MUTUAL CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
Dated as of March 18, 2024
This Mutual Confidentiality and Non-Disclosure Agreement (this "Agreement") is entered into as of March 18, 2024 (the "Effective Date"), by and between:
Aurelius Media Holdings Inc., a corporation organized and existing under the laws of the State of Delaware (file no. 5987324), with its registered agent at Crowne Albany Corporation, 1209 Orange Street, Wilmington, DE 19801 (hereinafter referred to as "Disclosing Party" or "AMH" or the "Company"); and
Pinnacle Ridge Capital Management LLC, a limited liability company organized and existing under the laws of the State of Delaware, with its principal office at 600 Lexington Avenue, 38th Floor, New York, NY 10022 (hereinafter referred to as "Receiving Party" or "PRCM" or the "Potential Buyer").
AMH and PRCM are each individually referred to herein as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, AMH is a wholly owned subsidiary of Aurelius Global Media Group PLC, a public limited company organized under the laws of England and Wales (Companies House No. 08431276), with its headquarters at 14 Clarges Street, London W1J 8AQ, United Kingdom ("Aurelius" or "Aurelius Global");
WHEREAS, AMH directly holds one hundred percent (100%) of the equity interests in Meridian Press Holdings LLC, a Delaware limited liability company (file no. 4521889), with its principal office at 1180 Avenue of the Americas, 22nd Floor, New York, NY 10036 ("MPH" or the "Company Entity");
WHEREAS, MPH owns and operates a legacy publishing division comprising book publishing, periodical, and educational content businesses under the Meridian Press Holdings brand, including its subsidiaries Meridian Distribution Services Inc. (a Delaware corporation, file no. 4736201), Bellweather Academic Press Inc. (a Delaware corporation, file no. 4801133), Foxglove Media LLC (a New York limited liability company), and Meridian Press Canada ULC (a British Columbia unlimited liability company) (collectively with MPH, the "Business");
WHEREAS, PRCM is the fund manager of Pinnacle Ridge Capital Partners Fund IV, L.P., a Delaware limited partnership (file no. 6234577) ("PRCP IV"), a middle-market private equity firm focused on media, information services, and business services, with a fund size of approximately $6.2 billion (Fund IV, vintage 2022);
WHEREAS, the Parties wish to explore a potential transaction involving the possible sale by AMH of all or a portion of its equity interests in MPH (the "Potential Transaction");
WHEREAS, in connection with their evaluation of the Potential Transaction, each Party may disclose to the other Party certain non-public, confidential, or proprietary information; and
WHEREAS, the Parties desire to set forth the terms and conditions upon which such Confidential Information (as defined below) will be disclosed and used.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
SECTION 1: DEFINITIONS
1.1 "Confidential Information." As used in this Agreement, "Confidential Information" means all non-public, confidential, or proprietary information, whether written, oral, electronic, visual, or in any other form, disclosed by or on behalf of a Disclosing Party (or its Representatives) to the Receiving Party (or its Representatives) in connection with the Potential Transaction. Without limiting the generality of the foregoing, "Confidential Information" includes, without limitation:
(a) business, financial, operational, and technical information relating to MPH and its subsidiaries (including the Business);
(b) financial statements, projections, forecasts, budgets, and carve-out financial information, including audited and unaudited financial statements prepared in connection with a contemplated disposition of the Business;
(c) information relating to MPH's fiscal year 2023 revenue (approximately $1,140,000,000), Adjusted EBITDA (approximately $96,000,000), and operating margins, and any historical or projected financial data relating to the performance of the Business;
(d) information concerning Aurelius Global Media Group PLC's consolidated revenues (approximately £3,800,000,000 for fiscal year 2023) and the Legacy Publishing segment's contribution thereto (approximately 25% of consolidated revenue), including segment-level financial information;
(e) customer lists, vendor relationships, supplier agreements, distribution agreements (including the Oakbridge Distribution Alliance Agreement), content license agreements, author contracts, and other material contracts to which MPH or any of its subsidiaries is a party;
(f) employee information, compensation data, organizational charts, benefits information, and personnel records for the approximately 2,400 employees of MPH and its subsidiaries, including key management personnel and their terms of employment;
(g) real property information, including information relating to owned distribution centers located in Edison, New Jersey; Columbus, Ohio; Dallas, Texas; and Reno, Nevada, and leased properties across the United States and Canada, and any environmental, title, or survey information related thereto;
(h) intellectual property information, including trademarks (including the "Meridian Press," "Bellweather Academic," and "Foxglove" marks and associated logos), copyrights, ISBN prefix assignments, domain names, and any pending or contemplated intellectual property registrations or applications;
(i) intercompany arrangements, shared services agreements, and information technology infrastructure details (including Aldermere Services Inc. systems, content management systems, digital distribution platforms, and related licensing arrangements) between MPH, Aurelius, and their respective affiliates;
(j) tax information and structure, including the treatment of MPH as a disregarded entity for United States federal income tax purposes, and any state, local, or foreign tax attributes, positions, or obligations;
(k) information relating to PRCP IV's investment strategy, fund terms, limited partner agreements, portfolio companies, financial condition, track record, and investment pipeline; and
(l) notes, analyses, compilations, studies, interpretations, or other documents prepared by the Receiving Party or its Representatives that contain, reflect, or are based upon, in whole or in part, Confidential Information (collectively, "Derivative Materials").
