EXHIBIT 10.3
ACQUIROR VOTING AGREEMENT
ACQUIROR VOTING AGREEMENT (this "Agreement"),
dated May 25, 1998, between Pulitzer Publishing
Company, a Delaware corporation (the "Company") and
Hearst Broadcasting, Inc., a Delaware corporation (the
"Acquiror Stockholder").
W I T N E S S E T H:
WHEREAS, concurrently herewith, Hearst-Argyle
Television, Inc., a Delaware corporation ("Acquiror"),
and the Company are entering into an Agreement and Plan
of Merger (as such agreement may hereafter be amended
from time to time, the "Merger Agreement"), pursuant to
which the Company will be merged with and into Acquiror
(the "Merger");
WHEREAS, the Acquiror Stockholder controls or
owns all of the issued and outstanding shares of Series
B Common Stock, par value $.01 per share, of Acquiror;
and
WHEREAS, as an inducement and a condition to
entering into the Merger Agreement, the Company has
required that the Acquiror Stockholder agrees, and the
Acquiror Stockholder has agreed, to enter into this
Agreement;
NOW, THEREFORE, in consideration of the
foregoing and the mutual premises, representations,
warranties, covenants and agreements contained herein,
the parties hereto, intending to be legally bound,
hereby agree as follows:
1. Definitions. Capitalized terms used and
not defined herein have the respective meanings
ascribed to them in the Merger Agreement. For purposes
of this Agreement, "Beneficially Own" or "Beneficial
Ownership" with respect to any securities shall mean
having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act")),
including pursuant to any agreement, arrangement or
understanding, whether or not in writing.
Notwithstanding the foregoing, securities Beneficially
Owned by a Person shall not include securities which
are actually owned by other Persons but which such
Person may be deemed to Beneficially Own under Rule
13d-3 under the Exchange Act solely because such Person
may be deemed to be part of a "group" with such other
Persons as within the meaning of Section 13(d)(3) of
the Exchange Act.
2. PROVISIONS CONCERNING THE SHARES.
(a) The Acquiror Stockholder hereby agrees
that during the period commencing on the date hereof
and continuing until the first to occur of the
Effective Time or the date on which the Merger
Agreement is terminated in accordance with its terms,
at any meeting of the holders of any capital stock of
Acquiror ("Acquiror Stock"), however called, or in
connection with any written consent of the holders of
Acquiror Stock, the Acquiror Stockholder shall vote (or
cause to be voted) all shares of Acquiror Stock held of
record or Beneficially Owned by the Acquiror
Stockholder, whether heretofore owned or hereafter
acquired (collectively, the "Shares"), (i) in favor of
the Merger, the execution and delivery by Acquiror of
the Merger Agreement and the approval of the terms
thereof, and each of the other transactions and actions
contemplated by the Merger Agreement and this Agreement
(and the matters related to the consummation thereof)
and any actions required in furtherance thereof and
hereof; and (ii) against any action or agreement that
would result in a breach in any respect of any
covenant, representation or warranty or any other
obligation or agreement of Acquiror under the Merger
Agreement or this Agreement or that would result in any
of the conditions to the obligations of Acquiror under
the Merger Agreement not being fulfilled.
(b) In the event of a stock dividend or
distribution, or any change in Acquiror Stock by reason
of any stock dividend, split-up, recapitalization,
combination, exchange of shares or the like, the term
"Shares" shall be deemed to refer to and include the
Shares as well as all such stock dividends and
distributions and any shares into which or for which
any or all of the Shares may be changed or exchanged.
3. Other Representations, Warranties and
Covenants. The Acquiror Stockholder hereby represents,
warrants and covenants to the Company as follows:
(a) Ownership of Shares. The Acquiror
Stockholder Beneficially Owns all of the Shares, free
and clear of all Liens, constituting all of the issued
and outstanding shares of Series B Common Stock, and
has sole voting power or sole power to issue
instructions with respect to the matters covered
hereby.
(b) Power; Binding Agreement. The Acquiror
Stockholder has the legal capacity, power and authority
to enter into and perform all of the Acquiror
Stockholder's obligations under this Agreement. The
execution, delivery and performance of this Agreement
by the Acquiror Stockholder will not violate any other
agreement to which the Acquiror Stockholder is a party,
including, without limitation, any voting agreement,
stockholders agreement or voting trust. This Agreement
has been duly and validly executed and delivered and
authorized by the Acquiror Stockholder and constitutes
a valid and binding agreement of the Acquiror
Stockholder, enforceable against the Acquiror
Stockholder in accordance with its terms.
