDEMNIFICATION
SECTION 8.1. Indemnification.
(a) Indemnification by AMNI. AMNI shall indemnify Times Mirror
and its officers, directors, employees and agents against and hold them harmless
from any and all damage, loss (including any diminution in the value of the
assets of AMNI), liability and expense (including reasonable expenses of
investigation and reasonable attorneys' fees and expenses in connection with any
action, suit or proceeding) ("Losses") suffered or incurred by any such
indemnified party to the extent arising from (i) any failure of any
representation or warranty of AMNI to be true and correct as of the Closing Date
or (ii) any breach by AMNI of any covenant contained in this Agreement requiring
performance after the Closing Date.
(b) Indemnification by Times Mirror. Times Mirror shall indemnify
AMNI and its officers, directors, employees and agents against and hold them
harmless from any and all Losses suffered or incurred by any such indemnified
party to the extent arising from (i) any failure of any representation or
warranty of Times Mirror to be true and correct as of the Closing Date or (ii)
any breach by Times Mirror of any covenant contained in this Agreement requiring
performance after the Closing Date.
SECTION 8.2. Losses Net of Insurance. The amount of any Losses for which
indemnification is provided under this Article 8 shall be net of any amounts
recovered or recoverable by the indemnified party under insurance policies with
respect to such Losses.
SECTION 8.3. Termination of Indemnification. The obligations to
indemnify and hold harmless a party hereto, (a) pursuant to clause (a) of
Section 8.1 shall terminate when the applicable statute of limitations expires
and (b) pursuant to clause (b) of Section 8.1 shall not terminate; provided,
however, that as to clause (a) 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, before 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.
SECTION 8.4. Claims for Indemnification. If any party shall believe that
such party (the "Indemnitee") is entitled to indemnification pursuant to this
Article 8 in respect of any Losses, such Indemnitee shall give the appropriate
indemnifying party (the "Indemnifying Party")
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prompt written notice thereof. Any such notice shall set forth in reasonable
detail and to the extent then known the basis for such claim for
indemnification. The failure of such Indemnitee to give notice of any claim for
indemnification promptly shall not adversely affect such Indemnitee's right to
indemnity hereunder except to the extent that such failure adversely affects the
right of the Indemnifying Party to assert any reasonable defense to such claim.
The Indemnifying Party shall have twenty (20) business days following its
receipt of such notice either (a) to acquiesce in such claim and their
respective responsibilities to indemnify the Indemnitee in respect thereof in
accordance with the terms of this Article 8 by giving such Indemnitee written
notice of such acquiescence or (b) to object to the claim by giving such
Indemnitee written notice of the objection. If the Indemnifying Party does not
object thereto within such twenty (20) business day period, such Indemnifying
Party shall be deemed to have acquiesced in such claim and their respective
responsibilities to indemnify the Indemnitee in respect thereof in accordance
with the terms of this Article 8.
SECTION 8.5. Defense of Claims.
(a) In connection with any claim which may give rise to indemnity
under this Article 8 resulting from or arising out of any claim or proceeding
against an Indemnitee by a person that is not a party hereto, the Indemnifying
Party shall have the right to, upon written notice sent at any time to the
Indemnitee, participate in or assume control of the defense of such claim or
proceeding, at its own expense, and shall take all steps reasonably necessary in
the defense or settlement thereof and shall at all times diligently and promptly
pursue the resolution thereof. Such Indemnitee shall cooperate fully with the
Indemnifying Party, subject to reimbursement for actual out-of-pocket expenses
incurred by such Indemnitee as the result of a request by the Indemnifying
Party. Such Indemnitee shall have the right to approve legal counsel selected by
the Indemnifying Party, which approval shall not be unreasonably withheld. If
the Indemnifying Party elects to assume control of the defense of any
third-party claim or proceeding, such Indemnitee shall have the right to
participate in the defense of such claim or proceeding with legal counsel of its
own selection; provided, however, that such Indemnitee shall pay the fees and
expenses of such counsel unless the named parties to any such claim or
proceeding include both such Indemnitee and the Indemnifying Party and such
Indemnitee has been advised by legal counsel that there may be one or more legal
defenses available to it which are different from or additional to those
available to the Indemnifying Party (in which case, if such Indemnitee informs
the Indemnifying Party in writing that it elects to employ separate counsel at
the expense of the Indemnifying Party, the Indemnifying Party shall not have the
right to assume the defense of such claim or proceeding on behalf of such
Indemnitee), it being understood that the Indemnifying Party shall not, in
connection with any one claim or proceeding, be liable for the fees and expenses
of more than one separate firm of attorneys at any time for such Indemnitee.
