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EXHIBIT 10.4
NON-CONFIDENTIALITY AGREEMENT
THIS AGREEMENT (the "Agreement"), is made as of May 1, 2000, by and among
the undersigned (including their respective partners, members, officers,
employees and agents) and any other persons who agree to be bound by the terms
and conditions of this Agreement by signing a copy hereof (each a "Party" and
collectively, the "Parties").
WHEREAS, Pulitzer Inc. and Pulitzer Technologies, Inc. (collectively, the
"Pulitzer Parties") and The Herald Company, Inc.( "Herald" and, together with
Pulitzer Parties, the "Permittees") have investigated the possibility of
entering into a transaction involving their respective interests in the assets
and operations of the St. Louis Post-Dispatch and certain related businesses
(the "Transaction");
WHEREAS, the other Parties to this Agreement (collectively, the
"Permitters")serve as advisors to either the Pulitzer Parties or Herald in
connection with, or otherwise have participated in the planning, negotiation,
organization or management of the proposed Transaction;
WHEREAS, the Parties hereto desire this Agreement to be an agreement
described in Section 301.6111-2T(c)(2) of the Treasury Regulations authorizing
relevant persons to make certain disclosures, and
WHEREAS, all of the Parties desire to confirm their understanding regarding
the right of each Party to disclose information regarding the proposed
Transaction;
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the Parties hereby agree as follows:
1. Authorization of Disclosure. Subject to the applicable provisions of
federal, state and other securities laws which may restrict or limit the
disclosure of material non-public information, and subject to Section 6.1 of the
Operating Agreement of St. Louis Post-Dispatch LLC, each of the Parties hereby
confirms that it has granted to each Permittee permission to disclose the
structure and tax aspects of the Transaction to any and all persons, without
limitation of any kind.
2. Representations and Covenants.
(a) Each Party (other than the Permittees) hereby represents that,
subject to (1) the applicable provisions of federal, state and other securities
laws which may restrict or limit the disclosure of material non-public
information, and (2) professional canons and rules limiting the disclosure of
client confidences and client secrets without client consent, (i) such Party
does not have any express or implied understanding or agreement with or for the
benefit of any other
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person which would render the Transaction "confidential" within the meaning of
Section 301.6111-2T(c) of the Treasury Regulations and (ii) prior to the date
hereof, such Party was not aware of any express or implied understanding or
agreement with or for the benefit of any other person which would render the
Transaction "confidential" within the meaning of Section 301.6111-2T(c) of the
Treasury Regulations.
(b) Each Party (other than the Permittees) covenants that, subject to (1)
the applicable provisions of federal, state and other securities laws which may
restrict or limit the disclosure of material non-public information, (2) any
other law, or order, judgment, or decree of any court or government agency that
may limit the disclosure of information, and (3) professional canons and rules
limiting the disclosure of client confidences and client secrets without client
consent such Party will not enter into any express or implied understanding or
agreement with or for the benefit of any other person which would render the
Transaction "confidential" within the meaning of Section 301.6111-2T(c) of the
Treasury Regulations.
3. Additional Parties. Each Party agrees that prior to the participation
(within the meaning of the Treasury Regulations under Section 6111 of the
Internal Revenue Code of 1986, as amended (the "Code")) in the Transaction of
any person who is not a Party, directly or indirectly, such person shall be
required to execute a copy of this Agreement as a condition to such Person's
participation in the Transaction.
4. Privilege. Each Permittee acknowledges that (1) certain information
regarding the Transaction is "secret" information but is not a "confidential"
information that is subject to the attorney-client privilege or the privilege
for confidential tax advice under Section 7525(a) of the Code, (2) if such
Permittee did not execute this Non-Confidentiality Agreement, such Permittee's
legal advisors would be obligated by professional rules and canons not to
disclose such "secret" information, and (3) by executing this
Non-Confidentiality Agreement, such Permittee hereby waives its rights to limit
the disclosure of such "secret information" in respect of any information for
which such waiver would be required to permit this Agreement to be an agreement
described in Section 301.6111-2T(c)(2) of the Treasury Regulations.
Notwithstanding anything to the contrary, this Agreement does not, and is not
intended to, waive any Party's rights under the attorney-client privilege or the
privilege for confidential tax advice under Section 7525(a) of the Code.
5. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York without giving
effect to any choice of law provision or rule.
6. Amendment. This Agreement may be amended only with the written consent
of each of the Parties.
7. Counterparts; parties. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which shall
constitute one and the same
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Agreement. The agreement shall be effective among all parties who may from time
to time execute the agreement, regardless of whether (x) any other parties named
herein execute this Agreement or (y) any additional parties execute this
Agreement.
8. Severability. The provisions of this Agreement shall be deemed severable
and the invalidity or unenforceability of any provision shall not affect the
validity or enforceability of the other provisions hereof.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the day and year first written above.
PULITZER INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President - Finance
THE HERALD COMPANY, INC.
By: /s/ X.X. Xxxxxxxx, Jr.
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Name: X.X. Xxxxxxxx, Jr.
Title: Vice President
DELOITTE &TOUCHE LLP
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Partner
FULBRIGHT & XXXXXXXX L.L.P.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Partner
XXXXXXX, SACHS & CO.
By: /s/ XXXXXXX, XXXXX & CO.
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Name: Xxxx Xxxx
Title: Managing Director
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HUNTLIEGH SECURITIES CORPORATION
By: /s/ Xxxxx X. Xxxxxxx, Xx.
--------------------------------------
Name: Xxxxx X. Xxxxxxx, Xx.
Title: Executive Vice President
KING & XXXXXX
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Partner
XXXX XXXXXXX & COMPANY LLP
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Partner
XXXXX, XXXXXXX & XXXXX
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Partner
Dow Xxxxxx & Xxxxxxxxx
By: /s/ J. Xxxxxxx Xxxxx
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Name: J. Xxxxxxx Xxxxx
Title: Member
FRIED, FRANK,HARRIS, XXXXXXX & XXXXXXXX
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: Partner
