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Exhibit 1.2
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THE ▇.▇. ▇▇▇▇▇▇▇ COMPANY
(AN OHIO CORPORATION)
1,260,000 CLASS A COMMON SHARES
INTERNATIONAL PURCHASE AGREEMENT
DATED: JUNE __, 1998
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TABLE OF CONTENTS
PURCHASE AGREEMENT
SECTION 1. Representations and Warranties..................................................3
(a) Representations and Warranties by the Company...................................3
(i) Compliance with Registration Requirements..............................3
(ii) Incorporated Documents.................................................4
(iii) Independent Accountants................................................5
(iv) Financial Statements...................................................5
(v) No Material Adverse Change in Business.................................5
(vi) Good Standing of the Company...........................................5
(vii) Good Standing of Subsidiaries..........................................6
(viii) Capitalization.........................................................6
(ix) Authorization of Agreement.............................................6
(x) Authorization and Description of Securities............................6
(xi) Absence of Defaults and Conflicts......................................6
(xii) Compliance with ERISA..................................................7
(xiii) Absence of Labor Dispute...............................................8
(xiv) Absence of Proceedings.................................................8
(xv) Accuracy of Exhibits...................................................8
(xvi) Possession of Intellectual Property....................................8
(xvii) Absence of Further Requirements........................................9
(xviii) Possession of Licenses and Permits.....................................9
(xix) Title to Property......................................................9
(xx) Compliance with Cuba Act...............................................9
(xxi) Investment Company Act................................................10
(xxii) Environmental Laws....................................................10
(b) Representations and Warranties by the Selling Shareholders.....................10
(i) Good Standing of the Selling Shareholders.............................10
(ii) Accurate Disclosure...................................................10
(iii) Authorization of Agreements...........................................11
(iv) Good and Marketable Title.............................................11
(v) Absence of Manipulation...............................................12
(vi) Absence of Further Requirements.......................................12
(vii) Restriction on Sale of Securities.....................................12
(viii) No Association with NASD..............................................12
(ix) Delivery of Form W-9..................................................13
(c) Officer's Certificates...........................................................13
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SECTION 2. Sale and Delivery to International Managers; Closing...........................13
(a) Initial International Securities...............................................13
(b) International Option Securities................................................13
(c) Payment........................................................................14
(d) Denominations; Registration....................................................15
SECTION 3. Covenants of the Company.......................................................15
(a) Compliance with Securities Regulations and Commission Requests.................15
(b) Filing of Amendments...........................................................15
(c) Delivery of Registration Statements............................................15
(d) Delivery of Prospectuses......................................................16
(e) Continued Compliance with Securities Laws......................................16
(f) Blue Sky Qualifications........................................................16
(g) Rule 158.......................................................................17
(h) Restriction on Sale of Securities..............................................17
(i) Reporting Requirements.........................................................17
SECTION 4. Payment of Expenses............................................................17
(a) Expenses.......................................................................17
(b) Termination of Agreement.......................................................18
SECTION 5. Conditions of International Managers' Obligations..............................18
(a) Effectiveness of Registration Statement........................................18
(b) Opinion of Counsel for Company.................................................18
(c) Opinion of Counsel for the Selling Shareholders................................19
(d) Opinion of Counsel for International Managers..................................19
(e) Officers' Certificate..........................................................19
(f) Certificate of Selling Shareholders............................................19
(g) Accountant's Comfort Letter....................................................19
(h) Bring-down Comfort Letter......................................................20
(i) Purchase of Initial International Securities...................................20
(j) Conditions to Purchase of International Option Securities......................20
(i) Officers' Certificate.................................................20
(ii) Certificate of Selling Shareholders...................................20
(iii) Opinion of Counsel for Company........................................20
(iv) Opinion of Counsel for the Selling Shareholders.......................20
(v) Opinion of Counsel for International Managers.........................21
(vi) Bring-down Comfort Letter.............................................21
(k) Additional Documents...........................................................21
(l) Termination of Agreement.......................................................21
SECTION 6. Indemnification................................................................21
(a) Indemnification of International Managers......................................21
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(b) Indemnification of Company, Directors, Officers and Selling
Shareholders..................................................................24
(c) Actions against Parties; Notification.........................................24
(d) Settlement Without Consent if Failure to Reimburse............................25
SECTION 7. Contribution..................................................................25
SECTION 8. Representations, Warranties and Agreements to Survive Delivery................26
SECTION 9. Termination of Agreement......................................................26
(a) Termination; General..........................................................26
(b) Liabilities...................................................................27
SECTION 10. Default by One or More of the International Managers..........................27
SECTION 11. Notices.......................................................................28
SECTION 12. Parties.......................................................................28
SECTION 13. Governing Law and Time........................................................28
SECTION 14. Effect of Headings............................................................28
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THE ▇.▇. ▇▇▇▇▇▇▇ COMPANY
(an Ohio corporation)
1,260,000 Class A Common Shares
(Par Value $.01 Per Share)
INTERNATIONAL PURCHASE AGREEMENT
▇▇▇▇▇▇▇ ▇▇▇▇▇ International
as Lead Manager of the International Managers
c/o Merrill ▇▇▇▇▇ International
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Ladies and Gentlemen:
The ▇.▇. ▇▇▇▇▇▇▇ Company, an Ohio corporation (the "Company"), The
▇▇▇▇▇▇ ▇. Scripps Trust (the "Scripps Trust") and The ▇▇▇▇ ▇. ▇▇▇▇▇▇ Trust (the
"▇▇▇▇▇▇ Trust," and together with the Scripps Trust, the "Selling
Shareholders"), confirm their respective agreements with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.,
▇▇▇▇▇▇▇ ▇▇▇▇▇ International ("MLI") and each of the other International Managers
named in Schedule A hereto (collectively, the "International Managers", which
term shall also include any underwriter substituted as hereinafter provided in
Section 10 hereof), for whom MLI is acting as representative (in such capacity,
the "Lead Manager"), with respect to (i) the sale by the Selling Shareholders,
acting severally and not jointly, and the purchase by the International
Managers, acting severally and not jointly, of the respective numbers of Class A
Common Shares, par value $.01 per share ("Class A Common Shares"), of the
Company set forth in Schedules A and B hereto and (ii) the grant by the Selling
Shareholders to the International Managers, acting severally and not jointly, of
the option described in Section 2(b) hereof to purchase all or any part of
189,000 additional Class A Common Shares to cover over-allotments, if any. The
aforesaid 1,260,000 shares of Common Stock (the "Initial International
Securities") to be purchased by the International Managers and all or any part
of the 189,000 Class A Common Shares subject to the option described in Section
2(b) hereof (the "International Option Securities") are hereinafter called,
collectively, the "International Securities."
The Company and the Selling Shareholders understand that the
International Managers propose to make a public offering of the International
Securities as soon as the Lead Manager deems advisable after this Agreement has
been executed and delivered.
It is understood that the Company and the Selling Shareholders are
concurrently entering into an agreement dated the date hereof (the "U.S.
Purchase Agreement") providing for the offering by the Company and the Selling
Shareholders of an aggregate of 5,040,000 Class A Common Shares (the "Initial
U.S. Securities") through arrangements with certain underwriters in the United
States and Canada (the "U.S. Underwriters") for whom ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
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is acting as representative (the "U.S. Representative") and the grant by the
Selling Shareholders to the U.S. Underwriters, acting severally and not jointly,
of an option to purchase all or any part of the U.S. Underwriters' pro rata
portion of up to 756,000 additional Class A Common Shares solely to cover over
allotments, if any (the "U.S. Option Securities" and, together with the
International Option Securities, the "Option Securities"). The Initial U.S.
Securities and the U.S. Option Securities are hereinafter called the "U.S.
Securities." It is understood that (a) the Selling Shareholders are not
obligated to sell, and the International Managers are not obligated to purchase,
any Initial International Securities unless all of the Initial U.S. Securities
are contemporaneously purchased by the U.S. Underwriters, and (b) the Selling
Shareholders are not obligated to sell, and the U.S. Underwriters are not
obligated to purchase, any Initial U.S. Securities unless all of the Initial
International Securities are contemporaneously purchased by the International
Managers.
The International Managers and the U.S. Underwriters are hereinafter
collectively called the "Underwriters," the Initial International Securities and
the Initial U.S. Securities are hereinafter collectively called the "Initial
Securities," and the International Securities and the U.S. Securities are
hereinafter collectively called the "Securities."
The Underwriters will concurrently enter into an Intersydicate
Agreement of even date herewith (the "Intersyndicate Agreement") providing for
the coordination of certain transactions among the Underwriters under the
direction of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated (in such capacity, the "Global Coordinator").
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-53315) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), including the related preliminary prospectus or Prospectuses.
Promptly after execution and delivery of this Agreement, the Company will either
(i) prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of
the 1933 Act Regulations or (ii) if the Company has elected to rely upon Rule
434 ("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a
"Term Sheet") in accordance with the provisions of Rule 434 and Rule 424(b). Two
forms of prospectus are to be used in connection with the offering and sale of
the Securities: one relating to the International Securities (the "Form of
International Prospectus") and one relating to the U.S. Securities (the "Form of
U.S. Prospectus"). The Form of U.S. Prospectus is identical to the Form of
International Prospectus, except for the front cover and back cover pages and
the information under the caption "Underwriting." The information included in
such prospectus or in such Term Sheet, as the case may be, that was omitted from
such registration statement at the time it became effective but that is deemed
to be part of such registration statement at the time it became effective (a)
pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A Information"
or (b) pursuant to paragraph (d) of Rule 434 is referred to as "Rule 434
Information." The form of International Prospectus and the form of U.S.