(b) If the Indemnifying Party does not elect to assume control or
otherwise participate in the defense of any third-party claim or proceeding, it
shall be bound by the results obtained by such Indemnitee with respect to such
claim or proceeding; provided, however, that no settlement or compromise of any
claim which may result in any indemnification liability may be made by such
Indemnitee without the prior written consent of the Indemnifying Party, which
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consent shall not be unreasonably withheld or delayed. No settlement or
compromise of any claim may be made by the Indemnifying Party without the prior
written consent of such Indemnitee. In the event that such Indemnitee provides
written consent to the Indemnifying Party with respect to the settlement or
resolution of any claim by the Indemnifying Party, the Indemnifying Party shall
pay or cause to be paid all amounts arising out of such settlement or judgment
either concurrently with the effectiveness thereof or shall obtain and deliver
to such Indemnitee prior to the execution of such settlement a general release
executed by the third-party claimant, which general release shall release such
Indemnitee from any liability in such matter.
ARTICLE 9
MISCELLANEOUS
SECTION 9.1. Expenses. Whether or not the transactions contemplated
hereby are consummated, and except as otherwise 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 9.2. Attorneys' Fees. Should any arbitration or litigation 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 arbitration or litigation or in a
separate action brought for that purpose.
SECTION 9.3. Assignment. This Agreement and the rights and obligations
hereunder shall not be assignable or transferable by Times Mirror or AMNI
without the prior written consent of the other parties hereto; provided,
however, that Times Mirror shall be permitted to assign this Agreement or any of
its rights, interests or obligations hereunder to any of its affiliates without
the prior written approval or any other party; and provided, further, however,
that no assignment shall limit or affect the assignor's obligations hereunder.
SECTION 9.4. No Third-Party Beneficiaries. 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 9.5. Notices. All notices or other communications required or
permitted to be given hereunder shall be in writing and shall be delivered by
hand or sent prepaid telecopy, 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:
15
<PAGE> 22
(i) if to AMNI,
One Ionia S.W., Suite 300
Grand Rapids, MI 49503
Attention: Phillip D. Miller
Telecopier No.: (616) 235-3405
with a copy to:
Moss & Barnett, a Professional Association
4800 Norwest Center, 90 South 7th Street
Minneapolis, MN 55402
Attention: Janna R. Severance
Telecopier No.: (612) 339-6686
(ii) if to Times Mirror,
One Times Mirror Square
Los Angeles, California 90053
Attention: Edward L. Blood
Telecopier No.: (213) 237-3917
with a copy to:
Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, California 90071
Attention: Peter F. Ziegler, Esq.
Telecopier No.: (213) 229-6595
SECTION 9.6. Counterparts; Facsimile. This Agreement may be executed and
delivered in one or more counterparts and via facsimile, all of which shall be
considered one and the same agreement, and shall become effective when one or
more such counterparts have been signed by each of the parties and delivered or
faxed to the other party.
SECTION 9.7. Entire Agreement. This Agreement (including the Exhibits
and Schedules hereto) contains the entire agreement and understanding between
the parties hereto with respect to the subject matter hereof and supersede all
prior agreements and understandings relating to such subject matter.
SECTION 9.8. 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 unenforceable in any respect by a court of competent
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision hereof.
16
<PAGE> 23
SECTION 9.9. Amendment. This Agreement may be amended by action taken by
Times Mirror and AMNI at any time only by an instrument in writing signed on
behalf of each of the parties hereto.
SECTION 9.10. Extension; Waiver. At any time prior to the Closing Date,
any party hereto may (a) extend the time for the performance of any of the
obligations or other acts of any other party, (b) waive any inaccuracies in the
representations and warranties of any other party contained herein or in any
document, certificate or writing delivered pursuant hereto or (c) waive
compliance by any other party with any of the agreements or conditions contained
herein. Any agreement on the part of any party hereto to any such extension or
waiver shall be valid only if set forth in an instrument, in writing, signed on
behalf of such party. The failure of any party hereto to assert any of its
rights hereunder shall not constitute a waiver of such rights.
