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VOTING AGREEMENT
This VOTING AGREEMENT dated as of March 26, 1997 is made and
entered into by and among The Hearst Corporation, a Delaware corporation
("Parent"), Argyle Television Investors, L.P., a Delaware limited partnership
(the "Stockholder"), and ATI General Partner, L.P., a Delaware limited
partnership (the "General Partner").
WHEREAS, Parent, HAT Merger Sub, Inc. ("Merger Sub"), HAT
Contribution Sub, Inc. ("Parent's Sub") and Argyle Television, Inc., a Delaware
corporation (the "Company"), propose to enter into an Agreement and Plan of
Merger of even date herewith (as the same may be amended or supplemented, the
"Merger Agreement") providing for the contribution of certain assets by Parent
and Parent's Sub to the Company and the merger of Merger Sub with and into the
Company (the "Merger");
WHEREAS, the Stockholder owns in the aggregate 6.6 million
shares of Series C Common Stock, par value $0.01 per share, of the Company (the
"Series C Common Stock"); such shares of Series C Common Stock, as such shares
may be adjusted by any stock dividend, stock split, recapitalization,
combination or exchange of shares, merger, consolidation, reorganization or
other change or transaction of or by the Company, being referred to herein as
the "Subject Shares";
WHEREAS, the Series C Common Stock is convertible into Series
A Common Stock, par value $0.01 per share, of the Company (the "Series A
Common Stock");
WHEREAS, the Stockholder intends to form a new limited
partnership (the "Foreign Partnership"), pursuant to Section 14.1 of the
Amended and Restated Agreement of Limited Partnership of the Stockholder, dated
May 10, 1995 (the "Limited Partnership Agreement"), for the purpose of holding
those shares of Series C Common Stock attributable to its current foreign
limited partners (the "Foreign Shares");
WHEREAS, the General Partner is the sole general partner of the Stockholder;
WHEREAS, The Bear ▇▇▇▇▇▇▇ Companies Inc. ("Bear ▇▇▇▇▇▇▇"), is
a party to a certain Letter Agreement dated June 7, 1995, (the "Letter
Agreement") with the General Partner, Argyle Television Partners, L.P., ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇ which entitles Bear ▇▇▇▇▇▇▇
to withdraw their interest in the Subject Shares (upon their conversion to
Series A Common Stock) from the Stockholder;
WHEREAS, the General Partner has obtained from Bear ▇▇▇▇▇▇▇ a
written waiver of paragraph 2 of the Letter Agreement;
WHEREAS, the General Partner and the Stockholder have adopted
a plan of liquidation of the Stockholder (the "Liquidation Plan") providing for
the distribution of the Series
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A Common Stock to the partners of the Stockholder in accordance with the terms
of the Stockholder's Limited Partnership Agreement;
WHEREAS, although the Stockholder desires to effectuate the
Liquidation Plan as soon as practicable, as a condition to its willingness to
enter into the Merger Agreement, Parent has requested that the Stockholder
enter into this Agreement; and
WHEREAS, on behalf of all the partners of the Stockholder, the
General Partner and the Stockholder have agreed that they will not effectuate
the Liquidation Plan until immediately after the Company Stockholder Approval
(as defined in the Merger Agreement);
NOW, THEREFORE, to induce Parent to enter into, and in
consideration of its entering into, the Merger Agreement, and in consideration
of the mutual covenants and agreements set forth in this Agreement, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Representations and Warranties of the Stockholder and
General Partner. The Stockholder and General Partner hereby represent and
warrant to Parent as follows:
(a) Authority. Each of the Stockholder and
General Partner is a limited partnership duly formed and is in
good standing and existing under the laws of the State of
Delaware. Each of the Stockholder and General Partner has
full power and authority to enter into this Agreement and to
perform its obligations hereunder and consummate the
transactions contemplated hereby. This Agreement has been
duly and validly authorized, executed and delivered by each of
the Stockholder and General Partner and constitutes a legal,
valid and binding obligation of each of the Stockholder and
General Partner enforceable against the Stockholder and
General Partner in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by general
equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or
law).
(b) Non-Contravention. The execution and
delivery of this Agreement by each of the Stockholder and
General Partner do not, and the performance by each of the
Stockholder and General Partner of its obligations hereunder
and the consummation of the transactions contemplated hereby
will not, conflict with, result in any violation of,
constitute (with or without notice or lapse of time or both) a
default under, result in or give to any person any right of
payment or reimbursement, termination, cancellation,
modification or acceleration of, or result in the creation or
imposition of any lien upon any assets or properties of the
Stockholder under, any of the terms, conditions or provisions
of (i) the certificate of limited partnership and agreement of
limited partnership of each of the Stockholder and General
Partner, or (ii) subject to taking the action described in
paragraph (c) of this Section, (x) any statute, law, rule,
regulation or ordinance, or any judgment, decree, order, writ,
permit or license, of any court,
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tribunal, arbitrator, authority, agency, commission, official
or other instrumentality of the United States or any domestic,
state, county, city or other political subdivision (a
"Governmental or Regulatory Authority"), applicable to each of
the Stockholder and General Partner or any of its respective
assets or properties, or (y) any note, bond, mortgage,
security agreement, indenture, license, franchise, permit,
concession, contract, lease or other instrument, obligation or
agreement of any kind (together, "Contracts") to which each of
the Stockholder and General Partner is a party or by which
either the Stockholder or General Partner or any of its
respective assets or properties is bound.
