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VOTING AGREEMENT
This VOTING AGREEMENT dated as of March 26, 1997 is made and
entered into by and between The Hearst Corporation, a Delaware corporation
("Parent"), and Argyle Foundation (the "Stockholder").
WHEREAS, Parent, HAT Merger Sub, Inc. ("Merger Sub"), HAT
Contribution Sub, Inc. ("Parent's Sub") and Argyle Television, Inc., a Delaware
corporation (the "Company"), propose to enter into an Agreement and Plan of
Merger of even date herewith (as the same may be amended or supplemented, the
"Merger Agreement") providing for the contributions of certain assets by Parent
and Parent's Sub to the Company and the merger of Merger Sub with and into the
Company (the "Merger");
WHEREAS, the Stockholder owns in the aggregate 99,000 shares
of Series A Common Stock, par value $0.01 per share, of the Company (the
"Series A Common Stock"); such shares of Series A Common Stock, as such shares
may be adjusted by any stock dividend, stock split, recapitalization,
combination or exchange of shares, merger, consolidation, reorganization or
other change or transaction of or by the Company, being referred to herein as
the "Subject Shares"; and
WHEREAS, as a condition to its willingness to enter into the
Merger Agreement, Parent has requested that the Stockholder enter into this
Agreement;
NOW, THEREFORE, to induce Parent to enter into, and in
consideration of its entering into, the Merger Agreement, and in consideration
of the mutual covenants and agreements set forth in this Agreement, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Representations and Warranties of the Stockholder.
The Stockholder hereby represents and warrants to Parent as follows:
(a) Authority. The Stockholder has full power
and authority to enter into this Agreement and to perform its
obligations hereunder and consummate the transactions
contemplated hereby. This Agreement has been duly and validly
authorized, executed and delivered by the Stockholder and
constitutes a legal, valid and binding obligation of the
Stockholder enforceable against the Stockholder in accordance
with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles (regardless of
whether such enforceability is considered in a proceeding in
equity or law).
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(b) Non-Contravention. The execution and
delivery of this Agreement by the Stockholder does not, and
the performance by the Stockholder of its obligations
hereunder and the consummation of the transactions
contemplated hereby will not, conflict with, result in any
violation of, constitute (with or without notice or lapse of
time or both) a default under, result in or give to any person
any right of payment or reimbursement, termination,
cancellation, modification or acceleration of, or result in
the creation or imposition of any lien upon any assets or
properties of the Stockholder under, any of the terms,
conditions or provisions of (i) any statute, law, rule,
regulation or ordinance, or any judgment, decree, order, writ,
permit or license, of any court, tribunal, arbitrator,
authority, agency, commission, official or other
instrumentality of the United States or any domestic, state,
county, city or other political subdivision (a "Governmental
or Regulatory Authority"), applicable to the Stockholder or
any of its assets or properties, or (ii) any note, bond,
mortgage, security agreement, indenture, license, franchise,
permit, concession, contract, lease or other instrument,
obligation or agreement of any kind (together, "Contracts") to
which the Stockholder is a party or by which the Stockholder
or any of its respective assets or properties is bound.
(c) Approvals and Consents. Except for the
filing of this Agreement with the Federal Communications
Commission (the "FCC") pursuant to Section 73.3613 of the FCC
rules and regulations, no consent, approval or action of,
filing with or notice to any Governmental or Regulatory
Authority is necessary or required for the execution and
delivery of this Agreement by the Stockholder, the performance
by the Stockholder of its obligations hereunder or the
consummation of the transactions contemplated hereby.
(d) Subject Shares. The Stockholder has good and
marketable title to the Subject Shares, free and clear of all
liens, claims, security interests, proxies, voting trusts or
agreements, understanding or arrangements or any other
encumbrances whatsoever; other than restrictions on transfer
imposed by the registration requirements of the Securities Act
of 1933, as amended, and applicable state securities laws.
The Stockholder has the sole voting power and sole power to
issue instructions with respect to the matters set forth in
Section 3.
2. Representations and Warranties of the Parent. The
Parent hereby represents and warrants to the Stockholder as follows:
(a) Authority. The Parent is a corporation duly
formed and is in good standing and existing under the laws of
the State of Delaware. The Parent has full power and
authority to enter into this Agreement and to perform its
obligations hereunder and consummate the transactions
contemplated hereby. This Agreement has been duly and validly
authorized, executed and delivered by the Parent and
constitutes a legal, valid and binding obligation of the
Parent enforceable against the Parent in accordance with its
terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization,
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moratorium or other similar laws affecting the enforcement of
creditors' rights generally and by general equitable
principles (regardless of whether such enforceability is
considered in a proceeding in equity or law).
