1
EXHIBIT 1.1
1,305,000 PEPS
Premium Equity Participating Securities
THE TIMES MIRROR COMPANY
4 1/4% PEPS DUE MARCH 15, 2001
UNDERWRITING AGREEMENT
March 13, 1996
2
March 13, 1996
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated
c/o Morgan ▇▇▇▇▇▇▇ & Co.
Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs and Mesdames:
The Times Mirror Company, a Delaware corporation (the
"Company"), proposes to issue and sell to the several Underwriters named in
Schedule I hereto (the "Underwriters") 1,305,000 4 1/4% Premium Equity
Participating Securities Due March 15, 2001 ("Firm Debt Securities") to be
issued pursuant the provisions of an Indenture dated as of March 19, 1996 (the
"Indenture") between the Company and Citibank, N.A., as Trustee (the
"Trustee"). The Company also proposes to issue and sell to the several
Underwriters not more than an additional 195,000 4 1/4% Premium Equity
Participating Securities Due March 15, 2001 (the "Additional Debt Securities")
if and to the extent that you, as Manager of the offering, shall have
determined to exercise, on behalf of the Underwriters, the right to purchase
such Additional Debt Securities granted to the Underwriters herein. The Firm
Debt Securities and the Additional Debt Securities are hereinafter collectively
referred to as either the "Securities" or the "PEPS." The issue price and the
amount payable at maturity or upon redemption of the Securities are based on
the per share price of common stock, par value $.0001 per share, of Netscape
Communications Corporation ("Netscape").
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement including a prospectus
relating to the issuance of securities of the Company and has filed with, or
transmitted for filing to, or shall promptly hereafter file with or transmit
for filing to, the Commission a prospectus supplement (the "Prospectus
Supplement") specifically relating to the Securities pursuant to Rule 424 under
the Securities Act of 1933, as amended (the "Securities Act").
3
The term Registration Statement means the registration statement as amended to
the date of this Agreement. The term Basic Prospectus means the prospectus
included in the Registration Statement. The term Prospectus means the Basic
Prospectus together with the Prospectus Supplement. The term preliminary
prospectus means a preliminary prospectus supplement specifically relating to
the Securities, together with the Basic Prospectus. As used herein, the terms
"Basic Prospectus," "Prospectus" and "preliminary prospectus" shall include in
each case the documents, if any, incorporated by reference therein (the
"Incorporated Documents"). The terms "supplement," "amendment" and "amend" as
used herein shall include all documents deemed to be incorporated by reference
in the Prospectus that are filed subsequent to the date of the Basic Prospectus
by the Company with the Commission pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act"). The term "Significant Subsidiaries"
means the entities listed on Schedule II hereto.
1. REPRESENTATIONS AND WARRANTIES. The Company
represents and warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or, to
the knowledge of the Company, threatened by the Commission.
(b) (i) Each part of the Registration Statement, when such
part became effective, did not contain and each such part, as amended
or supplemented, if applicable, will not contain any 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, (ii) the Registration Statement and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iii) the Prospectus does
not contain and, as amended or supplemented, if applicable, will not
contain any 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,
except that the representations and warranties set forth in this
Section 1(b) do not apply (A) to statements or omissions in the
Registration Statement or the Prospectus based upon information
relating to any
2
4
Underwriter furnished to the Company in writing by such Underwriter
through you expressly for use therein or (B) to that part of the
Registration Statement that constitutes the Statement of Eligibility
(Form T-1) under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), of the Trustee.
(c) Each of the Company and its Significant Subsidiaries has
been duly organized and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation, with
full power and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectus, except where
the failure to be in good standing, either singly or in the aggregate,
would not have a material adverse effect on the condition, financial
or otherwise, or the earnings, business or operations of the Company
and its subsidiaries, taken as a whole (each, a "Material Adverse
Effect").
(d) Each of the Company and its Significant Subsidiaries is
duly qualified to do business as a foreign corporation and is in good
standing in each jurisdiction where the character of the business
conducted by it or the location of its properties owned or leased by
it makes such qualification necessary and in which the absence of such
qualification, either singly or in the aggregate, would have a
Material Adverse Effect.
(e) The outstanding shares of capital stock of each of
the Significant Subsidiaries of the Company have been duly authorized
and validly issued, are fully paid and nonassessable and are owned
beneficially by the Company free and clear of all liens, encumbrances,
equities and claims.