Prospectus used before such registration statement became effective, and any
prospectus that omitted, as applicable, the Rule 430A Information or the Rule
434 Information, that was used after such effectiveness and prior to the
execution and delivery
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of this Agreement, are herein called a "preliminary prospectus." Such
registration statement, including the exhibits thereto, schedules thereto, if
any, and the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the 1933 Act, at the time it became effective and including the
Rule 430A Information and the Rule 434 Information, as applicable, is herein
called the "Registration Statement." Any registration statement filed pursuant
to Rule 462(b) of the 1933 Act Regulations is herein referred to as the "Rule
462(b) Registration Statement," and after such filing the term "Registration
Statement" shall include the Rule 462(b) Registration Statement. The final form
of International Prospectus and the final form of U.S. Prospectus in the forms
first furnished to the Underwriters for use in connection with the offering are
herein called the "International Prospectus" and the "U.S. Prospectus",
respectively, and collectively, the "Prospectuses." If Rule 434 is relied on,
the terms "International Prospectus" and "U.S. Prospectus" shall refer to the
Preliminary International Prospectus dated May __, 1998 and Preliminary U.S.
Prospectus dated May __, 1998, respectively, each together with the applicable
Term Sheet and all references in this Agreement to the date of the Prospectuses
shall mean the date of the Term Sheet. For purposes of this Agreement, all
references to the Registration Statement, any preliminary prospectus, the
International Prospectus, the U.S. Prospectus or any Term Sheet or any amendment
or supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("▇▇▇▇▇").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectuses, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectuses shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934 (the "1934 Act") which is
incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectuses, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each International Manager as of the
date hereof, as of the Closing Time referred to in Section 2(c)
hereof, and as of each Date of Delivery (if any) referred to in
Section 2(b) hereof, and agrees with each International Manager,
as follows:
(i) Compliance with Registration Requirements. The
Company meets the requirements for use of Form S-3 under
the 1933 Act. Each of the Registration Statement and any
Rule 462(b) Registration Statement has become effective
under the 1933
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Act and no stop order suspending the effectiveness of
the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933
Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any
request on the part of the Commission for additional
information has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at the Closing Time (and, if any International
Option Securities are purchased, at the Date of Delivery), the
Registration Statement, the Rule 462(b) Registration Statement and any
amendments and supplements thereto complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933
Act Regulations and did not and will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
Neither the Prospectuses nor any amendments or supplements thereto, at
the time the Prospectuses or any such amendment or supplement was
issued and at the Closing Time (and, if any International Option
Securities are purchased, at the Date of Delivery), included or will
include an untrue statement of a material fact or omitted or will omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. If Rule 434 is used, the Company will comply with the
requirements of Rule 434. The representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or International Prospectus made in reliance
upon and in conformity with information furnished to the Company in
writing by any International Manager through the Lead Manager expressly
for use in the Registration Statement or the U.S. Prospectus or any
amendments or supplements thereto.
Each preliminary prospectus and the prospectuses filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectuses
delivered to the Underwriters for use in connection with this offering
was identical to the electronically transmitted copies thereof filed
with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted
by Regulation S-T.
(ii) Incorporated Documents. The documents
incorporated or deemed to be incorporated by reference
in the Registration Statement and the Prospectuses, when
they became effective or at the time they were or
hereafter are filed with the Commission, complied and
will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act
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Regulations or the 1934 Act and the rules and
regulations of the Commission thereunder (the "1934 Act
Regulations"), as applicable, and, when read together
with the other information in the Prospectuses, at the
time the Registration Statement became effective, at the
time the Prospectuses were issued and at the Closing
Time (and, if any International Option Securities are
purchased, at the Date of Delivery), did not and will
not contain an untrue statement of a material fact or
omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading.
(iii) Independent Accountants. The accountants who
certified the financial statements and supporting
schedules included in the Registration Statement are
independent public accountants as required by the 1933
Act and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements
included in the Registration Statement and the
Prospectuses, together with the related schedules and
notes, present fairly the financial position of the
Company and its consolidated subsidiaries at the dates
indicated and the statement of operations, stockholders'
equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified;
said financial statements have been prepared in
conformity with generally accepted accounting principles
("GAAP") applied on a consistent basis throughout the
periods involved. The supporting schedules, if any,
included in the Registration Statement present fairly in
accordance with GAAP the information required to be
stated therein. The selected financial data and the
summary financial information included in the
Prospectuses present fairly the information shown
therein and have been compiled on a basis consistent
with that of the audited financial statements included
in the Registration Statement.
(v) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the
Registration Statement and the Prospectuses, except as
otherwise stated therein, (A) there has been no material
adverse change in the condition, financial or otherwise,
or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered
as one enterprise, whether or not arising in the
ordinary course of business (a
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"Material Adverse Effect"), (B) there have been no
transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of
business, which are material with respect to the Company
and its subsidiaries considered as one enterprise, and
(C) except for regular quarterly dividends on the Class
A Common Shares and Common Voting Shares of the Company
in amounts per share that are consistent with past
practice, there has been no dividend or distribution of
any kind declared, paid or made by the Company on any
class of its capital stock.
(vi) Good Standing of the Company. The Company has been
duly organized and is validly existing as a corporation
in good standing under the laws of the State of Ohio and
has corporate power and authority to own, lease and
operate its properties and to conduct its business as
described in the Prospectuses and to enter into and
perform its obligations under this Agreement and the
U.S. Purchase Agreement; and the Company is duly
qualified as a foreign corporation to transact business
and is in good standing in each other jurisdiction in
which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct
of business, except where the failure so to qualify or
to be in good standing would not result in a Material
Adverse Effect.
(vii) Good Standing of Subsidiaries. Each "significant
subsidiary" of the Company (as such term is defined in
Rule 1-02 of Regulation S-X) (each a "Subsidiary" and,
collectively, the "Subsidiaries") has been duly
organized and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own,
lease and operate its properties and to conduct its
business as described in the Prospectuses and is duly
qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to
be in good standing would not result in a Material
Adverse Effect; except as otherwise disclosed in the
Registration Statement, all of the issued and
outstanding capital stock of each such Subsidiary has
been duly authorized and validly issued, is fully paid
and non-assessable and except for Memphis Publishing
Company
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and Evansville Courier Company, Inc., is owned by the
Company, directly or through subsidiaries, free and
clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity; none of the outstanding
shares of capital stock of any Subsidiary was issued in
violation of the preemptive or similar rights of any
securityholder of such Subsidiary.
(viii) Capitalization. The authorized, issued and
outstanding capital stock of the Company is as set forth
in the Prospectuses under the caption "Capitalization"
(except for subsequent issuances, if any, pursuant to
this Agreement or the U.S. Purchase Agreement, pursuant
to reservations, agreements or employee benefit plans
referred to in the Prospectuses or pursuant to the
exercise of convertible securities or options referred
to in the Prospectuses). The shares of issued and
outstanding capital stock, including the Securities to
be purchased by the International Managers and the U.S.
Underwriters from the Selling Shareholders, have been
duly authorized and validly issued and are fully paid
and non-assessable; none of the outstanding shares of
capital stock, including the Securities to be purchased
by the International Managers and the U.S. Underwriters
from the Selling Shareholders, was issued in violation
of preemptive or other similar rights of any
securityholder of the Company.
(ix) Authorization of Agreement. This Agreement and the
U.S. Purchase Agreement have been duly authorized,
executed and delivered by the Company.
(x) Authorization and Description of Securities. The
Class A Common Shares conform to all statements relating
thereto contained in the Prospectuses and such
description conforms to the rights set forth in the
instruments defining the same; no holder of the
Securities will be subject to personal liability by
reason of being such a holder; and the issuance of the
Securities is not subject to preemptive or other similar
rights of any securityholder of the Company.
(xi) Absence of Defaults and Conflicts. Neither the
Company nor any of its subsidiaries is in violation of
its charter or by-laws or in default in the performance
or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit
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agreement, note, lease or other agreement or instrument
to which the Company or any of its subsidiaries is a
party or by which it or any of them may be bound, or to
which any of the property or assets of the Company or
any subsidiary is subject (collectively, "Agreements and
Instruments") except for such defaults that would not
result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement and the U.S.
Purchase Agreement and the consummation of the
transactions contemplated herein and therein and in the
Registration Statement (including the sale of the
Securities) and compliance by the Company with its
obligations hereunder and under the U.S. Purchase
Agreement have been duly authorized by all necessary
corporate action and do not and will not, whether with
or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, or a
default or Repayment Event (as defined below) under, or
result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the
Company or any subsidiary pursuant to, the Agreements
and Instruments (except for such conflicts, breaches or
defaults or liens, charges or encumbrances that would
not result in a Material Adverse Effect), nor will such
action result in any violation of the provisions of the
charter or by-laws of the Company or any subsidiary or
any applicable law, statute, rule, regulation, judgment,
order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any subsidiary or any
of their assets, properties or operations. As used
herein, a "Repayment Event" means any event or condition
which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such
holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such
indebtedness by the Company or any subsidiary.
(xii) Compliance with ERISA. The Company and each member
of its Control Group (as defined below) is in compliance
in all material respects with all presently applicable
provisions of the U.S. Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), and the
regulations and published interpretations thereunder; no
"reportable event" (for which a filing is required with
the Pension Benefit Guaranty Corporation) (as defined in
ERISA and the
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regulations and published interpretations thereunder)
has occurred with respect to any material "pension plan"
(as defined in ERISA and the regulations and published
interpretations thereunder) established or maintained by
the Company or any member of its Control Group; neither
the Company nor any member of its Control Group has
incurred nor expects to incur any material liability
under (i) Title IV of ERISA with respect to termination
of a "pension plan" or withdrawal from any multiemployer
"pension plan" (as defined in ERISA and the regulations
and published interpretations thereunder) or (ii)
Section 412 or 4971 of the U.S. Internal Revenue Code of
1986, as amended (the "Code"); and each material
"pension plan" established or maintained by the Company
that is intended to be qualified under Section 401(a) of
the Code is so qualified in all material respects and
has received favorable determination letter as to its
qualifications and nothing has occurred, whether by
action or failure to act, which would cause the loss of
such qualification. For purposes of this subsection,
"Control Group" is defined to include any entity which
is part of a group which includes the Company and is
treated as a single employer under Section 414 of the
Code.
