EXHIBIT 7.5
VOTING AGREEMENT
This VOTING AGREEMENT dated as of March 26, 1997 is made and entered
into by and between The Hearst Corporation, a Delaware corporation ("Parent"),
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and Skylark Foundation (the "Stockholder").
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WHEREAS, Parent, HAT Merger Sub, Inc. ("Merger Sub"), HAT Contribution
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Sub, Inc. ("Parent's Sub") and Argyle Television, Inc., a Delaware corporation
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(the "Company"), propose to enter into an Agreement and Plan of Merger of even
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date herewith (as the same may be amended or supplemented, the "Merger
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Agreement") providing for the contributions of certain assets by Parent and
Parent's Sub to the Company and the merger of Merger Sub with and into the
Company (the "Merger");
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WHEREAS, the Stockholder owns in the aggregate 65,000 shares of Series
A Common Stock, par value $0.01 per share, of the Company (the "Series A Common
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Stock"); such shares of Series A Common Stock, as such shares may be adjusted by
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any stock dividend, stock split, recapitalization, combination or exchange of
shares, merger, consolidation, reorganization or other change or transaction of
or by the Company, being referred to herein as the "Subject Shares"; and
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WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Parent has requested that the Stockholder enter into this Agreement;
NOW, THEREFORE, to induce Parent to enter into, and in consideration
of its entering into, the Merger Agreement, and in consideration of the mutual
covenants and agreements set forth in this Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Representations and Warranties of the Stockholder. The
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Stockholder hereby represents and warrants to Parent as follows:
(a) Authority. The Stockholder has full power and authority to
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enter into this Agreement and to perform its obligations hereunder and
consummate the transactions contemplated hereby. This Agreement has
been duly and validly authorized, executed and delivered by the
Stockholder and constitutes a legal, valid and binding obligation of
the Stockholder enforceable against the Stockholder in accordance with
its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights generally and by general
equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or law).
(b) Non-Contravention. The execution and delivery of this
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Agreement by the Stockholder does not, and the performance by the
Stockholder of its obligations hereunder and the consummation of the
transactions contemplated hereby will not, conflict with, result in
any violation of, constitute (with or without notice or lapse of time
or both) a default under, result in or give to any person any right of
payment or reimbursement, termination, cancellation, modification or
acceleration of, or result in the creation or imposition of any lien
upon any assets or properties of the Stockholder under, any of the
terms, conditions or provisions of (i) any statute, law, rule,
regulation or ordinance, or any judgment, decree, order, writ, permit
or license, of any court, tribunal, arbitrator, authority, agency,
commission, official or other instrumentality of the United States or
any domestic, state, county, city or other political subdivision (a
"Governmental or Regulatory Authority"), applicable to the Stockholder
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or any of its assets or properties, or (ii) any note, bond, mortgage,
security agreement, indenture, license, franchise, permit, concession,
contract, lease or other instrument, obligation or agreement of any
kind (together, "Contracts") to which the Stockholder is a party or by
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which the Stockholder or any of its respective assets or properties is
bound.
(c) Approvals and Consents. Except for the filing of this
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Agreement with the Federal Communications Commission (the "FCC")
pursuant to Section 73.3613 of the FCC rules and regulations, no
consent, approval or action of, filing with or notice to any
Governmental or Regulatory Authority is necessary or required for the
execution and delivery of this Agreement by the Stockholder, the
performance by the Stockholder of its obligations hereunder or the
consummation of the transactions contemplated hereby.
(d) Subject Shares. The Stockholder has good and marketable
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title to the Subject Shares, free and clear of all liens, claims,
security interests, proxies, voting trusts or agreements,
understanding or arrangements or any other encumbrances whatsoever;
other than restrictions on transfer imposed by the registration
requirements of the Securities Act of 1933, as amended, and applicable
state securities laws. The Stockholder has the sole voting power and
sole power to issue instructions with respect to the matters set forth
in Section 3.
2. Representations and Warranties of the Parent. The Parent hereby
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represents and warrants to the Stockholder as follows:
(a) Authority. The Parent is a corporation duly formed and is
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in good standing and existing under the laws of the State of Delaware.
The Parent has full power and authority to enter into this Agreement
and to perform its obligations hereunder and consummate the
transactions contemplated hereby. This Agreement has been duly and
validly authorized, executed and delivered by the Parent and
constitutes a legal, valid and binding obligation of the Parent
enforceable against the Parent in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by general equitable
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principles (regardless of whether such enforceability is considered in
a proceeding in equity or law).
