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EXHIBIT 1
PULITZER PUBLISHING COMPANY
COMMON STOCK
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UNDERWRITING AGREEMENT
March __, 1999
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Certain stockholders named in Schedule II hereto (the "Selling
Stockholders") of Pulitzer Publishing Company, a Delaware corporation (the
"Company"), propose, subject to the terms and conditions stated herein, to sell
to ▇▇▇▇▇▇▇, Sachs & Co. (the "Underwriter") an aggregate of 1,000,000 shares
(the "Firm Shares") and, at the election of the Underwriter, up to 126,000
additional shares (the "Optional Shares") of the common stock, par value $.01
per share of the Company (the "Common Stock"). The Firm Shares and the Optional
Shares, which the Underwriter elects to purchase pursuant to Section 2 hereof
are herein collectively called the "Shares".
As issuer of the Shares, the Company is a party to this Agreement.
After the completion of the transactions contemplated by this Agreement, the
Company is expected to complete a tax-free spin-off in which all of the
Company's non-broadcasting assets will be transferred to a subsidiary, the
shares of which will be distributed to the Company's stockholders. Thereafter,
pursuant to an amended and restated merger agreement dated as of May 25, 1998
(the "Merger Agreement"), by and among the Company, such subsidiary and
Hearst-Argyle Television, Inc., a Delaware corporation ("Hearst-Argyle"), the
Company will merge (the "Merger") with and into Hearst-Argyle. In the Merger,
Hearst-Argyle will issue shares of its Series A common stock (the "Hearst-Argyle
Stock") in exchange for the Company's Common Stock, including the Shares, and
its Class B Common Stock, par value $.01 per share (the "Class B Common Stock").
Because the Shares will, upon consummation of the Merger, be exchanged for
shares of Hearst-Argyle Stock (the "Share Exchange"), Hearst-Argyle has agreed
to be a party to this Agreement solely to the extent expressly set forth below.
1. (a) The Company represents and warrants to, and agrees with,
the Underwriter that:
(i) A registration statement on Form S-3 (File No.
333-69701) (the "Initial Registration Statement") in respect
of the Shares has been filed
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with the Securities and Exchange Commission (the
"Commission"); the Initial Registration Statement and any
pre-effective or post-effective amendments thereto, each in
the form heretofore delivered or to be delivered to the
Underwriter and, excluding exhibits to the Initial
Registration Statement, but including all documents
incorporated by reference in the prospectus included therein,
have been declared effective by the Commission in such form;
other than pre-effective amendments to the Initial
Registration Statement and a registration statement, if any,
increasing the size of the offering (a "Rule 462(b)
Registration Statement"), filed pursuant to Rule 462(b) under
the Securities Act of 1933, as amended (the "Act"), which
became effective upon filing and other than Hearst-Argyle's
Registration Statement on Form S-4, no other document with
respect to the Initial Registration Statement or document
incorporated by reference therein has heretofore been filed,
or transmitted for filing, with the Commission; and no stop
order suspending the effectiveness of the Initial Registration
Statement, any pre-effective or post-effective amendments
thereto or the Rule 462(b) Registration Statement, if any, has
been issued and no proceeding for that purpose has been
initiated or threatened by the Commission (any preliminary
prospectus included in the Initial Registration Statement or
filed with the Commission pursuant to Rule 424(a) under the
Act, is hereinafter called a "Preliminary Prospectus"; the
various parts of the Initial Registration Statement and the
Rule 462(b) Registration Statement, if any, including all
exhibits thereto and including (i) the information contained
in the form of final prospectus filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with
Section 5(i) hereof and deemed by virtue of Rule 430A under
the Act to be part of the Initial Registration Statement at
the time it was declared effective and (ii) the documents
incorporated by reference in the prospectus contained in the
Initial Registration Statement at the time such part of the
Initial Registration Statement became effective, each as
amended at the time such part of the Initial Registration
Statement became effective or such part of the Rule 462(b)
Registration Statement, if any, became or hereafter becomes
effective, are hereinafter collectively called the
"Registration Statement"; and such final prospectus, in the
form first filed pursuant to Rule 424(b) under the Act, is
hereinafter called the "Prospectus"; and any reference herein
to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the
Act, as of the date of such Preliminary Prospectus or
Prospectus, as the case may be; and any reference to any
amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any
documents filed after the date of such Preliminary Prospectus
or Prospectus, as the case may be, under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment
to the Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to
Section 13(a) or 15(d) of the Exchange Act after the effective
date of the Initial Registration Statement that is
incorporated by reference in the Registration Statement;
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(ii) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and
each Preliminary Prospectus, at the time of filling thereof,
conformed in all material respects to the requirements of the
Act and the rules and regulations of the Commission
thereunder, and did 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, in
the light of the circumstances under which they were made, not
misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished
in writing to the Company by the Underwriter expressly for use
therein or by a Selling Stockholder expressly for use in the
preparation of the answers therein to Item 7 of Form S-3;
(iii) The documents filed with the Commission by the
Company, including the Joint Proxy Statement/Prospectus of the
Company and Hearst-Argyle (except with respect to information
furnished by Hearst-Argyle expressly for use in such Joint
Proxy Statement/Prospectus), and incorporated by reference in
the Prospectus, when they became effective or were filed with
the Commission, as the case may be, conformed in all material
respects to the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission
thereunder, and, when read together with the other information
in the Prospectus, none of such documents 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, in light of the circumstances in which
they were made, not misleading; and any further documents so
filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents
become effective or are filed by the Company with the
Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission
thereunder and, when read together with the other information
in the Prospectus, at the date of the Prospectus, 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, in light of the
circumstances in which they were made, not misleading;
provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the
Company by the Underwriter expressly for use therein;
(iv) The Registration Statement conforms and the
Prospectus and any further amendments or supplements to the
Registration Statement or the Prospectus will conform, in all
material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder and do not and
will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the
applicable filing date
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as to the Prospectus and any amendment or supplement thereto,
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;
provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the
Company by the Underwriter or Hearst-Argyle expressly for use
therein;
(v) Neither the Company nor any of its subsidiaries
has sustained since the date of the latest audited financial
statements included or incorporated by reference in the
Prospectus any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, which loss or
interference is material to the Company, taken as a whole,
otherwise than as set forth or contemplated in the Prospectus;
and, since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there
has not been any change in the capital stock or long-term debt
of the Company or any of its subsidiaries or any material
adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries,
otherwise than as set forth or contemplated in the Prospectus;
(vi) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, with power and authority
(corporate and other) to own its properties and conduct its
business as described in the Prospectus and has been duly
qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts
any business so as to require such qualification, or is
subject to no material liability or disability by reason of
the failure to be so qualified in any such jurisdiction; and
each subsidiary of the Company has been duly incorporated and
is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation;
(vii) The Company has an authorized capitalization as
set forth in the Prospectus, and all of the issued shares of
capital stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable;
(viii) All of the outstanding shares of capital stock
of the Company, including without limitation the Shares, have
been duly and validly authorized, and such outstanding shares
of capital stock other than the Shares are, and upon
conversion by certain of the Selling Stockholders of the
requisite shares of the Class B Common Stock into Common Stock
as described in the Prospectus (the "Conversion"), the Shares
will be, duly and
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validly issued and fully paid and non-assessable and the
Shares will conform to the description thereof contained in
the Prospectus;
(ix) The compliance by the Company with all of the
provisions of this Agreement and the consummation of the
transactions herein contemplated will not conflict with or
result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is
a party or by which the Company or any of its subsidiaries is
bound or to which any of the property or assets of the Company
or any of its subsidiaries is subject, nor will such action
result in any violation of the provisions of the Certificate
of Incorporation or By-laws of the Company or any statute or
any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company, any of
its subsidiaries or any of its properties; and no consent,
approval, authorization, order, registration or qualification