SECTION 9.11. Dispute Resolution; Equitable Enforcement.
(a) Arbitration. Except as otherwise provided in Section 9.11(b),
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 entered by any federal or state court
having jurisdiction thereof. Any such arbitration shall be conducted by a single
arbitrator who shall be a retired judge of any appellate or trial court of the
State of New York, any United States appellate court or the United States
District Court for any New York district. The parties intend that this agreement
to arbitrate be valid, enforceable and irrevocable.
(b) Equitable Enforcement. Notwithstanding anything to the
contrary contained in this Section 9.11, any claim by either party for
injunctive or other equitable relief, including specific performance (including
the agreement to arbitrate contained in Section 9.11(a)), 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
precedence over any arbitral award or proceeding. Each of Times Mirror and AMNI
irrevocably submits to the exclusive 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 Times Mirror and AMNI agrees to commence any
action, 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 proceeding may not be brought in such court, in the
Supreme Court of the State of New York, New York County. Each of Times Mirror
and AMNI 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
9.5 above shall be effective service of process for any action, suit or
proceeding in New York with respect to any matters to which it has submitted to
jurisdiction as set forth above in the immediately preceding sentence. Each of
Times Mirror and AMNI irrevocably and unconditionally waives any objection to
the laying of venue of any action, suit or proceeding arising out of this
17
<PAGE> 24
Agreement or the transactions contemplated 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 irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum.
SECTION 9.12. Interpretation of this Agreement.
(a) Construction. Unless the context of this Agreement clearly
requires otherwise, references to the plural include 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 terms in this Agreement
refer to this Agreement as a whole (including the Preamble, the Recitals, the
Schedules and the Exhibits) and not to any particular provision of this
Agreement. Article, section, exhibit, schedule, recital and preamble references
in this Agreement are to those portions of this Agreement 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 performed 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 reference 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.
(d) Representation By Counsel; Interpretation. Times Mirror and
AMNI each acknowledges that each party to this Agreement has been represented by
counsel in connection with this Agreement and the transactions contemplated by
this Agreement. Accordingly, any rule of law, including 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 application and is expressly
waived. The provisions of this Agreement shall be interpreted in a reasonable
manner to effect the intent of Times Mirror and AMNI.
18
<PAGE> 25
IN WITNESS WHEREOF, the parties have caused this Stock Purchase
Agreement to be duly executed as of the date first written above.
THE TIMES MIRROR COMPANY,
a Delaware corporation
By: /s/ EDWARD L. BLOOD
---------------------------------
Name: Edward L. Blood
Title: Vice President- Strategic
Planning
ALTERNATE MARKETING NETWORKS, INC.,
a Michigan corporation
By: /s/ PHILLIP D. MILLER
--------------------------------
Name: Phillip D. Miller
Title: Chairman and Chief
Executive Officer
19
<PAGE> 1
EXHIBIT (B)
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") dated August 20, 1999
is between The Times Mirror Company, a Delaware corporation ("Purchaser"), and
Edelson Technology Partners II, L.P., a Delaware limited partnership ("Seller").
WHEREAS, Seller is the record and beneficial owner of 339,552 shares
(the "Shares") of Common Stock of Alternate Marketing Networks Inc., a Michigan
corporation (the "Company"); and
WHEREAS, Purchaser desires to purchase, and Seller desires to sell, the
Shares;
NOW, THEREFORE, in consideration of the mutual representations,
warranties and agreements of the parties hereto, such parties, intending to be
legally bound, do hereby agree as follows:
1. Sale and Purchase of Shares. Seller hereby sells, assigns and
transfers to Purchaser, and Purchaser hereby purchases from Seller, free and
clear of all liens, claims, encumbrances, security interests, options, changes
and restrictions of any kind, all of Seller's right, title and interest in and
to the Shares, as represented in certificates which have been duly endorsed and
delivered by Seller to the Purchaser for cancellation and reissuance in the name
of and for the benefit of Purchaser. Upon execution and delivery of this
Agreement, Purchaser shall pay to Seller the purchase price of $933,768 by wire
transfer to an account designated by Seller to Purchaser two business days prior
to the Closing Date.
2. Closing. The closing of the purchase and sale of the Shares will take
place on September 10, 1999, at the offices of Gibson, Dunn & Crutcher LLP, 333
South Grand Avenue, Los Angeles, California 90071 unless another time, date or
place is agreed to in writing by the parties hereto.
