EXHIBIT 1.3
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HEARST-ARGYLE TELEVISION, INC.
(a Delaware corporation)
800,000 Shares of Common Stock
INTERNATIONAL PURCHASE AGREEMENT
Dated: November 5, 1997
_________________________________________________________________
_________________________________________________________________
TABLE OF CONTENTS
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Page
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SECTION 1. Representations and Warranties.................... 4
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(a) Representations and Warranties by the Company.............. 4
(1) Compliance with Registration Requirements........... 4
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(2) Incorporated Documents.............................. 5
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(3) Independent Accountants............................. 5
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(4) Financial Statements................................ 5
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(5) No Material Adverse Change in Business.............. 6
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(6) Good Standing of the Company........................ 6
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(7) Good Standing of Subsidiaries....................... 6
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(8) Capitalization...................................... 7
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(9) Authorization of this Agreement and Terms Agreement 7
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(10) Authorization of Common Stock....................... 7
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(11) Description of the Common Stock..................... 7
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(12) Absence of Defaults and Conflicts................... 8
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(13) Absence of Labor Dispute............................ 9
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(14) Absence of Proceedings.............................. 9
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(15) Accuracy of Exhibits................................ 9
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(16) Absence of Further Requirements..................... 9
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(17) Possession of Intellectual Property................. 10
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(18) Possession of Licenses and Permits.................. 10
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(19) Title to Property................................... 10
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(20) Investment Company Act.............................. 11
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(21) Environmental Laws.................................. 11
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(22) Compliance with Cuba Act............................ 11
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(23) Registration Rights................................. 12
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(24) Affiliation Agreements.............................. 12
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(b) Officers' Certificates................................... 12
SECTION 2. Sale and Delivery to International Managers; Closing 12
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(a) Initial International Securities......................... 12
(b) International Option Securities.......................... 12
(c) Payment.................................................. 13
(d) Denominations; Registration.............................. 14
SECTION 3. Covenants of the Company 14
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(a) Compliance with Securities Regulations and Commission
Requests............................................... 14
(b) Filing Amendments........................................ 14
(c) Compliance with Securities Laws.......................... 15
(d) Earnings Statement....................................... 15
(e) Delivery of Registration Statements and Prospectuses..... 15
(f) Blue Sky Qualifications.................................. 16
(g) Delivery of Documents.................................... 16
(h) Use of Proceeds.......................................... 16
(i) Reporting Requirements................................... 16
(j) Listing.................................................. 17
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(k) Restriction on Sale of Securities........................ 17
(l) Compliance with NASD Rules............................... 17
SECTION 4. Payment of Expenses................................. 17
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(a) Expenses................................................. 17
(b) Termination of Agreement................................. 18
SECTION 5. Conditions of International Managers' Obligations... 18
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(a) Effectiveness of Registration Statement.................. 18
(b) Material Adverse Changes................................. 19
(c) Opinion of Counsel for Company........................... 19
(d) Opinion of FCC Counsel................................... 23
(e) Opinion of Counsel of Underwriters....................... 24
(f) Officers' Certificate.................................... 24
(g) ▇▇▇▇▇ & Young Comfort Letter............................. 24
(h) ▇▇▇▇▇ & ▇▇▇▇▇ Bring-down Comfort Letter.................. 26
(i) ▇▇▇▇▇▇▇▇ & Touche Comfort Letter......................... 26
(j) ▇▇▇▇▇▇▇▇ & Touche Bring-down Comfort Letter.............. 29
(k) Approval of Listing...................................... 29
(l) No Objection............................................. 29
(m) Lock-up Agreements....................................... 29
(n) Over-Allotment Option.................................... 29
(o) Additional Documents..................................... 30
(p) Termination of This Agreement............................ 30
SECTION 6. Indemnification..................................... 31
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(a) Indemnification by the Company........................... 31
(b) Indemnification of Company, Directors and Officers....... 32
(c) Actions against Parties; Notification.................... 33
(d) Settlement without Consent if Failure to Reimburse....... 34
(e) Indemnification for Reserved Securities.................. 34
SECTION 7. Contribution........................................ 34
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SECTION 8. Representations, Warranties and Agreements to
Survive Delivery.................................... 36
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SECTION 9. Termination......................................... 36
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(a) General.................................................. 36
(b) Liabilities.............................................. 37
SECTION 10. Default by One or More of the International Managers 37
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SECTION 11. Notices............................................. 38
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SECTION 12. Parties............................................. 38
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SECTION 13. Governing Law and Time.............................. 38
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SECTION 14. Effect of Headings.................................. 38
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SECTION 15. Representation of International Managers............ 39
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SECTION 16. Counterparts........................................ 39
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HEARST-ARGYLE TELEVISION, INC.
(a Delaware corporation)
800,000 Shares of Series A Common Stock
(Par Value $.01 Per Share)
INTERNATIONAL PURCHASE AGREEMENT
▇▇▇▇▇▇▇ ▇▇▇▇▇ International
Credit Suisse First Boston (Europe) Limited
▇.▇. ▇▇▇▇▇▇ Securities Ltd.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited
▇▇▇▇▇▇▇ ▇▇▇▇▇ Securities Inc.
c/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ International
Ropemaker Place
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Ladies and Gentlemen:
Hearst-Argyle Television, Inc., a Delaware corporation (the "Company")
confirms its agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇ International ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and
each of the other international underwriters named in Schedule A hereto
(collectively, the "International Managers," which term shall also include any
International Manager substituted as hereinafter provided in Section 10 hereof),
for whom ▇▇▇▇▇▇▇ ▇▇▇▇▇ is acting as representative (in such capacity, the "The
Lead Manager"), and each of the International Managers confirms its agreement
with the Company, with respect to the issue and sale by the Company and the
purchase by the International Managers, acting severally and not jointly, of the
respective numbers of shares of Series A Common Stock, par value $.01 per share,
of the Company (the "Common Stock") set forth in said Schedule A, and with
respect to the grant by the Company to the International Managers, acting
severally and not jointly, of the option described in Section 2(b) hereof to
purchase all or any part of 120,000 additional shares of Common Stock to cover
over-allotments, if any. The aggregate 800,000 shares of Common Stock (the
"Initial International Securities") to be purchased by the International
Managers and all or any part of the 120,000 shares of Common Stock subject to
the option described in Section 2(b) hereof (the "International Option
Securities") are hereinafter called, collectively, the "International
Securities."
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It is understood that the Company is concurrently entering into a terms
agreement and related purchase agreement dated the date hereof (the "U.S.
Purchase Agreement") providing for the offering by the Company of an aggregate
of 3,200,000 shares of Common Stock (the "Initial U.S. Securities") through
arrangements with certain Underwriters in the United States and Canada (the
"U.S. Underwriters") for which ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated, Credit Suisse First Boston Corporation, ▇.▇. ▇▇▇▇▇▇ Securities
Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated are acting as representatives (the
"U.S. Representatives") and the grant by the Company to the U.S. Underwriters,
acting severally and not jointly, of an option to purchase all or any part of
the U.S. Underwriters' pro rata portion of up to 480,000 additional shares of
Common Stock solely to cover overallotments, if any (the "U.S. Option
Securities" and, together with the International Option Securities, the "Option
Securities"). The Initial U.S. Securities and the U.S. Option Securities are
hereinafter called the "U.S. Securities." It is understood that the Company is
not obligated to sell and the International Managers are not obligated to
purchase, any Initial International Securities unless all of the Initial U.S.
Securities are contemporaneously purchased by the U.S. Underwriters. It is also
understood that up to 300,000 shares of the Initial U.S. Securities to be
purchased by the U.S. Underwriters shall be reserved for sale (the "Reserved
Securities") by the U.S. Underwriters to certain directors, officers, employees
and other persons associated with the Company and The Hearst Corporation.
The International Managers and the U.S. Underwriters are hereinafter
collectively called the "Underwriters," the Initial International Securities and
the Initial U.S. Securities are hereinafter collectively called the "Initial
Securities," and the International Securities, and the U.S. Securities are
hereinafter collectively called the "Securities."
The International Managers and the U.S. Underwriters will concurrently
enter into an Intersyndicate Agreement of even date herewith (the
"Intersyndicate Agreement") providing for the coordination of certain
transactions among the International Managers and the U.S. Underwriters under
the direction of ▇▇▇▇▇▇▇ ▇▇▇▇▇ (in such capacity, the "Global Coordinator").
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (file no. 333-36659) and pre-
effective amendment no. 1 thereto for the registration of the Securities under
the Securities Act of 1933, as amended (the "1933 Act"), and the offering
thereof from time to time in accordance with Rule 415 of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations"),
and the Company has filed such post-effective
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amendments thereto as may be required prior to the execution of this Agreement.
Such registration statement, as so amended, has been declared effective by the
Commission. Such registration statement, as so amended, including the
information, if any, deemed to be part thereof pursuant to Rule 430A of the 1933
Act Regulations (the "Rule 430A Information") or Rule 434(d) of the 1933 Act
Regulations (the "Rule 434 Information"), is referred to herein as the
"Registration Statement"; and the final prospectus and the final prospectus
supplement relating to the offering of the International Securities, in the form
furnished to the International Managers by the Company for use in connection
with the offering of the International Securities, are collectively referred to
herein as the "Prospectus"; provided, however, that all references to the
"Registration Statement" and the "Prospectus" shall also be deemed to include
all documents incorporated therein by reference pursuant to the Securities
Exchange Act of 1934, as amended (the "1934 Act"); provided, further, that if
the Company files a registration statement with the Commission pursuant to Rule
462(b) of the 1933 Act Regulations (the "Rule 462 Registration Statement"),
then, after such filing, all references to "Registration Statement" shall also
be deemed to include the Rule 462 Registration Statement; and provided, further,
that if the Company elects to rely upon Rule 434 of the 1933 Act Regulations,
then all references to "Prospectus" shall also be deemed to include the final or
preliminary prospectus and the applicable term sheet or abbreviated term sheet
(the "Term Sheet"), as the case may be, in the form first furnished to the
Underwriters by the Company in reliance upon Rule 434 of the 1933 Act
Regulations, and all references in this Agreement to the date of the Prospectus
shall mean the date of the Term Sheet. A "preliminary prospectus" shall be
deemed to refer to any prospectus used before the registration statement became
effective and any prospectus that omitted, as applicable, the Rule 430A
Information, the Rule 434 Information or other information to be included upon
pricing in a form of prospectus filed with the Commission pursuant to Rule
424(b) of the 1933 Act Regulations, that was used after such effectiveness and
prior to the execution and delivery of this Agreement. For purposes of this
Agreement, all references to the Registration Statement, Prospectus, Term Sheet
or preliminary prospectus or to any amendment or supplement to any of the
foregoing shall be deemed to include any copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval System ("▇▇▇▇▇").