of or with any such court or governmental agency or body is
required for the issue and sale of the Shares or the
consummation by the Company of the transactions contemplated
by this Agreement, except the registration under the Act of
the Shares and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the Underwriter;
(x) Other than as set forth in the Prospectus, there
are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any
property of the Company or any of its subsidiaries is the
subject, which, if determined adversely to the Company or any
of its subsidiaries, would individually or in the aggregate
have a material adverse effect on the current or future
consolidated financial position, stockholders' equity or
results of operations of the Company and its subsidiaries;
and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(xi) Neither the Company nor any of its subsidiaries
is in violation of its Certificate of Incorporation or By-laws
or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by
which it or any of its properties may be bound;
(xii) The Company is not and, after giving effect to
the offering and sale of the Shares, will not be an
"investment company", as such term is defined in the
Investment Company Act of 1940, as amended (the "Investment
Company Act");
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(xiii) Deloitte & Touche LLP, who have certified
certain financial statements of the Company and its
subsidiaries, are independent public accountants as required
by the Act and the rules and regulations of the Commission
thereunder; and
(xiv) The Company has reviewed its operations and
that of its subsidiaries and any third parties with which the
Company or any of its subsidiaries has a material relationship
to evaluate the extent to which the business or operations of
the Company or any of its subsidiaries will be affected by the
Year 2000 Problem. As a result of such review, except as
disclosed in the Prospectus, the Company has no reason to
believe, and does not believe, that the Year 2000 Problem will
have a material adverse effect on the general affairs,
management, the current or future consolidated financial
position, business prospects, stockholders' equity or results
of operations of the Company and its subsidiaries (a "Material
Adverse Effect") or result in any material loss or
interference with the Company's business or operations. The
"Year 2000 Problem" as used herein means any significant risk
that computer hardware or software used in the receipt,
transmission, processing, manipulation, storage, retrieval,
retransmission or other utilization of data or in the
operation of mechanical or electrical systems of any kind will
not, in the case of dates or time periods occurring after
December 31, 1999, function at least as effectively as in the
case of dates or time periods occurring prior to January 1,
2000.
(b) Each of the Selling Stockholders severally represents and
warrants to, and agrees with, the Underwriter and the Company and
Hearst-Argyle that:
(i) All consents, approvals, authorizations and
orders necessary for the execution and delivery by such
Selling Stockholder of this Agreement and the Power of
Attorney and the Custody Agreement hereinafter referred to,
and for the sale and delivery of the Shares to be sold by such
Selling Stockholder hereunder, have been obtained; and such
Selling Stockholder has full right, power and authority to
enter into this Agreement, the Power-of-Attorney and the
Custody Agreement and to sell, assign, transfer and deliver
the Shares to be sold by such Selling Stockholder hereunder;
(ii) The sale of the Shares to be sold by such
Selling Stockholder hereunder and the compliance by such
Selling Stockholder with all of the provisions of this
Agreement, the Power of Attorney and the Custody Agreement and
the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute
a default under, any statute, indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to
which such Selling Stockholder is a party or by which such
Selling Stockholder is bound or to which any of the property
or assets of such Selling Stockholder is subject, nor will
such action result in any violation of the provisions of the
Certificate of Incorporation or By-laws or similar gov-
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erning instruments of such Selling Stockholder if such Selling
Stockholder is a corporation, foundation or trust or any
statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over such
Selling Stockholder or the property of such Selling
Stockholder;
(iii) Upon the Conversion, such Selling Stockholder
will have, and immediately prior to each Time of Delivery (as
defined in Section 4 hereof) such Selling Stockholder will
have, good and valid title to the Shares to be sold by such
Selling Stockholder hereunder, free and clear of all liens,
encumbrances, equities or claims; and, when the Shares are
delivered pursuant hereto, good and valid title to such
Shares, free and clear of all liens, encumbrances, equities or
claims, will pass to the Underwriter;
(iv) During the period beginning from the date hereof
and continuing to and including, 1999, such Selling
Stockholder will not offer, sell, contract to sell or
otherwise dispose of, except as provided hereunder, any
securities of the Company that are substantially similar to
the Shares, including but not limited to any securities that
are convertible into or exchangeable for, or that represent
the right to receive, stock or any such substantially similar
securities (other than pursuant to employee stock option plans
existing on, or upon the conversion or exchange of convertible
or exchangeable securities outstanding as of, the date of this
Agreement), without the prior written consent of the
Underwriter provided that, for the avoidance of ambiguity
hereunder, the participation in Share Exchange shall not be
deemed to constitute a sale or disposition under this
subsection (iv);
(v) Such Selling Stockholder has not taken and will
not take, directly or indirectly, any action which is designed
to or which has constituted or which might reasonably be
expected to cause or result in stabilization or manipulation
of the price of any security of the Company to facilitate the
sale or resale of the Shares;
(vi) To the extent that any statements or omissions
made in the Registration Statement, any Preliminary
Prospectus, the Prospectus or any amendment or supplement
thereto are made in reliance upon and in conformity with
written information furnished to the Company by such Selling
Stockholder expressly for use therein, such Preliminary
Prospectus and the Registration Statement did, and the
Prospectus and any further amendments or supplements to the
Registration Statement and the Prospectus, when they become
effective or are filed with the Commission, as the case may
be, will, conform in all material respects to the requirements
of the Act and the rules and regulations of the Commission
thereunder and will not contain any untrue statement of a
material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein
not misleading;
(vii) In order to document the Underwriter's
compliance with the reporting and withholding provisions of
the Tax Equity and Fiscal Responsi-
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bility Act of 1982 with respect to the transactions herein
contemplated, such Selling Stockholder will deliver to the
Underwriter prior to or at the First Time of Delivery (as
hereinafter defined) a properly completed and executed United
States Treasury Department Form W-9 (or other applicable form
or statement specified by Treasury Department regulations in
lieu thereof);
(viii) Certificates in negotiable form representing
all of the Shares to be sold by such Selling Stockholder
hereunder have been placed in custody under a Custody
Agreement, in the form heretofore furnished to the Underwriter
(the "Custody Agreement"), duly executed and delivered by such
Selling Stockholder to [NAME OF CUSTODIAN], as custodian (the
"Custodian"), and such Selling Stockholder has duly executed
and delivered a Power of Attorney, in the form heretofore
furnished to the Underwriter (the "Power of Attorney"),
appointing the persons indicated in Schedule III hereto, and
each of them, as such Selling Stockholder's attorneys-in-fact
(the "Attorneys-in-Fact") with authority to execute and
deliver this Agreement on behalf of such Selling Stockholder,
to determine the purchase price to be paid by the Underwriter
to the Selling Stockholders as provided in Section 2 hereof,
to authorize the delivery of the Shares to be sold by such
Selling Stockholder hereunder, and otherwise to act on behalf
of such Selling Stockholder in connection with the
transactions contemplated by this Agreement and the Custody
Agreement; and
(ix) The Shares represented by the certificates held
in custody for such Selling Stockholder under the Custody
Agreement are subject to the interests of the Underwriter
hereunder; the arrangements made by such Selling Stockholder
for such custody, and the appointment by such Selling
Stockholder of the Attorneys-in-Fact by the Power of Attorney,
are to that extent irrevocable and not subject to termination
by such Selling Stockholder or by operation of law; the
obligations of the Selling Stockholders hereunder shall not be
terminated by operation of law, whether by the death or
incapacity of any individual Selling Stockholder or, in the
case of an estate or trust, by the death or incapacity of any
executor or trustee or the termination of such estate or
trust, or in the case of a partnership or corporation, by the
dissolution of such partnership or corporation, or by the
occurrence of any other event; if any individual Selling
Stockholder or any such executor or trustee should die or
become incapacitated, or if any such estate or trust should be
terminated, or if any such partnership or corporation should
be dissolved, or if any other such event should occur, before
the delivery of the Shares hereunder, certificates
representing the Shares shall be delivered by or on behalf of
the Selling Stockholders in accordance with the terms and
conditions of this Agreement and of the Custody Agreements and
all other actions required to be taken hereunder or under the
Custody Agreement shall be taken; and actions taken by the
Attorneys-in-Fact pursuant to the Powers of Attorney and the
Custodian under the Custody Agreement shall be as valid as if
such death, incapacity, termination, dissolution or other
event had not occurred, regardless of whether or not the
Custodian, the
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Attorneys-in-Fact, or any of them, shall have received notice
of such death, incapacity, termination, dissolution or other
event.