(f) Each of the Company and its Significant Subsidiaries is
in compliance with all laws, ordinances and regulations applicable to
its properties (whether owned or leased) and its business as described
in the Prospectus, except where failure to so comply, either singly or
in the aggregate, would not have a Material Adverse Effect.
(g) Each of the Company and its Significant Subsidiaries has
all government licenses or permits necessary to carry on its business
as such business is presently conducted and as described in the
Prospectus, except where failure to have such licenses or permits,
either singly or in the aggregate, would not have a
3
5
Material Adverse Effect. Except as set forth in the Prospectus or as
previously disclosed to you in writing, the Company has no reason to
believe that any federal or state authorities are considering
modifying, suspending or revoking any such licenses, or that such
authorities or any other agencies are investigating the Company or any
of its Significant Subsidiaries other than in the ordinary course of
administrative review.
(h) This Agreement has been duly authorized, executed and
delivered by the Company.
(i) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, and when executed and
delivered by the Company and, assuming the due authorization,
execution and delivery of the Indenture by the Trustee, will be a
valid and binding agreement of the Company, enforceable in accordance
with its terms subject to the effect of (a) applicable bankruptcy,
reorganization, insolvency, moratorium and other similar laws and
court decisions of general application (including, without limitation,
statutory or other laws regarding fraudulent or preferential
transfers) relating to, limiting or affecting the enforcement of
creditors' rights generally, (b) general principles of equity that may
limit the enforceability of the remedies, covenants or other
provisions of the Indenture and the availability of injunctive relief
or other equitable remedies and (c) the application of principles of
equity (regardless of whether enforcement is considered in proceedings
at law or in equity) as such principles relate to, limit or affect the
enforcement of creditors' rights generally.
(j) The Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will be entitled to the
benefits of the Indenture and will be valid and binding obligations of
the Company, enforceable in accordance with their terms subject to the
effect of (a) applicable bankruptcy, reorganization, insolvency,
moratorium and other similar laws and court decisions of general
application (including, without limitation, statutory or other laws
regarding fraudulent or preferential transfers) relating to, limiting
or affecting the enforcement of creditors' rights generally, (b)
general principles of equity that may limit the enforceability of the
remedies, covenants or other provisions of the
4
6
Securities and the availability of injunctive relief or other
equitable remedies and (c) the application of principles of equity
(regardless of whether enforcement is considered in proceedings at law
or in equity) as such principles relate to, limit or affect the
enforcement of creditors' rights generally.
(k) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Indenture and the Securities will not contravene any provision of
applicable law or the certificate of incorporation or by-laws of the
Company or any agreement or other instrument binding upon the Company
or any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or any judgment, order or decree of
any governmental body, agency or court having jurisdiction over the
Company or any subsidiary, and no consent, approval, authorization or
order of, or qualification with, any governmental body or agency is
required for the performance by the Company of its obligations under
this Agreement, the Indenture or the Securities, except such as may be
required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Securities.
(l) There has not occurred any material adverse change, or
any development involving a prospective material adverse change, in
the condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement).
(m) There are no legal or governmental proceedings pending
or, to the knowledge of the Company, threatened to which the Company
or any of its Significant Subsidiaries is a party or to which any of
the properties of the Company or any of its Significant Subsidiaries
is subject that are required to be described in the Registration
Statement or the Prospectus and are not so described or any statutes,
regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement that are not described
or filed as required.
(n) Each preliminary prospectus filed as part of the
Registration Statement as declared effective, or
5
7
filed pursuant to Rule 424 under the Securities Act, complied when so
filed in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder.
(o) The Company is not an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended.
(p) To its best knowledge after due inquiry, the Company has
complied with all provisions of Section 517.075, Florida Statutes
relating to doing business with the Government of Cuba or with any
person or affiliate located in Cuba.
(q) The Company and Netscape are not "affiliates" as that
term is defined in Rule 12b-2 promulgated by the Commission under the
Exchange Act.
(r) Each of the total assets, the gross revenues and the
income (loss) from continuing operations of the Company and the
Significant Subsidiaries, taken as a whole, constitutes 90% or more of
each of the total assets, the gross revenues and the income (loss)
from continuing operations, respectively, of the Company and all of
its subsidiaries, taken as a whole, as of and for the year ended
December 31, 1995.