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" (or other
references of like import) in the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to mean and include all such financial
statements and schedules and other information which is incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as
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the case may be; and all references in this Agreement to amendments or
supplements to the Registration Statement, Prospectus or preliminary prospectus
shall be deemed to mean and include the filing of any document under the 1934
Act which is incorporated by reference in the Registration Statement, Prospectus
or preliminary prospectus, as the case may be.
SECTION 1. Representations and Warranties.
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(a) Representations and Warranties by the Company. The Company
represents and warrants to the Lead Manager as of the Closing Time (as defined
below) and, if applicable, as of each Date of Delivery (as defined below)(in
each case, a "Representation Date"), as follows:
(1) Compliance with Registration Requirements. The Company meets
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the requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any Rule 462(b) Registration Statement has become
effective under the 1933 Act and no stop order suspending the effectiveness of
the Registration Statement or any Rule 462(b) Registration Statement has been
issued under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are contemplated
by the Commission, and any request on the part of the Commission for additional
information has been complied with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto (including the
filing of the Company's most recent Annual Report on Form 10-K with the
Commission) became effective and at each Representation Date, the Registration
Statement, any Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and did not and will
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading. At the date of the Prospectus, at the Closing Time and at each
Date of Delivery, if any, the Prospectus and any amendments and supplements
thereto did not and will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading.
If the Company elects to rely upon Rule 434 of the 1933 Act Regulations, the
Company will comply with the requirements of Rule 434. Notwithstanding the
foregoing, the representations and warranties in this subsection shall not apply
to statements in or omissions from the Registration Statement or the Prospectus
made in reliance upon and in conformity with information furnished to
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the Company in writing by any International Manager through The Lead Manager
expressly for use in the Registration Statement or the Prospectus.
Each preliminary prospectus and prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 424 under the 1933 Act, complied when so filed in all
material respects with the 1933 Act Regulations and, if applicable, each
preliminary prospectus and the Prospectus delivered to the International
Managers for use in connection with the offering of Securities will, at the time
of such delivery, be identical to any electronically transmitted copies thereof
filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(2) Incorporated Documents. The documents incorporated or deemed to
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be incorporated by reference in the Registration Statement and the Prospectus,
at the time they were or hereafter are filed with the Commission, complied and
will comply in all material respects with the requirements of the 1934 Act and
the rules and regulations of the Commission thereunder (the "1934 Act
Regulations") and, when read together with the other information in the
Prospectus, at the date of the Prospectus, at the Closing Time and at each Date
of Delivery, if any, did not and will not include an untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(3) Independent Accountants. The accountants who certified the
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financial statements and any supporting schedules thereto included in the
Registration Statement and the Prospectus are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
(4) Financial Statements. The financial statements of the Company
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included in the Registration Statement and the Prospectus, together with the
related schedules and notes, as well as those financial statements, schedules
and notes of any other entity included therein, present fairly the financial
position of the Company and its consolidated subsidiaries, or such other entity,
as the case may be, at the dates indicated and the statement of operations,
stockholders' equity and cash flows of the Company and its consolidated
subsidiaries, or such other entity, as the case may be, for the periods
specified. Such financial statements have been prepared in conformity with
generally accepted accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved. The supporting schedules, if any, included in
the Registration Statement and the Prospectus present fairly in accordance with
GAAP the information required to be
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stated therein. The selected financial data and the summary financial
information included in the Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with that of the audited
financial statements included in the Registration Statement and the Prospectus.
In addition, any pro forma financial statements of the Company and its
subsidiaries and the related notes thereto included in the Registration
Statement and the Prospectus present fairly the information shown therein, have
been prepared in accordance with the applicable requirements of the 1933 Act
Regulations with respect to pro forma financial statements and the assumptions
used in the preparation thereof are reasonable and the adjustments used therein
are appropriate to give effect to the transactions and circumstances referred to
therein.
(5) No Material Adverse Change in Business. Since the respective
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dates as of which information is given in the Prospectus, except as otherwise
stated therein, (A) there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, or business affairs of the Company
and its subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business (a "Material Adverse Effect"), (B) there have been
no transactions entered into by the Company or any of its subsidiaries, other
than those arising in the ordinary course of business, which would have a
Material Adverse Effect and (C) except for regular dividends on the Company's
common stock or preferred stock, in amounts per share that are consistent with
past practice or the applicable charter document or supplement thereto,
respectively, and except in connection with the Hearst Transaction (as defined
in the Registration Statement) there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital stock.
(6) Good Standing of the Company. The Company has been duly
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incorporated and is an existing corporation in good standing under the laws of
the State of Delaware, with corporate power and authority to own, lease and
operate its properties and conduct its business as described in the Prospectus;
and the Company is duly qualified to do business as a foreign corporation in
good standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification, except
where failure to so qualify would not result in a Material Adverse Effect.
(7) Good Standing of Subsidiaries. Each direct and indirect
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subsidiary of the Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and is
duly qualified
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as a foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure to so qualify or be in good standing would not result in a Material
Adverse Effect. Except as otherwise stated in the Registration Statement and the
Prospectus, all of the issued and outstanding capital stock of each direct and
indirect subsidiary of the Company has been duly authorized and is validly
issued, fully paid and non-assessable and, except as described in the
Prospectus, is owned by the Company, directly or through its subsidiaries, free
and clear of any security interest, mortgage, pledge, lien, encumbrance, claim,
defect or equity. None of the outstanding shares of capital stock of any direct
or indirect subsidiary of the Company was issued in violation of preemptive or
other similar rights of any securityholder of such subsidiary.
(8) Capitalization. If the Prospectus contains a "Capitalization"
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section, the authorized, issued and outstanding shares of capital stock of the
Company is as set forth in the column entitled "Actual" under such section
(except for subsequent issuances thereof, if any, contemplated under this
Agreement or in the Registration Statement, pursuant to reservations, agreements
or employee benefit plans referred to in the Prospectus or pursuant to the
exercise of convertible securities or options referred to in the Prospectus).
Such shares of capital stock have been duly authorized and validly issued by the
Company and are fully paid and non-assessable, and none of such shares of
capital stock was issued in violation of preemptive or other similar rights of
any securityholder of the Company.
(9) Authorization of this Agreement and Terms Agreement. This
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Agreement has been, as of the date thereof will have been, duly authorized,
executed and delivered by the Company.
(10) Authorization of Common Stock. The Securities have been duly
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authorized by the Company for issuance and sale pursuant to this Agreement. The
Securities, when issued and delivered by the Company pursuant to this Agreement
against payment of the purchase price therefor specified, will be validly
issued, fully paid and non-assessable and will not be issued in violation of any
preemptive or other similar rights of any securityholder of the Company.
(11) Description of the Common Stock. The Securities being sold
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pursuant to this Agreement, when issued and delivered will conform in all
material respects to the statements relating thereto contained or incorporated
by reference in the Prospectus.
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(12) Absence of Defaults and Conflicts. Neither the Company nor any
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of its subsidiaries is in violation of its charter or by-laws or in default in
the performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which it or any of them may
be bound, or to which any of the property or assets of the Company or any of its
subsidiaries is subject (collectively, "Agreements and Instruments"), except for
such violations or defaults that, singly or in the aggregate, would not result
in a Material Adverse Effect. The execution, delivery and performance of this
Agreement and any other agreement or instrument entered into or issued or to be
entered into or issued by the Company in connection with the transactions
contemplated hereby or thereby or in the Registration Statement and the
Prospectus and the consummation of the transactions contemplated therein and in
the Registration Statement and the Prospectus (including the issuance and sale
of the Securities and the use of the proceeds from the sale of the Securities as
described under the caption "Use of Proceeds") and compliance by the Company
with its obligations hereunder and thereunder have been duly authorized by all
necessary corporate action and do not and will not, whether with or without the
giving of notice or passage of time or both, (i) conflict with or constitute a
breach of, or default or Repayment Event (as defined below) under, or result in
the creation or imposition of any lien, charge or encumbrance upon any assets,
properties or operations of the Company or any of its subsidiaries pursuant to,
any Agreements and Instruments, except for such conflicts, breaches, defaults,
events or liens, charges or encumbrances that, singly or in the aggregate, would
not result in a Material Adverse Effect; (ii) violate the certificate of
incorporation or by-laws of the Company or any of its subsidiaries; (iii)
violate or conflict with any judgment, order or decree of any United States
governmental body, agency or court having jurisdiction over the Company or any
of its subsidiaries, including, without limitation, the Federal Communications
Commission (the "FCC") or with any United States federal or state law, rule or
regulation applicable to the Company, any of its subsidiaries, or any of their
respective properties, including, without limitation, the Communications Act of
1934, as amended (the "Communications Act"), and the rules and regulations of
the FCC thereunder, except for such violations or conflicts that, singly or in
the aggregate, would not result in a Material Adverse Effect; or (iv) result in
the termination or revocation of any of the permits, licenses, approvals,
orders, certificates, franchises or authorizations of United States governmental
or regulatory authorities, including those relating to the Communications Act,
owned or held by the Company or any of its subsidiaries in order to conduct the
broadcast operations of the stations owned or operated by any of them
(collectively, the
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"Licenses") or result in any other material impairment of the rights of the
holder of any such License, except for such Licenses the failure of which to
maintain or possess by the Company or any of its subsidiaries would not result
in a Material Adverse Effect. As used herein, a "Repayment Event" means any
event or condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf) the
right to require the repurchase, redemption or repayment of all or a portion of
such indebtedness by the Company or any of its subsidiaries.
(13) Absence of Labor Dispute. No labor dispute with the employees of
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the Company or any of its subsidiaries exists or, to the knowledge of the
Company, is imminent, and the Company is not aware of any existing or imminent
labor disturbance by the employees of any of its or any subsidiary's principal
suppliers, manufacturers, customers or contractors, which, in either case, may
reasonably be expected to result in a Material Adverse Effect.