3. Covenants of the Stockholder. Subject to Section 4, the
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Stockholder hereby covenants and agrees with Parent as follows:
(a) Vote for Merger. At any meeting of stockholders of the
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Company called to vote upon the amendment to the Company's Certificate
of Incorporation set forth in the Merger Agreement, the Merger and the
Merger Agreement or at any adjournment thereof or in any other
circumstances upon which a vote, consent or other approval with
respect to such amendment to the Company's Certificate of
Incorporation, the Merger and the Merger Agreement is sought, the
Stockholder shall vote (or cause to be voted) the Subject Shares, and
any other voting securities of the Company, owned by Stockholder
whether issued heretofore or hereafter, that the Stockholder owns or
has the right to vote, in favor of such amendment to the Company's
Certificate of Incorporation, the Merger, the adoption by the Company
of the Merger Agreement and the approval of the terms thereof and each
of the other transactions contemplated by the Merger Agreement,
provided that the terms of the Merger Agreement shall not have been
amended to adversely affect the Stockholder.
(b) Vote Against Acquisition Proposals. At any meeting of
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stockholders of the Company or at any adjournment thereof or in any
other circumstances upon which the Stockholder's vote, consent or
other approval is sought, the Stockholder shall vote (or cause to be
voted) the Subject Shares, and any other voting securities of the
Company, owned by Stockholder whether issued heretofore or hereafter,
that the Stockholder owns or has the right to vote, except as
otherwise agreed in writing in advance by the Parent, against (i) any
proposal or offer with respect to any direct or indirect (A)
acquisition or purchase of fifteen percent (15%) or more of any
Company common stock outstanding, (B) acquisition or purchase of any
equity securities of any Material Subsidiary (as defined below), (C)
acquisition or purchase of all or any significant portion of the
assets of the Company or any Material Subsidiary, or (D) any merger,
consolidation, business combination, recapitalization, liquidation,
dissolution or similar transaction involving the Company or any of its
Material Subsidiaries (any such proposal or offer being hereinafter
referred to as an "Acquisition Proposal"), (ii) any change in the
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majority of the persons who constitute the Board of Directors of the
Company or (iii) any change in the present capitalization of the
Company or any amendment of the Company's certificate of incorporation
or by-laws or other proposal or transaction involving the Company or
any of its subsidiaries, which change, amendment or other proposal or
transaction would in any manner impede, frustrate, prevent or nullify
the amendment of the Company's Certificate of Incorporation set forth
in the Merger Agreement, the Merger, the Merger Agreement or any of
the other transactions contemplated by the Merger Agreement or which
could result in any of the conditions to the Parent's obligations
under the Merger Agreement not being fulfilled. For purposes of this
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Agreement, "Material Subsidiary" means any direct or indirect
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"Significant Subsidiary" of the Company as that term is defined in
Rule 405 of the rules and regulations promulgated under the Securities
Act of 1933, as amended, or any Subsidiary (as defined below) of the
Company that either owns or operates a television broadcast station or
a license, permit or other authorization required by the Federal
Communications Commission in connection with the operation of its
business. In addition, "Subsidiary" means any corporation or other
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organization whether incorporated or unincorporated, of which more
than fifty percent (50%) of either the equity interest in, or voting
control of, such corporation or other organization is, directly or
indirectly through Subsidiaries or otherwise, beneficially owned by
the Company.
(c) Transfers. The Stockholder agrees not to (i) sell,
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transfer, pledge, assign or otherwise dispose of, or enter into any
contract, option or other arrangement with respect to the sale,
transfer, pledge, assignment or other disposition of, the Subject
Shares to any person other than pursuant to the amendment of the
Company's Certificate of Incorporation set forth in the Merger
Agreement, the Merger and the Merger Agreement or (ii) enter into any
voting arrangement, whether by proxy, voting arrangement, voting
agreement or otherwise with respect to the Subject Shares.
(d) No Solicitations. The Stockholder shall not, directly or
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indirectly, initiate, solicit, encourage, accept or take any other
action knowingly to facilitate, any inquiries or the making of, or
participate in any discussions or negotiations regarding, any
Acquisition Proposal. In the event that the Stockholder receives from
any person an Acquisition Proposal, the Stockholder shall promptly
advise, orally and in writing, such person of the terms of this
Section 3(d), and shall promptly advise Parent of such Acquisition
Proposal and shall thereafter keep Parent reasonably and promptly
informed of all material facts and circumstances relating to said
Acquisition Proposal and the Stockholder's actions relating thereto.
4. Termination. The covenants and agreements of the Stockholder
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contained in Section 3 shall terminate upon the earliest of (i) the Effective
Time (as defined in the Merger Agreement), or (ii) the termination of the Merger
Agreement in accordance with its terms.