(c) Approvals and Consents. Except for the
filing and approval of a premerger notification report by the
Stockholder under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements
Act of 1976, as amended, and the rules and regulations
thereunder (the "HSR Act") with respect to the conversion of
the Subject Shares required by Section 3(c), filings pursuant
to Section 13(d) and 13(g) of the Securities Exchange Act of
1934, as amended, and the filing of this Agreement with the
Federal Communications Commission (the "FCC") pursuant to
Section 73.3613 of the FCC rules and regulations, no consent,
approval or action of, filing with or notice to any
Governmental or Regulatory Authority is necessary or required
for the execution and delivery of this Agreement by the
Stockholder or General Partner, the performance by the
Stockholder or General Partner of its respective obligations
hereunder or the consummation of the transactions contemplated
hereby.
(d) Subject Shares. The Stockholder has good and
marketable title to the Subject Shares, free and clear of all
liens, claims, security interests, proxies, voting trusts or
agreements, understanding or arrangements or any other
encumbrances whatsoever; other than restrictions on transfer
imposed by the registration requirements of the Securities Act
of1933, as amended, and applicable state securities laws. The
Stockholder has the sole voting power and sole power to issue
instructions with respect to the matters set forth in Section
3.
2. Representations and Warranties of the Parent. The
Parent hereby represents and warrants to the Stockholder and General Partner as
follows:
(a) Authority. The Parent is a corporation duly
formed and is in good standing and existing under the laws of
the State of Delaware. The Parent has full power and
authority to enter into this Agreement and to perform its
obligations hereunder and consummate the transactions
contemplated hereby. This Agreement has been duly and validly
authorized, executed and delivered by the Parent and
constitutes a legal, valid and binding obligation of the
Parent enforceable against the Parent in accordance with its
terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and
by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or
law).
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3. Covenants of the Stockholder and General Partner.
Subject to Section 4, the Stockholder and General Partner hereby covenant and
agree with Parent as follows:
(a) Transfer of Foreign Shares. As soon as
practicable after the date of this Agreement, the Stockholder
shall transfer the Foreign Shares to the Foreign Partnership.
(b) Joinder in the Agreement: Foreign
Partnership. Simultaneously with the transfer of the Foreign
Shares to the Foreign Partnership, the Stockholder shall cause
the Foreign Partnership to execute and deliver to Parent a
Voting Agreement, in the form attached hereto as Exhibit A.
(c) Regulatory Filings; Conversion. As soon as
practicable after the date of this Agreement, the Stockholder
shall (i) take all actions necessary to make the filings
required of the Stockholder or its affiliates under the HSR
Act in order for the Stockholder to convert all of the Subject
Shares (other than the Foreign Shares) into shares of Series A
Common Stock pursuant to the Company's certificate of
incorporation, (ii) comply at the earliest practicable date
with any request for additional information received by the
Stockholder from the Federal Trade Commission (the "FTC") or
the Antitrust Division of the Department of Justice (the
"Antitrust Division") pursuant to the HSR Act and (iii)
cooperate with the Company in connection with its filings
under the HSR Act and in connection with resolving any
investigation or other inquiry concerning such conversion
commenced by either the FTC, or the Antitrust Division or
state attorneys general. Upon the expiration or termination
of the applicable waiting period under the HSR Act, or as soon
as practicable thereafter, the Stockholder shall so convert
the Subject Shares (other than the Foreign Shares) from Series
C Common Stock into Series A Common Stock.
(d) Withdrawals. Following the conversion of the
Subject Shares (other than the Foreign Shares) from Series C
Common Stock into Series A Common Stock, the General Partner
shall withhold its consent to the withdrawal by any limited
partner in the Stockholder of such limited partner's interest
in the Stockholder, pursuant to Section 5.3(b) of the Limited
Partnership Agreement.