2. AGREEMENTS TO SELL AND PURCHASE. The Company hereby
agrees to sell to the several Underwriters, and each Underwriter, upon the
basis of the representations and warranties herein contained, but subject to
the conditions hereinafter stated, agrees, severally and not jointly, to
purchase from the Company the respective number of Firm Debt Securities set
forth in Schedule I hereto opposite its name at $38.07 per PEPS, plus accrued
interest, if any, from March 19, 1996 to the date of payment and delivery (the
"Purchase Price").
On the basis of the representations and warranties contained
in this Agreement, and subject to its terms and conditions, the Company agrees
to sell to the Underwriters the Additional Debt Securities, and the
Underwriters shall have a one-time right to purchase, severally and not
jointly, up to 195,000 Additional Debt Securities at the Purchase Price. If
you, on behalf of the Underwriters, elect to exercise such option, you shall so
notify the Company in writing not later than 30 days after the date of this
Agreement, which notice shall specify the number of Additional Debt Securities
to be purchased by the
6
8
Underwriters and the date on which such Additional Debt Securities are to be
purchased. Such date may be the same as the Closing Date (as defined below)
but not earlier than the Closing Date nor earlier than two or later than ten
business days after the date of such notice. Additional Debt Securities may be
purchased as provided in Section 4 hereof solely for the purpose of covering
over-allotments made in connection with the offering of the Firm Debt
Securities. If any Additional Debt Securities are to be purchased, each
Underwriter agrees, severally and not jointly, to purchase the number of
Additional Debt Securities (subject to such adjustments to eliminate fractional
securities as you may determine) that bears the same proportion to the total
number of Additional Debt Securities to be purchased as the number of Firm Debt
Securities set forth in Schedule I hereto opposite the name of such Underwriter
bears to the total number of Firm Debt Securities.
3. TERMS OF PUBLIC OFFERING. The Company is advised by you
that the Underwriters propose to make a public offering of their respective
portions of the Securities as soon after this Agreement has become effective as
in your judgment is advisable. The Company is further advised by you that the
Securities are to be offered to the public initially at $39.25 a PEPS (the
"Public Offering Price") and to certain dealers selected by you at a price that
represents a concession not in excess of $0.70 a PEPS under the Public Offering
Price.
4. PAYMENT AND DELIVERY. Payment for the Firm Debt
Securities shall be made to an account designated by the Company by wire
transfer of federal funds or other immediately available funds against delivery
of such Firm Debt Securities for the respective accounts of the several
Underwriters at 7:00 A.M., California time, on March 19, 1996, or at such other
time on the same or such other date, not later than March 27, 1996, as shall be
designated in writing by you. The time and date of such payment are
hereinafter referred to as the "Closing Date."
Payment for any Additional Debt Securities shall be made to an
account designated by the Company by wire transfer of federal funds or other
immediately available funds against delivery of such Additional Debt Securities
for the respective accounts of the several Underwriters at 7:00 A.M.,
California time, on such date (which may be the same as the Closing Date but
shall in no event be earlier than the Closing Date nor earlier than two or
later than ten business days after the giving of the notice hereinafter
referred to) as shall be designated in a written notice from
7
9
you to the Company of your determination, on behalf of the Underwriters, to
purchase a number, specified in said notice, of Additional Debt Securities, or
on such other date, in any event not later than April 13, 1996, as shall be
designated in writing by you. The time and date of such payment are
hereinafter referred to as the "Option Closing Date." The notice of the
determination to exercise the option to purchase Additional Debt Securities and
of the Option Closing Date may be given at any time within 30 days after the
date of this Agreement.
The several obligations of the Underwriters to purchase
Additional Debt Securities hereunder are subject to the delivery to the
Underwriters on the Option Closing Date of such documents as you may reasonably
request with respect to the good standing of the Company, the due authorization
and issuance of the Additional Debt Securities and other matters related to the
issuance of the Additional Debt Securities.
Certificates for the Firm Debt Securities and the Additional
Debt Securities shall be in definitive form and registered in such names and in
such denominations as you shall request in writing not later than one full
business day prior to the Closing Date or the Option Closing Date, as the case
may be. The certificates evidencing the Firm Debt Securities and the
Additional Debt Securities shall be delivered to you on the Closing Date or the
Option Closing Date, as the case may be, for the respective accounts of the
several Underwriters, with any transfer taxes payable in connection with the
transfer of the Securities to the Underwriters duly paid, against payment of
the Purchase Price therefor.