(xiii) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any subsidiary exists or, to
the knowledge of the Company, is imminent, and the
Company is not aware of any existing or imminent labor
disturbance by the employees of any of its or any
subsidiary's principal suppliers, manufacturers,
customers or contractors, which, in either case, may
reasonably be expected to result in a Material Adverse
Effect.
(xiv) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought
by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the
Company, threatened, against or affecting the Company or
any subsidiary, which is required to be disclosed in the
Registration Statement (other than as disclosed
therein), or which might reasonably be expected to
result in a Material Adverse Effect, or which might
reasonably be expected to materially and adversely
affect the properties or assets thereof or the
consummation of the transactions contemplated in this
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Agreement or the U.S. Purchase Agreement or the
performance by the Company of its obligations hereunder
and thereunder; the aggregate of all pending legal or
governmental proceedings to which the Company or any
subsidiary is a party or of which any of their
respective property or assets is the subject which are
not described in the Registration Statement, including
ordinary routine litigation incidental to the business,
could not reasonably be expected to result in a Material
Adverse Effect.
(xv) Accuracy of Exhibits. There are no contracts or
documents which are required to be described in the
Registration Statement, the Prospectuses or the
documents incorporated by reference therein or to be
filed as exhibits thereto which have not been so
described and filed as required.
(xvi) Possession of Intellectual Property. The Company
and its subsidiaries own or possess, or can acquire on
reasonable terms, adequate patents, patent rights,
licenses, inventions, copyrights, know-how (including
trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or
other intellectual property (collectively, "Intellectual
Property") necessary to carry on the business now
operated by them, and neither the Company nor any of its
subsidiaries has received any notice or is otherwise
aware of any infringement of or conflict with asserted
rights of others with respect to any Intellectual
Property or of any facts or circumstances which would
render any Intellectual Property invalid or inadequate
to protect the interest of the Company or any of its
subsidiaries therein, and which infringement or conflict
(if the subject of any unfavorable decision, ruling or
finding) or invalidity or inadequacy, singly or in the
aggregate, would result in a Material Adverse Effect.
(xvii) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order,
registration, qualification or decree of, any court or
governmental authority or agency is necessary or
required for the performance by the Company of its
obligations under this Agreement or the U.S. Purchase
Agreement, in connection with the offering, issuance or
sale of the Securities hereunder or thereunder or the
consummation of the transactions contemplated by this
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Agreement or the U.S. Purchase Agreement, except such as
have been already obtained or as may be required under
the 1933 Act or the 1933 Act Regulations or state
securities laws.
(xviii) Possession of Licenses and Permits. The Company and
its subsidiaries possess such permits, licenses,
approvals, consents and other authorizations
(collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory
agencies or bodies necessary to conduct the business now
operated by them; the Company and its subsidiaries are
in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to
comply would not, singly or in the aggregate, have a
Material Adverse Effect; all of the Governmental
Licenses are valid and in full force and effect, except
when the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full
force and effect would not have a Material Adverse
Effect; and neither the Company nor any of its
subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect.
(xix) Title to Property. The Company and its subsidiaries
have good and marketable title to all real property
owned by the Company and its subsidiaries and good title
to all other properties owned by them, in each case,
free and clear of all mortgages, pledges, liens,
security interests, claims, restrictions or encumbrances
of any kind except such as (a) are described in the
Prospectuses or (b) do not, singly or in the aggregate,
materially affect the value of such property and do not
interfere with the use made and proposed to be made of
such property by the Company or any of its subsidiaries;
and all of the leases and subleases material to the
business of the Company and its subsidiaries, considered
as one enterprise, and under which the Company or any of
its subsidiaries holds properties described in the
Prospectuses, are in full force and effect, and neither
the Company nor any subsidiary has any notice of any
material claim of any sort that has been asserted by
anyone adverse to the rights of the Company or any
subsidiary under any of the leases or subleases
mentioned above, or affecting or questioning the rights
of the Company
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or such subsidiary to the continued possession of the
leased or subleased premises under any such lease or
sublease.
(xx) Compliance with Cuba Act. The Company has complied
with, and is and will be in compliance with, the
provisions of that certain Florida act relating to
disclosure of doing business with Cuba, codified as
Section 517.075 of the Florida statutes, and the rules
and regulations thereunder (collectively, the "Cuba
Act") or is exempt therefrom.
(xxi) Investment Company Act. The Company is not, and
upon the issuance and sale of the Securities as herein
contemplated and the application of the net proceeds
therefrom as described in the Prospectuses will not be,
an "investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the
Investment Company Act of 1940, as amended (the "1940
Act").
(xxii) Environmental Laws. Except as described in the
Registration Statement and except as would not, singly
or in the aggregate, result in a Material Adverse
Effect, (A) neither the Company nor any of its
subsidiaries is in violation of any federal, state,
local or foreign statute, law, rule, regulation,
ordinance, code, policy or rule of common law or any
judicial or administrative interpretation thereof,
including any judicial or administrative order, consent,
decree or judgment, relating to pollution or protection
of human health, the environment (including, without
limitation, ambient air, surface water, groundwater,
land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations
relating to the release or threatened release of
chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum
products (collectively, "Hazardous Materials") or to the
manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous
Materials (collectively, "Environmental Laws"), (B) the
Company and its subsidiaries have all permits,
authorizations and approvals required under any
applicable Environmental Laws and are each in compliance
with their requirements, (C) there are no pending or, to
the Company's knowledge, threatened administrative,
regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any
Environmental Law against the Company or
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any of its subsidiaries and (D) there are no events or
circumstances that might reasonably be expected to form
the basis of an order for clean-up or remediation, or an
action, suit or proceeding by any private party or
governmental body or agency, against or affecting the
Company or any of its subsidiaries relating to Hazardous
Materials or any Environmental Laws.
(b) Representations and Warranties by the Selling Shareholders.
Each Selling Shareholder severally and not jointly represents and warrants
to each International Manager as of the date hereof, as of the Closing
Time, and, if the Selling Shareholder is selling International Option
Securities on a Date of Delivery, as of each such Date of Delivery, and
agrees with each International Manager, as follows:
(i) Good Standing of the Selling Shareholders. The
Scripps Trust represents and warrants that it is a trust
duly formed and validly existing pursuant to Ohio law.
The ▇▇▇▇▇▇ Trust represents and warrants that it is a
trust duly formed and validly existing pursuant to New
York law.
(ii) Accurate Disclosure. To the best knowledge of the
Scripps Trust, the representations and warranties of the
Company contained in Section 1(a) hereof are true and
correct. The Scripps Trust has reviewed and is familiar
with the Registration Statement and the Prospectuses
with respect to all information contained therein other
than information furnished by the ▇▇▇▇▇▇ Trust and with
respect to such information neither the Prospectuses nor
any amendments or supplements thereto includes any
untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which
they were made, not misleading. The Scripps Trust makes
no representation or warranty with respect to any
matters or information relating to the ▇▇▇▇▇▇ Trust
contained in the Registration Statement and
Prospectuses, or any amendments or supplements thereto.
The ▇▇▇▇▇▇ Trust has reviewed and is familiar with the
Registration Statement and the Prospectuses with respect
to matters relating to the ▇▇▇▇▇▇ Trust only, and with
respect to such matters neither the Prospectuses nor any
amendments or supplements thereto includes any untrue
statement of a material fact or omits to state a
material fact necessary in
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order to make the statements therein, in light of the
circumstances under which they were made, not
misleading. The ▇▇▇▇▇▇ Trust makes no representation or
warranty with respect to any matters or information
relating to the Company or the Scripps Trust contained
in the Registration Statement and Prospectuses, or any
amendments or supplements thereto. Neither Selling
Shareholder is prompted to sell the Securities to be
sold by such Selling Shareholder under this Agreement
and the U.S. Purchase Agreement by any information
concerning the Company or any subsidiary of the Company
which is not set forth in the Prospectuses.
(iii) Authorization of Agreements. Each Selling
Shareholder has the full right, power and authority to
enter into this Agreement and the U.S. Purchase
Agreement and to sell, transfer and deliver the
Securities to be sold by such Selling Shareholder
hereunder and thereunder. The execution and delivery of
this Agreement and the U.S. Purchase Agreement and the
sale and delivery of the Securities to be sold by such
Selling Shareholder and the consummation of the
transactions contemplated herein and therein and
compliance by such Selling Shareholder with its
obligations hereunder and under the U.S. Purchase
Agreement have been duly authorized by such Selling
Shareholder and do not and will not, whether with or
without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any
tax, lien, charge or encumbrance upon the Securities to
be sold by such Selling Shareholder or any property or
assets of such Selling Shareholder pursuant to any
contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, license, lease or other
agreement or instrument to which such Selling
Shareholder is a party or by which such Selling
Shareholder may be bound, or to which any of the
property or assets of such Selling Shareholder is
subject, nor will such action result in any violation of
the provisions of the trust agreement of such Selling
Shareholder, or any applicable treaty, law, statute,
rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court,
domestic or foreign, having jurisdiction over such
Selling Shareholder or any of its properties.
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(iv) Good and Marketable Title. Each Selling Shareholder
has and will at the Closing Time and, if any
International Option Securities are purchased, on the
Date of Delivery, have good and marketable title to the
Securities to be sold by such Selling Shareholder under
this Agreement and the U.S. Purchase Agreement, free and
clear of any security interest, mortgage, pledge, lien,
charge, claim, equity or encumbrance of any kind, other
than pursuant to this Agreement and the U.S. Purchase
Agreement, and upon delivery of such Securities and
payment of the purchase price therefor as herein and
therein contemplated, assuming each such Underwriter has
no notice of any adverse claim, each of the Underwriters
will receive good and marketable title to the Securities
purchased by it from such Selling Shareholder, free and
clear of any security interest, mortgage, pledge, lien,
charge, claim, equity or encumbrance of any kind.