(c) Hearst-Argyle represents and warrants to, and agrees with,
the Underwriter and the Company that:
(i) The documents filed with the Commission by
Hearst-Argyle or Argyle Television, Inc., including the Joint
Proxy Statement/Prospectus of the Company and Hearst-Argyle
(but only with respect to information furnished by
Hearst-Argyle expressly for use in such Joint Proxy
Statement/Prospectus), and incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material
respects to the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission
thereunder, and, when read together with the other information
in the Prospectus, none of such documents 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, in light of the circumstances in which
they were made, not misleading; and any further documents so
filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents
become effective or are filed by Hearst-Argyle with the
Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission
thereunder and, when read together with the other information
in the Prospectus, at the date of the Prospectus, 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, in light of the
circumstances under which they were made, not misleading;
(ii) All information relating to Hearst-Argyle
contained in the Registration Statement, the Prospectus and
any further amendments or supplements to the Registration
Statement or the Prospectus, when they become effective or are
filed with the Commission, as the case may be, do not and will
not as of the appropriate effective date (as to the
Registration Statement and any amendments thereto) and as to
the appropriate filing date (as to the Prospectus and any
amendment or supplement thereto) contain any untrue statement
of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements
therein not misleading;
(iii) Since the respective dates as of which
information is given in the Prospectus, there has not been any
material adverse change, or any development which could
reasonably be expected to cause a material adverse change, in
the general affairs, management, financial position or results
of operations of Hearst-Argyle and its subsidiaries, taken as
a whole, otherwise than as set forth or contemplated in the
Prospectus;
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2. Subject to the terms and conditions herein set forth, each of
the Selling Stockholders agrees, severally and not jointly, to
sell to the Underwriter, and the Underwriter agrees to
purchase from each of the Selling Stockholders, at a purchase
price per share of $..........., (a) the number of Firm Shares
set forth beside such Selling Stockholder's name on Schedule
II hereto and (b) in the event and to the extent that the
Underwriter shall exercise the election to purchase Optional
Shares as provided below, each of the Selling Stockholders
agrees, severally and not jointly, to sell to the Underwriter,
and the Underwriter agrees to purchase from each of the
Selling Stockholders, at the purchase price per share set
forth in this Section 2, the Optional Shares as provided
below.
The Selling Stockholders, as and to the extent indicated in
Schedule I hereto, hereby grant, severally and not jointly, to
the Underwriter the right to purchase at its election up to
126,000 Optional Shares, at the purchase price per share set
forth in the paragraph above, for the sole purpose of covering
over-allotments in the sale of the Firm Shares. Any such
election to purchase Optional Shares shall be made in
proportion to the number of Optional Shares to be sold by each
Selling Stockholder selling Optional Shares. Any such election
to purchase Optional Shares may be exercised only by written
notice from the Underwriter to the Attorneys-in-Fact, given
within a period of 30 calendar days after the date of this
Agreement, but in no event later than the fifth business day
prior to the effective time of the Merger, and setting forth
the aggregate number of Optional Shares to be purchased and
the date on which such Optional Shares are to be delivered, as
determined by you but in no event shall the date of such
purchase be earlier than the First Time of Delivery (as
defined in Section 4 hereof) or, unless you and the
Attorneys-in-Fact otherwise agree in writing, later than one
business day prior to the effective time of the Merger.
3. Upon the authorization by you of the release of the
Firm Shares, the Underwriter proposes to offer the Firm Shares
for sale upon the terms and conditions set forth in the
Prospectus.
4. (a) The Shares to be purchased by the Underwriter hereunder,
in definitive form, and in such authorized denominations and
registered in such names as the Underwriter may request upon
at least forty-eight hours prior notice to the Selling
Stockholders shall be delivered by or on behalf of the Selling
Stockholders to the Underwriter, through the facilities of the
Depository Trust Company ("DTC"), for the account of the
Underwriter, against payment by or on behalf of the
Underwriter of the purchase price therefor by wire transfer of
Federal (same-day) funds to the account specified by [the
Custodian] [each of the Selling Stockholders][, as their
interests may appear,] to the Underwriter at least forty-eight
hours in advance. The Company will cause the certificates
representing the Shares to be made available for checking and
packaging at least twenty-four hours prior to the Time of
Delivery (as defined below) with respect thereto at the office
of DTC or its designated custodian (the "Designated Office").
The time and date of such delivery and payment
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shall be, with respect to the Firm Shares, 9:30 a.m., New York
time, on ............., 19.. or such other time and date as
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. and the Selling Stockholders may agree
upon in writing, and, with respect to the Optional Shares,
9:30 a.m., New York time, on the date specified by ▇▇▇▇▇▇▇,
Sachs & Co. in the written notice given by ▇▇▇▇▇▇▇, ▇▇▇▇▇ &
Co. of the Underwriter's election to purchase such Optional
Shares, or such other time and date as ▇▇▇▇▇▇▇, Sachs & Co.
and the Selling Stockholders may agree upon in writing. Such
time and date for delivery of the Firm Shares is herein called
the "First Time of Delivery", such time and date for delivery
of the Optional Shares, if not the First Time of Delivery, is
herein called the "Second Time of Delivery", and each such
time and date for delivery is herein called a "Time of
Delivery".
(b) The documents to be delivered at each Time of Delivery by
or on behalf of the parties hereto pursuant to Section 7
hereof, including the cross receipt for the Shares and any
additional documents requested by the Underwriter pursuant to
Section 7(l) hereof, will be delivered at the offices of
[Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇] (the "Closing Location"), and the
Shares will be delivered at the Designated Office, all at such
Time of Delivery. A meeting will be held at the Closing
Location at .......p.m., New York City time, on the New York
Business Day next preceding such Time of Delivery, at which
meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for
review by the parties hereto. For the purposes of this Section
4, "New York Business Day" shall mean each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York are generally authorized or
obligated by law or executive order to close.