3. Covenants of the Stockholder. Subject to Section 4,
the Stockholder hereby covenants and agrees with Parent as follows:
(a) Vote for Merger. At any meeting of
stockholders of the Company called to vote upon the amendment
to the Company's Certificate of Incorporation set forth in the
Merger Agreement, the Merger and the Merger Agreement or at
any adjournment thereof or in any other circumstances upon
which a vote, consent or other approval with respect to such
amendment to the Company's Certificate of Incorporation, the
Merger and the Merger Agreement is sought, the Stockholder
shall vote (or cause to be voted) the Subject Shares, and any
other voting securities of the Company, owned by Stockholder
whether issued heretofore or hereafter, that the Stockholder
owns or has the right to vote, in favor of such amendment to
the Company's Certificate of Incorporation, the Merger, the
adoption by the Company of the Merger Agreement and the
approval of the terms thereof and each of the other
transactions contemplated by the Merger Agreement, provided
that the terms of the Merger Agreement shall not have been
amended to adversely affect the Stockholder.
(b) Vote Against Acquisition Proposals. At any
meeting of stockholders of the Company or at any adjournment
thereof or in any other circumstances upon which the
Stockholder's vote, consent or other approval is sought, the
Stockholder shall vote (or cause to be voted) the Subject
Shares, and any other voting securities of the Company, owned
by Stockholder whether issued heretofore or hereafter, that
the Stockholder owns or has the right to vote, except as
otherwise agreed in writing in advance by the Parent, against
(i) any proposal or offer with respect to any direct or
indirect (A) acquisition or purchase of fifteen percent (15%)
or more of any Company common stock outstanding, (B)
acquisition or purchase of any equity securities of any
Material Subsidiary (as defined below), (C) acquisition or
purchase of all or any significant portion of the assets of
the Company or any Material Subsidiary, or (D) any merger,
consolidation, business combination, recapitalization,
liquidation, dissolution or similar transaction involving the
Company or any of its Material Subsidiaries (any such proposal
or offer being hereinafter referred to as an "Acquisition
Proposal"), (ii) any change in the majority of the persons who
constitute the Board of Directors of the Company or (iii) any
change in the present capitalization of the Company or any
amendment of the Company's certificate of incorporation or
by-laws or other proposal or transaction involving the Company
or any of its subsidiaries, which change, amendment or other
proposal or transaction would in any manner impede, frustrate,
prevent or nullify the amendment of the Company's Certificate
of Incorporation set forth in the Merger Agreement, the
Merger, the Merger Agreement or any of the other transactions
contemplated by the Merger Agreement or which could result in
any of the conditions to the
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Parent's obligations under the Merger Agreement not being
fulfilled. For purposes of this Agreement, "Material
Subsidiary" means any direct or indirect "Significant
Subsidiary" of the Company as that term is defined in Rule 405
of the rules and regulations promulgated under the Securities
Act of 1933, as amended, or any Subsidiary (as defined below)
of the Company that either owns or operates a television
broadcast station or a license, permit or other authorization
required by the Federal Communications Commission in
connection with the operation of its business. In addition,
"Subsidiary" means any corporation or other organization
whether incorporated or unincorporated, of which more than
fifty percent (50%) of either the equity interest in, or
voting control of, such corporation or other organization is,
directly or indirectly through Subsidiaries or otherwise,
beneficially owned by the Company.
(c) Transfers. The Stockholder agrees not to (i)
sell, transfer, pledge, assign or otherwise dispose of, or
enter into any contract, option or other arrangement with
respect to the sale, transfer, pledge, assignment or other
disposition of, the Subject Shares to any person other than
pursuant to the amendment of the Company's Certificate of
Incorporation set forth in the Merger Agreement, the Merger
and the Merger Agreement or (ii) enter into any voting
arrangement, whether by proxy, voting arrangement, voting
agreement or otherwise with respect to the Subject Shares.
(d) No Solicitations. The Stockholder shall not,
directly or indirectly, initiate, solicit, encourage, accept
or take any other action knowingly to facilitate, any
inquiries or the making of, or participate in any discussions
or negotiations regarding, any Acquisition Proposal. In the
event that the Stockholder receives from any person an
Acquisition Proposal, the Stockholder shall promptly advise,
orally and in writing, such person of the terms of this
Section 3(d), and shall promptly advise Parent of such
Acquisition Proposal and shall thereafter keep Parent
reasonably and promptly informed of all material facts and
circumstances relating to said Acquisition Proposal and the
Stockholder's actions relating thereto.
4. Termination. The covenants and agreements of the
Stockholder contained in Section 3 shall terminate upon the earliest of (i) the
Effective Time (as defined in the Merger Agreement), or (ii) the termination of
the Merger Agreement in accordance with its terms.