5. CONDITIONS TO THE UNDERWRITERS' OBLIGATIONS. The
obligations of the Company to sell the Securities to the Underwriters and the
several obligations of the Underwriters to purchase and pay for such Securities
are subject to the satisfaction of each of the following conditions.
(a) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change,
in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as
such term is
8
10
defined for purposes of Rule 436(g)(2) under the Securities
Act;
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of
this Agreement) that, in your judgment, is material and
adverse and that makes it, in your judgment, impracticable to
market the Securities on the terms and in the manner
contemplated in the Prospectus; and
(iii) no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no
proceedings for that purpose shall have been commenced or
shall be pending before or contemplated by the Commission.
(b) The Underwriters shall have received on the Closing Date
a certificate, dated the Closing Date and signed by an executive
officer of the Company, to the effect set forth in clauses (a)(i) and
(iii) above and to the effect that the representations and warranties
of the Company contained in this Agreement are true and correct as of
the Closing Date and that the Company has complied in all material
respects with all of the agreements and satisfied in all material
respects all of the conditions on its part to be performed or
satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate
may rely upon the best of his or her knowledge as to proceedings
threatened.
(c) The Underwriters shall have received on the Closing Date
an opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, outside counsel for the
Company, dated the Closing Date, to the effect that:
(i) this Agreement has been duly authorized,
executed and delivered by the Company;
(ii) the Indenture has been duly qualified under the
Trust Indenture Act and has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement
of the Company, enforceable in accordance with its terms
9
11
subject to the effect of (a) applicable bankruptcy,
reorganization, insolvency, moratorium and other similar laws
and court decisions of general application (including, without
limitation, statutory or other laws regarding fraudulent or
preferential transfers) relating to, limiting or affecting the
enforcement of creditors' rights generally, (b) general
principles of equity that may limit the enforceability of the
remedies, covenants or other provisions of the Indenture and
the availability of injunctive relief or other equitable
remedies and (c) the application of principles of equity
(regardless of whether enforcement is considered in
proceedings at law or in equity) as such principles relate to,
limit or affect the enforcement of creditors' rights
generally;
(iii) the Securities have been duly authorized and,
when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by
the Underwriters in accordance with the terms of this
Agreement, will be entitled to the benefits of the Indenture
and will be valid and binding obligations of the Company,
enforceable in accordance with their terms subject to the
effect of (a) applicable bankruptcy, reorganization,
insolvency, moratorium and other similar laws and court
decisions of general application (including, without
limitation, statutory or other laws regarding fraudulent or
preferential transfers) relating to, limiting or affecting the
enforcement of creditors' rights generally, (b) general
principles of equity that may limit the enforceability of the
remedies, covenants or other provisions of the Securities and
the availability of injunctive relief or other equitable
remedies and (c) the application of principles of equity
(regardless of whether enforcement is considered in
proceedings at law or in equity) as such principles relate to,
limit or affect the enforcement of creditors' rights
generally;
(iv) the statements (A) in the Prospectus under the
captions "Description of Securities," "Underwriters," "Certain
United States Federal Income Tax Considerations," "Plan of
Distribution" and "Certain Legal Matters" and (B) in the
Registration Statement in Items 15 and 17, in each case
insofar as such statements constitute
10
12
summaries of the legal matters, documents or proceedings
referred to therein, fairly present the information called for
with respect to such legal matters, documents and proceedings
and fairly summarize the matters referred to therein;
(v) the Company is not an "investment company" or an
entity "controlled" by an "investment company," as such terms
are defined in the Investment Company Act of 1940, as amended;
and
(vi) the Registration Statement and Prospectus (excluding
the Incorporated Documents and except for financial statements
and schedules and other financial and statistical data
included therein as to which such counsel need not express any
opinion) comply as to form in all material respects with the
Securities Act and the applicable rules and regulations of the
Commission thereunder.
In addition to the foregoing opinions, such counsel shall
state that based upon certain specified activities, such counsel has no reason
to believe that (except for financial statements and schedules and other
financial and statistical data as to which such counsel need not express any
belief and except for that part of the Registration Statement that constitutes
the Form T-1 heretofore referred to) the Registration Statement and the
Prospectus (including the Incorporated Documents) at the time the Registration
Statement became effective, and the Registration Statement and the Prospectus
on the date of this Agreement, contained any 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 and that (except for
financial statements and schedules and other financial and statistical data as
to which such counsel need not express any belief) the Prospectus (including
the Incorporated Documents) contains any untrue statement of a material fact 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.
