Ehibit 4.1
Agreement
AGREEMENT made this 9th day of July, 2001 by and between Individual
Investor Group, Inc., a Delaware corporation with principal offices located at
000 Xxxxx Xxxxxx, Xxx Xxxx, X.X. 00000 (hereinafter referred to as "Seller"),
and The Kiplinger Washington Editors, Inc., a Delaware corporation
("Purchaser"), with principal offices located at 0000 X Xxxxxx, X.X. Xxxxxxxxxx,
XX 00000.
WITNESSETH:
WHEREAS, Seller is the publisher of Individual Investor Magazine,
("II")
WHEREAS, Purchaser is the publisher of Kiplinger's Personal Finance
magazine ("KPFM");
WHEREAS, Seller is planning to cease publication of II after
publication and distribution of the August 2001 issue;
WHEREAS, Seller desires to sell and Purchaser desires to buy certain
assets of the business of Seller (as hereinafter defined), upon the terms and
subject to the conditions hereinafter set forth; and
WHEREAS, Seller is willing to provide certain services to Purchaser in
connection with the assets to be purchased;
NOW THEREFORE, in consideration of the promises and of the
representations and agreements of the parties hereafter set forth, the parties
hereto agree as follows:
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ARTICLE I
Purchase and Sale
1.01 Transfer of Assets. Seller hereby sells, assigns, transfers, and
delivers to Purchaser, and Purchaser hereby purchases, accepts and receives from
Seller, all of Seller's right, title and interest in and to the following
assets:
(a) All files and records in electronic, paper or any other format or
media that relate to subscribers or other purchasers of II in possession of
and/or controlled by Seller and/or in the possession of Communications Data
Service, Inc. ("CDS"), including but not limited to Active Subscribers, Expired
Subscribers, and Bad Pay Subscribers, all promotional campaigns, list rental
history, newsstand record and the like as more fully described in Schedule
1.01(a) hereto (collectively, the foregoing assets are sometimes referred to as
the "Assets"). All said files and records shall be in the form maintained by
Seller and /or CDS.
(b) Seller will, for a period of ninety (90) days after the date
hereof, (i) provide Purchaser with reasonable access to all files and records in
electronic, paper or any other media or format in the possession or control of
Seller that relate to the sale of past, current or future advertising, including
but not limited to names, address, telephone numbers and e-mail addresses of
advertisers and their agencies, volume of advertising purchased or proposed,
credit experience, agency commission, and the like and (ii) permit Purchaser to
make complete copies and/or extracts from said files and records for Purchaser's
use.
(c) Seller agrees to prepare a letter on its letterhead in the form of
Exhibit A, to all of its subscribers announcing the cessation of publication of
II and the endorsement and selection of KPFM to fulfill remaining issues. The
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cost of printing and sending this letter shall be borne by Purchaser. The timing
and method of distribution of this letter shall be determined by Purchaser.
1.02 Obligations of Purchaser. (a) Fulfillment. Purchaser will provide
subscribers of II with KPFM, without additional costs to subscribers, for the
number of issues of II that said subscribers have paid for, but have not been
served. Seller shall publish and distribute the July 2001 and August 2001 issues
of II before the date hereof.
(b) Refunds. Purchaser, through CDS, will make refunds of the balance
of deferred subscription revenue for direct to publisher subscribers who request
a refund from the Refund Escrow Fund as set forth in the Escrow Agreement
attached hereto as Exhibit C. The cost of providing refunds billed by CDS and
the refunds will be paid from the Refund Escrow Fund. If the Escrow Fund is
exhausted, Purchaser and Seller will each pay one-half (1/2) of (i) additional
refunds of the balance of deferred subscription revenue for direct to publisher
subscribers who request a refund and (ii) the cost of providing refunds billed
by CDS. Subscribers who request refunds who are agent sold (not direct to
publisher subscribers) will be advised to contact their respective agents to
obtain a refund or an alternative magazine. Purchaser will remit to each agent
for each such subscriber requesting a refund that portion of the net
subscription price (gross subscription price less agent commission) received by
II that is still in deferred subscription revenue. The costs to Purchaser for
said remittances to agents will be paid from the Refund Escrow Fund as set forth
in the Escrow Agreement attached hereto as Exhibit C. If the Refund Escrow Fund
is exhausted, Purchaser and Seller will each pay one-half (1/2) of additional
said remittances to agents.