(v) Absence of Manipulation. Such Selling Shareholder
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 Securities.
(vi) Absence of Further Requirements. No filing with, or
consent, approval, authorization, order, registration,
qualification or decree of, any court or governmental
authority or agency, domestic or foreign, is necessary
or required for the performance by any Selling
Shareholder of its obligations under this Agreement or
the U.S. Purchase Agreement or in connection with the
sale and delivery of the Securities under this Agreement
or the U.S. Purchase Agreement or the consummation of
the transactions contemplated by this Agreement and the
U.S. Purchase Agreement, except such as may have
previously been made or obtained or as may be required
under the 1933 Act or the 1933 Act Regulations or state
securities laws.
(vii) Restriction on Sale of Securities. During a period
of 180 days from the date of the Prospectuses, neither
Selling Shareholder will, without the prior written
consent of MLI, (i) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase
any option or contract to sell, grant any
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option, right or warrant to purchase or otherwise
transfer or dispose of, directly or indirectly, any
Common Voting Shares or Class A Common Shares or any
securities convertible into or exercisable or
exchangeable for Common Voting Shares or Class A Common
Shares or file any registration statement under the 1933
Act with respect to any of the foregoing or (ii) enter
into any swap or any other agreement or any transaction
that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the
Common Voting Shares or Class A Common Shares, whether
any such swap or transaction described in clause (i) or
(ii) above is to be settled by delivery of Common Voting
Shares or Class A Common Shares or such other
securities, in cash or otherwise. The foregoing sentence
shall not apply to the Securities to be sold hereunder
or under the U.S. Purchase Agreement.
(viii) No Association with NASD. Neither such Selling
Shareholder nor any of its affiliates directly, or
indirectly through one or more intermediaries, controls,
or is controlled by, or is under common control with, or
has any other association with (within the meaning
of Article I, Section 1(q) of the By-laws of the
National Association of Securities Dealers, Inc.), any
member firm of the National Association of Securities
Dealers, Inc.
(ix) Delivery of Form W-9. Such Selling Shareholder
agrees to deliver to the Lead Manager at or prior to the
Closing Time 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).
(c) Officer's Certificates. Any certificate signed by any officer
of the Company or any of its subsidiaries delivered to the Lead
Manager or to counsel for the International Managers and the U.S.
Underwriters shall be deemed a representation and warranty by the
Company to each International Manager and each U.S. Underwriter as
to the matters covered thereby; and any certificate signed by or on
behalf of the Selling Shareholders as such and delivered to the
Lead Manager or to counsel for the International Managers and the
U.S. Underwriters pursuant to the terms of this Agreement and the
U.S. Purchase Agreement shall be deemed a representation and
warranty by such Selling Shareholder to each International Manager
and U.S. Underwriter as to the matters covered thereby.
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SECTION 2. Sale and Delivery to International Managers; Closing.
(a) Initial International Securities. On the basis of the
representations and warranties herein contained and subject to
the terms and conditions herein set forth, each Selling
Shareholder, severally and not jointly, agrees to sell to each
International Manager, severally and not jointly, and each
International Manager, severally and not jointly, agrees to
purchase from each Selling Shareholder, at the price per share
set forth in Schedule C, that proportion of the number of
Initial International Securities set forth in Schedule B
opposite the name of such Selling Shareholder, the number of
Initial International Securities set forth in Schedule A
opposite the name of such International Manager, plus any
additional number of Initial International Securities which
such International Manager may become obligated to purchase
pursuant to the provisions of Section 10 hereof, bears to the
total number of Initial International Securities, subject, in
each case, to such adjustments among the International
Managers as the Lead Manager in its sole discretion shall make
to eliminate any sales or purchases of fractional securities.
(b) International Option Securities. In addition, on the basis
of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, The
Scripps Trust and the ▇▇▇▇▇▇ Trust hereby grant options to the
International Managers, severally and not jointly, to purchase
up to an aggregate additional 189,000 Class A Common Shares as
set forth in Schedule B, at the price per share set forth in
Schedule C, less an amount per share equal to any dividends or
distributions declared by the Company and payable on the
Initial International Securities but not payable on the
International Option Securities. The option hereby granted
will expire 30 days after the date hereof and may be exercised
in whole or in part from time to time only for the purpose of
covering over-allotments which may be made in connection with
the offering and distribution of the Initial International
Securities upon notice by the Lead Manager to the Selling
Shareholders setting forth the number of International Option
Securities as to which the several International Managers are
then exercising the option and the time and date of payment
and delivery for such International Option Securities. Any
such time and date of delivery (a "Date of Delivery") shall be
determined by the Lead Manager, but shall not be later than
seven full business days after the exercise of said option,
nor in any event prior to the Closing Time, as hereinafter
defined. If the option is exercised as to all or any portion
of the International Option Securities, each of the
International Managers, acting severally and not jointly, will
purchase that proportion of the total number of International
Option Securities then being purchased which the number of
Initial International Securities set forth in Schedule A
opposite the name of such International Manager bears to the
total number of Initial
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International Securities, subject in each case to such
adjustments as the Lead Manager in its discretion shall make
to eliminate any sales or purchases of fractional shares.
(c) Payment. Payment of the purchase price for, and delivery
of certificates for, the Initial International Securities
shall be made at the offices of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, or at such other place
as shall be agreed upon by the Lead Manager, the Company and
the Selling Shareholders, at 9:00 A.M. (Eastern time) on the
third (fourth, if the pricing occurs after 4:30 P.M. (Eastern
time)) business day after the date hereof (unless postponed in
accordance with the provisions of Section 10), or such other
time not later than ten business days after such date as shall
be agreed upon by the Lead Manager, the Company and the
Selling Shareholders (such time and date of payment and
delivery being herein called "Closing Time").
In addition, in the event that any or all of the International Option
Securities are purchased by the International Managers, payment of the purchase
price for, and delivery of certificates for, such International Option
Securities shall be made at the above-mentioned offices, or at such other place
as shall be agreed upon by the Lead Manager, the Company and the Selling
Shareholders, on each Date of Delivery as specified in the notice from the Lead
Manager to the Company and the Selling Shareholders.
Payment shall be made to the Selling Shareholders by wire transfer of
immediately available funds to the bank account designated by each Selling
Shareholder against delivery to the Lead Manager for the respective accounts of
the International Managers of certificates for the Securities to be purchased by
them. It is understood that each International Manager has authorized the Lead
Manager, for its account, to accept delivery of, receipt for, and make payment
of the purchase price for, the Initial International Securities and the
International Option Securities, if any, which it has agreed to purchase. MLI,
individually and not as representative of the International Managers, may (but
shall not be obligated to) make payment of the purchase price for the Initial
International Securities or the International Option Securities, if any, to be
purchased by any International Manager whose funds have not been received by the
Closing Time or the relevant Date of Delivery, as the case may be, but such
payment shall not relieve such International Manager from its obligations
hereunder.
(d) Denominations; Registration. Certificates for the Initial
International Securities and the International Option
Securities, if any, shall be in such denominations and
registered in such names as the Lead Manager may request in
writing at least two full business days before the Closing
Time or the relevant Date of Delivery, as the case may be. The
certificates for the Initial International Securities and the
International Option Securities, if any, will be made
available for examination and packaging by the Lead Manager in
the City of New York not later than 10:00 A.M. (Eastern time)
on the business
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day prior to the Closing Time or the relevant Date of
Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with
each International Manager as follows:
(a) Compliance with Securities Regulations and Commission
Requests. The Company, subject to Section 3(b), will comply
with the requirements of Rule 430A or Rule 434, as applicable,
and will notify the Lead Manager immediately, and confirm the
notice in writing, (i) when any post-effective amendment to
the Registration Statement shall become effective, or any
supplement to the Prospectuses or any amended Prospectuses
shall have been filed, (ii) of the receipt of any comments
from the Commission, (iii) of any request by the Commission
for any amendment to the Registration Statement or any
amendment or supplement to the Prospectuses or for additional
information, and (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of
any preliminary prospectus, or of the suspension of the
qualification of the Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will
promptly effect the filings necessary pursuant to Rule 424(b)
and will take such steps as it deems necessary to ascertain
promptly whether the form of prospectus transmitted for filing
under Rule 424(b) was received for filing by the Commission
and, in the event that it was not, it will promptly file such
prospectus. The Company will make every reasonable effort to
prevent the issuance of any stop order and, if any stop order
is issued, to obtain the lifting thereof at the earliest
possible moment.
(b) Filing of Amendments. The Company will give the Lead
Manager notice of its intention to file or prepare any
amendment to the Registration Statement (including any filing
under Rule 462(b)), any Term Sheet or any amendment,
supplement or revision to either the prospectus included in
the Registration Statement at the time it became effective or
to the Prospectuses, whether pursuant to the 1933 Act, the
1934 Act or otherwise, will furnish the Lead Manager with
copies of any such documents a reasonable amount of time prior
to such proposed filing or use, as the case may be, and will
not file or use any such document to which the Lead Manager or
counsel for the International Managers shall object.