1.2 Exclusions from "Confidential Information." Notwithstanding the foregoing, "Confidential Information" shall not include information that:
(a) is or becomes generally available to the public other than as a result of a disclosure by the Receiving Party or any of its Representatives in violation of this Agreement;
(b) was already in the Receiving Party's possession on a non-confidential basis prior to its disclosure by or on behalf of the Disclosing Party, as evidenced by contemporaneous written records of the Receiving Party;
(c) is received by the Receiving Party on a non-confidential basis from a third party that is not, to the Receiving Party's knowledge, bound by a confidentiality obligation to the Disclosing Party with respect to such information; or
(d) is independently developed by the Receiving Party or its Representatives without reference to, reliance upon, or use of the Confidential Information, as demonstrated by the Receiving Party's contemporaneous written records.
The burden of establishing the applicability of any of the foregoing exclusions shall rest with the Party claiming such exclusion.
1.3 "Representatives." As used in this Agreement, "Representatives" means, with respect to any Party, such Party's affiliates and its and their respective directors, officers, employees, agents, advisors, consultants, and representatives, including legal counsel, financial advisors, accountants, and other professional advisors retained in connection with the evaluation of the Potential Transaction.
Without limiting the generality of the foregoing:
(a) With respect to AMH, "Representatives" includes Aurelius Global Media Group PLC and its officers (including Sir Edmund Hargreaves, KBE, Chief Executive Officer; Priya Nandakumar, Chief Financial Officer; Claudia Restrepo, General Counsel; and Thomas Whitfield, Senior Vice President, Corporate Development), Meridian Press Holdings LLC and its officers (including Jonathan Kessler, President, and Angela Moretti, Senior Vice President, Finance), Calderwood & Harkness LLP (Seller's Counsel), Haverford Whitmore & Co. (Seller's Financial Advisor), and Pemberton Graves LLP (Seller's Auditor).
(b) With respect to PRCM, "Representatives" includes Pinnacle Ridge Capital Partners Fund IV, L.P., Pinnacle Ridge Capital GP IV LLC, and their respective officers (including Victor Stanhope, Managing Partner; Rachel Osei-Mensah, Partner, Media & Communications; and Nathaniel Griggs, Principal), Hathaway, Locke & Barnett LLP (Buyer's Counsel), Drummond Zanthor Partners LLC (Buyer's Financial Advisor), and Whitecliff & Harding LLP (Buyer's Accountant).
1.4 "Potential Transaction." As used in this Agreement, "Potential Transaction" means any potential transaction involving the possible acquisition by PRCM (or an affiliate thereof, including PRCP IV or a newly formed acquisition vehicle) of all or a portion of the equity interests in MPH, or any alternative transaction structure (including an asset acquisition, merger, recapitalization, or other business combination) that the Parties may agree to explore in connection with the disposition of the Business.
1.5 "Standstill Period." As used in this Agreement, "Standstill Period" means the period commencing on the date of this Agreement and ending on the date that is eighteen (18) months following the date of this Agreement (i.e., September 18, 2025).