(14) Absence of Proceedings. There is no action, suit, proceeding,
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inquiry or investigation before or brought by any court or governmental agency
or body, domestic or foreign, now pending, or to the knowledge of the Company
threatened, against or affecting the Company or any of its subsidiaries which is
required to be disclosed in the Registration Statement and the Prospectus (other
than as stated therein), or which would reasonably be expected to result in a
Material Adverse Effect or materially and adversely affect the consummation of
the transactions contemplated under this Agreement or the performance by the
Company of its obligations hereunder and thereunder. The aggregate of all
pending legal or governmental proceedings to which the Company or any of its
subsidiaries is a party or of which any of their respective assets, properties
or operations is the subject which are not described in the Registration
Statement and the Prospectus, including ordinary routine litigation incidental
to the business, could not reasonably be expected to result in a Material
Adverse Effect.
(15) Accuracy of Exhibits. There are no contracts or documents which
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are required to be described in the Registration Statement, the Prospectus or
the documents incorporated by reference therein or to be filed as exhibits
thereto which have not been so described and filed as required.
(16) Absence of Further Requirements. No filing with, or
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authorization, approval, consent, license, order registration, qualification or
decree of, any United States federal or state court or governmental authority or
agency, domestic or foreign, is necessary or required for the performance by the
Company of its obligations under this Agreement or in connection
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with the transactions contemplated under this Agreement, except such as have
been already obtained or as may be required under the 1934 Act, the 1934 Act
Regulations, state securities laws or the by-laws and rules of the NASD.
(17) Possession of Intellectual Property. The Company and its
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subsidiaries own or possess, or can acquire on reasonable terms, adequate
patents, patent rights, licenses, inventions, copyrights, know-how (including
trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service marks,
trade names or other intellectual property (collectively, "Intellectual
Property") necessary to carry on the business now operated by them, and neither
the Company nor any of its subsidiaries has received any notice or is otherwise
aware of any infringement of or conflict with asserted rights of others with
respect to any Intellectual Property or of any facts or circumstances which
would render any Intellectual Property invalid or inadequate to protect the
interest of the Company or any of its subsidiaries therein, and which
infringement or conflict (if the subject of any unfavorable decision, ruling or
finding) or invalidity or inadequacy, singly or in the aggregate, would result
in a Material Adverse Effect.
(18) Possession of Licenses and Permits. The Company and its
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subsidiaries possess or have made application for such Licenses issued by the
appropriate United States federal, state, local or foreign regulatory agencies
or bodies necessary to conduct the business now operated by them, except for
such Licenses the failure of which to obtain, maintain or possess by the Company
or any of its subsidiaries would not have a Material Adverse Effect. The
Company and its subsidiaries are in compliance with the terms and conditions of
all such Governmental Licenses, the Communications Act, and the rules and
regulations of the FCC, except where the failure so to comply would not, singly
or in the aggregate, result in a Material Adverse Effect. All of the Licenses
are valid and in full force and effect, except where the invalidity of such
Licenses to be in full force and effect, singly or in the aggregate, would not
result in a Material Adverse Effect. Neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the revocation
of modification of any such Governmental Licenses which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would
result in a Material Adverse Effect. The Company has no reason to believe that
any License will not be renewed in the ordinary course.
(19) Title to Property. The Company and its subsidiaries have good
-----------------
and marketable title or a valid leasehold interest, as the case may be, to all
real property owned or leased
- 11 -
by the Company and its subsidiaries and good title or a valid leasehold
interest, as the case may be, to all other properties owned by them, in each
case, free and clear of all mortgages, pledges, liens, security interests,
claims, restrictions or encumbrances of any kind, except (A) as otherwise stated
in the Registration Statement or the Prospectus or (B) those which would not,
singly or in the aggregate have a Material Adverse Effect.
(20) Investment Company Act. The Company is not, and upon the
----------------------
issuance and sale of the Securities as herein contemplated and the application
of the net proceeds therefrom as described in the Prospectus will not be, an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended (the "1940 Act").
(21) Environmental Laws. Except as otherwise stated in the
------------------
Registration Statement and the Prospectus and except as would not, singly or in
the aggregate, result in a Material Adverse Effect, (A) to the knowledge of the
Company, neither the Company nor any of its subsidiaries is in violation of any
federal, state, local or foreign statute, law, rule, regulation, ordinance,
code, policy or rule of common law or any judicial or administrative
interpretation thereof including any judicial or administrative order, consent,
decree or judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including, without
limitation, laws and regulations relating to the release or threatened release
of chemicals, pollutants, contaminants, wastes, toxic substances, petroleum or
petroleum products (collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Materials (collectively, "Environmental Laws"), (B) to the
knowledge of the Company, the Company and its subsidiaries have all permits,
authorizations and approvals required under any applicable Environmental Laws
and are each in compliance with their requirements, and (C) to the knowledge of
the Company, there are no pending or threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigation or proceedings relating to any
Environmental Law against the Company or any of its subsidiaries.
(22) Compliance with Cuba Act. The Company has complied with, and is
------------------------
and will be in compliance with, the provisions of that certain Florida act
relating to disclosure of doing business with Cuba, codified as Section 517.075
of the Florida statutes, and the rules and regulations thereunder or is exempt
therefrom.
- 12 -
(23) Registration Rights. Except as disclosed in the Prospectus,
-------------------
there are no contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the 1933 Act with respect to any securities of the
Company owned or to be owned by such person or to require the Company to include
such securities in the securities registered pursuant to the Registration
Statement or in any securities being registered pursuant to any other
registration statement filed by the Company under the 1933 Act.
(24) Affiliation Agreements. The affiliation agreements between each
----------------------
of the broadcast television stations of the Company and its subsidiaries, as
applicable, and the ABC and NBC television networks, as applicable, have been
duly authorized, executed and delivered by the Company and its subsidiaries, as
applicable.
(b) Officers' Certificates. Any certificate signed by any officer of
the Company or any of its subsidiaries and delivered to the Lead Manager or any
International Manager in connection with the offering of the Securities shall be
deemed a representation and warranty by the Company to each International
Manager as to the matters covered thereby on the date of such certificate and,
unless subsequently amended or supplemented, at each Representation Date
subsequent thereto.
SECTION 2. Sale and Delivery to International Managers; Closing.
----------------------------------------------------
(a) Initial International Securities. On the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company agrees to sell to each International Manager, severally
and not jointly, and each International Manager, severally and not jointly,
agrees to purchase from the Company, at the price per share set forth in
Schedule B, the number of Initial International Securities set forth in Schedule
A opposite the name of such International Manager, plus any additional number of
Initial International Securities which such International Manager may become
obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) International Option Securities. In addition, on the basis of the
representations and warranties herein contained and subject to the terms and
conditions herein set forth, the Company hereby grants an option to the
International Managers, severally and not jointly, to purchase up to an
additional 120,000 shares of Common Stock at the price per share set forth in
- 13 -
Schedule B. The option hereby granted will expire 30 days after the date hereof
and may be exercised in whole or in part from time to time only for the purpose
of covering over-allotments which may be made in connection with the offering
and distribution of the Initial International Securities upon notice by the
Global Coordinator to the Company setting forth the number of International
Option Securities as to which the several International Managers are then
exercising the option and the time and date of payment and delivery for such
International Option Securities. Any such time and date of delivery for the
International Option Securities (a "Date of Delivery") shall be determined by
the Global Coordinator, but shall not be later than seven full business days
after the exercise of said option, nor in any event prior to the Closing Time,
as hereinafter defined. If the option is exercised as to all or any portion of
the International Option Securities, each of the International Managers, acting
severally and not jointly, will purchase that proportion of the total number of
International Option Securities then being purchased which the number of Initial
International Securities set forth in Schedule A opposite the name of such
International Manager bears to the total number of Initial International
Securities, subject in each case to such adjustments as the Global Coordinator
in its discretion shall make to eliminate any sales or purchases of fractional
shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of ▇▇▇▇▇▇
& ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ or at such other place as shall be
agreed upon by the Global Coordinator and the Company, at 10:00 A.M. (Eastern
time) on the third (fourth, if the pricing occurs after 4:30 P.M. (Eastern time)
on any given day) business day after the date hereof (unless postponed in
accordance with the provisions of Section 10), or such other time not later than
ten business days after such date as shall be agreed upon by the Global
Coordinator and the Company (such time and date of payment and delivery being
herein called "Closing Time").
In addition, in the event that any or all of the International Option
Securities are purchased by the International Managers, payment of the purchase
price for, and delivery of certificates for, such International Option
Securities shall be made at the above-mentioned offices, or at such other place
as shall be agreed upon by the Global Coordinator and the Company, on each Date
of Delivery as specified in the notice from the Global Coordinator to the
Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Lead Manager for the respective
- 14 -
accounts of the International Managers of certificates for the International
Securities to be purchased by them. It is understood that each International
Manager has authorized the Lead Manager, for its account, to accept delivery of,
receipt for, and make payment of the purchase price for, the Initial
International Securities and the International Option Securities, if any, which
it has agreed to purchase. The Lead Manager, individually and not as
representative of the International Managers, may (but shall not be obligated
to) make payment of the purchase price for the Initial International Securities
or the International Option Securities, if any, to be purchased by any
International Manager whose funds have not been received by the Closing Time or
the relevant Date of Delivery, as the case may be, but such payment shall not
relieve such International Manager from its obligations hereunder.
(d) Denominations; Registration. Certificates, if any, for the
Initial International Securities and the International Option Securities, if
any, shall be in such denominations and registered in such names as the Lead
Manager may request in writing at least two full business day before the Closing
Time or the relevant Date of Delivery, as the case may be. The certificates for
the Initial International Securities and the International Option Securities, if
any, will be made available for examination and packaging by the Lead Manager in
The City of New York not later than 10:00 A.M. (Eastern time) on the business
day prior to the Closing Time or the relevant Date of Delivery, as the case may
be.
SECTION 3. Covenants of the Company. The Company covenants with the
------------------------
several International Managers in connection with each offering of Securities as
follows:
(a) Compliance with Securities Regulations and Commission Requests.
The Company will file the Prospectus with the Commission pursuant to and in
accordance with Rule 424 not later than the second business day following the
execution and delivery of the Terms Agreement, and the Company, if and as
applicable, will notify The Lead Manager promptly, and confirm the notice in
writing, of (i) the effectiveness of any post-effective amendment to the
Registration Statement or the filing of any supplement or amendment to the
Prospectus, (ii) the receipt of any comments from the Commission relating to the
Registration Statement or the Prospectus, and (iii) any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information.