(c) Delivery of Registration Statements. The Company has
furnished or will deliver to the Lead Manager and counsel for
the International Managers, without charge, signed copies of
the Registration Statement as originally filed
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and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents
incorporated or deemed to be incorporated by reference
therein) and signed copies of all consents and certificates of
experts, and will also deliver to the Lead Manager, without
charge, a conformed copy of the Registration Statement as
originally filed and of each amendment thereto (without
exhibits) for each of the International Managers. The copies
of the Registration Statement and each amendment thereto
furnished to the International Managers will be identical to
the electronically transmitted copies thereof filed with the
Commission pursuant to ▇▇▇▇▇, except to the extent permitted
by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to
each International Manager, without charge, as many copies of
each preliminary prospectus as such International Manager
reasonably requested, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The
Company will furnish to each International Manager, without
charge, during the period when the International Prospectus is
required to be delivered under the 1933 Act or the 1934 Act,
such number of copies of the International Prospectus (as
amended or supplemented) as such International Manager may
reasonably request. The International Prospectus and any
amendments or supplements thereto furnished to the
International Managers will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant
to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company
will comply with the 1933 Act and the 1933 Act Regulations and
the 1934 Act and the 1934 Act Regulations so as to permit the
completion of the distribution of the Securities as
contemplated in this Agreement, the U.S. Purchase Agreement
and in the Prospectuses. If at any time when a prospectus is
required by the 1933 Act to be delivered in connection with
sales of the Securities, any event shall occur or condition
shall exist as a result of which it is necessary, in the
opinion of counsel for the International Managers or for the
Company, to amend the Registration Statement or amend or
supplement the Prospectuses in order that the Prospectuses
will not include any untrue statements of a material fact or
omit to state a material fact necessary in order to make the
statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement
or amend or supplement the Prospectuses in order to comply
with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company will promptly prepare and file with
the Commission, subject to Section 3(b), such amendment or
supplement as may be necessary to correct
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such statement or omission or to make the Registration
Statement or the Prospectuses comply with such requirements,
and the Company will furnish to the International Managers
such number of copies of such amendment or supplement as the
International Managers may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best
efforts, in cooperation with the International Managers, to
qualify the Securities for offering and sale under the
applicable securities laws of such states and other
jurisdictions (domestic or foreign) as the Lead Manager may
designate and to maintain such qualifications in effect for a
period of not less than one year from the later of the
effective date of the Registration Statement and any Rule
462(b) Registration Statement; provided, however, that the
Company shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation or
as a dealer in securities in any jurisdiction in which it is
not so qualified or to subject itself to taxation in respect
of doing business in any jurisdiction in which it is not
otherwise so subject. In each jurisdiction in which the
Securities have been so qualified, the Company will file such
statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a
period of not less than one year from the effective date of
the Registration Statement and any Rule 462(b) Registration
Statement.
(g) Rule 158. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make
generally available to its securityholders as soon as
practicable an earnings statement for the purposes of, and to
provide the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
(h) Restriction on Sale of Securities. During a period of 180
days from the date of the Prospectuses, the Company will not,
without the prior written consent of MLI, (i) directly or
indirectly, offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to
purchase or otherwise transfer or dispose of any Common Voting
Shares or Class A Common Shares or any securities convertible
into or exercisable or exchangeable for Common Voting Shares
or Class A Common Shares or file any registration statement
under the 1933 Act with respect to any of the foregoing or
(ii) enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the
Common Voting Shares or Class A Common Shares, whether any
such swap or transaction described in clause (i) or (ii) above
is to be settled by delivery of Common Voting Shares or Class
A Common Shares or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (A) the
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Securities to be sold hereunder and under the U.S. Purchase
Agreement, (B) any Common Voting Shares or Class A Common
Shares issued by the Company upon the exercise of an option or
warrant or the conversion of a security outstanding on the
date hereof and referred to in the Prospectuses, (C) any
shares of Common Voting Shares or Class A Common Shares issued
or options to purchase Common Voting Shares or Class A Common
Shares granted pursuant to existing employee benefit plans of
the Company referred to in the Prospectuses or (D) Common
Voting Shares or Class A Common Shares issued pursuant to any
non-employee director stock plan or dividend reinvestment
plan.
(i) Reporting Requirements. The Company, during the period
when the Prospectuses are required to be delivered under the
1933 Act or the 1934 Act, will file all documents required to
be filed with the Commission pursuant to the 1934 Act within
the time periods required by the 1934 Act and the 1934 Act
Regulations.
SECTION 4. Payment of Expenses.
(a) Expenses. The Selling Shareholders will pay or cause to
be paid all fees and expenses incident to the performance of
their obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally
filed and of each amendment thereto, (ii) the preparation,
printing and delivery to the International Managers of this
Agreement and the U.S. Purchase Agreement, any Agreement among
Underwriters and such other documents as may be required in
connection with the offering, purchase, sale, issuance or
delivery of the Securities, (iii) the preparation, issuance
and delivery of the certificates for the Securities to the
Underwriters, including any stock or other transfer taxes and
any stamp duties, capital duties, stock transfer taxes or
other duties payable upon the sale, issuance or delivery of
the Securities to the International Managers, (iv) the fees
and disbursements of the Company's counsel, accountants and
other advisors and the fees and disbursement of the Selling
Shareholders' respective counsel, accountants and other
advisors, (v) the qualification of the Securities under
securities laws in accordance with the provisions of Section
3(f) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the International Managers in
connection therewith and in connection with the preparation of
the Blue Sky Survey and any supplement thereto, (vi) the
printing and delivery to the Underwriters of copies of each
preliminary prospectus, any Term Sheets and of the
Prospectuses and any amendments or supplements thereto, (vii)
the preparation, printing and delivery to the Underwriters of
copies of the
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Blue Sky Survey and any supplement thereto and (viii) the fees
and expenses of any transfer agent or registrar for the
Securities.
(b) Termination of Agreement. If this Agreement is terminated
by the Lead Manager in accordance with the provisions of
Section 5, Section 9(a)(i) or Section 10 hereof, the Selling
Shareholders shall reimburse the International Managers for
all of their out-of-pocket expenses, including the reasonable
fees and disbursements of counsel for the International
Managers.
SECTION 5. Conditions of International Managers' Obligations. The
obligations of the several International Managers hereunder
are subject to the accuracy of the representations and
warranties of the Company and the Selling Shareholders
contained in Section 1 hereof and in certificates of any
officer of the Company or any subsidiary of the Company or on
behalf of any Selling Shareholder delivered pursuant to the
provisions hereof, to the performance by the Company of its
covenants and other obligations hereunder, and to the
following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement,
has become effective and at Closing Time no stop order
suspending the effectiveness of the Registration Statement
shall have been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission, and any
request on the part of the Commission for additional
information shall have been complied with to the reasonable
satisfaction of counsel to the International Managers. A
prospectus containing the Rule 430A Information shall have
been filed with the Commission in accordance with Rule 424(b)
(or a post-effective amendment providing such information
shall have been filed and declared effective in accordance
with the requirements of Rule 430A) or, if the Company has
elected to rely upon Rule 434, a Term Sheet shall have been
filed with the Commission in accordance with Rule 424(b).
(b) Opinion of Counsel for Company. At Closing Time, the Lead
Manager shall have received the favorable opinion, dated as of
Closing Time, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the
Company, in form and substance satisfactory to counsel for the
International Managers, together with signed or reproduced
copies of such letter for each of the International Managers
to the effect set forth in Exhibit A hereto and to such
further effect as counsel to the International Managers may
reasonably request.
(c) Opinion of Counsel for the Selling Shareholders. At
Closing Time, the Lead Manager shall have received the
favorable opinion, dated as of Closing Time, of ▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇ LLP and Fulton, Rowe, ▇▇▇▇ & ▇▇▇▇, counsel for The
Scripps Trust and The ▇▇▇▇▇▇ Trust, respectively, in form
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and substance satisfactory to counsel for the International
Managers, together with signed or reproduced copies of such
letter for each of the International Managers to the effect
set forth in Exhibit B hereto and to such further effect as
counsel to the International Managers may reasonably request.
(d) Opinion of Counsel for Underwriters. At Closing Time,
the Lead Manager shall have received the favorable opinion,
dated as of Closing Time, of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ &
▇▇▇▇ (Illinois), counsel for the International Managers,
together with signed or reproduced copies of such letter for
each of the other International Managers with respect to such
matters as you may reasonably request.
(e) Officers' Certificate. At Closing Time, there shall not
have been, since the date hereof or since the respective dates
as of which information is given in the Prospectuses, any
material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course
of business, and the Lead Manager shall have received a
certificate of the President or a Vice President of the
Company and of the chief financial or chief accounting officer
of the Company, dated as of Closing Time, to the effect that
(i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1(a) hereof are true
and correct with the same force and effect as though expressly
made at and as of Closing Time, (iii) the Company has complied
with all agreements and satisfied all conditions on its part
to be performed or satisfied at or prior to Closing Time, and
(iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or are pending or are
contemplated by the Commission.
(f) Certificate of Selling Shareholders. At Closing Time, the
Lead Manager shall have received a certificate of each Selling
Shareholder, dated as of Closing Time, to the effect that (i)
the representations and warranties of such Selling Shareholder
contained in Section 1(b) hereof are true and correct in all
respects with the same force and effect as though expressly
made at and as of Closing Time and (ii) such Selling
Shareholder has complied in all material respects with all
agreements and all conditions on its part to be performed
under this Agreement and the U.S. Purchase Agreement at or
prior to Closing Time.
(g) Accountant's Comfort Letter. At the time of the execution
of this Agreement, the Lead Manager shall have received from
Deloitte & Touche LLP a letter dated such date, in form and
substance satisfactory to the Lead
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Manager, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and
certain financial information contained in the Registration
Statement and the Prospectuses.
(h) Bring-down Comfort Letter. At Closing Time, the Lead
Manager shall have received from Deloitte & Touche LLP a
letter, dated as of Closing Time, to the effect that they
reaffirm the statements made in the letter furnished pursuant
to clause (g) of this Section, except that the specified date
referred to shall be a date not more than three business days
prior to Closing Time.
(i) Purchase of Initial U.S. Securities. Contemporaneously
with the purchase by the International Managers of the Initial
International Securities under this Agreement, the U.S.
Underwriters shall have purchased the Initial U.S. Securities
under the U.S. Purchase Agreement.
(j) Conditions to Purchase of International Option
Securities. In the event that the International Managers
exercise their option provided in Section 2(b) hereof to
purchase all or any portion of the International Option
Securities, the representations and warranties of the Company
and the Selling Shareholders contained herein and the
statements in any certificates furnished by the Company, any
subsidiary of the Company and the Selling Shareholders
hereunder shall be true and correct as of each Date of
Delivery and, at the relevant Date of Delivery, the Lead
Manager shall have received:
(i) Officers' Certificate. A certificate, dated
such Date of Delivery, of the President or a
Vice President of the Company and of the chief
financial or chief accounting officer of the
Company confirming that the certificate
delivered at the Closing Time pursuant to
Section 5(e) hereof remains true and correct as
of such Date of Delivery.