SECTION 2: USE AND DISCLOSURE OF CONFIDENTIAL INFORMATION
2.1 Permitted Use. Each Receiving Party agrees that the Confidential Information shall be used solely for the purpose of evaluating, negotiating, and, if applicable, consummating the Potential Transaction (the "Permitted Purpose"). Without limiting the generality of the foregoing, neither the Receiving Party nor any of its Representatives shall use any Confidential Information for any competitive purpose, for trading in any securities, or for the direct or indirect benefit of any person other than the Parties in connection with the Potential Transaction. Each Party acknowledges that certain Confidential Information may constitute material non-public information under applicable United States federal and state securities laws and the regulations of the London Stock Exchange, and each Party agrees that it is aware of, and shall comply with, the restrictions imposed by such laws and regulations on the purchase or sale of securities of Aurelius Global Media Group PLC or any other publicly traded entity while in possession of such material non-public information.
2.2 Non-Disclosure Obligation. Each Receiving Party agrees that it shall not disclose, publish, or otherwise reveal any Confidential Information to any person, except as follows:
(a) The Receiving Party may disclose Confidential Information to its Representatives who (i) have a bona fide need to know such Confidential Information for the Permitted Purpose, (ii) have been informed of the confidential nature of the Confidential Information and the terms of this Agreement, and (iii) have agreed to be bound by the terms of this Agreement (or terms no less restrictive) or are otherwise bound by professional obligations of confidentiality at least as protective as those contained in this Agreement.
(b) Each Party shall be responsible for any breach of this Agreement by its Representatives, and each Party agrees, at its sole expense, to take all reasonable measures to restrain its Representatives from any unauthorized disclosure or use of the Confidential Information in violation of this Agreement.
Without the prior written consent of the Disclosing Party, no Party or any of its Representatives shall disclose to any person (other than its Representatives in accordance with Section 2.2(a) above) the fact that Confidential Information has been made available, that discussions or negotiations are taking place or have taken place concerning the Potential Transaction, or any of the terms, conditions, status, or other facts relating to the Potential Transaction, including the identity of the Parties involved therein (collectively, "Transaction Information"). Without limiting the foregoing, neither Party shall, without the prior written consent of the other Party, issue any press release or make any public statement or announcement regarding the Potential Transaction or the existence of this Agreement.
2.3 Legally Compelled Disclosure. In the event that the Receiving Party or any of its Representatives becomes legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative demand, order of a court or governmental body of competent jurisdiction, or similar legal process, or by applicable securities laws or regulations, including the regulations of the London Stock Exchange, the Financial Conduct Authority, or the Nasdaq Stock Market) to disclose any Confidential Information or Transaction Information, the Receiving Party shall:
(a) provide the Disclosing Party with prompt written notice (to the extent legally permissible) of such requirement, together with copies of any relevant correspondence, order, or legal process, so that the Disclosing Party may seek a protective order, confidential treatment request, or other appropriate remedy or waive compliance with the relevant provisions of this Agreement;
(b) cooperate with the Disclosing Party, at the Disclosing Party's expense, in seeking such protective order or other remedy, including by joining in any motion or application filed by the Disclosing Party seeking such relief; and
(c) if such protective order or other remedy is not obtained, or the Disclosing Party waives compliance with the relevant provisions of this Agreement, disclose only that portion of the Confidential Information or Transaction Information that is legally required to be disclosed in the opinion of the Receiving Party's outside legal counsel, and exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded to such Confidential Information or Transaction Information by the tribunal, governmental body, or other person to whom disclosure is made.
For the avoidance of doubt, the Receiving Party shall not be in breach of this Agreement to the extent that it discloses Confidential Information or Transaction Information in compliance with this Section 2.3.
SECTION 3: NON-SOLICITATION OF EMPLOYEES
3.1 Non-Solicitation Covenant. For a period of eighteen (18) months from the date of this Agreement (i.e., through September 18, 2025), neither PRCM nor any of its affiliates (including PRCP IV, Pinnacle Ridge Capital GP IV LLC, or any portfolio company of the foregoing) shall, directly or indirectly, solicit for employment or hire any employee of AMH, Aurelius Global Media Group PLC, MPH, or any of MPH's subsidiaries with whom PRCM or any of its Representatives have had contact or who has been specifically identified to PRCM or its Representatives in connection with the evaluation of the Potential Transaction (whether through organizational charts, management presentations, site visits, or otherwise), without the prior written consent of AMH. For purposes of this Section 3, "solicit for employment" shall include any direct or indirect communication, solicitation, or inducement intended to cause any such employee to terminate his or her employment or to accept employment or an engagement with PRCM, any of its affiliates, or any portfolio company thereof.