(d) The Underwriters shall have received on the Closing Date
an opinion of ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, General Counsel for the Company,
dated the Closing Date, to the effect that:
11
13
(i) each of the Company and its Significant
Subsidiaries has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
its jurisdiction of incorporation, with full power and
authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus, except
where the failure to be in good standing, either singly or in
the aggregate, would not have a Material Adverse Effect;
(ii) the execution and delivery by the Company of,
and the performance by the Company of its obligations under,
this Agreement, the Securities and the Indenture will not
contravene any provision of applicable law, known to such
counsel, or the certificate of incorporation or by-laws of the
Company or, to the best of such counsel's knowledge, any
agreement or other instrument binding upon the Company or any
of its Significant Subsidiaries that is material to the
Company and its subsidiaries, taken as a whole, or, to the
best of such counsel's knowledge, any judgment, order or
decree of any governmental body, agency or court having
jurisdiction over the Company or any Significant Subsidiary,
and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is
required for the performance by the Company of its obligations
under this Agreement, the Securities and the Indenture, except
such as may be required by the securities or Blue Sky laws of
the various states in connection with the offer and sale of
the Securities;
(iii) after due inquiry, such counsel does not know
of any legal or governmental proceedings pending or threatened
to which the Company or any of its Significant Subsidiaries is
a party or to which any of the properties of the Company or
any of its Significant Subsidiaries is subject that are
required to be described in the Registration Statement or the
Prospectus and are not so described or of any statutes,
regulations, contracts or other documents that are required to
be described in the Registration Statement or the Prospectus
or to be filed as exhibits to the Registration Statement that
are not described or filed as required; and
12
14
(iv) the Registration Statement and Prospectus (including
the Incorporated Documents and except for financial statements
and schedules and other financial and statistical data
included therein as to which such counsel need not express any
opinion) comply as to form in all material respects with the
Securities Act and the applicable rules and regulations of the
Commission thereunder.
In addition to the foregoing opinions, such counsel shall
state that based upon certain specified activities, such counsel has no reason
to believe that (except for financial statements and schedules and other
financial and statistical data as to which such counsel need not express any
belief and except for that part of the Registration Statement that constitutes
the Form T-1 heretofore referred to) the Registration Statement and the
Prospectus (including the Incorporated Documents) at the time the Registration
Statement became effective, and the Registration Statement and the Prospectus
on the date of this Agreement, contained any 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 and that (except for
financial statements and schedules and other financial and statistical data as
to which such counsel need not express any belief) the Prospectus (including
the Incorporated Documents) contains any untrue statement of a material fact 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.
(e) The Underwriters shall have received on the Closing Date
an opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters,
dated the Closing Date, covering the matters referred to in
subparagraphs (i), (ii), (iii), (iv) (but only as to the statements in
the Prospectus under "Description of Securities" and "Underwriters")
and (vi) of paragraph (c) above.
(f) The Underwriters shall have received on the Closing
Date a letter from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Underwriters,
dated the Closing Date, covering the matters referred to in the last
subparagraph of paragraph (c) above.
With respect to the last subparagraph of paragraph (c) above
and the last subparagraph of paragraph (d) above, ▇▇▇▇▇▇, ▇▇▇▇ &
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ may state that
their opinion and
13
15
belief are based upon their participation in the preparation of the
Registration Statement and Prospectus and any amendments or
supplements thereto and review and discussion of the contents thereof,
but are without independent check or verification, except as
specified.
The opinions of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇ described in paragraphs (c) and (d) above shall be rendered
to the Underwriters at the request of the Company and shall so state
therein.
(g) The Underwriters shall have received on the Closing Date
a letter dated the Closing Date, in form and substance satisfactory to
the Underwriters, from Ernst & Young LLP, independent public
accountants, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained in the Registration Statement and the
Prospectus;provided that the letter delivered on the Closing Date
shall use a "cut-off" date not earlier than the date hereof.
The several obligations of the Underwriters to purchase
Additional Debt Securities hereunder are subject to the delivery to you on the
Option Closing Date of such documents as you may reasonably request with
respect to the good standing of the Company, the due authorization and issuance
of the Additional Debt Securities and other matters related to the issuance of
the Additional Debt Securities.