(b) Filing Amendments. The Company will advise the Lead Manager
promptly of any proposal to amend or supplement the Registration Statement or
the Prospectus, will afford The Lead Manager a reasonable opportunity to comment
on any such proposed
- 15 -
amendment or supplement and will not file any such document to which the Lead
Manager or counsel for the Underwriters reasonably shall object, except to the
extent that such filing is necessary in the opinion of counsel to the Company in
order to comply with the requirements of the 1933 Act and the 1933 Act
Regulations; and the Company will also advise the Lead Manager promptly of the
filing of any such amendment or supplement and of the institution by the
Commission of any stop order proceedings in respect of the Registration
Statement or of any part thereof and will use reasonable efforts to prevent the
issuance of any such stop order and to obtain as soon as practicable its
lifting, if issued.
(c) Compliance with Securities Laws. The Company will comply with the
1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations so
as to permit the completion of the distribution of the Securities as
contemplated in this Agreement and in the Registration Statement and the
Prospectus. If, at any time when a Prospectus relating to the Securities is
required to be delivered under the 1933 Act in connection with sales by any
International Manager or dealer, any event occurs as a result of which in the
opinion of counsel to the Company it is necessary to amend or supplement the
Prospectus in order that the Prospectus will not contain an untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary, in the opinion of counsel to the
Company at any time to amend the Prospectus to comply with the 1933 Act, the
Company promptly will notify the Lead Manager of such event and will promptly
prepare and file with the Commission, at its own expense, an amendment or
supplement which will correct such statement or omission or an amendment which
will effect such compliance. Neither the Lead Manager's consent to, nor the
International Managers' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 5.
(d) Earnings Statement. The Company will timely file all such reports
pursuant to the 1934 Act and the 1934 Act Regulations as are necessary in order
to make generally available to its securityholders as soon as practicable (but
not later than 90 days after the close of the Company's current fiscal year (in
form and in a manner complying with Rule 158 of the 1933 Act Regulations) an
earnings statement in order to satisfy the provisions of Section 11(a) of the
1933 Act.
(e) Delivery of Registration Statements and Prospectuses. The Company
will furnish to the Lead Manager copies of the Registration Statement as
originally filed (including all exhibits thereto), any related preliminary
prospectus, any related
- 16 -
preliminary prospectus supplement, the Prospectus and all amendments and
supplements to such documents, in each case as soon as available and in such
quantities as The Lead Manager reasonably requests, during the period when the
Prospectus is required to be delivered under the 1933 Act, and the Company
hereby consents to the use of such copies for purposes permitted under the 1933
Act. The Company will pay the expenses of printing and distributing to the
International Managers all such documents, and copies of these documents
furnished to the International Managers will be identical to any electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except
to the extent permitted by Regulation S-T.
(f) Blue Sky Qualifications. The Company will use its best efforts to
qualify the Securities for sale under the laws of such jurisdictions as the Lead
Manager reasonably designates and will continue such qualifications in effect
for a period of not less than one year from the date of the applicable Terms
Agreement; provided, however, that the Company shall not be obligated to file
any general consent to service of process or to qualify as a foreign corporation
or as a dealer in securities in any jurisdiction in which it is not qualified or
to subject itself to taxation in respect of doing business in any jurisdiction
in which it is not otherwise so subject or make any change in its charter,
certificate of incorporation, by-laws or other governing documents. In each
jurisdiction in which the Securities have been so qualified, the Company will
file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for such period in order
to effect the distribution of the Securities.
(g) Delivery of Documents. During the period until three years after
the date of any Terms Agreement, the Company will furnish to the Lead Manager
and, upon request, to each of the other International Managers, if any, as soon
as practicable after the end of each fiscal year, a copy of its annual report to
stockholders for such year; and the Company will furnish to The Lead Manager (i)
as soon as available, a copy of each report and any definitive proxy statement
of the Company filed with the Commission under the 1934 Act or mailed to
stockholders, and (ii) from time to time, such other information concerning the
Company as the Lead Manager may reasonably request.
(h) Use of Proceeds. The Company will use the net proceeds received
by it from the sale of the Securities in the manner specified in the Prospectus
under "Use of Proceeds".
(i) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the
- 17 -
1933 Act or the 1934 Act, will file all documents required to be filed with the
Commission pursuant to the 1934 Act within the time periods required by the 1934
Act and the 1934 Act Regulations.
(j) Listing. The Company will use it best efforts to effect the
listing of the Securities, prior to the Closing Time, the Nasdaq National
Market.
(k) Restriction on Sale of Securities. For a period of ninety (90)
days from the Closing Time, the Company will not, without the prior written
consent of the Lead Manager, directly or indirectly, issue, sell or offer to
sell, grant any option for sale of, or otherwise dispose, of Common Stock,
subject to the conditions and exceptions described in Schedule B hereto.
(l) Compliance with NASD Rules. The Company hereby agrees that it
will ensure that the Reserved Securities will be restricted as required by the
NASD or the NASD rules from sale, transfer, assignment, pledge or hypothecation
for a period of three months following the date of this Agreement. The U.S.
Underwriters will notify the Company as to which persons will need to be so
restricted. At the request of the U.S. Underwriters, the Company will direct
the transfer agent to place a stop transfer restriction upon such securities for
such period of time. Should the Company release, or seek to release, from such
restrictions any of the Reserved Securities, the Company agrees to reimburse the
Underwriters for any reasonable expenses (including, without limitation, legal
expenses) they incur in connection with such release.
SECTION 4. Payment of Expenses.
-------------------
(a) Expenses. The Company will pay all expenses incident to
performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, printing and delivery to the International
Managers of this Agreement, any Terms Agreement, and any Agreement among
Managers, and such other agreements as may be reasonably required in connection
with the offering, purchase, sale, issuance or delivery of the Securities, (iii)
the preparation, issuance and delivery of the Securities and certificates for
the Securities to the International Managers, including any transfer taxes and
any stamp or other duties payable upon the sale, issuance or delivery of the
Securities to the International Managers, (iv) the fees and disbursements of the
Company's counsel, accountants and other advisors or agents (including transfer
agents and registrars), (v) the qualification of the Securities under state
securities laws in
- 18 -
accordance with the provisions of Section 3(f) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation, printing and
delivery of any Blue Sky Survey and any amendment thereto, (vi) the printing and
delivery to the International Managers of copies of each preliminary prospectus,
any Term Sheet, and the Prospectus and any amendments or supplements thereto,
(vii) the fees and expenses incurred with respect to the listing of the
Securities, (viii) the filing fees incident to, and the reasonable fees and
disbursements of counsel of the International Managers in connection with, the
review, if any, by the NASD of the terms of the sale of the Securities, (ix) the
fees and expenses of any International Manager acting in the capacity of a
"qualified independent International Manager" (as defined in Section 2(l) of
Schedule E of the bylaws of the NASD), if applicable, and (x) all costs and
expenses of the International Managers, including the reasonable fees and
disbursements of counsel for the Underwriters, in connection with matters
related to the Reserved Securities which are designated by the Company for sale
to employees and others having a business relationship with the Company. The
International Managers shall pay any transfer taxes on the Securities which they
may sell, and the expenses of advertising any offering of the Securities made by
the International Managers.
(b) Termination of Agreement. If the applicable Terms Agreement is
terminated by The Lead Manager in accordance with the provisions of Section 5 or
Section 9(a) hereof, the Company shall reimburse the International Managers for
all of their reasonable out-of-pocket expenses, including the reasonable fees
and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of International Managers' Obligations. The
-------------------------------------------------
obligations of the International Managers to purchase and pay for the Securities
pursuant to the applicable Terms Agreement are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company or any of its subsidiaries
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Prospectus shall
have been filed with the Commission in accordance with the 1933 Act Regulations
and Section 3(a) hereof. The Registration Statement, including any Rule 462(b)
Registration Statement, has become effective under the 1933 Act, and no stop
order suspending the effectiveness of the Registration Statement or of any part
thereof shall have been issued under the 1933 Act and no proceedings for that
purpose shall have been instituted or, to
- 19 -
the knowledge of the Company or any International Manager, shall be contemplated
by the Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel for the Underwriters. A prospectus containing information relating to
the description of the Securities, the specific method of distribution and
similar matters shall have been filed with the Commission in accordance with
Rule 424 of the 1933 Act (or any post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A), or, if the Company has elected to rely upon Rule 434
of the 1933 Act Regulations, a Term Sheet including the Rule 434 Information
shall have been filed with the Commission in accordance with Rule 424(b).
(b) Material Adverse Changes. At the Closing Time, there shall not
have occurred (i) any change, or any development or event involving a
prospective change, in the condition (financial or other), or the earnings,
business affairs, properties or results of operations of the Company or its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business which, in the judgment of a majority in interest of
the International Managers including The Lead Manager, is material and adverse
and makes it impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Securities; (ii) any suspension or
limitation of trading in securities generally on the Nasdaq National Market
("Nasdaq"), or any setting of minimum prices for trading on Nasdaq, or any
suspension of trading of any securities of the Company on Nasdaq or in the over-
the-counter market; (iii) any banking moratorium declared by U.S. Federal or New
York authorities; or (iv) any outbreak or escalation of major hostilities in
which the United States is involved, any declaration of war by Congress or any
other substantial national or international calamity or emergency if, in the
judgment of a majority in interest of the International Managers including The
Lead Manager, the effect of any such outbreak, escalation, declaration, calamity
or emergency on the financial markets of the United States makes it impractical
or inadvisable to proceed with completion of the public offering or the sale of
and payment for the Securities.