3. Representations and Warranties of Seller. Seller hereby represents
and warrants to Purchaser that:
(a) Organization, Standing and Authority of Seller. Seller is a
limited partnership duly organized, validly existing and in good standing under
the laws of the State of Delaware and has full power and authority to enter
into, deliver and perform its obligations under, this Agreement.
<PAGE> 2
(b) Authorization and Enforceability of this Agreement. The
execution, delivery and performance by Seller of this Agreement have been duly
authorized by all necessary partnership action on the part of Seller. This
Agreement has been duly executed and delivered by Seller and constitutes the
legal, valid and binding obligation of Seller, enforceable against it in
accordance with its terms.
(c) No Conflict; Consents of Third Parties. The execution,
delivery and performance by Seller of this Agreement will not (i) violate or
conflict with the certificate of incorporation, by-laws or comparable documents
of Seller, (ii) conflict with, or result in the breach or termination of, or
constitute a default or give rise to any lien, third-party right of termination,
cancellation, modification or acceleration (or any event which might, with the
passage of time or the giving of notice, or both, constitute a default) under,
any lease, contract, indenture, agreement, commitment, license, note, bond,
mortgage or other instrument to which Seller is a party, or any order, judgment
or decree, to which Seller is a party or by which Seller or any of its
properties are bound; or (iii) constitute a violation of or conflict with any
law or regulation applicable to Seller. No consent, approval, permit,
notification or authorization of, or designation, declaration or filing with,
any governmental or regulatory authority or other third party is required on the
part of Seller in connection with the execution, delivery and performance of
this Agreement, other than filings under Section 13 and Section 16 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
(d) Ownership of the Shares. Seller is the record and beneficial
owner of the Shares, free and clear, in each case, of any liens, claims,
security interests, options, charges or other encumbrances, restrictions or
third-party rights with respect to the Shares. Seller has full power and
authority to transfer the Shares to Purchaser, free and clear, in each case, of
any liens, claims, security interest, options charges or other encumbrances,
restrictions or third-party rights or claims with respect to the Shares. The
Shares constitute all of the shares of the Company held by Seller.
(e) No Brokers. Seller has not employed any broker, investment
banker or finder in connection with the sale of the Shares.
3. Representation and Warranties of Purchaser. Purchaser hereby
represents and warrants to Seller that:
(a) Organization, Standing and Authority of Purchaser. Purchaser
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has full power and authority to enter into,
deliver and perform its obligations under, this Agreement.
(b) Authorization and Enforceability of this Agreement. The
execution, delivery and performance by Purchaser of this Agreement have been
duly authorized by all necessary action on the part of Purchaser. This Agreement
has been duly executed and delivered
<PAGE> 3
by Purchaser and constitutes the legal, valid and binding obligation of
Purchaser, enforceable against it in accordance with its terms.
(c) No Conflict; Consent of Third Parties. The execution,
delivery and performance by Purchaser of this Agreement will not (i) violate
conflict with the certificate of incorporation, by-laws or comparable documents
of Purchaser, (ii) conflict with, or result in the breach or termination of, or
constitute a default or give rise to any lien, third-party right of termination,
cancellation, modification or acceleration (or any event which might, with the
passage of time or the giving of notice, or both, constitute a default) under,
any lease, contract, indenture, agreement, commitment or other instrument to
which Purchaser is a party, or any order, judgment or decree, to which Purchaser
is a party or by which Purchaser or any of its properties are bound; or (iii)
constitute a violation of or conflict with of any law or regulation applicable
to Purchaser. No consent, approval, permit, notification or authorization of, or
designation, declaration or filing with, any governmental or regulatory
authority or other third party is required on the part of Purchaser in
connection with the execution, delivery and performance of this Agreement by
Purchaser, other than filings under Section 13 and Section 16 of the Exchange
Act.
(d) Investment; Restricted Securities. Purchaser is acquiring the
Shares for its own account, for investment and not with a view to the
distribution thereof within the meaning of the Securities Act of 1933, as
amended (the "Securities Act"). Purchaser understands that (i) the Shares have
not been registered under the Securities Act by reason of their issuance by the
Corporation in a transaction exempt from the registration requirements of the
Securities Act; (ii) the Shares must be held by Purchaser indefinitely unless a
subsequent disposition thereof is registered under the Securities Act or is
exempt from registration; and (iii) the exemption from registration afforded by
Rule 144 (the provisions of which are known to the undersigned) promulgated
under the Securities Act depends on the satisfaction of various conditions, and
that, if applicable, Rule 144 may afford the basis for sales only in limited
amounts.