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(c) Purchaser is assuming no other obligations except as explicitly set
out in Sections 1.02(a) and 1.02(b).
1.03 Seller's Covenant Not to Compete. After the date hereof and for a
period of five (5) years thereafter, Seller agrees that it (i) will not directly
or indirectly (except in association or under agreement with Purchaser) use the
name Individual Investor for print periodical publishing or list rental
purposes, except for the use of the name "Individual Investor's Special
Situations Report" in connection with a monthly newsletter, (ii) will not
authorize any third party to use the name Individual Investor for print
periodical publishing, and (iii) will, at Purchaser's reasonable request and
expense, assist Purchaser in preventing a third party from using the name
Individual Investor for print periodical publishing. Seller has obtained and
delivered to Purchaser, an agreement from American Association of Individual
Investors ("AAII") in which AAII agrees that, for a period of five (5) years
that AAII will not license the name Individual Investor to any other entity in
the field of consumer personal finance for use on a magazine or other print
publication.
1.04 Consulting Agreement. Seller agrees, for a period commencing on
the date of execution of this Agreement and continuing for a (1) year period, to
provide consulting services as follows: At Purchaser's reasonable request,
Seller shall assist Purchaser in connection with the transition of II
subscribers to KPFM, renewal of former II subscribers to KPFM, analysis of II
advertising accounts and campaigns, and list rental efforts related to the
former II list. Such services shall be provided by Seller on an as needed basis
by such of Seller's personnel as Seller shall assign to work with
representatives of Purchaser, and shall be performed in the manner so as not to
unreasonably interfere with Seller's operations. Seller shall not be required to
retain or hire personnel or independent contractors in order to provide
Purchaser the services required by this Section and Seller shall not be required
to spend any specific amount of time in performing such services.
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1.05 Assets Included In Sale. Only the assets specifically transferred
to Purchaser pursuant to this Agreement are included in this Sale and all other
assets of Seller are retained by Seller.
ARTICLE II
Consideration
2.01 Purchase Price. (a) In consideration of the transfer of the Assets
to Purchaser, the covenant not to compete, the provision of consulting service,
and the due performance by the Seller of its obligations hereunder, Purchaser
shall (i) assume the obligations set forth in section 1.02 hereof and (ii) pay
to Seller the sum of Three Million Five Hundred Thousand Dollars ($3,500,000)
(the "Purchase Price"), subject to the escrow provisions contained in sections
9.04 of this Agreement. Subject to the escrow provision of Section 9.04, payment
of the purchase price shall be made simultaneously with the execution hereof by
bank wire transfer or by certified or official bank check payable through the
Federal Reserve System with funds good and available on the date of Closing as
follows:
(i) One Hundred Twenty-Five Thousand Dollars ($125,000) of the Purchase
Price shall be paid to Xxxxx, Xxxxxxx, Xxxxxxx, Xxxxxx & Xxxxx, LLP, to hold in
escrow until the parties have selected an escrow agent to administer the Refund
Escrow Fund, as defined in Section 9.04 with the balance of the funds, if any,
in escrow one hundred eighty (180) days from the date hereof to be remitted to
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Seller; (ii) Five Hundred Thousand Dollars ($500,000) to be paid to Xxxxx
National Bank of Washington, D.C. as Escrow Agent pursuant to the Escrow
Agreement as defined in Section 9.03 ; and (iii) Two Million Eight Hundred
Seventy-five Thousand Dollars ($2,875,000) shall be paid to Seller.
(b) Purchaser and Seller agree that the purchase price shall be
allocated as set forth in Schedule 2.01(b).
ARTICLE III
Representations and Warranties of Seller
Seller hereby represents and warrants to Purchaser as follows:
3.01 Organization, etc. Seller is a corporation organized, existing and
in good standing under the laws of the state of Delaware. Seller has full
corporate power and authority to own the Assets.