5. The Company agrees with the Underwriter:
(i) To prepare the Prospectus in a form approved by
the Underwriter and to file such Prospectus pursuant to Rule
424(b) under the Act not later than the Commission's close of
business on the second business day following the execution
and delivery of this Agreement or, if applicable, such earlier
time as may be required by Rule 430A(a)(3) under the Act; to
make no further amendment or any supplement to the
Registration Statement or Prospectus prior to the last Time of
Delivery which shall be disapproved by the Underwriter
promptly after reasonable notice thereof; to advise the
Underwriter, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been
filed or becomes effective or any supplement to the Prospectus
or any amended Prospectus has been filed and to furnish the
Underwriter with copies thereof; to file promptly all reports
and any definitive proxy or information statements required to
be filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the Prospectus and for so long as
the delivery of a prospectus is required in connection with
the offering or sale of the Shares, and during
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such same period to advise the Underwriter, promptly after it
receives notice thereof, of the issuance by the Commission of
any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus or prospectus, of the
suspension of the qualification of such Shares for offering or
sale in any jurisdiction, of the initiation or threatening of
any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any such
stop order or of any such order preventing or suspending the
use of any Preliminary Prospectus or prospectus or suspending
any such qualification, promptly to use its best efforts to
obtain the withdrawal of such order;
(ii) Promptly from time to time to take such action
as the Underwriter may reasonably request to qualify the
Shares for offering and sale under the securities laws of such
jurisdictions as the Underwriter may request and to comply
with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Shares, provided
that in connection therewith the Company shall not be required
to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction;
(iii) Prior to 10:00 A.M., New York City time, on the
New York Business Day next succeeding the date of this
Agreement and from time to time, to furnish the Underwriter
with copies of the Prospectus in New York City in such
quantities as the Underwriter may reasonably request, and, if
the delivery of a prospectus is required at any time prior to
the expiration of nine months after the time of issuance of
the Prospectus in connection with the offering or sale of the
Shares and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit
to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary
during such period to amend or supplement the Prospectus or to
file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act or
the Exchange Act, to notify the Underwriter and upon its
request to file such document and to prepare and furnish
without charge to the Underwriter and to any dealer in
securities as many copies as the Underwriter may from time to
time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement
or omission or effect such compliance, and in case the
Underwriter is required to deliver a prospectus in connection
with sales of any of the Shares at any time nine months or
more after the time of issue of the Prospectus, upon the
Underwriter's request but at the expense of the Underwriter,
to prepare and deliver to the Underwriter as many copies as
the Underwriter may request of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the Act;
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(iv) To make generally available to its security
holders as soon as practicable, but in any event not later
than eighteen months after the effective date of the
Registration Statement (as defined in Rule 158(c) under the
Act), an earnings statement of the Company or its successor
and its subsidiaries (which need not be audited) complying
with Section 11(a) of the Act and the rules and regulations of
the Commission thereunder (including, at the option of the
Company, Rule 158);
(v) During the period beginning from the date hereof
and continuing to and including the date ninety days after the
date of the Prospectus, not to offer, sell, contract to sell
or otherwise dispose of, except as provided hereunder, any
securities of the Company that are substantially similar to
the Shares, including but not limited to any securities that
are convertible into or exchangeable for, or that represent
the right to receive, Common Stock or any such substantially
similar securities (other than pursuant to employee stock
option plans existing on, or upon the conversion or exchange
of convertible or exchangeable securities outstanding as of,
the date of this Agreement), without the Underwriter's prior
written consent, provided that, for the avoidance of ambiguity
hereunder, the Share Exchange shall not be deemed to
constitute a sale or disposition under this subsection (v);
(vi) If the Company elects to rely upon Rule 462(b),
the Company shall file a Rule 462(b) Registration Statement
with the Commission in compliance with Rule 462(b) by 10:00
P.M., Washington, D.C. time, on the date of this Agreement,
and the Company shall at the time of filing either pay the
Commission the filing fee for the Rule 462(b) Registration
Statement or give irrevocable instructions for the payment of
such fee pursuant to Rule 111(b) under the Act; and
5. The Company and each of the Selling Stockholders covenant and
agree with one another and with the Underwriter that the
Company will pay or cause to be paid the following:(i)the
fees, disbursements and expenses of the Company's counsel and
accountants in connection with the registration of the Shares
under the Act and all other expenses in connection with the
preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriter and dealers;
(ii)the cost of printing or producing any Agreement among
Underwriters, this Agreement, any Blue Sky Memorandum,
closing documents (including compilations thereof) and any
other documents in connection with the offering, purchase,
sale and delivery of the Shares; (iii)all expenses in
connection with the qualification of the Shares for offering
and sale under state securities laws as provided in Section
5(ii) hereof, including the fees and disbursements of counsel
for the Underwriter in connection with such qualification and
in connection with the Blue Sky survey(s);(iv)the cost of
preparing certificates for the Shares;(v)the cost and charges
of any transfer
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agent or registrar or dividend disbursing agent; and all other
costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however,
that, except as provided in this Section, and Sections 8 and
10 hereof, the Underwriter will pay all of its own costs and
expenses, including the fees of its counsel, transfer taxes on
resale of any of the Shares by it, and any advertising
expenses connected with any offers it may make.
7. The obligations of the Underwriter hereunder shall be subject,
in the discretion of the Underwriter, to the condition that
all representations and warranties and other statements of the
Company, the Selling Stockholders and Hearst-Argyle herein
are, at and as of each Time of Delivery, true and correct, the
condition that the Company, the Selling Stockholders and
Hearst-Argyle shall have performed all of their respective
obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in
accordance with Section 5(a) hereof; if the Company has elected to rely
upon Rule 462(b), the Rule 462(b) Registration Statement shall have
become effective by 10:00 P.M., Washington, D.C. time, on the date of
this Agreement; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and
no proceeding for that purpose shall have been initiated or threatened
by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with to the
Underwriter's reasonable satisfaction;
(b) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the
Underwriter, shall have furnished to the Underwriter such written
opinion or opinions (a draft of each such opinion is attached as Annex
II(a) hereto), dated such Time of Delivery, with respect to the matters
covered in paragraphs (i), (ii), (v), (x), (xi) and (xii) of subsection
(c) below as well as such other related matters as the Underwriter may
reasonably request, and such counsel shall have received such papers
and information as they may reasonably request to enable them to pass
upon such matters;
(c) Fulbright & ▇▇▇▇▇▇▇▇ L.L.P., counsel for the Company,
shall have furnished to the Underwriter their written opinion (a draft
of each such opinion is attached as Annex II(b) hereto), dated each
Time of Delivery, in form and substance satisfactory to the
Underwriter, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of
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Delaware, with corporate power and authority to own its
properties and conduct its business as described in the
Prospectus;
(ii) The Company has an authorized capitalization as
set forth in the Prospectus, and all of the issued shares of
capital stock of the Company, including without limitation the
Shares, have been duly and validly authorized and issued and
are fully paid and non-assessable;
(iii) The Shares conform to the description thereof
contained in the Prospectus;
(iv) To the best of such counsel's knowledge and
other than as set forth in the Prospectus, there are no legal
or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or of which any property of
the Company or any of its subsidiaries is the subject which,
if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a
material adverse effect on the current or future consolidated
financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, taken as a
whole; and to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(v) This Agreement has been duly authorized, executed
and delivered by the Company;
(vi) The Merger Agreement has been duly authorized,
executed and delivered and is a valid and binding agreement of
the Company, enforceable in accordance with its terms except
as the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights
generally or by equitable principles of general applicability;
and the Merger Agreement conforms in all material respects to
the description thereof in the Prospectus;
(vii) The compliance by the Company with all of the
provisions of this Agreement and the consummation of the
transactions herein contemplated will not conflict with or
result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company or any
of its subsidiaries is a party or by which the Company or any
of its subsidiaries is bound or to which any of the property
or assets of the Company or any of its subsidiaries is
subject, except a conflict, breach, violation or default which
would not do any of the following: (1) in any way adversely
affect the ability of the Company to comply with all of the
provisions of this Agreement; (2) in any way adversely affect
the consummation of the transactions herein contemplated; or
(3) have a material adverse effect on the current or future
consolidated financial position, stockholders' equity or
results of operations of the Company and its
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subsidiaries, taken as a whole, nor will such action result in
any violation of the provisions of the Certificate of
Incorporation or By-laws of the Company or any statute or any
order, rule or regulation known to such counsel of any court
or governmental agency or body having jurisdiction over the
Company, any of its subsidiaries or any of its properties;
(viii) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale
of the Shares or the consummation by the Company of the
transactions contemplated by this Agreement, except such as
have been obtained under the Act and such consents, approvals,
authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Shares by the
Underwriter;
(ix) To the best of such counsel's knowledge, neither
the Company nor any of its subsidiaries is in violation of its
Certificate of Incorporation or By-laws or in default in the
performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other
agreement or instrument known to such counsel to which the
Company is a party or by which it or any of its properties may
be bound and which is material to the Company and its
subsidiaries, taken as a whole;
(x) The Company is not an "Investment Company", as
such term is defined in the Investment Company Act;
(xi) The documents filed by the Company and
incorporated by reference in the Prospectus or any further
amendment or supplement thereto made by the Company prior to
such Time of Delivery (other than the financial statements and
related schedules therein, as to which such counsel need
express no opinion), when they became effective or were filed
with the Commission, as the case may be, complied as to form
in all material respects with the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder; and
(xii) The Registration Statement and the Prospectus
and any further amendments and supplements thereto made by the
Company prior to such Time of Delivery (other than the
financial statements and related schedules therein and the
documents filed by Hearst-Argyle and incorporated by reference
in the Prospectus, as to which such counsel need express no
opinion), comply as to form in all material respects with the
requirements of the Act and the rules and regulations
thereunder.