3.2 Exceptions. Notwithstanding the foregoing, the restrictions set forth in Section 3.1 shall not prohibit PRCM or any of its affiliates from:
(a) making general solicitations for employment not directed specifically at any employee of AMH, Aurelius, MPH, or their subsidiaries, including solicitations made through advertisements in newspapers, trade journals, professional publications, or on the internet (including job posting websites and social media platforms);
(b) hiring any such employee who responds to a general solicitation described in clause (a) above without any additional direct or indirect solicitation by PRCM or its affiliates; or
(c) soliciting or hiring any such employee whose employment with AMH, Aurelius, MPH, or any of their subsidiaries has been terminated by the employer at least six (6) months prior to the date of any such solicitation or hiring by PRCM or its affiliates.
SECTION 4: STANDSTILL
4.1 Standstill Restrictions. During the Standstill Period, without the prior written invitation or consent of the board of directors of Aurelius Global Media Group PLC, neither PRCM nor any of its affiliates (including PRCP IV, Pinnacle Ridge Capital GP IV LLC, or any portfolio company of the foregoing, and any person acting on behalf of or in concert with any of the foregoing) shall, directly or indirectly:
(a) acquire, offer or propose to acquire, or agree to acquire, by purchase, tender offer, exchange offer, or otherwise, any securities (including equity securities, debt securities, or derivative instruments) or direct or indirect rights to acquire any securities of Aurelius Global Media Group PLC or any of its subsidiaries (other than in connection with the Potential Transaction as mutually agreed by the Parties in writing);
(b) make, or in any way participate in, any "solicitation" of "proxies" (as such terms are used in the proxy rules of the United States Securities and Exchange Commission (the "SEC")) or consents with respect to any securities of Aurelius Global Media Group PLC, or seek to advise or influence any person with respect to the voting of, or giving of consents with respect to, any securities of Aurelius Global Media Group PLC;
(c) make any public announcement with respect to, or submit to AMH, Aurelius, or any of their Representatives, any proposal, offer, indication of interest, or term sheet (with or without conditions) relating to any acquisition, merger, tender offer, exchange offer, business combination, recapitalization, restructuring, liquidation, dissolution, or similar transaction involving Aurelius Global Media Group PLC or any of its subsidiaries or any material portion of their respective assets (other than the Potential Transaction as contemplated by this Agreement);
(d) form, join, or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) with respect to any securities of Aurelius Global Media Group PLC, or otherwise file, or cause or encourage the filing of, any Schedule 13D or Schedule 13G (or any amendment thereto) with the SEC with respect to any securities of Aurelius Global Media Group PLC;
(e) otherwise act, alone or in concert with others, to seek to control or influence the management, board of directors, or policies of Aurelius Global Media Group PLC, or nominate or propose the nomination of any person for election to the board of directors of Aurelius Global Media Group PLC, or propose any matter for submission to a vote of the shareholders of Aurelius Global Media Group PLC; or
(f) request that AMH or Aurelius amend, waive, or terminate any provision of this Section 4, in each case other than through a confidential, private request to the board of directors of Aurelius Global Media Group PLC (or a duly authorized committee thereof) that does not require Aurelius, AMH, or any of their Representatives to make any public disclosure of such request.
4.2 Fall-Away. The standstill restrictions set forth in Section 4.1 shall automatically terminate and be of no further force or effect upon the execution and delivery by the Parties (or their respective affiliates) of a definitive purchase agreement, merger agreement, or other definitive agreement with respect to the Potential Transaction. For the avoidance of doubt, the termination of the standstill restrictions pursuant to this Section 4.2 shall not affect the continuing obligations of the Parties under any other provision of this Agreement.
SECTION 5: NO REPRESENTATIONS OR WARRANTIES; NO OBLIGATION TO PROCEED
5.1 No Representations or Warranties. The Receiving Party acknowledges and agrees that neither the Disclosing Party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy, completeness, reliability, or currentness of any Confidential Information disclosed pursuant to this Agreement, including any projections, forecasts, estimates, or other forward-looking information. The Receiving Party agrees that neither the Disclosing Party nor any of its Representatives shall have any liability to the Receiving Party or any of its Representatives relating to or resulting from the use of the Confidential Information or any errors therein or omissions therefrom, and the Receiving Party hereby waives, releases, and agrees not to assert any claim against the Disclosing Party or its Representatives arising out of or relating to the accuracy or completeness of any Confidential Information. Only those representations and warranties that are made in a definitive agreement relating to the Potential Transaction, when, as, and if executed, and subject to such limitations, qualifications, and restrictions as may be specified therein, shall have any legal effect.