(e) Vote for Merger. At any meeting of
stockholders of the Company called to vote upon the amendment
to the Company's Certificate of Incorporation set forth in the
Merger Agreement, the Merger and the Merger Agreement or at
any adjournment thereof or in any other circumstances upon
which a vote, consent or other approval with respect to such
amendment to the Company's Certificate of Incorporation, the
Merger and the Merger Agreement is sought, the Stockholder
shall vote (or cause to be voted) the Subject Shares, and any
other voting securities of the Company, owned by Stockholder
whether issued heretofore or hereafter, that the Stockholder
owns or has the right to vote, in favor of such amendment to
the Company's Certificate of Incorporation, the Merger, the
adoption by the Company of the Merger Agreement and the
approval
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of the terms thereof and each of the other transactions
contemplated by the Merger Agreement, provided that the terms
of the Merger Agreement shall not have been amended to
adversely affect the Stockholder.
(f) Vote Against Acquisition Proposals. At any
meeting of stockholders of the Company or at any adjournment
thereof or in any other circumstances upon which the
Stockholder's vote, consent or other approval is sought, the
Stockholder shall vote (or cause to be voted) the Subject
Shares, and any other voting securities of the Company, owned
by Stockholder whether issued heretofore or hereafter, that
the Stockholder owns or has the right to vote, except as
otherwise agreed in writing in advance by the Parent, against
(i) any proposal or offer with respect to any direct or
indirect (A) acquisition or purchase of fifteen percent (15%)
or more of any Company common stock outstanding, (B)
acquisition or purchase of any equity securities of any
Material Subsidiary (as defined below), (C) acquisition or
purchase of all or any significant portion of the assets of
the Company or any Material Subsidiary, or (D) any merger,
consolidation, business combination, recapitalization,
liquidation, dissolution or similar transaction involving the
Company or any of its Material Subsidiaries (any such proposal
or offer being hereinafter referred to as an "Acquisition
Proposal"), (ii) any change in the majority of the persons who
constitute the Board of Directors of the Company or (iii) any
change in the present capitalization of the Company or any
amendment of the Company's certificate of incorporation or
by-laws or other proposal or transaction involving the Company
or any of its subsidiaries, which change, amendment or other
proposal or transaction would in any manner impede, frustrate,
prevent or nullify the amendment of the Company's Certificate
of Incorporation set forth in the Merger Agreement, the
Merger, the Merger Agreement or any of the other transactions
contemplated by the Merger Agreement or which could result in
any of the conditions to the Parent's obligations under the
Merger Agreement not being fulfilled. For purposes of this
Agreement, "Material Subsidiary" means any direct or indirect
"Significant Subsidiary" of the Company as that term is
defined in Rule 405 of the rules and regulations promulgated
under the Securities Act of 1933, as amended, or any
Subsidiary (as defined below) of the Company that either owns
or operates a television broadcast station or a license,
permit or other authorization required by the Federal
Communications Commission in connection with the operation of
its business. In addition, "Subsidiary" means any corporation
or other organization whether incorporated or unincorporated,
of which more than fifty percent (50%) of either the equity
interest in, or voting control of, such corporation or other
organization is, directly or indirectly through Subsidiaries
or otherwise, beneficially owned by the Company.
(g) Transfers. Except as set forth in Section
3(a) with respect to the Foreign Shares and Section 3(j), the
Stockholder agrees not to (i) sell, transfer, pledge, assign
or otherwise dispose of, or enter into any contract, option or
other arrangement with respect to the sale, transfer, pledge,
assignment or other disposition of, the Subject Shares to any
person other than pursuant to the
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amendment of the Company's Certificate of Incorporation set
forth in the Merger Agreement, the Merger and the Merger
Agreement or (ii) enter into any voting arrangement, whether
by proxy, voting arrangement, voting agreement or otherwise
with respect to the Subject Shares.
(h) Each certificate evidencing the Subject
Shares shall bear a legend as follows:
THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO
RESTRICTIONS ON TRANSFER AND VOTING CONTAINED IN A
VOTING AGREEMENT DATED AS OF MARCH 26, 1997, A COPY
OF WHICH IS ON FILE AT THE PRINCIPAL OFFICE OF THE
COMPANY.
(i) No Solicitations. Neither the Stockholder,
the General Partner nor any of their respective officers,
directors, employees, agents, counsel, accountants, financial
advisors, investment bankers, consultants and other
representatives (collectively, "Representatives"), directly or
indirectly, shall initiate, solicit, encourage, accept or take
any other action knowingly to facilitate, any inquiries or the
making of, or participate in any discussions or negotiations
regarding, any Acquisition Proposal. In the event that the
Stockholder, the General Partner or any of their respective
Representatives receives from any person an Acquisition
Proposal, the Stockholder shall promptly advise, orally and in
writing, such Person of the terms of this Section 3(i), and
shall promptly advise Parent of such Acquisition Proposal and
shall thereafter keep Parent reasonably and promptly informed
of all material facts and circumstances relating to said
Acquisition Proposal and the Stockholder's actions relating
thereto.