(e) Access to Information; Accredation. Purchaser has had access
to all information purchaser deems desirable in connection with its purchase of
the Shares. Purchaser is an "accredited investor" as such term is defined in
Rule 501 of Regulation D promulgated under the Securities Act.
(f) No Brokers. Purchaser has not employed any broker or finder
in connection with its purchase of the Shares.
5. Indemnification. The parties shall indemnify and hold each other and
their respective affiliates harmless from and against any and all liability,
loss, damage or injury, including reasonable expenses of investigation and
reasonable counsel fees and expenses in connection with any action, suit or
proceeding, arising out of a breach, or allegation which if true would
constitute a breach, of any representation, warranty or covenant set forth
herein, provided that the party seeking to enforce such indemnity shall provide
to the indemnifying party prompt written notice of any claim giving rise to such
indemnity and the opportunity to defend the same
<PAGE> 4
with counsel of its choosing reasonably acceptable to the indemnified party.
Notwithstanding the foregoing, the indemnification given by Seller to Purchaser
hereunder shall be limited in all events to the purchase price set forth in
Section 1 hereof.
6. Conditions to Closing. The respective obligations of the parties
hereto to consummate the Closing are subject to the satisfaction (or waiver by
each party in writing) on or before the Closing Date of the following
conditions:
(a) Governmental Approvals. Any notice or approvals to or of any
federal, state or foreign governmental authority with respect to the
transactions contemplated hereby shall have been either filed or received.
(b) No Order. No federal, state or foreign governmental authority or
other agency or commission or court of competent 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 prohibiting consummation of the
transactions contemplated by this Agreement.
7. Conditions to Purchaser's Obligations. The obligations of Purchaser
to consummate the Closing are subject to the satisfaction (or waiver by
Purchaser in writing) on or before the Closing Date of the following conditions:
(a) Representations, Warranties and Covenants. The representations and
warranties of Seller made in this Agreement shall be true ad correct as of the
date of this Agreement and on and as of the Closing Date, and Seller shall have
performed or complied with, or shall have caused to be performed or complied
with, all obligations and covenants required by this Agreement to be performed
or complied with by Seller by the time of the closing; and Purchaser shall have
received from Seller a certificate dated the Closing Date and signed by an
authorized officer of Seller confirming the foregoing.
(b) Resolutions. Purchaser shall have received from Seller certified
copies of resolutions duly adopted by the General Partner of Seller authorizing
the execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby, and all such resolutions shall have not
been revoked and shall remain in full force and effect.
(c) Resignation of Harry Edelson as Director. Harry Edelson shall have
resigned from the Board of Directors of the Company and shall have executed and
delivered a written resignation letter to the Company in connection therewith.
8. Conditions to Seller's Obligations. The obligations of Seller to
consummate the Closing are subject to the satisfaction (or waiver by Seller in
writing) on or before the Closing Date of the following conditions:
<PAGE> 5
(a) Representations, Warranties and Covenants. The representations and
warranties of Purchaser made in this Agreement shall be true and correct in all
material respects as of the date of this Agreement and on and as of the Closing
Date, as though made on and as of the Closing Date, and Purchaser shall have
performed or complied with all obligations and covenants required by this
Agreement to be performed or complied with by Purchaser at the time of the
Closing; and Seller shall have received from Purchaser a certificate dated the
Closing Date and signed by an authorized officer of Purchaser confirming the
foregoing.
(b) Resolutions. Seller shall have received from Purchaser certified
copies of resolutions duly adopted by the Board of Directors of Purchaser
authorizing the execution, delivery and performance of this Agreement and the
consummation of the transactions hereby contemplated hereby, and all such
resolutions shall have not been revoked and shall remain in full force and
effect.
9. Notices. All notices or other communications required or permitted to
be given hereunder shall be in writing and shall be delivered by hand or sent
prepaid telecopy, 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), and
shall be addressed to each party at the address for such party on the signature
page hereto, or at such other addresses as the parties may advise each other in
writing from time to time.
10. Expenses. Whether or not the transactions contemplated hereby are
consummated, and except as otherwise 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.