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In rendering such opinion, such counsel shall state that, although it
has not undertaken, except as otherwise indicated, to determine independently,
and does not assume any responsibility for, the accuracy, completeness or
fairness of the statements in the Registration Statement, it has participated in
the preparation of the Registration Statement and the Prospectus of the Company,
including review and discussion of the contents thereof, and, relying as to
materiality with regard to factual matters to a certain extent upon officers and
other representatives of the Company, nothing has come to such counsel's
attention that has caused it to believe that the Registration Statement, at the
time the Registration Statement became effective and at each Time of Delivery,
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, as of its date and at each Time of
Delivery, or any documents filed by the Company with the Commission and
incorporated by reference in the Prospectus (including the Joint Proxy
Statement/Prospectus of the Company and Hearst-Argyle), at the time they were
filed with the Commission, at the date of the Prospectus and at each Time of
Delivery, contained an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading (it being understood
that (i) such counsel does not express any opinion with respect to the financial
statements or other financial information and schedules included in the
Registration Statement or the Prospectus or such incorporated documents and (ii)
such counsel does not express any opinion with respect to any statements or
omissions made in reliance upon and in conformity with information furnished in
writing to the Company by Hearst-Argyle expressly for use in the Registration
Statement or the Prospectus or with respect to any documents filed with the
Commission by Hearst-Argyle (except for the Joint Proxy Statement/Prospectus of
the Company and Hearst-Argyle, exclusive of any information furnished by
Hearst-Argyle expressly for use in such Joint Proxy Statement/Prospectus), and
incorporated by reference in the Prospectus.
(d) Each of Fulbright & ▇▇▇▇▇▇▇▇ L.L.P., the counsel for each
of the Selling Stockholders, other than the ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
1998 Charitable Remainder Trust and the ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 1999
Charitable Remainder Trust, and Debevoise & ▇▇▇▇▇▇▇▇, the counsel for
the ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 1998 Charitable Remainder Trust and the
▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 1999 Charitable Remainder Trust, as indicated
on Schedule III hereto, shall have furnished to you their written
opinion with respect to each of the respective Selling Stockholders for
whom they are acting as counsel (a draft of each such opinion is
attached as Annex II(c) hereto), dated such Time of Delivery, in form
and substance satisfactory to the Underwriter, to the effect that:
(i) A Power-of-Attorney and a Custody Agreement have
been duly executed and delivered by such Selling Stockholder
(except that an opinion need not be given with respect to a
Power-of-Attorney by counsel for the ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
1998 Charitable Remainder Trust and the ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ 1999 Charitable Remainder Trust) and constitute valid
and binding agreements of such Selling Stockholder in
accordance with their terms;
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(ii) This Agreement has been duly executed and
delivered by or on behalf of such Selling Stockholder; and the
sale of the Shares to be sold by such Selling Stockholder
hereunder and the compliance by such Selling Stockholder with
all of the provisions of this Agreement, the Power of Attorney
and the Custody Agreement and the consummation of the
transactions herein and therein contemplated will not conflict
with or result in a breach or violation of any terms or
provisions of, or constitute a default under, any statute,
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which such
Selling Stockholder is a party or by which such Selling
Stockholder is bound or to which any of the property or assets
of such Selling Stockholder is subject, nor will such action
result in any violation of the provisions of the Certificate
of Incorporation or By-laws or similar governing documents of
such Selling Stockholder if such Selling Stockholder is a
corporation, a foundation or a trust or any order, statute,
rule or regulation known to such counsel of any court or
governmental agency or body of the United States or the State
of New York having jurisdiction over such Selling Stockholder
or the property of such Selling Stockholder;
(iii) No consent, approval, authorization or order of
any United States or New York court or governmental agency or
body is required for the consummation of the transactions
contemplated by this Agreement in connection with the Shares
to be sold by such Selling Stockholder hereunder, except [NAME
ANY SUCH CONSENT, APPROVAL, AUTHORIZATION OR ORDER] which
[HAS] [HAVE] been duly obtained and [IS] [ARE] in full force
and effect, such as have been obtained under the Act and such
as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of such Shares
by the Underwriter; and
(iv) Upon (A) payment for the Shares to be sold by
such Selling Stockholder in accordance with this Agreement,
(B) registration of the transfer of such Shares to, and
registration of such Shares in the name of, Cede & Co. or such
other nominee designated by DTC and (C) the crediting of such
Shares to the account maintained by DTC for the Underwriter,
assuming such account is a "securities account" (as defined in
Section 8-501 of the Uniform Commercial Code as currently in
effect in the State of New York (the "UCC")), (1) the
Underwriter will acquire "security entitlement" (as based on
an "adverse claim" (as defined in Section 8-102 of the UCC) in
respect of such shares and (2) no action based on an "adverse
claim" (as defined in Section 8-102 of the UCC) to such Shares
may be asserted against the Underwriter with respect to such
security entitlement, assuming that the Underwriter does not
have "notice" (within the meaning of Section 8- 105 of the
UCC) of any "adverse claim" as defined in Section 8-102 of
the UCC to such Shares.
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any juxrisdiction other than the United States and the
State of New York.
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(e) ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for Hearst-Argyle, shall have
furnished to the Underwriter their written opinions (a draft of each
such opinion is attached as Annex I(d) hereto), dated each Time of
Delivery, respectively, in form and substance satisfactory to the
Underwriter, to the effect that the Merger Agreement has been duly
authorized, executed and delivered by Hearst-Argyle and is a valid and
binding agreement of Hearst-Argyle, enforceable in accordance with its
terms except as the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally or by equitable principles of general applicability.