(j) Permitted Transfers. Notwithstanding
anything contained in this Agreement to the contrary, the
Stockholder may distribute the Subject Shares (but only if
they shall have been converted into shares of Series A Common
Stock) to the partners of the Stockholder following the
Company Stockholder Approval.
4. Termination. The covenants and agreements of the
Stockholder and the General Partner contained in Section 3 shall terminate upon
the earliest of (i) the Effective Time (as defined in the Merger Agreement), or
(ii) the termination of the Merger Agreement in accordance with its terms.
5. General Provisions.
(a) Expenses. All costs and expenses incurred in
connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such
expense.
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(b) Amendments. This Agreement may not be
amended except by an instrument in writing signed by each of
the parties hereto.
(c) Notice. All notices and requests and other
communications hereunder must be in writing and will be deemed
to have been given only if delivered personally or by
facsimile transmission or mailed (first class postage prepaid)
to the parties at the following addresses or facsimile
numbers:
(i) if to Parent, to:
The Hearst Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇, Esq.
with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇, Esq.
(ii) if to the Stockholder or the
General Partner, to
Argyle Television Investors,
L.P.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇▇ Rain ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇, Esq.
All such notices, requests and other communications will (i)
if delivered personally to the address as provided in this
Section, be deemed given upon
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delivery, (ii) if delivered by facsimile transmission to the
facsimile number as provided in this Section, be deemed given
upon receipt, and (iii) if delivered by mail in the manner
described above to the address as provided in this Section, be
deemed given upon receipt (in each case regardless of whether
such notice, request or other communication is received by any
other person to whom a copy of such notice is to be delivered
pursuant to this Section). Any party from time to time may
change its address, facsimile number or other information for
the purpose of notices to that party by giving notice
specifying such change to the other parties hereto.
(d) Entire Agreement. This Agreement supersedes
all prior discussions and agreements among the parties hereto
with respect to the subject matter hereof, and contains the
sole and entire agreement among the parties hereto with
respect to the subject matter hereof.
(e) No Third Party Beneficiary. The terms and
provisions of this Agreement are intended solely for the
benefit of each party hereto and their respective successors
or permitted assigns, and it is not the intention of the
parties to confer third-party beneficiary rights upon any
other person.
(f) No Assignment; Binding Effect. Neither this
Agreement nor any right, interest or obligation hereunder may
be assigned by any party hereto without the prior written
consent of the other parties hereto and any attempt to do so
will be void. Subject to the preceding sentence, this
Agreement is binding upon, inures to the benefit of and is
enforceable by the parties hereto and their respective
successors and assigns.
(g) Headings. The headings used in this Agreement
have been inserted for convenience of reference only and do
not define or limit the provisions hereof.
(h) Severability. If any provision of this
Agreement is held to be illegal, invalid or unenforceable
under any present or future law, and if the rights or
obligations of any party hereto under this Agreement will not
be materially and adversely affected thereby, (i) such
provision will be fully severable, (ii) this Agreement will be
construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part hereof,
(iii) the remaining provisions of this Agreement will remain
in full force and effect and will not be affected by the
legal, invalid or unenforceable provision or by its severance
herefrom and (iv) in lieu of such illegal, invalid or
unenforceable provision, there will be added automatically as
a part of this Agreement a legal, valid and enforceable
provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible.
(i) No Waiver. The failure of any party hereto
to exercise any right, power or remedy provided under this
Agreement or otherwise available in respect
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hereof at law or in equity, or to insist upon compliance by
any other party hereto with its obligations hereunder, and any
custom or practice of the parties at variance with the terms
hereof shall not constitute a waiver by such party of its
right to exercise any such or other right, power or remedy or
to demand such compliance.
(j) Counterparts. This Agreement may be executed
in any number of counterparts, each of which will be deemed an
original, but all of which together will constitute one and
the same instrument.
(k) Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the
State of Delaware applicable to a contract executed performed
in such State without giving effect to the conflicts of laws
principles thereof.
6. Enforcement. The parties agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement in any Federal court
located in the State of Delaware or in a Delaware state court, this being in
addition to any other remedy to which they are entitled at law or in equity.
In addition, each of the parties hereto (i) consents to submit such party to
the personal jurisdiction of any Federal court located in the State of Delaware
or any Delaware state court in the event any dispute arises out of this
Agreement or any of the transactions contemplated hereby, (ii) agrees that such
party will not attempt to deny or defeat such personal jurisdiction by motion
or other request for leave from any such court, (iii) agrees that such party
will not bring any action relating to this Agreement or any of the transactions
contemplated hereby in any court other than a Federal court sitting in the
State of Delaware or a Delaware state court and (iv) waives any right to trial
by jury with respect to any claim or proceeding related to or arising out of
this Agreement or any of the transactions contemplated hereby.
