Asset Purchase Agreement (2011)Full Document 

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ASSET PURCHASE AGREEMENT

dated as of December 27, 2011

among

NYT HOLDINGS, INC.,

THE HOUMA COURIER NEWSPAPER CORPORATION,

LAKELAND LEDGER PUBLISHING CORPORATION,

THE SPARTANBURG HERALD-JOURNAL, INC.,

HENDERSONVILLE NEWSPAPER CORPORATION,

THE DISPATCH PUBLISHING COMPANY, INC.,

NYT MANAGEMENT SERVICES, INC.,

THE NEW YORK TIMES COMPANY

and

HALIFAX MEDIA HOLDINGS LLC


TABLE OF CONTENTS

Page

ARTICLE I

DEFINITIONS; CONSTRUCTION 1

1.1

Definitions 1

1.2

Construction 10

ARTICLE II

PURCHASE AND SALE 10

2.1

Purchase and Sale of the Purchased Assets 10

2.2

Excluded Assets 11

2.3

Assumed Liabilities 12

2.4

Excluded Liabilities 12

2.5

Purchase Price 13

2.6

Purchase Price Adjustment 13

2.7

Allocation of Purchase Price 15

2.8

Consents 15

ARTICLE III

CLOSING 16

3.1

Closing Date 16

3.2

Deliveries by the Sellers at the Closing 16

3.3

Deliveries by the Purchaser at the Closing 17

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF THE SELLERS 18

4.1

Organization and Good Standing 18

4.2

Authority and Enforceability 18

4.3

Noncontravention 18

4.4

Governmental Approvals 18

4.5

Financial Statements 19

4.6

Taxes 19

4.7

Compliance with Law 19

4.8

Business Permits 19

4.9

Title to Personal Properties; Condition of Tangible Assets 20

4.10

Real Property 20

4.11

Intellectual Property 21

4.12

No Material Adverse Effect 22

4.13

Contracts 23

4.14

Litigation 23

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Page

4.15

Employee Benefits 23

4.16

Labor and Employment Matters 25

4.17

Environmental 26

4.18

Brokers 26

4.19

Insurance 26

4.20

Related Party Business Relationships 26

4.21

Inventory 26

4.22

Accounts Receivable 27

4.23

NYT Ownership 27

4.24

Disclaimer of Warranties 27

ARTICLE V

REPRESENTATIONS AND WARRANTIES OF THE PURCHASER 27

5.1

Organization and Good Standing 27

5.2

Authority and Enforceability 27

5.3

Noncontravention 28

5.4

Governmental Approvals 28

5.5

Litigation 28

5.6

Financing 28

5.7

Brokers or Finders 29

5.8

Approvals 29

ARTICLE VI

COVENANTS 30

6.1

Conduct of Business 30

6.2

Access to Information; Investigation 30

6.3

Notification of Certain Matters 31

6.4

Confidentiality 31

6.5

Regulatory Approvals 31

6.6

Public Announcements 32

6.7

Names 32

6.8

Employees 32

6.9

Taxes 35

6.10

Bulk Sales Laws 36

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Page

6.11

Access to Books and Records 36

6.12

Further Assurances 37

6.13

Financing 37

6.14

Support Services 37

6.15

Lease Guaranty 38

6.16

Noncompetition and Related Covenants 38

6.17

Exclusivity 39

6.18

Maintenance of Real Property 39

6.19

True-Up 39

6.20

Desktop Software 39

6.21

Approvals 39

6.22

Post-Closing Matters 39

ARTICLE VII

CONDITIONS TO CLOSING 40

7.1

Conditions to Obligations of the Purchaser and the Sellers 40

7.2

Conditions to Obligation of the Purchaser 40

7.3

Conditions to Obligation of the Sellers 41

ARTICLE VIII

TERMINATION 42

8.1

Termination 42

8.2

Effect of Termination 43

ARTICLE IX

INDEMNIFICATION 43

9.1

Survival 43

9.2

Indemnification by the Sellers 43

9.3

Indemnification by the Purchaser 43

9.4

Indemnification Procedures for Third Party Claims 44

9.5

Indemnification Procedures for Non-Third Party Claims 45

9.6

Limitations on Indemnification 45

9.7

Procedures for Environmental Losses 47

9.8

Exclusive Remedy 48

9.9

Mitigation 48

9.10

Treatment of Indemnity Benefits 48

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ARTICLE X

MISCELLANEOUS 48

10.1

Notices 48

10.2

Amendments and Waivers 49

10.3

Expenses 49

10.4

Successors and Assigns 49

10.5

Governing Law 49

10.6

Consent to Jurisdiction and Service of Process 49

10.7

Counterparts 50

10.8

No Third Party Beneficiaries 50

10.9

Entire Agreement 50

10.10

Captions 50

10.11

Severability 50

10.12

Specific Performance 51

10.13

Interpretation 51

10.14

Legal Privilege 51

iv


ASSET PURCHASE AGREEMENT

This ASSET PURCHASE AGREEMENT is dated as of December 27, 2011 (this "Agreement") among NYT Holdings, Inc., an Alabama corporation ("NYTH"), The Houma Courier Newspaper Corporation, a Delaware corporation ("Houma"), Lakeland Ledger Publishing Corporation, a Florida corporation ("Lakeland"), The Spartanburg Herald-Journal, Inc., a Delaware corporation ("Spartanburg"), Hendersonville Newspaper Corporation, a North Carolina corporation ("Hendersonville"), The Dispatch Publishing Company, Inc., a North Carolina corporation ("Dispatch"), NYT Management Services, Inc., a Delaware corporation ("NYTMS"), The New York Times Company ("NYT" and, together with NYTH, Houma, Lakeland, Spartanburg, Hendersonville, Dispatch and NYTMS, the "Sellers"), and Halifax Media Holdings LLC, a Delaware limited liability company (the "Purchaser").