(ii) Certificate of Selling Shareholders. A
certificate, dated such Date of Delivery, of
each Selling Shareholder confirming that the
certificate delivered at Closing Time pursuant
to Section 5(f) remains true and correct as of
such Date of Delivery.
(iii) Opinion of Counsel for Company. The favorable
opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for
the Company, in form and substance satisfactory
to counsel for the International Managers, dated
such
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Date of Delivery, relating to the International
Option Securities to be purchased on such Date
of Delivery and otherwise to the same effect as
the opinion required by Section 5(b) hereof.
(iv) Opinion of Counsel for the Selling
Shareholders. The favorable opinion of ▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇ LLP and Fulton, Rowe, ▇▇▇▇ & ▇▇▇▇,
counsel for The Scripps Trust and The ▇▇▇▇▇▇
Trust, respectively, in form and substance
satisfactory to counsel for the International
Managers, dated such Date of Delivery, relating
to the International Option Securities to be
purchased on such Date of Delivery and otherwise
to the same effect as the opinion required by
Section 5(c) hereof.
(v) Opinion of Counsel for International Managers.
The favorable opinion of Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ (Illinois), counsel for the
International Managers, dated such Date of
Delivery, relating to the International Option
Securities to be purchased on such Date of
Delivery and otherwise to the same effect as the
opinion required by Section 5(d) hereof.
(vi) Bring-down Comfort Letter. A letter from
Deloitte & Touche LLP, in form and substance
satisfactory to the Lead Manager and dated such
Date of Delivery, substantially in the same form
and substance as the letter furnished to the
Lead Manager pursuant to Section 5(g) hereof,
except that the "specified date" in the letter
furnished pursuant to this paragraph shall be a
date not more than five days prior to such Date
of Delivery.
(k) Additional Documents. At Closing Time and at each Date of
Delivery counsel for the International Managers shall have been
furnished with such documents and opinions as they may require
for the purpose of enabling them to pass upon the issuance and
sale of the Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or
warranties, or the fulfillment of any of the conditions, herein
contained; and all proceedings taken by the Company and the
Selling Shareholders in connection with the issuance and sale of
the Securities as herein contemplated
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shall be satisfactory in form and substance to the Lead Manager
and counsel for the International Managers.
(l) Termination of Agreement. If any condition specified in
this Section shall not have been fulfilled when and as required
to be fulfilled, this Agreement, or, in the case of any
condition to the purchase of International Option Securities
on a Date of Delivery which is after the Closing Time, the
obligations of the several International Managers to purchase
the relevant International Option Securities, may be
terminated by the Lead Manager by notice to the Company at any
time at or prior to Closing Time or such Date of Delivery, as
the case may be, and such termination shall be without
liability of any party to any other party except as provided
in Section 4 and except that Sections 1, 6, 7 and 8 shall
survive any such termination and remain in full force and
effect.
SECTION 6. Indemnification.
(a) Indemnification of International Managers. (1) By the
Company. The Company agrees to indemnify and hold harmless each
International Manager and each person, if any, who controls any
International Manager within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act to the extent and in the
manner set forth in clauses (i), (ii) and (iii) below:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment
thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement
of a material fact included in any preliminary prospectus or the
Prospectuses (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission; provided that (subject to Section 6(d) below) any such
settlement is effected with the written consent of the Company and the Selling
Shareholders; and
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(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by MLI),
reasonably incurred in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under clause (i) or (ii) above;
provided that the liability of the Company to indemnify or otherwise make
payments to the International Managers (or persons controlling the International
Managers) pursuant to the foregoing indemnity agreement of the Company (and any
liability of the Company as a result of any breach of this Agreement by the
Company other than as a result of bad faith) shall not extend to statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information, if applicable, or any preliminary prospectus or the
Prospectuses (or any amendment or supplement thereto) in reliance upon and in
conformity with information furnished by the Scripps Trust or the ▇▇▇▇▇▇ Trust
for use in the Registration Statement (or any amendment thereto) or such
preliminary prospectus or the Prospectuses (or any amendment or supplement
thereto).
(2) By the Scripps Trust. The Scripps Trust agrees to indemnify
and hold harmless each International Manager and each person, if any, who
controls any International Manager within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act against any and all loss, liability, claim,
damage and expense described in clauses (i), (ii) and (iii) of Section 6(a)(1)
above, as incurred; provided that the liability of the Scripps Trust to
indemnify or otherwise make payments to the International Managers (or persons
controlling the International Managers) pursuant to the foregoing indemnity
agreement of the Scripps Trust shall not extend to statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement (or
any amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or any preliminary prospectus or the Prospectuses
(or any amendment or supplement thereto) in reliance upon and in conformity with
information furnished by the ▇▇▇▇▇▇ Trust for use in the Registration Statement
(or any amendment thereto) or such preliminary prospectus or the Prospectuses
(or any amendment or supplement thereto).
(3) By the ▇▇▇▇▇▇ Trust. The ▇▇▇▇▇▇ Trust agrees to indemnify and
hold harmless each International Manager and each person, if any, who controls
any International Manager within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act to the extent and manner set forth in clauses (i),
(ii) and (iii) of Section 6(a)(1) above; provided that the liability of the
▇▇▇▇▇▇ Trust to indemnify or otherwise make payments to the International
Managers (or persons controlling the International Managers) pursuant to the
foregoing indemnity agreement of the ▇▇▇▇▇▇ Trust (and any liability as a result
of any breach of this Agreement by the ▇▇▇▇▇▇ Trust other than as a result of
bad faith) shall be limited to statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendment
thereto), including the Rule 430A Information and the Rule 434 Information, if
applicable, or any preliminary prospectus or the Prospectuses (or any amendment
or supplement thereto) in reliance upon and in conformity with information
furnished
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by the ▇▇▇▇▇▇ Trust for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus or the Prospectuses (or any
amendment or supplement thereto), and in no event shall the aggregate of such
liability of the ▇▇▇▇▇▇ Trust exceed the product of the number of Shares sold by
the ▇▇▇▇▇▇ Trust times the price per share paid to it by the International
Managers pursuant hereto.
The foregoing notwithstanding, indemnity agreements of the
Company and Selling Shareholders shall not apply to any loss, liability, claim,
damage or expense to the extent arising out of any untrue statement or omission
or alleged untrue statement or omission made in reliance upon and in conformity
with written information furnished to the Company by any International Manager
through MLI expressly for use in the Registration Statement (or any amendment
thereto), including the Rule 430A Information and the Rule 434 Information, if
applicable, or any preliminary prospectus or the Prospectuses (or any amendment
or supplement thereto). The Company and the Selling Shareholders will not be
liable to any International Manager with respect to any International Prospectus
to the extent that the Company or Selling Shareholders shall sustain the burden
of proving that any such loss, liability, claim, damage or expense resulted from
the fact that such International Manager, in contravention of a requirement of
this Agreement or applicable law, sold Securities to a person to whom such
International Manager failed to send or give, at or prior to the Closing Time, a
copy of the International Prospectus, as then amended or supplemented if: (i)
the Company has previously furnished copies thereof (sufficiently in advance of
the Closing Time to allow for distribution by the Closing Time) to the
International Managers and the loss, liability, claim, damage or expense of such
International Manager resulted from an untrue statement or omission of a
material fact contained in or omitted from a prospectus which was corrected in
the International Prospectus as, if applicable, amended or supplemented prior to
the Closing Time and such International Prospectus was required by law to be
delivered at or prior to the written confirmation of sale to such person and
(ii) such failure to give or send such International Prospectus by the Closing
Time to the party or parties asserting such loss, liability, claim, damage or
expense would have deprived the Company or the Selling Shareholders of its or
their sole defense to the claim asserted by such person.
(b) Indemnification of Company, Directors, Officers and
Selling Shareholders. Each International Manager
severally agrees to indemnify and hold harmless the
Company, its directors, each of its officers who signed
the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act, and each
Selling Shareholder each against any and all loss,
liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section,
as incurred, but only with respect to untrue statements
or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment
thereto), including the Rule 430A Information and the
Rule 434 Information, if applicable, or any preliminary
prospectus or the Prospectuses (or any amendment or
supplement thereto) in reliance upon and in conformity
with written information furnished to the Company by
such International Manager through MLI expressly for use
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in the Registration Statement (or any amendment thereto)
or such preliminary prospectus or the Prospectuses (or
any amendment or supplement thereto).
(c) Actions Against Parties; Notification. Each
indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any
action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so
notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the
extent it is not materially prejudiced as a result
thereof and in any event shall not relieve it from any
liability which it may have otherwise than on account of
this indemnity agreement. In the case of parties
indemnified pursuant to Section 6(a) above, counsel to
the indemnified parties shall be selected by MLI, and,
in the case of parties indemnified pursuant to Section
6(b) above, counsel to the indemnified parties shall be
selected by the Company and the Selling Shareholders. An
indemnifying party may participate at its own expense in
the defense of any such action; provided, however, that
counsel to the indemnifying party shall not (except with
the consent of the indemnified party) also be counsel to
the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of
more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified
parties in connection with any one action or separate
but similar or related actions in the same jurisdiction
arising out of the same general allegations or
circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle
or compromise or consent to the entry of any judgment
with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever in respect of
which indemnification or contribution could be sought
under this Section 6 or Section 7 hereof (whether or not
the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent
(i) includes an unconditional release of each
indemnified party from all liability arising out of such
litigation, investigation, proceeding or claim and (ii)
does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf
of any indemnified party.
(d) Settlement Without Consent If Failure to Reimburse.