In rendering such opinion, such counsel may state that its 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
Hearst-Argyle 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
documents filed with the Commission by Hearst-Argyle and incorporated by
reference in the Prospectus, at the time they were filed with the Commission, at
the date of the Prospectus and at each Time of Delivery, contained an untrue
statement of a material fact or omitted to state a material fact necessary 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 or omitted from such documents, 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 such documents, the Registration Statement or the Prospectus.
(f) On the date of the Prospectus, at a time prior to the
execution of this Agreement, at 9:30 a.m., New York City time, on the
effective date of any post-effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at
each Time of Delivery, Deloitte & Touche, LLP, the independent
accountants of the Company who have certified the financial statements
of the Company and its subsidiaries included or incorporated by
reference in the Registration Statement, shall have furnished to the
Underwriter a letter or letters, dated the respective dates of delivery
thereof, in form and substance satisfactory to the Underwriter, to the
effect set forth in Annex II hereto (the executed copy of the letter
delivered prior to the execution of this Agreement is attached as Annex
I(a) hereto and a draft of the form of letter to be delivered on the
effective date of any post-effective amendment to the Registration
Statement is attached as Annex I(b) hereto);
(g) On the date of the Prospectus at a time prior to the
execution of this Agreement, at 9:30a.m., New York City time, on the
effective date of any post-effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at
each time of Delivery, Deloitte & Touche, LLP, the
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independent accountants of Hearst-Argyle who have certified the
financial statements of Hearst-Argyle and its subsidiaries included or
incorporated by reference in the Registration Statement, shall have
furnished to the Underwriter a letter or letters, dated the respective
dates of delivery thereof, in form and substance satisfactory to the
Underwriter, to the effect set forth in Annex II hereto (the executed
copy of the letter delivered prior to the execution of this Agreement
is attached as Annex I(a) hereto and a draft of the form of letter to
be delivered on the effective date of any post-effective amendment to
the Registration Statement is attached as Annex I(b) hereto);
(h) (i) Neither the Company, Hearst-Argyle nor any of their
respective subsidiaries shall have sustained since the date of the
latest audited financial statements included or incorporated by
reference in the Prospectus any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in
the Prospectus, and (ii) since the respective dates as of which
information is given in the Prospectus there shall not have been any
change in the capital stock or long-term debt of the Company,
Hearst-Argyle, or any of their respective subsidiaries or any change,
or any development involving a prospective change, in or affecting the
general affairs, management, financial position, stockholders' equity
or results of operations of the Company, Hearst-Argyle, or any of their
respective subsidiaries, otherwise than as set forth or contemplated in
the Prospectus, the effect of which, in any such case described in
Clause (i) or (ii), is in the judgment of the Underwriter so material
and adverse as to make it impracticable or inadvisable to proceed with
the public offering or the delivery of the Shares being delivered at
such Time of Delivery on the terms and in the manner contemplated in
the Prospectus;
(i) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's or Hearst-Argyle's debt
securities or preferred stock by any "nationally recognized statistical
rating organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act, and (ii) no such organization
shall have publicly announced that it has under surveillance or review,
with possible negative implications, its rating of any of the Company's
debt securities or preferred stock;
(j) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange; (ii) a
suspension or material limitation in trading in the Company's or
Hearst-Argyle's securities on the New York Stock Exchange; (iii) a
general moratorium on commercial banking activities declared by either
Federal or New York State authorities; or (iv) the outbreak or
escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if the
effect of any such event specified in this Clause (iv) in the judgment
of the Underwriter makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Shares being delivered
at the Time of Delivery on the terms and in the manner contemplated in
the Prospectus;
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(k) The Shares at each Time of Delivery shall have been duly
listed on the New York Stock Exchange;
(l) The Company shall have complied with the provisions of
Section 5(iii) hereof with respect to the furnishing of prospectuses on
the New York Business Day next succeeding the date of this Agreement;
and
(m) The Company and the Selling Stockholders shall have
furnished or caused to be furnished to the Underwriter at each Time of
Delivery certificates of officers of the Company and of the Selling
Stockholders, respectively, satisfactory to the Underwriter as to the
accuracy of the representations and warranties of the Company and of
the Selling Stockholders, respectively, herein at and as of such Time
of Delivery, as to the performance by the Company and the Selling
Stockholders of all of their respective obligations hereunder to be
performed at or prior to such Time of Delivery and as to such other
matters as the Underwriter may reasonably request, and the Company
shall have furnished or caused to be furnished certificates as to the
matters set forth in subsections (a) and (h) of this Section.
8. (a) The Company and each of the Selling Stockholders, jointly
and severally, will indemnify and hold harmless the Underwriter against
any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement, the Prospectus, any
amendment or supplement thereto, or any of the documents incorporated
by reference in the Prospectus, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and will reimburse the Underwriter for any legal or other
expenses reasonably incurred by the Underwriter in connection with
investigating or defending any such action or claim as such expenses
are incurred; provided, however, that the Company and the Selling
Stockholders shall not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration
Statement, the Prospectus, or any such amendment or supplement in
reliance upon and in conformity with written information furnished to
the Company by the Underwriter expressly for use therein and provided
further that the indemnification obligation of each Selling Stockholder
under this subsection 8(a) shall be limited to (i) such Selling
Stockholder's pro rata portion of any indemnification obligation
arising under this subsection 8(a), based upon the percentage of the
total Shares sold by such Selling Stockholder, and (ii) the actual net
proceeds (before deducting expenses) received by such Selling
Stockholder from the sale by such Selling Stockholder of Shares
hereunder.
(b) The Underwriter will indemnify and hold harmless the
Company and each Selling Stockholder against any losses, claims,
damages or liabilities to which the Company, Hearst-Argyle or such
Selling Stockholder may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any
Preliminary Prospectus,
21
22
the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission
was made in any Preliminary Prospectus, the Registration Statement, the
Prospectus, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by the
Underwriter expressly for use therein; and will reimburse the Company
and each Selling Stockholder for any legal or other expenses reasonably
incurred by the Company or such Selling Stockholder in connection with
investigating or defending any such action or claim as such expenses
are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify
the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought against
any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and, after notice from the indemnifying party
to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified
party under such subsection for any legal expenses of other counsel or
any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without
the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to,
any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not
the indemnified party is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include any
statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received
by the Company and the Selling Stockholders on the one hand and the
Underwriter on the other from the offering of the
22
23
Shares. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection
(c) above, then each indemnifying party shall contribute to such amount
paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the Company and the Selling Stockholders on the one
hand and the Underwriter on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by
the Company and the Selling Stockholders on the one hand and the
Underwriter on the other shall be deemed to be in the same proportion
as the total net proceeds from such offering (before deducting
expenses) received by the Selling Stockholders bear to the total
underwriting discounts and commissions received by the Underwriter. The
relative fault 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 the Selling Stockholders on the
one hand or the Underwriter on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and each of the Selling
Stockholders and the Underwriter agree that it would not be just and
equitable if contributions pursuant to this subsection (d) were
determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to
above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include 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 subsection (d), the Underwriter shall not be
required to contribute any amount in excess of the amount by which the
total price at which the Shares were offered to the public exceeds the
amount of any damages which the 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 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The obligations of the Company and the Selling
Stockholders under this Section 8 shall be in addition to any liability
which the Company and the respective Selling Stockholders may otherwise
have and shall extend, upon the same terms and conditions, to each
person, if any, who controls the Underwriter within the meaning of the
Act; and the obligations of the Underwriter under this Section 8 shall
be in addition to any liability which the Underwriter may otherwise
have and shall extend, upon the same terms and conditions, to each
officer and director of the Company and to each person, if any, who
controls the Company or any Selling Stockholder within the meaning of
the Act.