11. Attorneys' Fees. Should any arbitration or litigation be commenced
concerning this Agreement or the rights or 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 arbitration or litigation or in a
separate action brought for that purpose.
12. Assignment. This Agreement and the rights and obligations hereunder
shall not be assignable or transferable by Purchaser or Seller without the prior
written consent of the other parties hereto; provided, however, that Purchaser
shall be permitted to assign this Agreement or any of its rights, interest or
obligations hereunder to any of its affiliates without the prior written
approval or any other party; and provided, further, however, that no assignment
shall limit or affect the assignor's obligations hereunder.
13. No Third-Party Beneficiaries. 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 any person or entity, other than
the parties hereto and such assigns, any legal or equitable rights hereunder.
<PAGE> 6
14. Counterparts; Facsimile. This Agreement may be executed and
delivered in one or more counterparts and via facsimile, all of which shall be
considered one and the same agreement, and shall become effective when one or
more such counterparts have been signed by each of the parties and delivered or
faxed to the other party.
15. Entire Agreement. This Agreement (including the Exhibit hereto)
contains the entire agreement and understanding between the parties hereto with
respect to the subject matter hereof and supersede all prior agreements and
understanding relating to such subject matter.
16. 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 unenforceable in any respect by a court of competent jurisdiction,
such invalidity, illegality or unenforceability shall not affect any other
provision hereof.
17. Amendment. This Agreement may be amended by action taken by
Purchaser and Seller at any time only by an instrument in writing signed on
behalf of each of the parties hereto.
18. Extension; Waiver. At any time prior to the Closing Date, any party
hereto may (a) extend the time for the performance of any of the obligations or
other acts of any other party, (b) waive any inaccuracies in the representations
and warranties of any other party contained herein or in any document,
certificate or writing delivered pursuant hereto or (c) waive compliance by any
other party with any of the agreements or conditions contained herein. Any
agreement on the part of any party hereto to any such extension or waiver shall
be valid only if set forth in an instrument, in writing, signed on behalf of
such party. The failure of any party hereto to assert any of its rights
hereunder shall not constitute a waiver of such rights.
19. Interpretation of this Agreement.
(a) Construction. Unless the context of this Agreement clearly
requires otherwise, references to the plural include 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 terms in this Agreement
refer to this Agreement as a whole (including the Preamble, the Recitals and the
Exhibits) and not to any particular provision of this Agreement.
(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 performed entirely within such State.
(c) Headings, Exhibits and Schedules. The headings contained in
this Agreement and in any Exhibit are for reference purposes only and shall not
affect in any way the meaning or interpretation of this Agreement. Any
capitalized terms used in any Exhibit but not otherwise defined therein shall
have the meaning as defined in this Agreement.
<PAGE> 7
(d) Representation By Counsel; Interpretation. Purchaser and
Seller each
<PAGE> 8
acknowledges that each party to this Agreement has been represented by counsel
in connection with this Agreement and the transactions contemplated by this
Agreement. Accordingly, any rule of law, including 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 application and is expressly
waived. The provisions of this Agreement shall be interpreted in a reasonable
manner to effect the intent of Seller and Purchaser.
20. Publicity. Purchaser and Seller 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 any party without the
prior consent of each other party (which consent shall not be unreasonably
withheld), except as such release or announcement may be required by law or the
rules or regulations of any United States securities exchange, NASDAQ, or the
Securities and Exchange Commission, in which case the party required to make the
release or announcement shall allow each other party reasonable time to comment
on such release or announcement in advance of such issuance.
IN WITNESS WHEREOF, the parties have duly executed this agreement as of
the date first written above.
EDELSON TECHNOLOGY PARTNERS II, L.P.
By: /s/ HARRY EDELSON
--------------------------------
Name: Harry Edelson
------------------------------
Title: General Partner
-----------------------------
Address for Notices:
300 Tice Boulevard
Woodcliff Lake, NJ 07675
Attention: Mr. Harry Edelson
Telecopier: (201) 930-8899
THE TIMES MIRROR COMPANY
By: /s/ EDWARD L. BLOOD
--------------------------------
Name: Edward L. Blood
------------------------------
Title: Vice President, Strategic Planning
----------------------------------
Address for Notices:
220 E. First Street
Los Angeles, CA 90012
Attention: Mr. Edward L. Blood
Telecopier: (213) 237-3917