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IN WITNESS WHEREOF, each party hereto has caused this
Agreement to be signed by its officer or representative thereunto duly
authorized as of the date first above written.
THE HEARST CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
ARGYLE TELEVISION INVESTORS, L.P.
By: ATI General Partner, L.P.
a Delaware limited partnership
By: Argyle Television Partners, L.P.
the sole general partner
By: Argyle Communications, Inc.
the sole general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
ATI GENERAL PARTNER, L.P.
By: Argyle Television Partners, L.P.
a Delaware limited partnership
By: Argyle Communications, Inc.
the sole general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
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EXHIBIT A
VOTING AGREEMENT
This VOTING AGREEMENT dated as of o , 1997 is made and entered
into by and among The Hearst Corporation, a Delaware corporation ("Parent"),
[FOREIGN PARTNERSHIP, L.P.], a Delaware limited partnership (the
"Stockholder"), and ATI General Partner, L.P., a Delaware limited partnership
(the "General Partner").
WHEREAS, Parent, HAT Merger Sub, Inc. ("Merger Sub"), HAT
Contribution Sub, Inc. ("Parent's Sub") and Argyle Television, Inc., a Delaware
corporation (the "Company"), propose to enter into an Agreement and Plan of
Merger of even date herewith (as the same may be amended or supplemented, the
"Merger Agreement") providing for the contribution of certain assets by Parent
and Parent's Sub to the Company and the merger of Merger Sub with and into the
Company (the "Merger");
WHEREAS, the Stockholder owns in the aggregate o shares of
Series C Common Stock, par value $0.01 per share, of the Company (the "Series C
Common Stock"); such shares of Series C Common Stock, as such shares may be
adjusted by any stock dividend, stock split, recapitalization, combination or
exchange of shares, merger, consolidation, reorganization or other change or
transaction of or by the Company, being referred to herein as the "Subject
Shares";
WHEREAS, the Series C Common Stock is convertible into Series
A Common Stock, par value $0.01 per share, of the Company (the "Series A Common
Stock");
WHEREAS, the General Partner is the sole general partner of the Stockholder;
WHEREAS, immediately prior to the execution of this Agreement,
the Series C Common Stock was owned by Argyle Television Investors, L.P., a
Delaware limited partnership (the "Former Stockholder");
WHEREAS, the General Partner and the Former Stockholder have
adopted a plan of liquidation of the Former Stockholder (the "Liquidation
Plan") providing for the distribution of the Series A Common Stock to the
partners of the Former Stockholder in accordance with the terms of the Former
Stockholder's Limited Partnership Agreement;
WHEREAS, the Liquidation Plan is equally applicable to the
Stockholder;
WHEREAS, although the Stockholder desires to effectuate the
Liquidation Plan as soon as practicable, as a condition to its willingness to
enter into the Merger Agreement, Parent has requested that the Stockholder
enter into this Agreement; and
WHEREAS, on behalf of all the partners of the Stockholder, the
General Partner and the Stockholder have agreed that they will not effectuate
the Liquidation Plan until immediately after the Company Stockholder Approval
(as defined in the Merger Agreement);
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NOW, THEREFORE, to induce Parent to enter into, and in
consideration of its entering into, the Merger Agreement, and in consideration
of the mutual covenants and agreements set forth in this Agreement, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Representations and Warranties of the Stockholder and
General Partner. The Stockholder and General Partner hereby represent and
warrant to Parent as follows:
(a) Authority. Each of the Stockholder and
General Partner is a limited partnership duly formed and is in
good standing and existing under the laws of the State of
Delaware. Each of the Stockholder and General Partner has
full power and authority to enter into this Agreement and to
perform its obligations hereunder and consummate the
transactions contemplated hereby. This Agreement has been
duly and validly authorized, executed and delivered by each of
the Stockholder and General Partner and constitutes a legal,
valid and binding obligation of each of the Stockholder and
General Partner enforceable against the Stockholder and
General Partner in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by general
equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or
law).
(b) Non-Contravention. The execution and
delivery of this Agreement by each of the Stockholder and
General Partner do not, and the performance by each of the
Stockholder and General Partner of its obligations hereunder
and the consummation of the transactions contemplated hereby
will not, conflict with, result in any violation of,
constitute (with or without notice or lapse of time or both) a
default under, result in or give to any person any right of
payment or reimbursement, termination, cancellation,
modification or acceleration of, or result in the creation or
imposition of any lien upon any assets or properties of the
Stockholder under, any of the terms, conditions or provisions
of (i) the certificate of limited partnership and agreement of
limited partnership of each of the Stockholder and General
Partner, or (ii) subject to taking the action described in
paragraph (c) of this Section, (x) any statute, law, rule,
regulation or ordinance, or any judgment, decree, order, writ,
permit or license, of any court, tribunal, arbitrator,
authority, agency, commission, official or other
instrumentality of the United States or any domestic, state,
county, city or other political subdivision (a "Governmental
or Regulatory Authority"), applicable to each of the
Stockholder and General Partner or any of its respective
assets or properties, or (y) any note, bond, mortgage,
security agreement, indenture, license, franchise, permit,
concession, contract, lease or other instrument, obligation or
agreement of any kind (together, "Contracts") to which each of
the Stockholder and General Partner is a party or by which
either the Stockholder or General Partner or any of its
respective assets or properties is bound.