(c) Opinion of Counsel for Company. At Closing Time, The Lead Manager
shall have received the favorable opinion, dated as of Closing Time, of ▇▇▇▇▇▇ &
▇▇▇▇▇, counsel for the Company, in form and substance satisfactory to counsel
for the Underwriters, to the effect that:
(1) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own, lease
- 20 -
and operate its properties and conduct its business as described in the
Prospectus;
(2) Each subsidiary of the Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, and has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Prospectus. Except as otherwise stated in the Registration Statement and the
Prospectus (by incorporation or otherwise) all of the issued and outstanding
shares of capital stock of each subsidiary have been duly authorized and are
validly issued, fully paid and non-assessable and (except for directors
qualifying shares) are owned of record by the Company directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity to the knowledge of such counsel. There are no
outstanding preemptive or other similar rights of any securityholder of any
subsidiary of the Company with respect to the outstanding capital stock of such
subsidiary arising under the General Corporation Law of the State of Delaware,
the certificate of incorporation or by-laws of the Company, or, to such
counsel's knowledge, any material agreement to which the Company is a party;
(3) The Securities to be sold by the Company have been duly
authorized the Company for issuance and sale pursuant to this Agreement. The
Securities to be sold by the Company, when issued and delivered by the Company
pursuant to this Agreement against payment of the consideration therefor
specified herein, will be validly issued, fully paid and nonassessable and the
issuance of such Securities will not be subject to preemptive or other similar
rights of any security holder of the Company arising under the General
Corporation Law of the State of Delaware, the certificate of incorporation or
by-laws of the Company, or, to such counsel's knowledge any material agreement
to which the Company is a party. The form of certificate, if any, used to
evidence the Securities will be in due and proper form and complies with the
applicable statutory requirements, with any applicable requirements of the
charter or by-laws of the Company and with the requirements of the Nasdaq
National Market;
(4) To such counsel's knowledge, except as disclosed in the
Prospectus, there are no contracts or agreements between the Company and any
person granting such person the right (other than rights which have been waived
or suspended) to require the Company to file a registration statement under the
1933 Act with respect to any securities of the Company owned or to be owned by
such person or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement
- 21 -
or in any securities being registered pursuant to any other registration
statement filed by the Company under the 1933 Act;
(5) No consent, approval, authorization or order of, or filing with,
any governmental agency or body or any United States federal or state court is
required for the consummation of the transactions contemplated by this Agreement
in connection with the issuance or sale of the Securities by the Company, except
such of the foregoing as may be required in connection with the issuance of sale
by the Company of the Securities under the 1933 Act, the 1933 Act Regulations,
the 1934 Act, the 1934 Act Regulations, the By-Laws and rules of the NASD, or
any state securities laws or such as have been received on or prior to the date
hereof;
(6) The execution, delivery and performance of this Agreement and the
consummation by the Company of such transactions contemplated thereby, and the
issuance and sale of the Securities by the Company will not result in a breach
or violation of any of the terms and provisions of, or constitute a default
under, any United States federal or state statue, rule, regulation or order
known to such counsel of any governmental agency or body (other than foreign or
state securities laws as to which such counsel expresses no view) or any United
States federal or state court having jurisdiction over the Company or any
subsidiary of the Company or any of their properties, of which such counsel is
aware, or any agreement or instrument to which the Company or any such
subsidiary is a party filed or incorporated by reference as an exhibit to the
Registration Statement except for such breaches, violations or defaults which,
individually or in the aggregate, would not have a Material Adverse Effect, or
the charter or by-laws of the Company or any such subsidiary, and the Company
has full corporate power and authority to authorize, issue and sell the
Securities to be sold by it as contemplated by this Agreement. Such counsel
expresses no opinion in this Paragraph 6 with respect to (i) any covenant,
restriction or provision of any agreement or instrument regarding financial
covenants, ratios or tests or any aspect of the financial condition or results
of operations of the Company or its subsidiaries, or (ii) the By-Laws or rules
of the NASD or any state securities laws;
(7) The Registration Statement has become effective under the 1933
Act, the Prospectus was filed with the Commission pursuant to the subparagraph
of Rule 424(b) of the 1933 Act specified in such opinion on the date specified
therein, and, to the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or any part thereof has been issued
and no proceedings for that purpose have been instituted or are pending or
contemplated under the 1933 Act;
- 22 -
(8) The Registration Statement relating to the Securities, as of its
effective date, the Prospectus, as of the date hereof, and any amendment or
supplement thereto, as of its date (in each case excluding (i) the documents
incorporated by reference therein,(ii) the operating statistics, financial
statements, including the notes thereto, and other financial statistical data
included or incorporated by reference therein or omitted therefrom, and (iii)
the Form T-1, in each case, as to which such counsel expresses no view) complied
as to form in all material respects with the requirements of the 1933 Act and
1933 Act Regulations;
(9) The Underwriting Agreement and the applicable Terms Agreement
have been duly authorized, executed and delivered by the Company; and
(10) The Company is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
In rendering such opinion, such counsel may state that is opinion is
limited to matters governed by the Federal laws of the United States of America,
the laws of the State of New York and the General Corporation Law of the State
of Delaware, and that such counsel is not admitted in the State of Delaware. In
rendering such opinion, such counsel may also rely on certificates and written
statements of officers, directors, stockholders, employees and accountants of
the Company and public officials. Such counsel shall also state that nothing
has come to the attention of such counsel that leads it to believe that the
Registration Statement, at the time it became effective, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
that the Prospectus or any amendment or supplement thereto, at the date of the
Terms Agreement or the date hereof, included or includes an untrue statement of
a material fact or omitted or omits to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading (it being understood that such counsel expresses
no belief with respect to the financial statements, financial schedules and
financial information and operating data, and other financial data included or
incorporated by reference in the Registration Statement or the Prospectus). The
foregoing statement may be qualified by a statement to the effect that such
counsel does not pass upon or otherwise assume any responsibility for the
accuracy, completeness, or fairness of the statements contained in the
Registration Statement or the Prospectus.
- 23 -
(d) Opinion of FCC Counsel. At Closing Time, The Lead Manager shall
have received the favorable opinion, dated as of Closing Time, of ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special FCC counsel for the Company, in
form and substance satisfactory to counsel for the Underwriters, to the effect
that:
(1) The execution, delivery and performance of this Agreement will
not result in a violation of the Communications Act or the any order, rule or
regulation of the FCC;
(2) No consent, approval, authorization or order of, or filing with,
any governmental body or any court is required under the Communications Act or
the rules and regulations of the FCC is required for the consummation of the
transactions contemplated by the Agreement in connection with the issuance or
sale of the Securities by the Company, except such as have been obtained and
made under the Communications Act or the rules and regulations of the FCC;
(3) The FCC has duly and validly taken all necessary action (the "FCC
Consent") to approve the transfer and assignment to the Company of all material
Licenses issued by the FCC with respect to the broadcast television group (the
"Hearst Broadcast Group") of the Hearst Corporation, a Delaware corporation
("Hearst"), and the FCC Consent has not been reversed, stayed, enjoined, set
aside annulled or suspended, no requests have been filed for administrative or
judicial review, reconsideration, appeal or stay of the FCC Consent, and the
time period for the filing of any such requests and for the FCC to set aside the
FCC Consent on its own motion has expired;
(4) The Company and its subsidiaries are the holders of the Licenses
issued by the FCC listed in an attachment to such opinion (the "FCC Licenses"),
all of which are validly issued by the FCC and in full force and effect, with no
material restrictions or qualifications other than as described in the
Prospectus and to the best knowledge of such counsel based solely on the
description of the business and properties of the Company and its subsidiaries
in the Prospectus and given by the Company to such counsel, such FCC Licenses
constitute all of the FCC Licenses necessary for the Company and its
subsidiaries to own their properties and to conduct their businesses in the
manner and to the full extent now operated or proposed to be operated as
described in the Prospectus; and
(5) To the best knowledge of such counsel, no event has occurred
which permits, or with notice or lapse of time or both would permit, the
revocation or non-renewal of any of the FCC Licenses, assuming the filing of
timely license renewal
- 24 -
applications and the timely payment of all applicable filing and regulatory fees
to the FCC, or which might result in any other material impairment of the rights
of the Company and its subsidiaries in the FCC Licenses.
(e) Opinion of Counsel of Underwriters. At Closing Time, the Lead
Manager shall have received the favorable opinion, dated as of Closing Time, of
Dow, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, PLLC, counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the International
Managers, with respect to the incorporation of the Company, the validity of the
Securities, certain matters pertaining to the Registration Statement, the
Prospectus and other related matters as the Lead Manager may require, and the
Company shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters. Such counsel may also
state that, insofar as much opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of officers of the Company and
its subsidiaries and certificates of public officials.
(f) Officers' Certificate. At Closing Time, the Lead Manager shall
have received a certificate of the President or a Vice President of the Company
and of the chief financial officer or chief accounting officer of the Company,
dated as of Closing Time, to the effect that, to the best of their knowledge,
(i) there has been no material adverse change in the condition, financial or
otherwise, or in the earnings or business affairs of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, (ii) the representations and warranties in Section
1 are true and correct in all material respects with the same force and effect
as though expressly made at and as of the Closing Time, (iii) the Company has
complied in all material respects with all agreements and satisfied under this
Agreement all conditions on its part to be performed or satisfied at or prior to
the Closing Time, and (iv) no stop order suspending the effectiveness of the
Registration Statement has bee issued and no proceedings for that purpose have
been initiated or threatened by the Commission.
(g) Ernst & Young Comfort Letter. At the time of the execution of
this Agreement, the Lead Manager shall have received from ▇▇▇▇▇ & Young LLP a
letter dated such date, confirming that they are independent public auditors
within the meaning of the Act and the applicable 1933 Act Regulations thereunder
and stating to the effect that:
(1) in their opinion, the financial statements and any schedules
examined by them and included in the Prospectus comply as to form in all
material respects with the applicable
- 25 -
accounting requirements of the 1993 Act and the related 1933 Act Regulations;
(2) they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim financial
information as described in Statement of Auditing Standards No. 71, Interim
Financial Information, on the unaudited financial statements included in the
Registration Statement;
(3) on the basis of the review referred to in clause (ii) above, a
reading of the latest available interim financial statements of the Company,
inquiries of officials of the Company who have responsibility for financial and
accounting matters and other specified procedures, nothing came to their
attention that caused them to believe that:
(i) the unaudited financial statements included in the Prospectus do
not comply as to form in all material respects with the applicable accounting
requirements of the 1933 Act and the related 1993 Act Regulations or any
material modifications should be made to such unaudited financial statements for
them to be in conformity with generally accepted accounting principles;
(ii) if any unaudited "capsule" information is contained in the
Prospectus, the unaudited consolidated net sales, net operating income, net
income and net income per share amounts or other amounts constituting such
"capsule" information and described in such letter do not agree with the
corresponding amounts set forth in the unaudited consolidated financial
statements or were not determined on a basis substantially consistent with that
of the corresponding amounts in the audited statements of income;
(iii) at the date of the latest available balance sheet read by such
accountants, or at a subsequent specified date not more than five business days
prior to the date of the applicable Terms Agreement, there was any change in the
capital stock or any increase in short-term indebtedness or long-term debt of
the Company and its consolidated subsidiaries or, at the date of the latest
available balance sheet read by such accountants, there was any decrease in
total revenues, as compared with amounts shown on the latest balance sheet
included in the Prospectus; or
(iv) for the period from the closing date of the latest income
statement included in the Prospectus to the closing date of the latest available
income statement read by such accountants there were any decreases, as compared
with the
- 26 -
corresponding period of the previous year and with the period of corresponding
length ended the date of the latest income statement included in the Prospectus,
in consolidated net sales, or in the total or per share amounts of consolidated
income before extraordinary items;
except in all cases set forth in clauses (iii) and (iv) above for
changes, increases or decreases which the Prospectus discloses have occurred or
may occur;
(4) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information contained in
the Prospectus, except for specified dollar amounts and other financial
information for the Hearst Broadcast Group, in each case to the extent that such
dollar amounts, percentages and other financial information are derived from the
general accounting records of the Company and its subsidiaries subject to the
internal controls of the Company's accounting system or are derived directly
from such records by analysis or computation with the results obtained from
inquiries, a reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts, percentages and
other financial information to be in agreement with such results, except as
otherwise specified in such letter.