3.02 Authorization of Agreement. Seller has full corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions provided for herein. The execution and delivery of this Agreement
by Seller and the performance by Seller of all of its obligations hereunder have
been duly authorized by all necessary corporate action. This Agreement has been
duly and validly authorized, executed and delivered on behalf of Seller and
constitutes a valid and binding obligation of Seller enforceable against Seller
in accordance with its terms. No consent, authorization or approval of, or
exemption by, any governmental or public body or authority is required in
connection with the execution, delivery and performance by Seller of this
Agreement or any of the instruments or agreements herein referred to, or the
taking of any action herein contemplated.
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3.03 Properties. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby will transfer to Purchaser
legal, valid and marketable title to all of the Assets, free and clear of all
claims, liens, charges and encumbrances of any kind or nature whatsoever.
3.04 Litigation and Compliance with Law. (a) Seller has not received
notice of, nor has it any knowledge of, any law, rule or regulation, whether
existing or proposed, or any suit, action proceeding, investigation, or inquiry,
pending or threatened, which would in any materially adverse way interfere with
the use of the Assets substantially as carried on at present.
Neither this Agreement nor its consummation will create any default or
forfeiture under any agreement or writing to which Seller is a party or subject
to or by which it is or may be bound, or in any violation of any law, rule or
regulation of any government, or board, bureau, commission or agency thereof, or
create or result in the creation or imposition of any lien or charge upon any of
the Assets which would have a material adverse effect on the Assets.
3.05 Financing Statements. No currently effective financing statement
under the Uniform Commercial Code which has been secured by the Assets to be
acquired pursuant to this Agreement and which names Seller as debtor has been
filed in any jurisdiction, and Seller has not signed any such financing
statement or any security agreement authorizing any secured party thereunder to
file any such financing statement.
3.06 Disclosure. To the best of Seller's knowledge, no representation
or warranty by Seller in this Agreement and no written statement, exhibit,
schedule, certificate or other document heretofore or hereafter furnished by
Seller or on its behalf pursuant to this Agreement or in connection with the
transactions contemplated hereby contains, or will contain, as of the Closing
Date, any untrue statement of a material fact, or omits or will omit to state a
material fact necessary to make the statements contained therein not misleading.
3.07 Seller represents and warrants that: (a) the agreement of Seller
to enter into this Agreement is not the product of duress and (b) its economic
circumstances are not the result of any wrongful conduct of Purchaser.
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ARTICLE IV
Purchaser's Representations and Warranties
Purchaser hereby represents and warrants to Seller as follows:
4.01 Corporate Standing. Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
4.02 Authorization of Agreement. Purchaser has full corporate power to
execute and deliver this Agreement and to consummate the transactions provided
for herein. The execution and delivery of this Agreement by Purchaser and the
performance by Purchaser of all its obligations to be performed hereunder have
been duly authorized by all necessary corporate action. This Agreement has been
duly and validly authorized, executed and delivered on behalf of Purchaser and
constitutes a valid and binding obligation of Purchaser enforceable against
Purchaser in accordance with its terms. No consent, authorization or approval
of, or exemption by, any governmental or public body or authority is required in
connection with the execution, delivery and performance by Purchaser of this
Agreement or any of the instruments or agreements herein referred to, or the
taking of any action herein contemplated.
4.03 General. If this Agreement is terminated for any reason, all data,
information, files, records and copies of documents and other materials obtained
by Purchaser from Seller in connection with this Agreement shall be returned to
Seller and Purchaser shall continue to hold all information obtained there from
in confidence and will not use such material for any purpose, except to the
extent that such information either is, or becomes, published or a matter of
public knowledge (other than knowledge gained as a result of discussions with
Seller's personnel in connection with this transaction or otherwise), or
hereafter becomes known to Purchaser from third parties who Purchaser has no
reason to believe are in a confidential relationship with Seller, or through
independent efforts of Purchaser or its employees.