5.2 No Obligation to Proceed. Nothing in this Agreement shall be construed as creating any obligation of either Party to (a) enter into, continue, or negotiate toward any definitive agreement or any other agreement with respect to the Potential Transaction, (b) consummate the Potential Transaction, or (c) disclose any particular Confidential Information to the other Party. Each Party reserves the right, in its sole and absolute discretion and at any time, to reject any and all proposals made by the other Party with respect to the Potential Transaction, to terminate discussions and negotiations with the other Party regarding the Potential Transaction, with or without cause and without any liability to the other Party (except as expressly set forth in this Agreement), and to refuse to make available any further Confidential Information to the other Party. Unless and until a definitive agreement between the Parties (or their respective affiliates) with respect to the Potential Transaction has been executed and delivered, neither Party shall have any legal obligation to the other Party with respect to the Potential Transaction, except as expressly set forth in this Agreement. For purposes of this Agreement, the term "definitive agreement" does not include an executed letter of intent, term sheet, memorandum of understanding, or any other preliminary written agreement, nor does it include any written or oral acceptance of an offer or bid by either Party.
SECTION 6: RETURN AND DESTRUCTION OF CONFIDENTIAL INFORMATION
6.1 Return/Destruction Obligation. Upon the written request of the Disclosing Party at any time, or upon the termination or abandonment of discussions or negotiations between the Parties with respect to the Potential Transaction, the Receiving Party shall promptly, and in any event within ten (10) business days following such request or termination:
(a) return to the Disclosing Party all written Confidential Information (and all copies, extracts, summaries, and reproductions thereof, in whatever form or medium) furnished by or on behalf of the Disclosing Party; or
(b) destroy all such Confidential Information (and all copies, extracts, summaries, and reproductions thereof, in whatever form or medium), and provide to the Disclosing Party written certification of such destruction executed by a duly authorized officer of the Receiving Party, specifying in reasonable detail the Confidential Information that has been destroyed and confirming that no copies, extracts, or reproductions have been retained, except as permitted by Section 6.2 below.
All Derivative Materials prepared by the Receiving Party or its Representatives shall, at the option of the Receiving Party, be either returned to the Disclosing Party or destroyed in accordance with the procedures set forth above, with written certification of destruction provided to the Disclosing Party upon request. The decision to return or destroy Confidential Information (other than Derivative Materials, which shall be destroyed) shall be at the election of the Receiving Party.
6.2 Exceptions to Return/Destruction. Notwithstanding the foregoing provisions of Section 6.1:
(a) the Receiving Party may retain one (1) archival copy of the Confidential Information (including Derivative Materials) in the files of its internal or external legal counsel, solely for the purpose of monitoring compliance with the terms and conditions of this Agreement and for applicable record-keeping, regulatory, and compliance requirements, and such retained copy shall remain subject to the confidentiality and use restrictions of this Agreement;
(b) the Receiving Party's Representatives that are professional advisors (including legal counsel, financial advisors, and accountants) may retain copies of Confidential Information in accordance with their respective professional obligations, internal document retention policies, and applicable law or regulation, including any obligations under the rules of professional conduct or applicable regulatory requirements; and
(c) any Confidential Information that is stored on routine electronic backup or disaster recovery systems maintained in the ordinary course of business shall not be required to be returned or destroyed, provided that (i) the Receiving Party shall not intentionally access such archived Confidential Information for any purpose other than compliance with this Agreement or applicable law, and (ii) all such information shall remain subject to the confidentiality and non-use obligations of this Agreement for the duration of the applicable survival period set forth in Section 9.
6.3 Survival of Obligations. Notwithstanding the return or destruction of any Confidential Information or Derivative Materials pursuant to this Section 6, the Receiving Party's obligations under this Agreement with respect to all Confidential Information (including any Confidential Information retained pursuant to Section 6.2) shall survive and continue in accordance with Section 9.
SECTION 7: REMEDIES
7.1 Irreparable Harm. Each Party acknowledges and agrees that a breach of this Agreement by the Receiving Party or any of its Representatives would cause irreparable harm to the Disclosing Party for which monetary damages alone would not be an adequate remedy, and that the Disclosing Party would be irreparably injured in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached.