All financial statements and schedules included in material incorporated by
reference in the Prospectus shall be deemed included in the Prospectus for
purposes of this subsection.
(h) ▇▇▇▇▇ & ▇▇▇▇▇ Bring-down Comfort Letter. At Closing Time, the
Lead Manager shall have received from Ernst & Young LLP a letter, dated as of
Closing Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (g) of this Section 5, except that the
specified date referred to shall be a date not more than five business days
prior to the Closing Time.
(i) Deloitte & Touche Comfort Letter. At the time of the execution of
this Agreement, the Lead Manager shall have received from Deloitte & Touche LLP
a letter dated such date, confirming that they are independent public
accountants within the meaning of the 1933 Act and the applicable 1933 Act
Regulations thereunder and stating to the effect that:
(1) in their opinion, the financial statements and any summary of
earnings examined by them and included in the Prospectus comply as to form in
all material respects with the applicable accounting requirements of the Act and
the related 1933 Act Regulations;
- 27 -
(2) they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim financial
information as described in Statement of Auditing Standards No. 71, Interim
Financial Information, on the unaudited financial statements examined by them
and included in the Registration Statement;
(3) on the basis of the review referred to in clause (ii) above, a
reading of the latest available interim financial statements of the Hearst
Broadcast Group or the Company, inquiries of officials of Hearst or the Company
who have responsibility for financial and accounting matters and other specified
procedures, nothing came to their attention that caused them to believe that:
(i) the unaudited financial statements and any summary of earnings
included in the Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act and the related 1933
Act Regulations or any material modifications should be made to such unaudited
financial statements and summary of earnings for them to be in conformity with
generally accepted accounting principles;
(ii) if any unaudited pro forma financial information is contained in
the Prospectus, the unaudited pro forma revenues and broadcast cash flows were
not determined on a basis substantially consistent with that of the
corresponding amounts in the unaudited pro forma statements of operations;
(iii) at the date of the latest available balance sheet read by such
accountants, or at a subsequent specified date not more than three business days
prior to the date of the applicable Terms Agreement, there was any change in the
capital stock or any increase in short-term indebtedness or long-term debt of
the Company and its consolidated subsidiaries or, at the date of the latest
available balance sheet read by such accountants, there was any decrease in
consolidated net current assets, as compared with amounts shown on the unaudited
pro forma balance sheet included in the Prospectus; or
(iv) for the period from the closing date of the latest statement of
operations included in the Prospectus to the closing date of the latest
available statement of operations read by such accountants there were any
decreases, as compared with the corresponding period of the previous year and
with the period of corresponding length ended the date of the latest statement
of operations included in the Prospectus, in consolidated total revenues;
- 28 -
except in all cases set forth in clauses (iii) and (iv) above for
changes, increases or decreases which the Prospectus discloses have occurred or
may occur;
(4) they have compared the disclosure under the caption "Ratio of
Earnings to Fixed Charges" of the Hearst Broadcast Group and of the Company for
the six months ended June 30, 1997 in the Registration Statement with results
obtained from inquiries of officials of Hearst and the Company, as the case may
be, who have responsibility for financial and accounting matters, a reading of
the general accounting records of the Hearst Broadcast Group or the Company and
other procedures specified in such letter and have found such disclosure to be
in agreement with such results, except as otherwise specified in such letter,
and have proved the arithmetic accuracy of such disclosure; and
(5) they have read the pro forma financial statements of the Company
for the six months ended June 30, 1997 and 1996 contained in the Prospectus,
made inquiries of certain officials of the Company who have responsibility for
financial and accounting matters about the basis for their determination of the
pro forma adjustments and whether the pro forma financial statements comply as
to form in all material respects with the applicable accounting requirements of
Rule 11-02 of Regulation S-X, proved the arithmetic accuracy of the application
of the pro forma adjustments to the historical amounts in the pro forma
financial statements, and on the basis of such procedures and other inquiries
specified in such letter, nothing came to their attention that caused them to
believe that the pro forma financial statements included in the Registration
Statement do not comply as to form in all material respects with the applicable
requirements of Rule 11-02 of Regulation S-X or that the pro forma adjustments
have not been properly applied to the historical amounts in the compilation of
the pro forma financial statements; and
(6) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information regarding the
Hearst Broadcast Group and, subsequent to August 29, 1997, the Company contained
in the Prospectus (in each case to the extent that such dollar amounts,
percentages and other financial information are derived from the general
accounting records of the Hearst Broadcast Group or the Company subject to the
internal controls of Hearst's or the Company's accounting system or are derived
directly from such records by analysis or computation) with the results obtained
from inquiries, a reading of such general accounting records and other
procedures specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with such
results, except as otherwise specified in such letter.
- 29 -
All financial statements and schedules included in material incorporated by
reference in the Prospectus shall be deemed included in the Prospectus for
purposes of this subsection.
(j) ▇▇▇▇▇▇▇▇ & Touche Bring-down Comfort Letter. At Closing Time, the
Lead Manager shall have received from Deloitte & Touche LLP a letter, dated as
of Closing Time, to the effect that they reaffirm the statements made in the
letter furnished pursuant to subsection (i) of this Section 5, except that the
specified date referred to shall be a date not more than three business days
prior to the Closing Time.
(k) Approval of Listing. At Closing Time, the Securities shall have
been approved for listing, subject only to official notice of issuance, on
Nasdaq.
(l) No Objection. If the Registration Statement or an offering of
Securities has been filed with the NASD for review, the NASD shall not have
raised any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(m) Lock-up Agreements. On the date of execution of this Agreement,
the Lead Manager shall have received, in form and substance satisfactory to it,
lock-up agreements substantially in the form attached hereto as Exhibit A.
(n) Over-Allotment Option. In the event that the International
Managers exercise their option to purchase all or any portion of the
International Option Securities, the representations and warranties of the
Company contained herein and the statements in any certificates furnished by the
Company or any of its subsidiaries hereunder shall be true and correct in all
material respects as of each Date of Delivery, and, at the relevant Date of
Delivery, the Lead Manager shall have received:
(1) A certificate, dated such Date of Delivery, of the President or a
Vice President of the Company and the chief financial officer or chief
accounting officer of the Company, confirming that the certificate delivered at
the Closing Time pursuant to Section 5(f) hereof remains true and correct as of
such Date of Delivery.
(2) The favorable opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇ and of ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ in form and substance reasonably satisfactory to
counsel for the Underwriters, dated such Date of Delivery, relating to the
International Option Securities and otherwise to the same effect as the opinions
required by Sections 5(c) and 5(d) hereof, respectively.
- 30 -
(3) The favorable opinion of ▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, PLLC, counsel
for the Underwriters, dated such Date of Delivery, relating to the International
Option Securities and otherwise to the same effect as the opinion required by
Section 5(e) hereof.
(4) A letter from ▇▇▇▇▇ & Young LLP, in form and substance reasonably
satisfactory to the Lead Manager and dated such Date of Delivery, substantially
in the same form and substance as a letter furnished to the Lead Manager
pursuant to Section 5(g) hereof, except that the "specified date" on the letter
furnished pursuant to this paragraph shall be a date no more than three business
days prior to such Date of Delivery.
(5) A letter from Deloitte & Touche LLP, in form and substance
reasonably satisfactory to The Lead Manager and dated such Date of Delivery,
substantially in the same form and substance as a letter furnished to The Lead
Manager pursuant to Section 5(j) hereof, except that the "specified date" on the
letter furnished pursuant to this paragraph shall be a date no more than three
business days prior to such Date of Delivery.
(o) Additional Documents. At Closing Time and at each Date of
Delivery, counsel for the Underwriters shall have been furnished with such
documents and opinions as they reasonably may require for the purpose of
enabling them to pass upon the issuance and sale of the Securities as herein
contemplated, or in order to evidence the accuracy of any of the representations
or warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Company in connection with the issuance and
sale of the Securities as herein contemplated shall be reasonably satisfactory
in form and substance to the Lead Manager and counsel for the Underwriters.
(p) Termination of This Agreement. If any condition specified in this
Section 5 shall not have been fulfilled when as required to be fulfilled, this
Agreement (or, with respect to the International Managers' exercise of any
applicable over-allotment option for the purchase of International Option
Securities on a Date of Delivery after the Closing Time, the obligations of the
International Managers to purchase the International Option Securities on such
Date of Delivery) may be terminated by the Lead Manager by notice to the Company
at any time or prior to the Closing Time (or such Date of Delivery, as
applicable), and such termination shall be without liability of any party to any
other party except as provided in Section 4 and except Sections 6 and 7 shall
survive any such termination and remain in full force and effect.
- 31 -
SECTION 6. Indemnification.