If at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel, such indemnifying
party agrees that it shall be liable for any settlement
of the nature contemplated by Section 6(a)(ii) effected
without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the
terms of such settlement at least 30 days prior to such
settlement
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being entered into and (iii) such indemnifying party
shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution. If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or
insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying
party shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in
such proportion as is appropriate to reflect the
relative benefits received by the Company and the
Selling Shareholders on the one hand and the
International Managers on the other hand from the
offering of the Securities pursuant to this Agreement or
(ii) if the allocation provided by clause (i) is not
permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative
fault of the Company and the Selling Shareholders on the
one hand and of the International Managers on the other
hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company and the Selling
Shareholders on the one hand and the International Managers on the other hand in
connection with the offering of the Securities pursuant to this Agreement shall
be deemed to be in the same respective proportions as the total net proceeds
from the offering of the Securities pursuant to this Agreement (before deducting
expenses) received by the Selling Shareholders and the total underwriting
discount received by the International Managers, in each case as set forth on
the cover of the International Prospectus, or, if Rule 434 is used, the
corresponding location on the Term Sheet bear to the aggregate initial public
offering price of the Securities as set forth on such cover.
The relative fault of the Company and the Selling Shareholders on the
one hand and the International Managers on the other hand shall be determined by
reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or the Selling Shareholders
or by the International Managers and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company, the Selling Shareholders and the International Managers
agree that it would not be just and equitable if contribution pursuant to this
Section 7 were determined by pro rata allocation (even if the International
Managers were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this Section 7. The aggregate amount of losses, liabilities, claims,
damages and expenses incurred by an indemnified party and referred to above in
this Section 7 shall be deemed to include
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any legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no International
Manager shall be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages which
such International Manager has otherwise been required to pay by reason of any
such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls a
International Manager within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
International Manager, and each director of the Company, each officer of the
Company who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as the Company or
such Selling Shareholder, as the case may be. The International Managers'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number of Initial International Securities set forth opposite
their respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements
contained in this Agreement or in certificates of officers
of the Company or any of its subsidiaries or the Selling
Shareholders submitted pursuant hereto, shall remain
operative and in full force and effect, regardless of any
investigation made by or on behalf of any International
Manager or controlling person, or by or on behalf of the
Company or the Selling Shareholders, and shall survive
delivery of the Securities to the International Managers.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Lead Manager may
terminate this Agreement, by notice to the Company and the
Selling Shareholders, at any time at or prior to Closing
Time (i) if there has been, since the time of execution of
this Agreement or since the respective dates as of which
information is given in the International Prospectus, any
material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered
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as one enterprise, whether or not arising in the ordinary
course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the
United States or the international financial markets, any
outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a
prospective change in national or international political,
financial or economic conditions, in each case the effect of
which is such as to make it, in the judgment of the Lead
Manager, impracticable to market the Securities or to
enforce contracts for the sale of the Securities, or (iii)
if trading in any securities of the Company has been
suspended or materially limited by the Commission or the New
York Stock Exchange, or if trading generally on the American
Stock Exchange or the New York Stock Exchange or in the
Nasdaq National Market has been suspended or materially
limited, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices have been required, by
any of said exchanges or by such system or by order of the
Commission, the National Association of Securities Dealers,
Inc. or any other governmental authority, or (iv) if a
banking moratorium has been declared by either Federal, New
York or Ohio authorities.
(b) Liabilities. If this Agreement is terminated
pursuant to this Section, such termination shall be without
liability of any party to any other party except as provided
in Section 4 hereof, and provided further that Sections 1,
6, 7 and 8 shall survive such termination and remain in full
force and effect.
SECTION 10. Default by One or More of the International
Managers. If one or more of the International
Managers shall fail at Closing Time or a Date of
Delivery to purchase the Securities which it or
they are obligated to purchase under this
Agreement (the "Defaulted Securities"), the Lead
Manager shall have the right, within 24 hours
thereafter, to make arrangements for one or more
of the non-defaulting International Managers, or
any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such
amounts as may be agreed upon and upon the terms
herein set forth; if, however, the Lead Manager
shall not have completed such arrangements within
such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10%
of the number of Securities to be purchased on such date, each
of the non-defaulting International Managers shall be
obligated, severally and not jointly, to purchase the full
amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting International Managers, or
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(b) if the number of Defaulted Securities exceeds 10% of the
number of Securities to be purchased on such date, this
Agreement or, with respect to any Date of Delivery which
occurs after the Closing Time, the obligation of the
International Managers to purchase and of the Selling
Shareholders to sell the International Option Securities to be
purchased and sold on such Date of Delivery shall terminate
without liability on the part of any non-defaulting
International Manager.
No action taken pursuant to this Section shall relieve any defaulting
International Manager from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement or, in the case of a Date of Delivery which is after the
Closing Time, which does not result in a termination of the obligation of the
International Managers to purchase and the Selling Shareholders to sell the
relevant International Option Securities, as the case may be, either (i) the
Lead Manager or (ii) any Selling Shareholder shall have the right to postpone
Closing Time or the relevant Date of Delivery, as the case may be, for a period
not exceeding seven days in order to effect any required changes in the
Registration Statement or Prospectuses or in any other documents or
arrangements. As used herein, the term "International Manager" includes any
person substituted for a International Manager under this Section 10.
SECTION 11. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to
have been duly given if mailed or transmitted by any
standard form of telecommunication. Notices to the
Underwriters shall be directed to the Lead Manager at
North Tower, World Financial Center, New York, New York
10281-1201, attention of [__________]; notices to the
Company shall be directed to it at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, attention: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇, Senior Vice President/Finance and
Administration; notices to The Scripps Trust shall be
directed to it at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Secretary-Treasurer; and notices to The ▇▇▇▇▇▇ Trust
shall be directed to it at c/o ▇▇▇▇▇▇ ▇▇▇▇, Esq.,
Fulton, Rowe, ▇▇▇▇ & ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
SECTION 12. Parties. This Agreement shall each inure to the
benefit of and be binding upon the International
Managers, the Company and the Selling Shareholders and
their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other
than the International Managers, the Company and the
Selling Shareholders and their respective successors and
the controlling persons and officers and directors
referred to in Sections 6 and 7 and their heirs and
legal
34
39
representatives, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all
conditions and provisions hereof are intended to be for
the sole and exclusive benefit of the International
Managers, the Company and the Selling Shareholders and
their respective successors, and said controlling
persons and officers and directors and their heirs and
legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Securities
from any International Manager shall be deemed to be a
successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK. EXCEPT AS OTHERWISE SET FORTH
HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY
TIME.
SECTION 14. Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience
only and shall not affect the construction hereof.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company and the Selling Shareholders a
counterpart hereof, whereupon this instrument, along with all counterparts, will
become a binding agreement among the International Managers, the Company and the
Selling Shareholders in accordance with its terms.
Very truly yours,
THE ▇.▇. ▇▇▇▇▇▇▇ COMPANY
By_______________________________________
Title:
THE ▇▇▇▇▇▇ ▇. SCRIPPS TRUST
By________________________________________
THE ▇▇▇▇ ▇. ▇▇▇▇▇▇ TRUST
By________________________________________
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40
CONFIRMED AND ACCEPTED, as of the date first above written:
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
By________________________________________
Authorized Signatory
For itself and as Lead Manager of the other International Managers named in
Schedule A hereto.
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41
SCHEDULE A
Number of
Initial
Name of Underwriter International Securities
------------------- ------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ International.......................... [ ]
--------------
[ ].................... [ ]
------------------------------- --------------
[ ].................... [ ]
------------------------------- --------------
[ ].................... [ ]
------------------------------- --------------
[ ].................... [ ]
------------------------------- --------------
Total..................................................[1,260,000]
Sch ▇-▇
▇▇
▇▇▇▇▇▇▇▇ ▇
Number of Initial Maximum Number of
Selling Shareholders International International Option Securities
-------------------- Securities to be Sold to Be Sold
--------------------- ----------
The ▇▇▇▇▇▇ Scripps Trust 700,000 105,000
The ▇▇▇▇ ▇. ▇▇▇▇▇▇ Trust 560,000 84,000
Total.................. 1,260,000 189,000
========= =======
Sch B-1
43
SCHEDULE C
THE ▇. ▇. ▇▇▇▇▇▇▇ COMPANY
1,260,000 Class A Common Shares
(Par Value $.01 Per Share)
(i) The initial public offering price per share for the
International Securities, determined as provided in said
Section 2, shall be $[ ].
(ii) The purchase price per share for the Securities to be
paid by the several Underwriters shall be $[ ], being an
amount equal to the initial public offering price set forth
above less $[ ] per share; provided that the purchase price
per share for any International Option Securities purchased
upon the exercise of the over-allotment option described in
Section 2(b) shall be reduced by an amount per share equal to
any dividends or distributions declared by the Company and
payable on the Initial International Securities but not
payable on the International Option Securities.
Sch C-1
44
Exhibit A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Ohio.
(ii) The Company has corporate power and authority to own, lease
and operate its properties and to conduct its business as
described in the Prospectuses and to enter into and perform its
obligations under the International Purchase Agreement and the
U.S. Purchase Agreement.
(iii) The Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing
would not result in a Material Adverse Effect.
(iv) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectuses in the column
entitled "Actual" under the caption "Capitalization" (except for
subsequent issuances, if any, pursuant to the International
Purchase Agreement and the U.S. Purchase Agreement or pursuant to
reservations, agreements or employee benefit plans referred to in
the Prospectuses or pursuant to the exercise of convertible
securities or options referred to in the Prospectuses); the
shares of issued and outstanding capital stock of the Company,
including the Securities to be purchased by the Underwriters from
the Selling Shareholders, have been duly authorized and validly
issued and are fully paid and non-assessable; and none of the
outstanding shares of capital stock of the Company was issued in
violation of preemptive or other similar rights of any
securityholder of the Company.
(v) The sale of the Securities by the Selling Shareholders is
not subject to preemptive or other similar rights of any
securityholder of the Company.