7.2 Equitable Relief. In the event of any actual or threatened breach of this Agreement by the Receiving Party or any of its Representatives, the Disclosing Party shall be entitled to seek equitable relief, including temporary restraining orders, preliminary and permanent injunctions, and specific performance of the terms and provisions of this Agreement, in addition to all other remedies available at law or in equity, without the necessity of proving actual damages or irreparable harm, and without the requirement of posting any bond, surety, or other security (any requirement for the posting of which is hereby waived by each Party to the fullest extent permitted by applicable law).
7.3 Cumulative Remedies. The rights and remedies of the Parties under this Agreement are cumulative and in addition to, and not in substitution for or limitation of, any other rights or remedies available to the Parties at law or in equity, whether arising under this Agreement, any other agreement, applicable law, or otherwise. No exercise of any right or remedy by any Party shall preclude the exercise of any other right or remedy by such Party.
SECTION 8: NO WAIVER; AMENDMENT
8.1 No Waiver. No failure or delay by any Party in exercising any right, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power, or privilege. No waiver of any provision of this Agreement shall be effective unless set forth in a written instrument signed by the Party against whom such waiver is to be enforced, and any such waiver shall be limited to the specific provision and specific circumstances stated therein and shall not be deemed to be a waiver of any other provision or of the same provision in any other circumstance.
8.2 Amendment. This Agreement may not be amended, modified, supplemented, or waived except by a written instrument duly executed by both Parties hereto. No oral modification of this Agreement shall be binding upon either Party.
SECTION 9: TERM AND TERMINATION
9.1 Effective Date. This Agreement is effective as of March 18, 2024 (the "Effective Date").
9.2 Term. The confidentiality and non-disclosure obligations set forth in Section 2 of this Agreement shall survive and remain in full force and effect for a period of two (2) years from the Effective Date (i.e., until March 18, 2026), regardless of whether the Potential Transaction is consummated, discussions between the Parties are terminated, or Confidential Information is returned or destroyed in accordance with Section 6. The non-solicitation obligations set forth in Section 3 shall survive and remain in full force and effect for the period specified therein. The standstill obligations set forth in Section 4 shall survive and remain in full force and effect for the Standstill Period specified therein, subject to the fall-away provision in Section 4.2.
9.3 Surviving Provisions. Sections 5 (No Representations or Warranties; No Obligation to Proceed), 7 (Remedies), 10 (Governing Law; Jurisdiction; Waiver of Jury Trial), and 11 (Miscellaneous) shall survive the expiration or termination of this Agreement and shall continue in full force and effect indefinitely, or for such shorter period as may be specified therein.
SECTION 10: GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL
10.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to any principles of conflicts of law that would cause the application of the laws of any other jurisdiction. Each Party agrees that all issues concerning the construction, validity, enforcement, and interpretation of this Agreement shall be governed by and determined in accordance with the internal laws of the State of Delaware.
10.2 Jurisdiction and Venue. Each Party hereby irrevocably and unconditionally submits to the exclusive jurisdiction of the Court of Chancery of the State of Delaware (or, if the Court of Chancery of the State of Delaware declines to accept or lacks subject matter jurisdiction over a particular matter, the Superior Court of the State of Delaware, or, if jurisdiction is not available in the Superior Court of the State of Delaware, the United States District Court for the District of Delaware) in connection with any dispute, claim, or cause of action arising out of or relating to this Agreement or the negotiation, execution, performance, or breach hereof. Each Party hereby irrevocably waives, and agrees not to assert by way of motion, defense, or otherwise in any such action or proceeding, any claim that (a) it is not personally subject to the jurisdiction of such courts, (b) the action or proceeding is brought in an inconvenient forum, or (c) the venue of the action or proceeding is improper. Each Party further agrees that service of process may be made upon it in any manner permitted by the laws of the State of Delaware or the Federal Rules of Civil Procedure, as applicable.
10.3 Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING, ACTION, SUIT, OR COUNTERCLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT, OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF A LEGAL PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS SET FORTH IN THIS SECTION 10.3.