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ARTICLE V
INTENTIONALLY LEFT BLANK
ARTICLE VI
INTENTIONALLY LEFT BLANK
ARTICLE VII
INTENTIONALLY LEFT BLANK
ARTICLE VIII
Transaction Procedures
8.01 Processing of Orders.
(a) All subscription mail (including new and renewal orders, agent
tapes and orders, checks and money orders, changes of address, etc.) received by
Seller, its agents or fulfillment suppliers from the date of execution of this
Agreement set forth above shall not be processed. This subscription mail shall
be turned over to Purchaser after receipt.
(b) Seller hereby agrees to: (i) suspend collection efforts for credit
subscribers and (ii) suspend all renewal promotion.
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(c) The list rental orders received by Seller and shipped by the date
of the execution of this Agreement set forth above, shall be the property of the
Seller who shall be solely responsible for collection of said orders. Orders not
received and shipped by the date of execution of this Agreement set forth above
shall be the exclusive property of Purchaser.
(d) Seller will cooperate with Purchaser in empowering Purchaser to
endorse and deposit subscription and list rental (provided that they are the
property of Purchaser as set forth in Section 8.01(c))checks or money orders to
Purchaser's account that are received in subscription or other mail after the
date of execution of this Agreement.
(e) Neither party will file a Form 8594 with the Internal Revenue
Service in connection with this transaction without the prior written consent of
the other party, which consent shall not be unreasonably withheld.
ARTICLE IX
Deliveries
9.01 Deliveries. (a) Simultaneously with the execution hereof, Seller
shall:
(1) Deliver to Purchaser certified resolutions of the Board of
Directors of Seller authorizing Seller to enter into this Agreement and to
consummate the transactions covered by this Agreement and of the authority of
the persons executing all other instruments or writing of conveyance, transfer
and assignment.
(2) Deliver to Purchaser an opinion of Xxxxxxxx Xxxxxx, counsel to
Seller, in the form attached hereto as Schedule 9.02(a)(2), dated the date
hereof and addressed to Purchaser.
(3) Convey and transfer to Purchaser all of the Assets by good and
sufficient bills of sale or other instruments of conveyance running to
Purchaser. The transfer of the Assets by magnetic tape or by such other medium
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as Purchaser may reasonably require shall take place at CDS's facility in Iowa
or at such other location as may be reasonably specified by Purchaser. Seller
shall deliver to Purchaser all Assets (other than those held by CDS) in its
possession and /or control within five (5) days after the date hereof.
(4) Deliver to Purchaser a statement from CDS that the II active
subscriber list consists of at least 432,000 subscribers who will receive the
August 2001 issue of II.
(5) Deliver to Purchaser a statement from CDS describing all list
orders not shipped by the date of execution of this Agreement.
(6) Deliver to Purchaser the June 30, 2001 expired inventory and
related copy liability report for II.
(7) Deliver to Purchaser a Xxxx of Sale executed by Seller in the form
set forth in Schedule 9.01(a)(7).
(8) Deliver to Purchaser a copy of a communication from Seller to CDS
instructing CDS (i) that as of the date of execution of this Agreement, Seller
has sold its current subscriber, expired subscriber and bad pay subscriber lists
and related fulfillment data and any list rental orders not shipped as of the
date of execution of this Agreement to Purchaser, (ii) instructing CDS to follow
the instructions of Purchaser with respect to said lists and orders, including
but not limited to instructions to CDS from Purchaser regarding merging the
Individual Investor lists and data with Purchaser's lists and data, (iii)
instructing CDS to deposit in an account for the benefit of Purchaser cash,
credit card payments, checks and money orders received on or after the date of
execution of this Agreement for payments for subscriptions to Individual
Investor and for payments for list rental orders not shipped by the date of
execution of this Agreement.
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(9) Deliver to Purchaser copies of the July 2001 and August 2001 issues
of II and the Form 3541 for second class postage expense for the July 2001 and
August 2001 issues of II mailed to subscribers.
(10) Deliver to Purchaser a fully executed agreement between Seller and
American Association of Individual Investors, Inc. ("AAII") as described in
Section 1.03 hereof, together with acknowledgement by AAII that the payment to
AAII required thereunder has been received.