5. General Provisions.
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(a) Expenses. All costs and expenses incurred in connection
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with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such expense.
(b) Amendments. This Agreement may not be amended except by an
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instrument in writing signed by each of the parties hereto.
(c) Notice. All notices and requests and other communications
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hereunder must be in writing and will be deemed to have been given
only if
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delivered personally or by facsimile transmission or mailed
(first class postage prepaid) to the parties at the following
addresses or facsimile numbers:
(i) if to Parent, to:
The Hearst Corporation
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
with a copy to:
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
(ii) if to the Stockholder, to
Skylark Foundation
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇, Esq.
All such notices, requests and other communications will (i) if
delivered personally to the address as provided in this Section, be
deemed given upon delivery, (ii) if delivered by facsimile
transmission to the facsimile number as provided in this Section, be
deemed given upon receipt, and (iii) if delivered by mail in the
manner described above to the address as provided in this Section, be
deemed given upon receipt (in each case regardless of whether such
notice, request or other communication is received by any other person
to whom a copy
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of such notice is to be delivered pursuant to this Section). Any party
from time to time may change its address, facsimile number or other
information for the purpose of notices to that party by giving notice
specifying such change to the other parties hereto.
(d) Entire Agreement. This Agreement supersedes all prior
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discussions and agreements among the parties hereto with respect to
the subject matter hereof, and contains the sole and entire agreement
among the parties hereto with respect to the subject matter hereof.
(e) No Third Party Beneficiary. The terms and provisions of
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this Agreement are intended solely for the benefit of each party
hereto and their respective successors or permitted assigns, and it is
not the intention of the parties to confer third-party beneficiary
rights upon any other person.
(f) No Assignment; Binding Effect. Neither this Agreement nor
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any right, interest or obligation hereunder may be assigned by any
party hereto without the prior written consent of the other parties
hereto and any attempt to do so will be void. Subject to the
preceding sentence, this Agreement is binding upon, inures to the
benefit of and is enforceable by the parties hereto and their
respective successors and assigns.
(g) Headings. The headings used in this Agreement have been
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inserted for convenience of reference only and do not define or limit
the provisions hereof.
(h) Severability. If any provision of this Agreement is held to
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be illegal, invalid or unenforceable under any present or future law,
and if the rights or obligations of any party hereto under this
Agreement will not be materially and adversely affected thereby, (i)
such provision will be fully severable, (ii) this Agreement will be
construed and enforced as if such illegal, invalid or unenforceable
provision had never comprised a part hereof, (iii) the remaining
provisions of this Agreement will remain in full force and effect and
will not be affected by the legal, invalid or unenforceable provision
or by its severance herefrom and (iv) in lieu of such illegal, invalid
or unenforceable provision, there will be added automatically as a
part of this Agreement a legal, valid and enforceable provision as
similar in terms to such illegal, invalid or unenforceable provision
as may be possible.
(i) No Waiver. The failure of any party hereto to exercise any
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right, power or remedy provided under this Agreement or otherwise
available in respect hereof at law or in equity, or to insist upon
compliance by any other party hereto with its obligations hereunder,
and any custom or practice of the parties at variance with the terms
hereof shall not constitute a waiver by such party of its right to
exercise any such or other right, power or remedy or to demand such
compliance.
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(j) Counterparts. This Agreement may be executed in any number
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of counterparts, each of which will be deemed an original, but all of
which together will constitute one and the same instrument.
(k) Governing Law. This Agreement shall be governed by and
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construed in accordance with the laws of the State of Delaware
applicable to a contract executed performed in such State without
giving effect to the conflicts of laws principles thereof.
6. Enforcement. The parties agree that irreparable damage would
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occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached.
It is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any Federal court located in the
State of Delaware or in a Delaware state court, this being in addition to any
other remedy to which they are entitled at law or in equity. In addition, each
of the parties hereto (i) consents to submit such party to the personal
jurisdiction of any Federal court located in the State of Delaware or any
Delaware state court in the event any dispute arises out of this Agreement or
any of the transactions contemplated hereby, (ii) agrees that such party will
not attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from any such court, (iii) agrees that such party will not
bring any action relating to this Agreement or any of the transactions
contemplated hereby in any court other than a Federal court sitting in the State
of Delaware or a Delaware state court and (iv) waives any right to trial by jury
with respect to any claim or proceeding related to or arising out of this
Agreement or any of the transactions contemplated hereby.
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IN WITNESS WHEREOF, each party hereto has signed this Agreement or
caused this Agreement to be signed by its officer or representative thereunto
duly authorized as of the date first above written.
THE HEARST CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
SKYLARK FOUNDATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Chairman of the Board and
Chief Financial Officer
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