6. COVENANTS OF THE COMPANY. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants with
each Underwriter as follows:
(a) To furnish to you, without charge, 2 signed copies of the
Registration Statement (including exhibits thereto) and for delivery
to each other Underwriter a conformed copy of the Registration
Statement (without exhibits thereto) and furnish to you in New York
City, without charge, prior to 10:00 A.M., local time on the business
day next succeeding the date of this Agreement and during the period
mentioned in paragraph (c) below, as many copies of the Prospectus and
any supplements and amendments thereto or to the Registration
Statement as you may reasonably request.
14
16
(b) Before amending or supplementing the Registration
Statement or the Prospectus in a manner that relates to or affects the
Securities, to furnish to you a copy of each such proposed amendment
or supplement and not to file any such proposed amendment or
supplement to which you reasonably object, and to file with the
Commission within the applicable period specified in Rule 424(b) under
the Securities Act any prospectus required to be filed pursuant to
such Rule.
(c) If, during such period after the first date of the public
offering of the Securities as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall
occur or condition exist as a result of which it is necessary to amend
or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances when the Prospectus is delivered to
a purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the Underwriters and to
the dealers (whose names and addresses you will furnish to the
Company) to which Securities may have been sold by you on behalf of
the Underwriters and to any other dealers upon request, either
amendments or supplements to the Prospectus so that the statements in
the Prospectus as so amended or supplemented will not, in the light of
the circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or supplemented, will
comply with law.
(d) To endeavor to qualify the Securities for offer and sale
under the securities or blue sky laws of such jurisdictions as you
shall reasonably request.
(e) To make generally available to the Company's security
holders and to you as soon as practicable an earning statement
covering the twelve-month period ending March 31, 1997 that satisfies
the provisions of Section 11(a) of the Securities Act and the rules
and regulations of the Commission thereunder.
(f) To pay all expenses incident to the performance of its
obligations under this Agreement, including: (i) the preparation and
filing of the Registration Statement and the Prospectus and all
amendments and supplements thereto; (ii) the
15
17
preparation, issuance and delivery of the Securities; (iii) the fees
and disbursements of the Company's counsel and accountants and of the
Trustee and its counsel; (iv) the qualification of the Securities
under state securities or blue sky laws in accordance with the
provisions of Section 6(d), including filing fees and the fees and
disbursements of counsel for the Underwriters in connection therewith
and in connection with the preparation of any blue sky or legal
investment memoranda; (v) the printing and delivery to the
Underwriters in quantities as hereinabove stated of copies of the
Registration Statement and all amendments thereto and of each
preliminary prospectus and the Prospectus and any amendments or
supplements thereto; (vi) the printing and delivery to the
Underwriters of copies of any blue sky or legal investment memoranda;
(vii) any fees charged by rating agencies for the rating of the
Securities; (viii) the filing fees and expenses, if any, incurred with
respect to any filing with the National Association of Securities
Dealers, Inc. made in connection with the offering of the Securities;
and (ix) any expenses incurred by the Company in connection with a
"road show" presentation to potential investors.
7. INDEMNITY AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred by any Underwriter or any such
controlling person in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through you expressly
for use therein.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its
16
18
directors, its officers who sign the Registration Statement and each person, if
any, who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to such Underwriter, but only with
reference to information relating to such Underwriter furnished to the Company
in writing by such Underwriter through you expressly for use in the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) of this Section
7, such person (the "indemnified party") shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in writing
and the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and the indemnified party shall have been advised by counsel that there
are actual or potential differing interests between them. It is understood
that the indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all such indemnified
parties and that all such fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated, in the case of parties indemnified pursuant to paragraph (a)
above and by the Company, in the case of parties indemnified pursuant to
paragraph (b) above. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment. No
17
19
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in
paragraph (a) or (b) of this Section 7 is unavailable to an indemnified party
or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party under such paragraph, in lieu
of indemnifying such indemnified party thereunder, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Securities or (ii) if
the allocation provided by clause (i) above 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 Underwriters on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other hand in connection with the offering of the Securities shall be
deemed to be in the same respective proportions as the net proceeds from the
offering of the Securities (before deducting expenses) received by the Company
and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate Public Offering Price of the Securities. The
relative fault of the Company on the one hand and the Underwriters on the other
hand shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Underwriters' respective obligations to contribute pursuant to
this Section 7 are several in proportion to the respective numbers of
Securities they have purchased hereunder, and not joint.