---------------
(a) Indemnification by the Company. The Company agrees to indemnify
and hold harmless each International Manager and each person, if any who
controls any International Manager within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act as follows:
(1) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information deemed to be a part thereof, if applicable, or the omission or
alleged omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of any
untrue statement or alleged untrue statement of a material fact included in any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(2) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of (A) the violation of any applicable laws
or regulations of foreign jurisdictions where Reserved Securities have been
offered and (B) any untrue statement or alleged untrue statement of a material
fact included in the Prospectus or preliminary prospectus distributed in
connection with the reservation and sale of the Reserved Securities to certain
directors, officers, employees and other persons associated with the Company of
the Hearst Corporation or the omission or alleged omission therefrom of a
material fact necessary to make the statements therein, when considered in
conjunction with the Prospectus or preliminary prospectus, not misleading;
(3) against any and all loss liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim whatsoever
for which indemnification is provided under Sections 6(a)(1) or 6(a)(2) hereof;
provided that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Company; and
(4) against any and all expenses whatsoever, as incurred (including
the fees and disbursements of counsel chosen by The Lead Manager), reasonably
incurred in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
- 32 -
threatened, or any claim whatsoever for which indemnification is provided under
Section 6(a)(1), 6(a)(2) or 6(a)(3) hereof to the extent that any such expense
is not paid under (1), (2) or (3) above;
provided, however, that this indemnity agreement shall not apply to any loss,
-------- -------
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
International Manager through the Lead Manager expressly for use in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information deemed to be a part thereof, if
applicable, or any preliminary prospectus or the Prospectus (or an amendment or
supplement thereto), it being understood and agreed that the only such
information furnished by any International Manager consists of the information
described in the applicable Terms Agreement; provided, further, that the Company
-------- -------
will not be liable to the International Managers or any person controlling such
International Managers with respect to any such untrue statement or alleged
untrue statement or omission or alleged omission made in any preliminary
prospectus to the extent that the Company shall sustain the burden of proving
that any such loss, liability, claim, damage or expense resulted from the fact
that the International Manager sold securities to a person to whom such
International Manager failed to send or give, at or prior to the written
confirmation of the sale of such Securities, a copy of the Prospectus (as
amended or supplemented) if the Company has previously furnished copies thereof
to the International Managers (as and to the extent required by law in order to
allow for distribution of the Prospectus in a timely manner) and complied with
their obligations under Sections 3(b) and 3(c) hereof, and the loss, liability,
claim, damage or expense of the International Managers resulted from an untrue
statement or omission or alleged untrue statement or omission of a material fact
contained in or omitted from such preliminary prospectus (as amended or
supplemented) which was corrected in the Prospectus (as amended or
supplemented).
(b) Indemnification of Company, Directors and Officers. Each
International Manager severally and not jointly agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement
- 33 -
(or any amendment thereto), including the Rule 430A Information and the Rule 434
Information deemed to be part thereof, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such International Manager through the Lead Manager expressly for use
in the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it is
not materially prejudiced as a result thereof and in any event shall not relieve
it from any liability which it may have otherwise than on account of this
indemnity agreement. In the case of parties indemnified pursuant to Section
6(a) above, counsel to the indemnified parties shall be selected by the Lead
Manager, in the case of parties indemnified pursuant to Section 6(b) above,
counsel to the indemnified parties shall be selected by the Company. An
indemnifying party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. If it so elects within a reasonable time after receipt of
such notice, an indemnifying party, jointly with any other indemnifying parties
receiving such notice, may assume the defense of such action with counsel chosen
by it and reasonably approved by the indemnified parties defendant in such
action, unless such indemnified parties reasonably object to such assumption on
the ground that there may be legal defenses available to them which are
different from or in addition to those available to such indemnifying party. If
an indemnifying party assumes the defense of such action, the indemnifying
parties shall not be liable for any fees and expenses of counsel for the
indemnified parties incurred thereafter in connection with such action. In no
event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this
- 34 -
Section 6 or Section 7 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investment, proceeding or claim.
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(3) effected without its written consent if (i) such settlement is
entered into more than 120 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 90 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
(e) Indemnification for Reserved Securities. In connection with the
offer and sale of the Reserved Securities, the Company agrees, promptly upon a
request in writing, to indemnify and hold harmless the International Managers
from and against any and all losses, liabilities, claims, damages and expenses
incurred by them as a result of the failure of certain directors, officers,
employees and other persons associated with the Company or The Hearst
Corporation to pay for and accept delivery of Reserved Securities which, by the
end of the first business day following the date of this Agreement, were subject
to a properly confirmed agreement to purchase.
SECTION 7. Contribution. If the indemnification provided for in
------------
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand, and the International Managers, on the other hand, from
the offering of the Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand, and of the International Managers, on the other hand, in connection with
the statements or omissions, or any violation of the nature referred to in
Section 6(a)(1) hereof,
- 35 -
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand, and the
International Managers, on the other hand, in connection with the offering of
the Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of such
Securities (before deducting expenses) received by the Company and the total
underwriting discount received by the International Managers, in each case as
set forth on the cover of the Prospectus, or, if Rule 434 is used, the
corresponding location on the Term Sheet bear to the aggregate initial public
offering price of such Securities as set forth on such cover or Term Sheet.
The relative fault of the Company on the one hand, and the International
Managers, on the other hand, shall be determined by reference, to among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the International Managers, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission, or any violation of the nature referred to
in Section 6(a)(1) hereof.
The Company and the International Managers agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the International Managers were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 7.
The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provision of this Section 7, no International Manager
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
International Manager has otherwise been required to pay by reason of any such
untrue or alleged untrue statement or omission or alleged omission.
- 36 -
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
International Manager within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
International Manager, and each director of the Company, each officer of the
Company who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as the Company.
The International Managers' respective obligations to contribute pursuant to
this Section are several in proportion to the number of Initial International
Securities set forth opposite their respective names in Schedule A, and not
joint.
SECTION 8. Representations, Warranties and Agreements to Survive
-----------------------------------------------------
Delivery. All representations, warranties and agreements contained in this
--------
Agreement or in certificates of officers of the Company submitted pursuant
hereto or thereto shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any International
Manager or controlling person, or by or on behalf of the Company, and shall
survive delivery of and payment for the Securities.
SECTION 9. Termination.
-----------
(a) General. The Lead Manager may terminate this Agreement, by notice
to the Company, at any time at or prior to the Closing Time or any relevant Date
of Delivery, if, since the respective dates as of which information is given in
the Prospectus, there shall have occurred (i) any change, or any development or
event involving a prospective change, in the condition (financial or other), or
the earnings, business affairs, business prospects, properties or results of
operations of the Company or its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business which, in the judgment
of a majority in interest of the International Managers including The Lead
Manager, is material and adverse and makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and payment for
the Securities; (ii) any suspension or limitation of trading in securities
generally on the Nasdaq, or any setting of minimum prices for trading on Nasdaq,
or any suspension of trading of any securities of the Company on Nasdaq or in
the over-the-counter market; (iii) any banking moratorium declared by U.S.
Federal or New York authorities; or (iv) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of war by
Congress or
- 37 -
any other substantial national or international calamity or emergency if, in the
judgment of a majority in interest of the International Managers including the
Lead Manager, the effect of any such outbreak, escalation, declaration, calamity
or emergency on the financial markets of the United States makes it impractical
or inadvisable to proceed with completion of the public offering or the sale of
and payment for the Securities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section 9, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
6 and 7 shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the International Managers. If
----------------------------------------------------
one or more of the International Managers shall fail at the Closing Time or the
relevant Date of Delivery, as the case may be, to purchase the Securities which
it or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), then the Lead Manager shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
International Managers, or any other Underwriter, to purchase all, but not less
than all, of the Defaulting Securities in such amounts as may be agreed upon and
upon the terms herein set forth; if, however, the Lead Manager shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of International Securities to be purchased on such date, the non-
defaulting International Managers shall be obligated, severally and not jointly,
to purchase the full amount thereof in the proportions that their respective
underwriting obligations bear to the underwriting obligations of all non-
defaulting International Managers, or
(b) if the number of Defaulted Securities exceeds 10% of the number of
International Securities to be purchased on such date (or, with respect to the
International Managers' exercise of any applicable over-allotment option for the
purchase of International Option Securities on a Date of Delivery after the
Closing Time, the obligations of the International Managers to purchase, and the
Company to sell, such International Option Securities on such Date of Delivery)
shall terminate without liability on the part of any non-defaulting
International Manager.
No action taken pursuant to this Section 10 shall relieve any defaulting
International Manager from liability in respect of its default.
- 38 -
In the event of any such default which does not result in (i) a termination
of this Agreement or (ii) in the case of a Date of Delivery after the Closing
Time, a termination of the obligations of the International Managers and the
Company with respect to the related International Option Securities, as the case
may be, either the Lead Manager or the Company shall have the right to postpone
the Closing Time or the relevant Date of Delivery, as the case may be, for a
period not exceeding seven days in order to effect any required changes in the
Registration Statement or the Prospectus or in any other documents or
arrangements.
SECTION 11. Notices. All notices and other communications hereunder
-------
shall be given in writing and shall be deemed to be given if mailed or
transmitted by any standard form of telecommunication. Notices to the
International Managers shall be directed to the Lead Manager at North Tower,
World Financial Center, New York, New York 10281-1021.
SECTION 12. Parties. This Agreement shall each inure to the benefit of
-------
and be binding upon the Company, the Lead Manager and any other International
Managers and their respective successors. Nothing expressed or mentioned in
this Agreement or is intended or shall be construed to give any person, firm or
corporation, other than the International Managers and the Company and their
respective successors and the controlling persons and officers and directors
referred to in Sections 6 and 7 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provision hereof are intended to be for the sole and exclusive benefit of the
parties hereto and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities
from any International Manager shall be deemed to be a successor by reason
merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
----------------------
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAWS. SPECIFIED TIMES OF DAY REFER TO NEW
YORK CITY TIME.
The Company hereby submits to the non-exclusive jurisdiction of the Federal
and state courts in the Borough of Manhattan in The City of New York in any suit
or proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
SECTION 14. Effect of Headings. The Article and Section headings herein
------------------
are for convenience only and shall not affect the construction hereof.
- 39 -
SECTION 15. Representation of International Managers. The Lead Manager
----------------------------------------
will act for the several International Managers in connection with the financing
described in this Agreement, and any action under this Agreement taken by the
Lead Manager will be binding upon all the International Managers.
SECTION 16. Counterparts. This Agreement may be executed in any number
------------
of counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
If the foregoing is in accordance with your understanding or our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
Agreement, along with all counterparts, will become a binding agreement between
The Lead Manager and the Company in accordance with its terms.
Very truly yours,
HEARST-ARGYLE TELEVISION, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President/
Corporate Development,
General Counsel and
Secretary
CONFIRMED AND ACCEPTED,
as of the first
above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
▇.▇. ▇▇▇▇▇▇ SECURITIES LTD.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INTERNATIONAL LIMITED
▇▇▇▇▇▇▇ ▇▇▇▇▇ SECURITIES INC.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ International
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
Authorized Signatory
Schedule A
----------
Number of
Shares of
Series A
International Manager Common Stock
--------------------- ------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ International ............................ 180,000
Credit Suisse First Boston (Europe) Limited ............ 180,000
▇.▇. ▇▇▇▇▇▇ Securities Ltd. ............................ 180,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited.............. 180,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ Securities Inc. .......................... 80,000
--------
800,000
========
Schedule B
----------
Number of Initial International Securities
offered by the Company: 800,000
Number of International Option Securities: 120,000
Initial public offering price per share: $ 27.00
Purchase price per share: $ 25.79
Black-out provisions:
--------------------
Ninety (90) days from the Closing Time for the Company black-out period in
Section 3(k) of this Agreement. Exceptions: (1) with the prior written consent
of ▇▇▇▇▇▇▇ ▇▇▇▇▇ and (2) (A) the issuance of Series B Common Stock by the
Company, (B) the issuance of shares of Series A Common Stock by the Company in
connection with acquisition transactions in which recipients of such shares are
restricted from selling such shares until the expiration of 90 days from the
date of this Agreement, (C) upon the exercise of outstanding options or the
grant of options under the Company's stock option plans or compensation
arrangements, and (D) upon the conversion of the Company's Series A Preferred
Stock.