(11) Deliver to Purchaser a statement from CDS acknowledging that it is
holding all files that it has previously held for Seller for the account of
Purchaser, including without limitation Seller's current subscriber list of not
less than 432,000 subscribers, Seller's expired subscriber list of not less than
795,000 subscribers (which may include duplicates), Seller's bad pay list of
approximately 250,000 names, and Seller's list rental file.
(b) Simultaneously with the execution of this Agreement and after
receipt by Purchaser of the documents described in 9.01(a)(1), (2), (4), (5),
(6), (7), (8), (9), (10) and (11), Purchaser shall:
(1) Deliver to Seller certified resolutions of the Executive Committee
or Board of Directors of Purchaser authorizing Purchaser to enter into this
Agreement and to consummate the transactions covered by this Agreement, and of
the authority of the persons executing all documents delivered to Seller
hereunder; and
(2) Pay to Seller Three Million Five Hundred Thousand Dollars
($3,500,000.00) as specified in Section 2.01, in the manner prescribed therein,
subject to escrow provisions of Sections 9.03 and 9.04 hereof.
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9.03 Escrow Agreement. Five Hundred Thousand Dollars ($500,000.00) of
the Purchase Price shall be placed in escrow with Xxxxx National Bank in
Washington, D.C., in accordance with the Escrow Agreement attached hereto as
Exhibit B. In the event that New York State Department of Taxation and Finance
notifies Seller or Purchaser that an amount in excess of $500,000 is owed to the
State of New York by Seller on account of the transaction contemplated by this
Agreement or otherwise, then Seller shall within two (2) business days of
receipt of such notice pay such additional amount to the State of New York and
deliver to Purchaser proof of such payment.
9.04. Refund Provisions. The parties agree that all refunds required to
be paid to II subscribers by Purchaser pursuant to this Agreement shall be made
by CDS, first by drawing down up to One Hundred Twenty-five Thousand Dollars
($125,000.00) from the Refund Escrow Fund established pursuant to the Escrow
Agreement attached hereto as Exhibit C. Any charges billed by CDS in connection
with the processing of such refunds shall also be paid from the Refund Escrow
Fund. The cost of any refunds or CDS charges in excess of such escrow fund shall
be shared equally by Seller and Purchaser, and Seller shall pay its share to
Purchaser within five (5) business days of receipt of a supporting documentation
from CDS or Purchaser.
ARTICLE X
Obligations of Seller After Closing
10.01. Notification Requirements. (a) Within five (5) business days
from the date hereof, Seller will use its best efforts to notify in writing all
of II's vendors, and (b) within two (2) business days from the date hereof,
Seller will notify all of II's subscription agents of the cessation of
publication of II, and shall advise all coop and subscription agents that no
further new subscriptions for II will be accepted, except for continuous service
renewals which will now receive KPFM.
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10.02. Forwarding Subscription Mail. All subscription mail related to
II, (including new and renewal orders, check and money orders, changes of
address, etc.) received by Seller and its agents from the date of Closing to
twelve months after the date hereof shall not be processed and shall be shipped
UPS to Purchaser at 0000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000 (Attention:
Xxxxx XxXxxx) on a weekly basis. Any mail received by Purchaser not specifically
related to subscriptions and list rentals shall be forwarded to Seller. Seller
agrees that, if Purchaser so request, Seller shall have its 800 subscriber line
at CDS forwarded to Kiplinger's 800 subscriber line at CDS for purposes of
handling calls from II subscribers for a period of ninety (90) days.
10.03. Seller's Retention of Subscriber Files. After transfer of II
subscriber files to Purchaser and notification by Purchaser of its satisfactory
receipt of said files, Seller will not maintain or authorize any other party to
maintain any duplicate matter, active, expire, pander or list rental subscriber
files related to II.
ARTICLE XI
Assumption of Liabilities and Indemnification
11.01 Indemnity by Purchaser. Purchaser shall indemnify and hold Seller
and its permitted successors and assigns harmless from and against any and all
claims, losses, liabilities and expenses (including reasonable fees and
disbursements of counsel) suffered or incurred by Seller and its permitted
successors and assigns due to any breach not expressly waived in writing by
Seller occurring or arising out of or in any of the representations, warranties,
covenants or agreement of Purchaser made to Seller in this Agreement.