18
20
(e) The Company and the Underwriters agree that it would not
be just or equitable if contribution pursuant to this Section 7 were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account
of the equitable considerations referred to in paragraph (d) of this Section 7.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, no Underwriter 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 that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 7 are not exclusive and shall not limit any rights or remedies which
may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in
this Section 7 and the representations, warranties and other statements of the
Company contained in this Agreement shall remain operative and in full force
and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter or by or on behalf of the Company, its officers or directors or
any person controlling the Company and (iii) acceptance of and payment for any
of the Securities.
8. TERMINATION. This Agreement shall be subject to
termination by notice given by you to the Company, if (a) after the execution
and delivery of this Agreement and prior to the Closing Date (i) trading
generally shall have been suspended or materially limited on or by, as the case
may be, any of the New York Stock Exchange, the American Stock Exchange, the
National Association of Securities Dealers, Inc., the Chicago Board of Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii)
trading of any securities of the Company shall have been suspended on any
exchange or in any over-the-counter market,
19
21
(iii) a general moratorium on commercial banking activities in New York shall
have been declared by either Federal or New York State authorities or (iv)
there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in your judgment,
is material and adverse and (b) in the case of any of the events specified in
clauses (a)(i) through (iv), such event, singly or together with any other such
event, makes it, in your judgment, impracticable to market the Securities on
the terms and in the manner contemplated in the Prospectus.
9. EFFECTIVENESS; DEFAULTING UNDERWRITERS. This Agreement
shall become effective upon the execution and delivery hereof by the parties
hereto.
If, on the Closing Date, any one or more of the Underwriters
shall fail or refuse to purchase Securities that it has or they have agreed to
purchase hereunder on such date, and the aggregate number of Securities which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate number of the Securities
to be purchased on such date, the other Underwriters shall be obligated
severally in the proportions that the number of Securities set forth opposite
their respective names in Schedule I bears to the number of Securities set
forth opposite the names of all such non-defaulting Underwriters, or in such
other proportions as you may specify, to purchase the Securities which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
on such date; provided that in no event shall the number of Securities that any
Underwriter has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 9 by an amount in excess of one-ninth of such number
of Securities without the written consent of such Underwriter. If, on the
Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase
Securities and the aggregate number of Securities with respect to which such
default occurs is more than one-tenth of the aggregate number of Securities to
be purchased on such date, and arrangements satisfactory to you and the Company
for the purchase of such Securities are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either you or the
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting
20
22
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company shall be unable to perform its obligations under
this Agreement (other than as a direct result of a defaulting Underwriter), the
Company will reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the reasonable fees and disbursements of
their counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering contemplated hereunder.
10. COUNTERPARTS. This Agreement may be signed in two or
more counterparts, each of which shall be an original, with the same effect as
if the signatures thereto and hereto were upon the same instrument.
11. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
12. HEADINGS. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
21
23
Very truly yours,
THE TIMES MIRROR COMPANY
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
_____________________________
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President and
General Counsel
Accepted as of the date hereof
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Acting severally on behalf
of itself and the
several Underwriters named
herein.
By ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
___________________________
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Principal
22
24
SCHEDULE I
Number of
of Securities
Underwriter To Be Purchased
----------- ---------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated 865,000
▇▇▇▇▇ & Company 40,000
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc. 40,000
Everen Securities, Inc. 40,000
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC 40,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc. 40,000
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated 40,000
▇▇▇▇▇▇▇▇ & Company Securities, Inc. 40,000
▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 40,000
▇▇▇▇▇▇▇▇▇▇▇ & Co., Inc. 40,000
Prudential Securities Incorporated 40,000
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇▇, Inc. 40,000
---------
Total................................................. 1,305,000
=========
25
SCHEDULE II
Significant Subsidiaries of the Company
The Baltimore Sun Company
Newsday, Inc.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Inc.
▇▇▇▇▇-Year Book, Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Incorporated
CRC Press, Inc.
The Hartford Courant Company
Jeppesen & Co., GmbH
The Morning Call, Inc.
Times Mirror Higher Education Group, Inc.
Times Mirror Magazines, Inc.
Times Mirror Training, Inc.
Times Mirror Services Company, Inc.