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13
(c) Approvals and Consents. Except for the
filing and approval of a premerger notification report by the
Stockholder under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements
Act of 1976, as amended, and the rules and regulations
thereunder (the "HSR Act") with respect to the conversion of
the Subject Shares required by Section 3(a), filings pursuant
to Section 13(d) and 13(g) of the Securities Exchange Act of
1934, as amended, and the filing of this Agreement with the
Federal Communications Commission (the "FCC") pursuant to
Section 73.3613 of the FCC rules and regulations, no consent,
approval or action of, filing with or notice to any
Governmental or Regulatory Authority is necessary or required
for the execution and delivery of this Agreement by the
Stockholder or General Partner, the performance by the
Stockholder or General Partner of its respective obligations
hereunder or the consummation of the transactions contemplated
hereby.
(d) Subject Shares. The Stockholder has good and
marketable title to the Subject Shares, free and clear of all
liens, claims, security interests, proxies, voting trusts or
agreements, understanding or arrangements or any other
encumbrances whatsoever; other than restrictions on transfer
imposed by the registration requirements of the Securities Act
of 1933, as amended, and applicable state securities laws.
The Stockholder has the sole voting power and sole power to
issue instructions with respect to the matters set forth in
Section 3.
2. Representations and Warranties of the Parent. The
Parent hereby represents and warrants to the Stockholder and General Partner as
follows:
(a) Authority. The Parent is a corporation duly
formed and is in good standing and existing under the laws of
the State of Delaware. The Parent has full power and
authority to enter into this Agreement and to perform its
obligations hereunder and consummate the transactions
contemplated hereby. This Agreement has been duly and validly
authorized, executed and delivered by the Parent and
constitutes a legal, valid and binding obligation of the
Parent enforceable against the Parent in accordance with its
terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and
by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or
law).
3. Covenants of the Stockholder and General Partner.
Subject to Section 4, the Stockholder and General Partner hereby covenant and
agree with Parent as follows:
(a) Regulatory Filings; Conversion. As soon as
practicable after the date of this Agreement, the Stockholder
shall (i) take all actions necessary to make the filings
required of the Stockholder or its affiliates under the HSR
Act in order for the Stockholder to convert all of the Subject
Shares into shares of Series A Common Stock pursuant to the
Company's certificate of incorporation, (ii) comply at the
earliest practicable date with any request for additional
A-3
14
information received by the Stockholder from the Federal Trade
Commission (the "FTC") or the Antitrust Division of the
Department of Justice (the "Antitrust Division") pursuant to
the HSR Act and (iii) cooperate with the Company in connection
with its filings under the HSR Act and in connection with
resolving any investigation or other inquiry concerning such
conversion commenced by either the FTC, or the Antitrust
Division or state attorneys general. Upon the expiration or
termination of the applicable waiting period under the HSR
Act, or as soon as practicable thereafter, the Stockholder
shall so convert the Subject Shares from Series C Common Stock
into Series A Common Stock.
(b) Withdrawals. Following the conversion of the
Subject Shares from Series C Common Stock to Series A Common
Stock, the General Partner shall withhold its consent to the
withdrawal by any limited partner in the Stockholder of such
limited partner's interest in the Stockholder, pursuant to
Section 5.3 of the Limited Partnership Agreement.
(c) Vote for Merger. At any meeting of
stockholders of the Company called to vote upon the amendment
to the Company's Certificate of Incorporation set forth in the
Merger Agreement, the Merger and the Merger Agreement or at
any adjournment thereof or in any other circumstances upon
which a vote, consent or other approval with respect to such
amendment to the Company's Certificate of Incorporation, the
Merger and the Merger Agreement is sought, the Stockholder
shall vote (or cause to be voted) the Subject Shares, and any
other voting securities of the Company, owned by Stockholder
whether issued heretofore or hereafter, that the Stockholder
owns or has the right to vote, in favor of such amendment to
the Company's Certificate of Incorporation, the Merger, the
adoption by the Company of the Merger Agreement and the
approval of the terms thereof and each of the other
transactions contemplated by the Merger Agreement, provided
that the terms of the Merger Agreement shall not have been
amended to adversely affect the Stockholder.