WHEREAS, the Sellers are engaged in the business of publishing The Gadsen Times, The Tuscaloosa News, The Press Democrat, The Sarasota Herald-Tribune, The Star Banner, The Gainesville Sun, The Ledger, Winter Haven News Chief, The Courier, The Daily Comet, The Dispatch, Times News, Wilmington Star News, Herald-Journal, The Petaluma Argus-Courier and The North Bay Business Journal, and various related magazines and weekly publications (collectively, the "Purchased Publications"), websites and operating other ancillary businesses (collectively, the "Business"); and

WHEREAS, the parties desire that the Sellers sell, assign, transfer, convey and deliver to the Purchaser, and that the Purchaser purchase and acquire from the Sellers, all of the right, title and interest of the Sellers in and to the Purchased Assets (as hereinafter defined), and that the Purchaser assume the Assumed Liabilities (as hereinafter defined), upon the terms and subject to the conditions of this Agreement.

NOW, THEREFORE, in consideration of the foregoing premises and the respective representations and warranties, covenants and agreements contained herein, the parties hereto agree as follows:

ARTICLE I

DEFINITIONS; CONSTRUCTION

1.1 Definitions. When used in this Agreement, the following terms shall have the respective meanings set forth below.

"Action" has the meaning set forth in Section 2.4(f).

"Advantage Credit Agreement" has the meaning set forth in Section 5.6

"Affiliate" means, with respect to any specified Person, any other Person directly or indirectly controlling, controlled by or under common control with such specified Person.

"Agreement" has the meaning set forth in the preamble hereto.


"Ancillary Agreements" means the Bill of Sale, the Assignment and Assumption Agreement, the Assignments and Assumptions of Lease, the Trademark Assignments, the Domain Name Assignments, the Deeds, the Transition Services Agreement and the other agreements, instruments and documents delivered at the Closing.

"Assigned Contracts" has the meaning set forth in Section 2.1(e).

"Assignment and Assumption Agreement" has the meaning set forth in Section 3.2(b).

"Assignment and Assumption of Lease" has the meaning set forth in Section 3.2(f).

"Assumed Liabilities" has the meaning set forth in Section 2.3.

"Benefit Plan" means any "employee benefit plan" as defined in Section 3(3) of ERISA that is subject to ERISA and maintained or contributed to by the Sellers for the benefit of any Business Employee.

"Books and Records" means books of account, general, financial, warranty and shipping records, invoices, supplier lists, correspondence, engineering, maintenance, operating and production records, advertising and promotional materials and credit records of customers, in each case Related to the Business.

"Business" has the meaning set forth in the recitals hereto.

"Business Day" means a day other than a Saturday, Sunday or other day on which banks located in New York City are authorized or required by Law to close.

"Business Employee" means any individual who is employed by any Seller at the Real Property, except for those employees associated with The New York Times editing and abstracting functions.

"Business Intellectual Property" means the Owned Intellectual Property and Licensed Intellectual Property.

"Business Permits" has the meaning set forth in Section 4.8.

"Cash Consideration" has the meaning set forth in Section 2.5.

"Claim Notice" has the meaning set forth in Section 9.4(a).

"Closing" has the meaning set forth in Section 3.1.

"Closing Date" has the meaning set forth in Section 3.1.

"Closing Working Capital" has the meaning set forth in Section 2.6(b).

"Code" means the Internal Revenue Code of 1986, as amended.

"Collective Bargaining Agreements" has the meaning set forth in Section 6.8(g).

2


"Contract" means any legally binding agreement, contract, commitment or arrangement Related to the Business.

"Current Representations" has the meaning set forth in Section 10.14.

"Debt Financing" has the meaning set forth in Section 5.6.

"Debt Financing Agreements" has the meaning set forth in Section 5.6.

"Deeds" has the meaning set forth in Section 3.2(e).

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