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11.02 Indemnity by Seller. Seller shall indemnify and hold Purchaser
and its permitted successors and assigns harmless from and against any and all
claims, losses, liabilities and expenses (including reasonable and disbursements
counsel) suffered or incurred by Purchaser and its permitted successors and
assigns due to (a) the failure of Seller to discharge or pay any liability,
obligation, indebtedness, expense of, or claim against Seller not expressly
assumed by Purchaser pursuant to this Agreement, and (b) any breach (not
expressly waived in writing by Purchaser) occurring or arising out of or in any
of the representations, warranties, covenants or agreements of Seller made to
Purchaser in this Agreement or in any certificates, covenants, or agreements
provided pursuant to or in implementation of this Agreement.
11.03 Procedures with Respect to Indemnity. The indemnitee shall give
the indemnitor prompt notice of any claim, demand, assessment, suit, or
proceeding to which the indemnity set forth in Section 11.01 or 11.02 applies.
The indemnitor shall have the right to control the defense or settlement of any
such action subject to the provisions set forth below, but the indemnitee may,
at its election, participate in the defense of any action or proceeding at its
sole cost and expense. Should the indemnitor fail to defend any such action,
then, in addition to any other remedies the indemnitee may settle (provided it
shall give the indemnitor not less than fifteen (15) days' prior written notice
of the terms thereof and permit the indemnitor then to undertake such defense)
or defend such action or proceeding through counsel of its own choosing and may
recover from the indemnitor the amount of such settlement, demand, or any
judgment or decree and all of its costs and expenses, including reasonable fees
and disbursements of counsel. The indemnitor will not compromise or settle any
claim without the prior written consent of the indemnitee, which shall not be
unreasonably withheld, provided, however, that if such approval is withheld the
liability of the indemnitor shall be limited to the total sum represented in the
amount of the proposed compromise or settlement and the amount of the
indemnitee's counsel fees incurred in defending such claim, as permitted by the
preceding sentence, accrued at the time said approval is withheld.
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ARTICLE XII
General Provisions
12.01 Expenses of the Parties. All expenses involved in the preparation
and consummation of this Agreement, including without limitation, all fees and
expenses of agents, representatives, counsel and accountants, shall be borne
solely by the party that shall have incurred the same and the other party shall
have no liability with respect thereto, provided however, that all sales, use or
similar tax, if any, payable by reason of the sale, transfer or delivery of the
Assets to Purchaser shall be the sole responsibility of Seller who hereby agrees
to hold harmless and indemnify Purchaser from and against any and all loss,
liability, cost or expense, including reasonable counsel fees, based upon or
arising out of Seller's failure to pay any of such taxes. Seller agrees that it
is solely responsible for any and all compensation owed to The Xxxxxx Xxxxxxxx
Group, Inc. as a result of the transaction contemplated hereby. Purchaser agrees
that it is solely responsible for any and all compensation owed to Xxxxxxx X
XxXxxx, Inc. as a result of the transaction contemplated hereby.
12.02 Survival of Covenants, Representations and Warranties. The
representations and warranties contained in Sections 3.01 and 3.02 hereof shall
survive the Closing for a period of five (5) years. All other provisions hereof,
which by their terms, are to be performed after the Closing and the several
representations, warranties and agreements of the parties herein contained shall
survive the Closing for a period of three (3) years from the date of Closing and
shall not be affected or invalidated by reason of any inspection or examination
which has been made by or on behalf of any party nor by reason of any disclosure
made to any party but not specifically set forth or referred to in this
Agreement; and any and all of such representations, warranties and agreements
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shall be fully effective irrespective of any such inspection examination or
disclosure, and each party shall be entitled to rely and shall be presumed to
have relied, on each and all of such representations, warranties and agreements
made by the other party.