(d) Vote Against Acquisition Proposals. At any
meeting of stockholders of the Company or at any adjournment
thereof or in any other circumstances upon which the
Stockholder's vote, consent or other approval is sought, the
Stockholder shall vote (or cause to be voted) the Subject
Shares, and any other voting securities of the Company, owned
by Stockholder whether issued heretofore or hereafter, that
the Stockholder owns or has the right to vote, except as
otherwise agreed in writing in advance by the Parent, against
(i) any proposal or offer with respect to any direct or
indirect (A) acquisition or purchase of fifteen percent (15%)
or more of any Company common stock outstanding, (B)
acquisition or purchase of any equity securities of any
Material Subsidiary (as defined below), (C) acquisition or
purchase of all or any significant portion of the assets of
the Company or any Material Subsidiary, or (D) any merger,
consolidation, business combination, recapitalization,
liquidation, dissolution or similar transaction involving the
Company or any of its Material Subsidiaries (any such proposal
or offer being hereinafter referred to as an "Acquisition
Proposal"),
A-4
15
(ii) any change in the majority of the persons who constitute
the Board of Directors of the Company or (iii) any change in
the present capitalization of the Company or any amendment of
the Company's certificate of incorporation or by-laws or other
proposal or transaction involving the Company or any of its
subsidiaries, which change, amendment or other proposal or
transaction would in any manner impede, frustrate, prevent or
nullify the amendment of the Company's Certificate of
Incorporation set forth in the Merger Agreement, the Merger,
the Merger Agreement or any of the other transactions
contemplated by the Merger Agreement or which could result in
any of the conditions to the Parent's obligations under the
Merger Agreement not being fulfilled. For purposes of this
Agreement, "Material Subsidiary" means any direct or indirect
"Significant Subsidiary" of the Company as that term is
defined in Rule 405 of the rules and regulations promulgated
under the Securities Act of 1933, as amended, or any
Subsidiary (as defined below) of the Company that either owns
or operates a television broadcast station or a license,
permit or other authorization required by the Federal
Communications Commission in connection with the operation of
its business. In addition, "Subsidiary" means any corporation
or other organization whether incorporated or unincorporated,
of which more than fifty percent (50%) of either the equity
interest in, or voting control of, such corporation or other
organization is, directly or indirectly through Subsidiaries
or otherwise, beneficially owned by the Company.
(e) Transfers. Except as set forth in Section
3(h), the Stockholder agrees not to (i) sell, transfer,
pledge, assign or otherwise dispose of, or enter into any
contract, option or other arrangement with respect to the
sale, transfer, pledge, assignment or other disposition of,
the Subject Shares to any person other than pursuant to the
Merger and the Merger Agreement or (ii) enter into any voting
arrangement, whether by proxy, voting arrangement, voting
agreement or otherwise with respect to the Subject Shares.
(f) Each certificate evidencing the Subject
Shares shall bear a legend as follows:
THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO
RESTRICTIONS ON TRANSFER AND VOTING CONTAINED IN A
VOTING AGREEMENT DATED AS OF MARCH 26, 1997, A COPY
OF WHICH IS ON FILE AT THE PRINCIPAL OFFICE OF THE
COMPANY.
(g) No Solicitations. Neither the Stockholder,
the General Partner nor any of their respective officers,
directors, employees, agents, counsel, accountants, financial
advisors, investment bankers, consultants and other
representatives (collectively, "Representatives"), directly or
indirectly, shall initiate, solicit, encourage, accept or take
any other action knowingly to facilitate, any inquiries or the
making of, or participate in any discussions or negotiations
A-5
16
regarding, any Acquisition Proposal. In the event that the
Stockholder, the General Partner or any of their respective
Representatives receive from any person an Acquisition
Proposal, the Stockholder shall promptly advise, orally and in
writing, such Person of the terms of this Section 3(g), and
shall promptly advise Parent of such Acquisition Proposal and
shall thereafter keep Parent reasonably and promptly informed
of all material facts and circumstances relating to said
Acquisition Proposal and the Stockholder's actions relating
thereto.
(h) Permitted Transfers. Notwithstanding
anything contained in this Agreement to the contrary, the
Stockholder may distribute the Subject Shares (but only if
they shall have been converted into shares of Series A Common
Stock) to the partners of the Stockholder following the
Company Stockholder Approval.
4. Termination. The covenants and agreements of the
Stockholder and the General Partner contained in Section 3 shall terminate upon
the earliest of (i) the Effective Time (as defined in the Merger Agreement), or
(ii) the termination of the Merger Agreement in accordance with its terms.
5. General Provisions.
(a) Expenses. All costs and expenses incurred in
connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such
expense.
(b) Amendments. This Agreement may not be
amended except by an instrument in writing signed by each of
the parties hereto.