(vi) Each Subsidiary has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to conduct
its business as described in the Prospectuses and is duly
qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which such qualification is
required, whether
A-1
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by reason of the ownership or leasing of property or the conduct
of business, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect;
except as otherwise disclosed in the Registration Statement, all
of the issued and outstanding capital stock of each Subsidiary
has been duly authorized and validly issued, is fully paid and
non-assessable and, to the best of such counsel's knowledge, is
owned by the Company, directly or through subsidiaries, free
and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity; none of the outstanding shares of
capital stock of any Subsidiary was issued in violation of the
preemptive or similar rights of any securityholder of such
Subsidiary.
(vii) Each of the International Purchase Agreement and the U.S.
Purchase Agreement has been duly authorized, executed and
delivered by the Company.
(viii) The Registration Statement, including any Rule 462(b)
Registration Statement, has been declared effective under the
1933 Act; any required filing of the Prospectuses pursuant to
Rule 424(b) has been made in the manner and within the time
period required by Rule 424(b); and, to the best of such
counsel's knowledge, no stop order suspending the effectiveness
of the Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act and no proceedings
for that purpose have been instituted or are pending or
threatened by the Commission.
(ix) The Registration Statement, including any Rule 462(b)
Registration Statement, the Rule 430A Information and the Rule
434 Information, as applicable, the Prospectuses, excluding the
documents incorporated by reference therein, and each amendment
or supplement to the Registration Statement and Prospectuses,
excluding the documents incorporated by reference therein, as of
their respective effective or issue dates (other than the
financial statements and supporting schedules included therein or
omitted therefrom, as to which such counsel need express no
opinion) complied as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations.
(x) The documents incorporated by reference in the Prospectuses
(other than the financial statements and supporting schedules
included therein or omitted therefrom, 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 1934
Act and the rules and regulations of the Commission thereunder.
38
46
(xi) The form of certificate used to evidence the Class A Common
Shares complies in all material respects with all applicable
statutory requirements, with any applicable requirements of the
charter and by-laws of the Company and the requirements of the
New York Stock Exchange.
(xii) To the best of such counsel's knowledge, there is not
pending or threatened any action, suit, proceeding, inquiry or
investigation, to which the Company or any subsidiary is a party,
or to which the property of the Company or any subsidiary is
subject, before or brought by any court or governmental agency or
body, domestic or foreign, which might reasonably be expected to
result in a Material Adverse Effect, or which might reasonably be
expected to materially and adversely affect the properties or
assets thereof or the consummation of the transactions
contemplated in the Purchase Agreement or the performance by the
Company of its obligations thereunder.
(xiii) The information in the Prospectus under "Description of
Capital Stock", "Business-- Broadcast Television-Digital
Television" and "--Federal Regulation of Broadcasting" and
"Certain United States Tax Consequences to Non-U.S. Shareholders"
and in the Registration Statement under Item 15, to the extent
that it constitutes matters of law, summaries of legal matters,
the Company's charter and bylaws or legal proceedings, or legal
conclusions, has been reviewed by such counsel and is correct in
all material respects.
(xiv) To the best of such counsel's knowledge, there are no
statutes or regulations that are required to be described in the
Prospectuses that are not described as required.
(xv) All descriptions in the Registration Statement of contracts
and other documents to which the Company or its subsidiaries are
a party are accurate in all material respects; to the best of
such counsel's knowledge, there are no franchises, contracts,
indentures, mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to in the
Registration Statement or to be filed as exhibits thereto other
than those described or referred to therein or filed or
incorporated by reference as exhibits thereto, and the
descriptions thereof or references thereto are correct in all
material respects.
(xvi) To the best of such counsel's knowledge, neither the Company
nor any subsidiary is in violation of its charter or by-laws and
no default by the Company or any subsidiary exists in the due
performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration
Statement or
A-3
47
the Prospectuses or filed or incorporated by reference as an
exhibit to the Registration Statement.
(xvii) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any
court or governmental authority or agency, domestic or foreign
(other than under the 1933 Act and the 1933 Act Regulations,
which have been obtained, or as may be required under the
securities or blue sky laws of the various states, as to which
such counsel need express no opinion) is necessary or required in
connection with the due authorization, execution and delivery of
the International Purchase Agreement and the U.S. Purchase
Agreement or for the offering, issuance, sale or delivery of the
Securities.
(xviii) The execution, delivery and performance of the International
Purchase Agreement and the U.S. Purchase Agreement and the
consummation of the transactions contemplated in the
International Purchase Agreement, in the U.S. Purchase Agreement
and in the Registration Statement (including the sale of the
Securities) and compliance by the Company with its obligations
under the International Purchase Agreement and the U.S. Purchase
Agreement do not and will not, whether with or without the giving
of notice or lapse of time or both, conflict with or constitute a
breach of, or default or Repayment Event (as defined in Section
1(a)(xi) of the International Purchase Agreement and the U.S.
Purchase Agreement) under or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of
the Company or any subsidiary pursuant to any contract,
indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or any other agreement or instrument, known to such
counsel, to which the Company or any subsidiary is a party or by
which it or any of them may be bound, or to which any of the
property or assets of the Company or any subsidiary is subject
(except for such conflicts, breaches or defaults or liens,
charges or encumbrances that would not have a Material Adverse
Effect), nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any
subsidiary, or any applicable law, statute, rule, regulation,
judgment, order, writ or decree, known to such counsel, of any
government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any subsidiary
or any of their respective properties, assets or operations.
(xix) Each of the Company and its subsidiaries has obtained all
material licenses required by the Federal Communications
Commission ("FCC") for the conduct and operation of its
respective businesses, and such licenses are in full force and
effect. The Company and its subsidiaries are presently conducting
A-4
48
their respective businesses in substantial compliance with all
applicable rules and regulations of the FCC.
(xx) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are
defined in the 1940 Act.
Nothing has come to such counsel's attention that would lead such
counsel to believe that the Registration Statement or any amendment thereto,
including the Rule 430A Information and Rule 434 Information (if applicable),
(except for financial statements and schedules and other financial data included
or incorporated by reference therein or omitted therefrom, as to which such
counsel need make no statement), at the time such Registration Statement or any
such amendment became effective, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the Prospectuses
or any amendment or supplement thereto (except for financial statements and
schedules and other financial data included or incorporated by reference therein
or omitted therefrom, as to which such counsel need make no statement), at the
time the Prospectuses was issued, at the time any such amended or supplemented
prospectus was issued or at the Closing Time, included or includes an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
A-5
49
Exhibit B
FORM OF OPINION OF COUNSEL FOR EACH OF THE SELLING SHAREHOLDERS
TO BE DELIVERED PURSUANT TO SECTION 5(c)
(i) Such Selling Shareholder is a trust duly formed and validly
existing pursuant to Ohio or New York law, as the case may be.
(ii) No filing with, or consent, approval, authorization,
license, order, registration, qualification or decree of, any
court or governmental authority or agency, domestic or foreign,
(other than the issuance of the order of the Commission declaring
the Registration Statement effective and such authorizations,
approvals or consents as may be necessary under state securities
laws, as to which such counsel need express no opinion) is
necessary or required to be obtained by such Selling Shareholder
for the performance by such Selling Shareholder of its
obligations under the International Purchase Agreement or the
U.S. Purchase Agreement or in connection with the offer, sale or
delivery of the Securities.
(iii) Each of the International Purchase Agreement and the U.S.
Purchase Agreement has been duly authorized, executed and
delivered by or on behalf of such Selling Shareholder.
(iv) The execution, delivery and performance of the International
Purchase Agreement and the U.S. Purchase Agreement and the sale
and delivery of the Securities and the consummation of the
transactions contemplated in the International Purchase
Agreement, the U.S. Purchase Agreement and the Registration
Statement and compliance by such Selling Shareholder with its
obligations under the International Purchase Agreement and the
U.S. Purchase Agreement have been duly authorized by all
necessary action on the part of such Selling Shareholder and do
not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of,
or default under or result in the creation or imposition of any
tax, lien, charge or encumbrance upon the Securities or any
property or assets of such Selling Shareholder pursuant to, any
contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, license, lease or other instrument or agreement
to which such Selling Shareholder is a party or by which it may
be bound, or to which any of the property or assets of such
Selling Shareholder may be subject nor will such action result in
any violation of the provisions of the trust agreement of such
Selling Shareholder, or any law, administrative regulation,
judgment or order of any governmental agency or body or any
administrative or court decree having jurisdiction over such
Selling Shareholder or any of its properties.
B-1
50
(v) To the best of such counsel's knowledge, such Selling
Shareholder has valid and marketable title to the Securities to
be sold by such Selling Shareholder pursuant to the International
Purchase Agreement and the U.S. Purchase Agreement, free and
clear of any pledge, lien, security interest, charge, claim,
equity or encumbrance of any kind, and has full right, power and
authority to sell, transfer and deliver such Securities pursuant
to the International Purchase Agreement and the U.S. Purchase
Agreement. By delivery of a certificate or certificates therefor
such Selling Shareholder will transfer to the Underwriters who
have purchased such Securities pursuant to the International
Purchase Agreement and the U.S. Purchase Agreement (without
notice of any defect in the title of such Selling Shareholder and
who are otherwise bona fide purchasers for purposes of the
Uniform Commercial Code) valid and marketable title to such
Securities, free and clear of any pledge, lien, security
interest, charge, claim, equity or encumbrance of any kind.
Nothing has come to such counsel's attention that would lead such
counsel to believe that the Registration Statement or any amendment thereto,
including the Rule 430A Information and Rule 434 Information (if applicable),
(except for financial statements and schedules and other financial data included
or incorporated by reference therein or omitted therefrom, as to which such
counsel need make no statement), at the time such Registration Statement or any
such amendment became effective, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the Prospectuses
or any amendment or supplement thereto (except for financial statements and
schedules and other financial data included or incorporated by reference therein
or omitted therefrom, as to which such counsel need make no statement), at the
time the Prospectuses were issued, at the time any such amended or supplemented
prospectus was issued or at the Closing Time, included or includes an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
B-2