5. General Provisions.
(a) Expenses. All costs and expenses incurred in
connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such
expense.
(b) Amendments. This Agreement may not be
amended except by an instrument in writing signed by each of
the parties hereto.
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(c) Notice. All notices and requests and other
communications hereunder must be in writing and will be deemed
to have been given only if delivered personally or by
facsimile transmission or mailed (first class postage prepaid)
to the parties at the following addresses or facsimile
numbers:
(i) if to Parent, to:
The Hearst Corporation
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X.
Xxxxx, Esq.
with a copy to:
Xxxxxx & Xxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X.
Xxxxx, Esq.
(ii) if to the Stockholder, to
Argyle Foundation
000 Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxx Xxxxxx
with a copy to:
Xxxxx Xxxxxxx Rain Xxxxxxx
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxx Xxxx, Esq.
All such notices, requests and other communications will (i)
if delivered personally to the address as provided in this
Section, be deemed given upon delivery, (ii) if delivered by
facsimile transmission to the facsimile number as provided in
this Section, be deemed given upon receipt, and (iii) if
delivered by mail in the manner described above to the address
as provided in this Section, be
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deemed given upon receipt (in each case regardless of whether
such notice, request or other communication is received by any
other person to whom a copy of such notice is to be delivered
pursuant to this Section). Any party from time to time may
change its address, facsimile number or other information for
the purpose of notices to that party by giving notice
specifying such change to the other parties hereto.
(d) Entire Agreement. This Agreement supersedes
all prior discussions and agreements among the parties hereto
with respect to the subject matter hereof, and contains the
sole and entire agreement among the parties hereto with
respect to the subject matter hereof.
(e) No Third Party Beneficiary. The terms and
provisions of this Agreement are intended solely for the
benefit of each party hereto and their respective successors
or permitted assigns, and it is not the intention of the
parties to confer third-party beneficiary rights upon any
other person.
(f) No Assignment; Binding Effect. Neither this
Agreement nor any right, interest or obligation hereunder may
be assigned by any party hereto without the prior written
consent of the other parties hereto and any attempt to do so
will be void. Subject to the preceding sentence, this
Agreement is binding upon, inures to the benefit of and is
enforceable by the parties hereto and their respective
successors and assigns.
(g) Headings. The headings used in this Agreement
have been inserted for convenience of reference only and do
not define or limit the provisions hereof.
(h) Severability. If any provision of this
Agreement is held to be illegal, invalid or unenforceable
under any present or future law, and if the rights or
obligations of any party hereto under this Agreement will not
be materially and adversely affected thereby, (i) such
provision will be fully severable, (ii) this Agreement will be
construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part hereof,
(iii) the remaining provisions of this Agreement will remain
in full force and effect and will not be affected by the
legal, invalid or unenforceable provision or by its severance
herefrom and (iv) in lieu of such illegal, invalid or
unenforceable provision, there will be added automatically as
a part of this Agreement a legal, valid and enforceable
provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible.
(i) No Waiver. The failure of any party hereto
to exercise any right, power or remedy provided under this
Agreement or otherwise available in respect hereof at law or
in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, and any custom or
practice of the parties at variance with the terms hereof
shall not constitute a waiver by such party of its
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right to exercise any such or other right, power or remedy or
to demand such compliance.
(j) Counterparts. This Agreement may be executed
in any number of counterparts, each of which will be deemed an
original, but all of which together will constitute one and
the same instrument.
(k) Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the
State of Delaware applicable to a contract executed performed
in such State without giving effect to the conflicts of laws
principles thereof.
6. Enforcement. The parties agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement in any Federal court
located in the State of Delaware or in a Delaware state court, this being in
addition to any other remedy to which they are entitled at law or in equity.
In addition, each of the parties hereto (i) consents to submit such party to
the personal jurisdiction of any Federal court located in the State of Delaware
or any Delaware state court in the event any dispute arises out of this
Agreement or any of the transactions contemplated hereby, (ii) agrees that such
party will not attempt to deny or defeat such personal jurisdiction by motion
or other request for leave from any such court, (iii) agrees that such party
will not bring any action relating to this Agreement or any of the transactions
contemplated hereby in any court other than a Federal court sitting in the
State of Delaware or a Delaware state court and (iv) waives any right to trial
by jury with respect to any claim or proceeding related to or arising out of
this Agreement or any of the transactions contemplated hereby.
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IN WITNESS WHEREOF, each party hereto has signed this
Agreement or caused this Agreement to be signed by its officer or
representative thereunto duly authorized as of the date first above written.
THE HEARST CORPORATION
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
ARGYLE FOUNDATION
By: /s/ Xxx Xxxxxx
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Name: Xxx Xxxxxx
Title:
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