(c) Notice. All notices and requests and other
communications hereunder must be in writing and will be deemed
to have been given only if delivered personally or by
facsimile transmission or mailed (first class postage prepaid)
to the parties at the following addresses or facsimile
numbers:
(i) if to Parent, to:
The Hearst Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇, Esq.
A-6
17
with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇, Esq.
(ii) if to the Stockholder or the
General Partner, to
[FOREIGN PARTNERSHIP, L.P.]
____________________________
____________________________
____________________________
Telephone:
Facsimile:
Attention:
with a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇▇ Rain ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇, Esq.
All such notices, requests and other communications will (i)
if delivered personally to the address as provided in this
Section, be deemed given upon delivery, (ii) if delivered by
facsimile transmission to the facsimile number as provided in
this Section, be deemed given upon receipt, and (iii) if
delivered by mail in the manner described above to the address
as provided in this Section, be deemed given upon receipt (in
each case regardless of whether such notice, request or other
communication is received by any other person to whom a copy
of such notice is to be delivered pursuant to this Section).
Any party from time to time may change its address, facsimile
number or other information for the purpose of notices to that
party by giving notice specifying such change to the other
parties hereto.
(d) Entire Agreement. This Agreement supersedes
all prior discussions and agreements among the parties hereto
with respect to the subject matter hereof, and contains the
sole and entire agreement among the parties hereto with
respect to the subject matter hereof.
A-7
18
(e) No Third Party Beneficiary. The terms and
provisions of this Agreement are intended solely for the
benefit of each party hereto and their respective successors
or permitted assigns, and it is not the intention of the
parties to confer third-party beneficiary rights upon any
other person.
(f) No Assignment; Binding Effect. Neither this
Agreement nor any right, interest or obligation hereunder may
be assigned by any party hereto without the prior written
consent of the other parties hereto and any attempt to do so
will be void. Subject to the preceding sentence, this
Agreement is binding upon, inures to the benefit of and is
enforceable by the parties hereto and their respective
successors and assigns.
(g) Headings. The headings used in this Agreement
have been inserted for convenience of reference only and do
not define or limit the provisions hereof.
(h) Severability. If any provision of this
Agreement is held to be illegal, invalid or unenforceable
under any present or future law, and if the rights or
obligations of any party hereto under this Agreement will not
be materially and adversely affected thereby, (i) such
provision will be fully severable, (ii) this Agreement will be
construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part hereof,
(iii) the remaining provisions of this Agreement will remain
in full force and effect and will not be affected by the
legal, invalid or unenforceable provision or by its severance
herefrom and (iv) in lieu of such illegal, invalid or
unenforceable provision, there will be added automatically as
a part of this Agreement a legal, valid and enforceable
provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible.
(i) No Waiver. The failure of any party hereto
to exercise any right, power or remedy provided under this
Agreement or otherwise available in respect hereof at law or
in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, and any custom or
practice of the parties at variance with the terms hereof
shall not constitute a waiver by such party of its right to
exercise any such or other right, power or remedy or to demand
such compliance.
(j) Counterparts. This Agreement may be executed
in any number of counterparts, each of which will be deemed an
original, but all of which together will constitute one and
the same instrument.
(k) Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the
State of Delaware applicable to a contract executed performed
in such State without giving effect to the conflicts of laws
principles thereof.
A-8
19
6. Enforcement. The parties agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement in any Federal court
located in the State of Delaware or in a Delaware state court, this being in
addition to any other remedy to which they are entitled at law or in equity.
In addition, each of the parties hereto (i) consents to submit such party to
the personal jurisdiction of any Federal court located in the State of Delaware
or any Delaware state court in the event any dispute arises out of this
Agreement or any of the transactions contemplated hereby, (ii) agrees that such
party will not attempt to deny or defeat such personal jurisdiction by motion
or other request for leave from any such court, (iii) agrees that such party
will not bring any action relating to this Agreement or any of the transactions
contemplated hereby in any court other than a Federal court sitting in the
State of Delaware or a Delaware state court and (iv) waives any right to trial
by jury with respect to any claim or proceeding related to or arising out of
this Agreement or any of the transactions contemplated hereby.
A-9
20
IN WITNESS WHEREOF, each party hereto has caused this
Agreement to be signed by its officer or representative thereunto duly
authorized as of the date first above written.
THE HEARST CORPORATION
By: ____________________________________________
Name:
Title:
[FOREIGN PARTNERSHIP, L.P.]
By: ATI General Partner, L.P.
a Delaware limited partnership
By: Argyle Television Partners, L.P.
the sole general partner
By: Argyle Communications, Inc.
the sole general partner
By: ___________________________
Name:
Title:
ATI GENERAL PARTNER, L.P.
By: Argyle Television Partners, L.P.
a Delaware limited partnership
By: Argyle Communications, Inc.
the sole general partner
By: ________________________________
Name:
Title:
A-10