12.03 Covenant of Further Assurances. From time to time after the
Closing, Seller shall, at Purchaser's request, and without further
consideration, execute, acknowledge and deliver to Purchaser any and all
instruments and other writings and do all other acts or things reasonably
requested by Purchaser in order to evidence and effectuate the consummation of
any of the transactions contemplated by this Agreement. Purchaser shall do
likewise at Seller's request.
12.04 Notices. Any notice, request, demand, waiver or consent required
or permitted hereunder shall be in writing and shall be deemed to have been duly
given (i) upon delivery if delivered by person or on the next business day after
the date of delivery to a national overnight courier service, if delivered
through such services to the following addresses or to such other address as any
party may request by notifying in writing the other party to this Agreement in
accordance with the Section 12.04:
If to Purchaser:
The Kiplinger Washington Editors, Inc.
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Xx. Xxxxxx X. Xxxxxx
Vice President for Finance
with a copy to:
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Xxxxx, Xxxxxxx, Xxxxxxx, Xxxxxx & Xxxxx, L.L.P.
Sixth Floor
0000 Xxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxx X. Xxxxxxx, Esquire
If to Seller:
Individual Investor Group, Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
President
With a copy to:
Xxxxxxxx Xxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Attn: Xxxxx X. Xxxxxx, Esq.
12.05 Entire Agreement; Waiver, Amendments; Construction. This
Agreement, including the attached exhibits, all of which are made a part hereof
by this reference, and the documents and instruments delivered pursuant hereto
contain the entire agreement between the parties hereto and supercedes any and
all prior agreements, arrangements or understandings relating to the subject
matter hereof, all of which are merged herein. No oral understandings,
statements, promises or inducements contrary to the terms of this Agreement
exist. No representations, warranties, covenants or conditions, express or
implied, other than as set forth herein, have been made by any party. No waiver
or extension of time for performance of any term, provision or condition of this
Agreement, whether by conduct or otherwise, in any one or more instances shall
be deemed to be construed as a further or continuing waiver or extension of any
such term, provision or condition of this Agreement. This Agreement cannot be
changed or terminated orally, and no waiver, extension or consent shall be
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effective unless evidenced by an instrument in writing duly executed by the
party who is sought to be charged with having granted the same. The Article or
Section headings of this Agreement are for convenience or reference only and do
not form a part hereof and do not in any way modify, interpret or construe the
intentions of the parties. This Agreement shall be governed and construed and
enforced in accordance with, and subject to, the internal laws of the State of
New York without regard to principles of conflicts of laws.
12.06 Parties in Interest. This Agreement shall be binding on and inure
to the benefit of the parties hereto and their respective heir, successors and
assigns, except that neither party shall assign its rights or obligations under
this Agreement to any person without the consent of the other person or by
operation of law. Nothing in the immediately preceding sentence shall prohibit
Purchaser from assigning its rights and obligations under this Agreement to a
wholly-owned subsidiary of Purchaser. Nothing in this Agreement, expressed or
implied, is intended to or shall confer on any person other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations or liabilities under or by reason of this Agreement. This Agreement
may be executed in one or more counterparts and all such counterparts shall
constitute one and the same instrument.
12.07 Access to Information. In order to facilitate the resolution of
any claims made against Seller with respect to the Assets after the date hereof,
or for any reasonable purpose, for a period of seven (7) years, Purchaser shall
(i) retain the files and information that comprise the Assets and (ii) upon
reasonable notice, afford the officers, employees and authorized agents and
representatives of Seller reasonable access (including the right to make
photocopies) during normal business hours, to such files and information.
19
[Signature Page to Agreement dated July 9, 2001
by and between Individual Investor Group, Inc.
and The Kiplinger Washington Editors, Inc.]
Individual Investor Group, Inc.
/s/ Xxxxxx X. Xxxxx
By: ____________________________
Xxxxxx X. Xxxxx
Name: _________________________
VP - Controller
Title: __________________________
Purchaser:
The Kiplinger Washington Editors, Inc.
/s/ Xxxxxxxx X. Xxxxxx
By: ____________________________
Xxxxxxxx X. Xxxxxx
Name: __________________________
Sr. V.P., Publishing
Title: _____________________________
20