Exhibit A
---------
Lock-Up Agreements
November , 1997
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
on behalf of the U.S. Underwriters
World Financial Center, North Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ International
on behalf of the International Underwriters
Ropemaker Place
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Dear Sirs:
The undersigned understand that ▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and certain other underwriters (the "U.S.
Underwriters") propose to enter into a purchase agreement (the "U.S. Purchase
Agreement") with Hearst-Argyle Television, Inc., a Delaware corporation (the
"Company"), providing for the public offering in the United States and Canada by
the U.S. Underwriters of Series A Common Stock of the Company, par value $.01
per share (the "Series A Common Stock")and that ▇▇▇▇▇▇▇ ▇▇▇▇▇ International and
certain other underwriters (the "International Underwriters" and together with
the U.S. Underwriters, the "Underwriters") propose to enter into a purchase
agreement (the "International Underwriting Agreement" and, together with the
U.S. Purchase Agreement, the "Underwriting Agreements") with the Company,
providing for the public offering outside the United States and Canada of by the
International Underwriters of Series A Common Stock.
In consideration of the Underwriters' agreement to purchase and undertake
the public offering of the Series A Common Stock, and for other good and
valuable consideration, receipt of which is hereby acknowledged, the undersigned
agrees that, without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ on behalf of the
Underwriters, the undersigned will not (i) offer to sell, sell, distribute,
grant any option to purchase or otherwise dispose of directly or indirectly, any
shares of Series A Common Stock or any securities convertible into, or
exercisable or exchangeable for, Series A Common Stock, or (ii) enter into any
swap or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the
- 2 -
economic consequence of ownership of the Common Stock, whether any such swap or
transaction is to be settled by delivery of Common Stock or other securities, in
cash or otherwise prior to the expiration of 90 days from the date of the final
Prospectus relating to the public offering, except, in the case of directors and
executive officers of the Company, for exercise by such individuals of
outstanding options.
The undersigned understand that the Company and the Underwriters will
proceed with the public offering in reliance on this letter agreement.
In furtherance of the foregoing, the Company is hereby authorized to direct
its transfer agent to decline to make any transfer of Series A Common Stock or
other securities if such transfer would constitute a violation or breach of this
letter agreement.
The undersigned hereby represent and warrant that the undersigned has full
power and authority to enter into this letter agreement. All authority herein
conferred or agreed to be conferred shall survive the death or incapacity, or
the liquidation, bankruptcy or dissolution, of the undersigned, and any
obligations of the undersigned shall be binding upon the heirs, personal
representatives, successors, transferees, and assigns of the undersigned.
This letter agreement shall become effective as of the time the
Underwriting Agreements and any applicable Terms Agreement thereto are executed
and delivered by the parties thereto.
- 3 -
This letter agreement may be executed in counterparts and each fully
executed counterpart shall be deemed to be an original.
Very truly yours,
______________________________
▇▇▇ ▇▇▇▇▇▇
______________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
______________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
______________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
______________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇
______________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇
______________________________
▇▇▇▇ ▇▇▇▇▇▇▇
______________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
______________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
______________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III
______________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III
______________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
- 4 -
______________________________
▇▇▇▇▇ ▇▇▇▇▇▇
______________________________
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
______________________________
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Acceptable as of the date
first set forth above:
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
By: __________________________
Name:_____________________
Title: ___________________
▇▇▇▇▇▇▇ ▇▇▇▇▇ International
By: __________________________
Name: ____________________
Title: ___________________
November , 1997
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
on behalf of the U.S. Underwriters
World Financial Center, North Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ International
on behalf of the International Underwriters
Ropemaker Place
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Dear Sirs:
The undersigned understand that ▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and certain other underwriters (the "U.S.
Underwriters") propose to enter into a purchase agreement (the "U.S. Purchase
Agreement") with Hearst-Argyle Television, Inc., a Delaware corporation (the
"Company"), providing for the public offering in the United States and Canada by
the U.S. Underwriters of Series A Common Stock of the Company, par value $.01
per share (the "Series A Common Stock")and that ▇▇▇▇▇▇▇ ▇▇▇▇▇ International and
certain other underwriters (the "International Underwriters" and together with
the U.S. Underwriters, the "Underwriters") propose to enter into a purchase
agreement (the "International Underwriting Agreement" and, together with the
U.S. Purchase Agreement, the "Underwriting Agreements") with the Company,
providing for the public offering outside the United States and Canada of by the
International Underwriters of Series A Common Stock.
In consideration of the Underwriters' agreement to purchase and undertake
the public offering of the Series A Common Stock, and for other good and
valuable consideration, receipt of which is hereby acknowledged, the undersigned
agrees that, without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ on behalf of the
Underwriters, the undersigned will not (i) offer to sell, sell, distribute,
grant any option to purchase or otherwise dispose of directly or indirectly, any
shares of Series A Common Stock or any securities convertible into, or
exercisable or exchangeable for, Series A Common Stock, or (ii) enter into any
swap or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of the
Common Stock, whether any such swap or transaction is to be settled by delivery
of Common
- 2 -
Stock or other securities, in cash or otherwise prior to the expiration of 90
days from the date of the final Prospectus relating to the public offering.
The undersigned understands that the Company and the Underwriters will
proceed with the public offering in reliance on this letter agreement.
In furtherance of the foregoing, the Company is hereby authorized to direct
its transfer agent to decline to make any transfer of Series A Common Stock or
other securities if such transfer would constitute a violation or breach of this
letter agreement.
The undersigned hereby represent and warrant that the undersigned have full
power and authority to enter into this letter agreement. All authority herein
conferred or agreed to be conferred shall survive the death or incapacity, or
the liquidation, bankruptcy or dissolution, of the undersigned, and any
obligations of the undersigned shall be binding upon the heirs, personal
representatives, successors, transferees, and assigns of the undersigned.
This letter agreement shall become effective as of the time the
Underwriting Agreements and any applicable Terms Agreement thereto are executed
and delivered by the parties thereto.
- 3 -
This letter agreement may be executed in counterparts and each fully
executed counterpart shall be deemed to be an original.
Very truly yours,
______________________________
▇▇▇▇▇ ▇▇▇▇▇
CHASE MANHATTAN INVESTMENT HOLDINGS, L.P.
By:___________________________
as General Partner
By:______________________
Name:
Title:
MERCHANT GP, INC.
By:_____________________________
Name:
Title:
CRESCENT/MACH I PARTNERS, L.P.
By:___________________________
as General Partner
By:______________________
Name:
Title:
- 4 -
CREDIT SUISSE FIRST BOSTON FUND
INVESTMENTS 1995, L.P.
By:___________________________
as General Partner
By:______________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON FUND
INVESTMENTS 1994, L.P.
By:___________________________
as General Partner
By:______________________
Name:
Title:
Acceptable as of the date
first set forth above:
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
By: __________________________
Name:_____________________
Title: ___________________
▇▇▇▇▇▇▇ ▇▇▇▇▇ International
By: __________________________
Name: ____________________
Title: ___________________
November , 1997
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
on behalf of the U.S. Underwriters
World Financial Center, North Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ International
on behalf of the International Underwriters
Ropemaker Place
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Dear Sirs:
The undersigned understands that ▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and certain other underwriters (the "U.S.
Underwriters") propose to enter into a purchase agreement (the "U.S. Purchase
Agreement") with Hearst-Argyle Television, Inc., a Delaware corporation (the
"Company"), providing for the public offering in the United States and Canada by
the U.S. Underwriters of Series A Common Stock of the Company, par value $.01
per share (the "Series A Common Stock")and that ▇▇▇▇▇▇▇ ▇▇▇▇▇ International and
certain other underwriters (the "International Underwriters" and together with
the U.S. Underwriters, the "Underwriters") propose to enter into a purchase
agreement (the "International Underwriting Agreement" and, together with the
U.S. Purchase Agreement, the "Underwriting Agreements") with the Company,
providing for the public offering outside the United States and Canada of by the
International Underwriters of Series A Common Stock.
In consideration of the Underwriters' agreement to purchase and undertake
the public offering of the Series A Common Stock, and for other good and
valuable consideration, receipt of which is hereby acknowledged, the undersigned
agrees that, without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ on behalf of the
Underwriters, the undersigned will not (i) offer to sell, sell, distribute,
grant any option to purchase or otherwise dispose of directly or indirectly, any
shares of Series A Common Stock or any securities convertible into, or
exercisable or exchangeable for, Series A Common Stock, or (ii) enter into any
swap or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of the
Common Stock, whether any such swap or transaction is to be settled by delivery
of Common
- 2 -
Stock or other securities, in cash or otherwise prior to the expiration of 90
days from the date of the final Prospectus relating to the public offering.
The undersigned understands that the Company and ,will proceed with the
public offering in reliance on this letter agreement.
In furtherance of the foregoing, the Company is hereby authorized to direct
its transfer agent to decline to make any transfer of Series A Common Stock or
other securities if such transfer would constitute a violation or breach of this
letter agreement.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this letter agreement. All authority
herein conferred or agreed to be conferred shall survive the death or
incapacity, or the liquidation, bankruptcy or dissolution, of the undersigned,
and any obligations of the undersigned shall be binding upon the heirs, personal
representatives, successors, transferees, and assigns of the undersigned.
This letter agreement shall become effective as of the time the
Underwriting Agreements and any applicable Terms Agreement thereto are executed
and delivered by the parties thereto.
- 3 -
This letter agreement may be executed in counterparts and each fully
executed counterpart shall be deemed to be an original.
Very truly yours,
THE HEARST CORPORATION
By:________________________________
Name:
Title:
Acceptable as of the date
first set forth above:
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
By: __________________________
Name:_____________________
Title: ___________________
▇▇▇▇▇▇▇ ▇▇▇▇▇ International
By: __________________________
Name: ____________________
Title: ___________________