SECTION 11: MISCELLANEOUS
11.1 Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous negotiations, representations, warranties, commitments, offers, contracts, and agreements (whether written or oral) between the Parties with respect to the subject matter hereof. There are no representations, warranties, covenants, or obligations except as set forth in this Agreement. Each Party acknowledges that, in entering into this Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance, or warranty (whether made innocently or negligently) that is not expressly set forth in this Agreement.
11.2 Assignment. Neither Party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other Party, and any purported assignment in violation of this Section 11.2 shall be null and void and of no force or effect; provided, however, that either Party may assign its rights and obligations hereunder to an affiliate of such Party (including, in the case of PRCM, to PRCP IV, Pinnacle Ridge Capital GP IV LLC, or any acquisition vehicle formed for purposes of the Potential Transaction, such as Ridgeline Publishing Acquisition Corp., or any successor entity thereto) without the prior written consent of the other Party, provided that the assigning Party shall remain jointly and severally liable with such assignee for the assignee's performance of all obligations under this Agreement.
11.3 Binding on Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. Nothing in this Agreement shall create or be deemed to create any rights of enforcement in any person that is not a Party to this Agreement or a permitted successor or assign of a Party, except as expressly set forth in Section 11.7.
11.4 Severability. If any provision of this Agreement, or the application thereof to any person or circumstance, is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions of this Agreement, and the application of such provision to other persons or circumstances, shall not in any way be affected or impaired thereby. In the event that any such provision is so held to be invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a manner that is valid, legal, and enforceable.
11.5 Counterparts. This Agreement may be executed in one or more counterparts (including by electronic signature transmitted by facsimile, portable document format (PDF) transmission, or other electronic means, including DocuSign or similar platforms), each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Signatures delivered by electronic means shall be given the same legal effect as original ink signatures.
11.6 Notices. All notices, requests, demands, consents, waivers, and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given (a) when delivered personally, (b) when sent by confirmed electronic mail (with a copy sent by another method specified in this Section 11.6), (c) one (1) business day after being sent by a nationally recognized overnight courier service (with proof of delivery requested), or (d) three (3) business days after being mailed by registered or certified mail, return receipt requested, postage prepaid, in each case addressed as follows (or to such other address as a Party may designate by written notice to the other Party in accordance with this Section 11.6):
If to AMH:
Aurelius Media Holdings Inc. c/o Aurelius Global Media Group PLC 14 Clarges Street London W1J 8AQ, United Kingdom
Attention: Claudia Restrepo, General Counsel
Email: c.restrepo@aureliusglobal.com
With a copy (which shall not constitute notice) to:
Calderwood & Harkness LLP 425 Park Avenue New York, NY 10022
Attention: Beatrice Holloway
Email: bholloway@calderwoodharkness.com
If to PRCM:
Pinnacle Ridge Capital Management LLC 600 Lexington Avenue, 38th Floor New York, NY 10022
Attention: Victor Stanhope, Managing Partner
Email: vstanhope@pinnacleridgecap.com
With a copy (which shall not constitute notice) to:
Hathaway, Locke & Barnett LLP 51 West 52nd Street New York, NY 10019
Attention: Graham Ashworth
Email: gashworth@hlblaw.com
11.7 No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any person other than the Parties hereto and their respective successors and permitted assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement. No person other than the Parties shall be entitled to rely on or enforce any provision of this Agreement.
11.8 Construction. The headings and captions in this Agreement are for convenience of reference only and shall not affect the meaning, interpretation, or construction of the provisions hereof. As used in this Agreement, unless the context otherwise requires: (a) "including" means "including without limitation" and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it; (b) words in the singular shall include the plural, and words in the plural shall include the singular; (c) references to "Sections" are to sections of this Agreement; (d) the words "herein," "hereof," "hereunder," and "hereto" refer to this Agreement as a whole and not to any particular section or provision hereof; and (e) "or" is not exclusive.
IN WITNESS WHEREOF, the Parties have caused this Mutual Confidentiality and Non-Disclosure Agreement to be executed by their respective duly authorized representatives as of the date first written above.
AURELIUS MEDIA HOLDINGS INC.
By: ________
Name: Thomas Whitfield
Title: Authorized Signatory (SVP, Corporate Development, Aurelius Global Media Group PLC, acting on behalf of AMH)
Date: March 18, 2024
PINNACLE RIDGE CAPITAL MANAGEMENT LLC
By: ________
Name: Victor Stanhope
Title: Managing Partner
Date: March 18, 2024
Drafted by Calderwood & Harkness LLP