9. The respective indemnities, agreements, representations,
warranties and other statements of the Company, the Selling
Stockholders, Hearst- Argyle and the Underwriter, as set forth in this
Agreement or made by or on behalf of them, respec-
23
24
tively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to the
results thereof) made by or on behalf of the Underwriter or any
controlling person of the Underwriter, or the Company, or any officer
or director or controlling person of the Company, or any of the Selling
Stockholders or any controlling person of any Selling Stockholder, or
Hearst-Argyle or any officer or director or controlling person of
Hearst-Argyle, and shall survive delivery of and payment for the
Shares.
10. If for any reason, any Shares are not delivered by or on
behalf of the Selling Stockholders as provided herein, each of the
Selling Stockholders pro rata (based on the number of Shares to be sold
by such Selling Stockholder) will reimburse the Underwriter for all
out-of-pocket expenses approved in writing by the Underwriter,
including fees and disbursements of counsel, reasonably incurred by the
Underwriter in making preparations for the purchase, sale and delivery
of such Shares, but the Company and the Selling Stockholders shall then
be under no further liability to the Underwriter in respect of the
Shares not so delivered except as provided in Sections 6 and 8 hereof.
11. In all dealings with any Selling Stockholder hereunder, the
Underwriter and the Company shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of such Selling
Stockholder made or given by any or all of the Attorneys-in-Fact for
such Selling Stockholder.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriter shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Underwriter as set forth in this
Agreement; if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Secretary, with a copy to Fulbright &
▇▇▇▇▇▇▇▇ L.L.P., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, Esq.; if to any Selling Stockholder, other than the ▇▇▇▇▇ and
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 1998 Charitable Remainder Trust and the ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ 1999 Charitable Remainder Trust, shall be delivered or sent by mail, telex
or facsimile transmission to Fulbright & ▇▇▇▇▇▇▇▇ L.L.P., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., and if to the ▇▇▇▇▇
and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 1998 Charitable Remainder Trust or the ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ 1999 Charitable Remainder Trust, shall be delivered or sent by mail, telex
or facsimile transmission to Debevoise & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: [ ]; and if to Hearst-Argyle shall be delivered or
sent by mail, telex or facsimile transmission to Hearst-Argyle Television, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: Secretary, with a copy
to ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.; provided, however, that any notice to the Underwriter
pursuant to Section 8(c) hereof shall be delivered or sent by mail, telex or
facsimile transmission to such Underwriter at its address set forth on the first
page of this Agreement. Any such statements, requests, notices or agreements
shall take effect upon receipt thereof.
12. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriter, the Company, Hearst-Argyle (but only to
the extent expressly set forth herein), the Selling Stockholders and,
to the extent provided in Sections 8 and 9
24
25
hereof, the officers and directors of the Company and each person who
controls the Company, any Selling Stockholder, the officers and
directors of Hearst-Argyle and each person who controls Hearst-Argyle
(but only to the extent expressly set forth herein), or the
Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any
right under or by virtue of this Agreement. No purchaser of any of the
Shares from the Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
13. Time shall be of the essence of this Agreement. As used
herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
14. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
15. This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, each of which shall be
deemed to be an original, but all such respective counterparts shall
together constitute one and the same instrument.
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26
[IF THE FOREGOING IS IN ACCORDANCE WITH YOUR UNDERSTANDING, PLEASE SIGN
AND RETURN TO US [ONE FOR THE COMPANY, ONE FOR EACH SELLING STOCKHOLDER, ONE FOR
HEARST- ARGYLE AND ONE FOR THE UNDERWRITER PLUS ONE FOR EACH COUNSEL]
COUNTERPARTS HEREOF.]
Very truly yours,
Pulitzer Publishing Company
By:
--------------------------------------
Name:
Title:
Hearst-Argyle Television, Inc.
By:
--------------------------------------
Name:
Title:
Selling Stockholders:
The Pulitzer Family Trust
By:
--------------------------------------
Name:
Title:
Spring Foundation
By:
--------------------------------------
Name:
Title:
The ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
1998 Charitable Remainder Trust
By:
-------------------------------------
Name:
Title:
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27
The ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
1999 Charitable Remainder Trust
By:
----------------------------------
Name:
Title:
U/I/T dtd 3/22/82 F/B/O
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
By:
----------------------------------
Name:
Title:
The Ceil and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Foundation, Inc.
By:
----------------------------------
Name:
Title:
Accepted as of the date hereof:
▇▇▇▇▇▇▇, Sachs & Co.
By:
--------------------------------------
(▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.)
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SCHEDULE I
Maximum Number
of Optional
Number of Shares Which
Firm Shares May be
Underwriter to be Purchased Purchased
----------- --------------- ---------
▇▇▇▇▇▇▇, Sachs & Co. 1,000,000 126,000
------------------- ---------------
Total................................. 1,000,000 126,000
========== ========
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SCHEDULE II
Number of Optional
Shares to be
Total Number of Sold if
Firm Shares Maximum Option
to be Sold Exercised
---------- ---------
The Selling Stockholders:
(a) ▇▇▇▇▇ ▇▇▇▇ Pulitzer, as Trustee of The Pulitzer Family Trust
(b) Spring Foundation
(c) ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇, as Trustees
of the ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 1998 Charitable
Remainder Trust
(d) ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇, as Trustees
of the ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 1999 Charitable
Remainder Trust
(e) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee, U/I/T dtd 3/22/82 F/B/O ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
(f) The Ceil and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Foundation, Inc.
Total 1,000,000 126,000
(a) This Selling Stockholder is represented by FULBRIGHT & ▇▇▇▇▇▇▇▇ L.L.P., NEW
YORK, NEW YORK and has appointed [NAMES OF ATTORNEYS-IN-FACT (NOT LESS THAN
TWO)], and each of them, as the Attorneys-in-Fact for such Selling Stockholder.
(b) This Selling Stockholder is represented by FULBRIGHT & ▇▇▇▇▇▇▇▇ L.L.P., NEW
YORK, NEW YORK and has appointed [NAMES OF ATTORNEYS-IN-FACT (NOT LESS THAN
TWO)], and each of them, as the Attorneys-in-Fact for such Selling Stockholder.
(c) This Selling Stockholder is represented by DEBEVOISE & ▇▇▇▇▇▇▇▇, NEW YORK,
NEW YORK.
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30
(d) This Selling Stockholder is represented by DEBEVOISE & ▇▇▇▇▇▇▇▇, NEW YORK,
NEW YORK.
(e) This Selling Stockholder is represented by FULBRIGHT & ▇▇▇▇▇▇▇▇, NEW YORK,
NEW YORK and has appointed [NAMES OF ATTORNEYS-IN-FACT (NOT LESS THAN TWO)], and
each of them, as the Attorneys-in-Fact for such Selling Stockholder.
(f) This Selling Stockholder is represented by FULBRIGHT & ▇▇▇▇▇▇▇▇, NEW YORK,
NEW YORK and has appointed [NAMES OF ATTORNEYS-IN-FACT (NOT LESS THAN TWO)], and
each of them, as the Attorneys-in-Fact for such Selling Stockholder.
30
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SCHEDULE III
Attorneys-in-Fact
Fulbright & ▇▇▇▇▇▇▇▇ L.L.P., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as to
▇▇▇▇▇ ▇▇▇▇ Pulitzer as Trustee of the Pulitzer Family Trust, Spring Foundation,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee, U/I/T dtd 3/22/82 F/B/O ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and
The Ceil and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Foundation, Inc.
1
32
ANNEX II
Pursuant to Section 7(f) and 7(g) of the Underwriting Agreement, the
accountants shall furnish letters to the Underwriters to the effect that:
(i) They are independent
certified public accountants with respect to the Company and its
subsidiaries within the meaning of the Act and the applicable published
rules and regulations thereunder;
(ii) In their
opinion, the financial statements
and any supplementary financial
information and schedules (and, if
applicable, financial forecasts
and/or pro forma financial
information) examined by them and
included or incorporated by
reference in the Registration
Statement or the Prospectus comply
as to form in all material respects
with the applicable accounting
requirements of the Act or the
Exchange Act, as applicable, and the
related published rules and
regulations thereunder; and, if
applicable, they have made a review
in accordance with standards
established by the American
Institute of Certified Public
Accountants of the consolidated
interim financial statements,
selected financial data, pro forma
financial information, financial
forecasts and/or condensed financial
statements derived from audited
financial statements of the Company
for the periods specified in such
letter, as indicated in their
reports thereon, copies of which
have been [SEPARATELY] furnished to
the Underwriter (the
"Underwriter")[AND ARE ATTACHED
HERETO];
(iii)
They have made a review in
accordance with standards
established by the American
Institute of Certified Public
Accountants of the unaudited
condensed consolidated statements of
income, consolidated balance sheets
and consolidated statements of cash
flows included in the Prospectus
and/or included in the Company's
quarterly report on Form 10-Q
incorporated by reference into the
Prospectus as indicated in their
reports thereon copies of which
[HAVE BEEN SEPARATELY FURNISHED TO
THE UNDERWRITER][ARE ATTACHED
HERETO]; and on the basis of
specified procedures including
inquiries of officials of the
Company who have responsibility for
financial and accounting matters
regarding whether the unaudited
condensed consolidated financial
statements referred to in paragraph
(vi)(A)(i) below comply as to form
in all material respects with the
applicable accounting requirements
of the [ACT AND THE EXCHANGE] Act
and the related pub-
1
33
lished rules and regulations,
nothing came to their attention that
caused them to believe that the
unaudited condensed consolidated
financial statements do not comply
as to form in all material respects
with the applicable accounting
requirements of the [ACT AND THE
EXCHANGE] Act and the related
published rules and regulations;
(iv)The unaudited
selected financial information with
respect to the consolidated results
of operations and financial
position of the Company for the
five most recent fiscal years
included in the Prospectus and
included or incorporated by
reference in Item 6 of the
Company's Annual Report on Form
10-K for the most recent fiscal
year agrees with the corresponding
amounts (after restatement where
applicable) in the audited
consolidated financial statements
for such five fiscal years which
were included or incorporated by
reference in the Company's Annual
Reports on Form 10-K for such
fiscal years;
(v) They have
compared the information in the
Prospectus under selected captions
with the disclosure requirements of
Regulation S-K and on the basis of
limited procedures specified in such
letter nothing came to their
attention as a result of the
foregoing procedures that caused
them to believe that this
information does not conform in all
material respects with the
disclosure requirements of Items
301, 302, 402 and 503(d),
respectively, of Regulation S-K;
(vi) On the basis
of limited procedures, not
constituting an examination in
accordance with generally accepted
auditing standards, consisting of a
reading of the unaudited financial
statements and other information
referred to below, a reading of the
latest available interim financial
statements of the Company and its
subsidiaries, inspection of the
minute books of the Company and its
subsidiaries since the date of the
latest audited financial statements
included or incorporated by
reference in the Prospectus,
inquiries of officials of the
Company and its subsidiaries
responsible for financial and
accounting matters and such other
inquiries and procedures as may be
specified in such letter, nothing
came to their attention that caused
them to believe that:
2
34
(A) (i) the
unaudited condensed consolidated
statements of income, consolidated
balance sheets and consolidated
statements of cash flows included in
the Prospectus and/or included or
incorporated by reference in the
Company's Quarterly Reports on Form
10-Q incorporated by reference in
the Prospectus do not comply as to
form in all material respects with
the applicable accounting
requirements of the Exchange Act as
it applies to Form 10-Q and the
related published rules and
regulations, or (ii) any material
modifications should be made to the
unaudited condensed consolidated
statements of income, consolidated
balance sheets and consolidated
statements of cash flows included in
the Prospectus or included in the
Company's Quarterly Reports on Form
10-Q incorporated by reference in
the Prospectus, for them to be
conformity with generally accepted
accounting principles;
(B) any other
unaudited income statement data and
balance sheet items included in the
Prospectus do not agree with the
corresponding items in the
unaudited consolidated financial
statements from which such data and
items were derived, and any such
unaudited data and items were not
determined on a basis substantially
consistent with the basis for the
corresponding amounts in the
audited consolidated financial
statements included or incorporated
by reference in the Company's
Annual Report on Form 10-K for the
most recent fiscal year;
(C) the unaudited
financial statements which were not
included in the Prospectus but from
which were derived the unaudited
condensed financial statements
referred to in Clause (A) and any
unaudited income statement data and
balance sheet items included in the
Prospectus and referred to in Clause
(B) were not determined on a basis
substantially consistent with the
basis for the audited financial
statements included or incorporated
by reference in the Company's Annual
Report on Form 10-K for the most
recent fiscal year;
(D) any unaudited
pro forma consolidated condensed
financial statements included or
incorporated by reference in the
Prospectus do not comply as to form
in all material respects with the
applicable accounting requirements
of the Act and the published rules
and regulations thereun-
3
35
der or the pro forma adjustments
have not been properly applied to
the historical amounts in the
compilation of those statements;
(E) as of a
specified date not more than five
days prior to the date of such
letter, there have been any changes
in the consolidated capital stock
(other than issuances of capital
stock upon exercise of options and
stock appreciation rights, upon
earn-outs of performance shares and
upon conversions of convertible
securities, in each case which were
outstanding on the date of the
latest balance sheet included or
incorporated by reference in the
Prospectus) or any increase in the
consolidated long-term debt of the
Company and its subsidiaries, or any
decreases in consolidated net
current assets or stockholders'
equity or other items specified by
the Underwriter, or any increases in
any items specified by the
Underwriter, in each case as
compared with amounts shown in the
latest balance sheet included or
incorporated by reference in the
Prospectus, except in each case for
changes, increases or decreases
which the Prospectus discloses have
occurred or may occur or which are
described in such letter; and
(F) for the period
from the date of the latest
financial statements included or
incorporated by reference in the
Prospectus to the specified date
referred to in Clause (E) there were
any decreases in consolidated net
revenues or operating profit or the
total or per share amounts of
consolidated net income or other
items specified by the Underwriter,
or any increases in any items
specified by the Underwriter, in
each case as compared with the
comparable period of the preceding
year and with any other period of
corresponding length specified by
the Underwriter, except in each case
for increases or decreases which the
Prospectus discloses have occurred
or may occur or which are described
in such letter; and
(vii) In addition to the examination
referred to in their report(s) included or incorporated by reference in
the Prospectus and the limited procedures, inspection of minute books,
inquiries and other procedures referred to in paragraphs (iii) and (vi)
above, they have carried out certain specified procedures, not
constituting an examination in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages and
financial information specified by the Underwriter which are derived
from the general accounting records of the Company and its
subsidiaries, which appear in the Prospectus (excluding documents
incorporated by reference) or in Part II of, or in exhibits and
schedules to, the Registration Statement specified by the Underwriter
or in
4
36
documents incorporated by reference in the Prospectus specified by the
Underwriter, and have compared certain of such amounts, percentages and
financial information with the accounting records of the Company and
its subsidiaries and have found them to be in agreement.
5