(c) No Conflicts. (i) No filing with, and
no permit, authorization, consent or approval of, any
state or federal public body or authority is necessary
for the execution of this Agreement by the Acquiror
Stockholder and the consummation by the Acquiror
Stockholder of the transactions contemplated hereby
(other than filings with the SEC or FCC), and (ii) none
of the execution and delivery of this Agreement by the
Acquiror Stockholder, the consummation by the Acquiror
Stockholder of the transactions contemplated hereby or
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compliance by the Acquiror Stockholder with any of the
provisions hereof shall (A) result in a violation or
breach of, or constitute (with or without notice or
lapse of time or both) a default (or give rise to any
third party right of termination, cancellation,
material modification or acceleration) under any of the
terms, conditions or provisions of any note, bond,
mortgage, indenture, license, contract, commitment,
arrangement, understanding, agreement or other
instrument or obligation of any kind to which the
Acquiror Stockholder is a party or by which the
Acquiror Stockholder or any of the Acquiror
Stockholder's properties or assets may be bound, or (B)
violate any order, writ, injunction, decree, judgment,
order, statute, rule or regulation applicable to the
Acquiror Stockholder or any of the Acquiror
Stockholder's properties or assets.
(d) Restriction on Transfers, Proxies and
Non-Interference. Beginning on the date hereof and
continuing until this Agreement terminates pursuant to
Section 4, except as applicable in connection with the
transactions contemplated by the Merger Agreement, the
Acquiror Stockholder shall not, directly or indirectly,
(i) except as contemplated by this Agreement, grant any
proxies or powers of attorney, deposit any Shares into
a voting trust or enter into or amend a voting
agreement with respect to any Shares, or (ii) take any
action that would have the effect of preventing or
disabling the Acquiror Stockholder from performing the
Acquiror Stockholder's obligations under this
Agreement.
(e) Reliance by the Company. The Acquiror
Stockholder understands and acknowledges that the
Company is entering into the Merger Agreement in
reliance upon the Acquiror Stockholder's execution and
delivery of this Agreement.
(f) Further Assurances. From time to time,
at the other party's request and without further
consideration, each party hereto shall execute and
deliver such additional documents and take all such
further lawful action as may be necessary or desirable
to consummate and make effective, in the most
expeditious manner practicable, the transactions
contemplated by this Agreement.
4. Termination. Except as otherwise
provided in Section 2 of this Agreement, this Agreement
shall terminate (a) in the event the Merger Agreement
is terminated in accordance with its terms upon such
termination, and (b) in the event the Merger is
consummated, upon the Effective Time; provided that no
such termination shall relieve any party of liability
for a breach hereof prior to termination.
5. Miscellaneous.
(a) Entire Agreement. This Agreement and
the Merger Agreement constitute the entire agreement
between the parties with respect to the subject matter
hereof and supersede all other prior agreements and
understandings, both written and oral, between the
parties with respect to the subject matter hereof.
(b) Certain Events. The Acquiror
Stockholder agrees that (i) this Agreement and the
obligations hereunder shall attach to the Acquiror
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Stockholder's Shares and shall be binding upon any
Person to which legal or beneficial ownership of such
Shares shall pass, whether by operation of law or
otherwise, including, without limitation, the Acquiror
Stockholder's heir, guardians, administrators or
successors and (ii) it shall not sell, transfer,
pledge, assign or otherwise dispose of ("Transfer"), or
enter into any contract, option or other arrangement
with respect to the Transfer of, any shares of Acquiror
Stock held by the Acquiror Stockholder, unless as a
condition of such Transfer, the transferee agrees in
writing to be bound by the terms and conditions of this
Agreement.
(c) Assignment. This Agreement shall not be
assigned by operation of law or otherwise without the
prior written consent of the other party, and any
purported assignment in violation hereof shall be null
and void.
(d) Amendments, Waivers, Etc. This
Agreement may not be amended, changed, supplemented,
waived or otherwise modified or terminated, except upon
the execution and delivery of a written agreement
executed by the parties hereto.
(e) Notices. All notices, requests, claims,
demands and other communications hereunder shall be in
writing and shall be given (and shall be deemed to have
been duly received if so given) by hand delivery,
telegram, telex or telecopy, or by mail (registered or
certified mail, postage prepaid, return receipt
requested) or by any courier service, such as Federal
Express, providing proof of delivery. All communica-
tions hereunder shall be delivered to the respective
parties at the following addresses:
If to Acquiror Hearst
Broadcasting,
Inc.
Stockholder: 000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx
Copy to: Xxxxxx & Xxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000 (telecopier)
Attention: Xxxxxx X. Xxxxx, Esq.
If to the
Company: Pulitzer Publishing Company
000 Xxxxx Xxxxxx Xxxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
(000) 000-0000 (telecopier)
Attention: Xxxxxxx X. Xxxxxxxx
Copy to: Fulbright & Xxxxxxxx L.L.P.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000 (telecopier)
Attention: Xxxxxxx X. Xxxxxx, Esq.
or to such other address as the Person to whom notice
is given may have previously furnished to the others in
writing in the manner set forth above.
(f) Severability. Whenever possible, each
provision or portion of any provision of this Agreement
will be interpreted in such manner as to be effective
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and valid under applicable law but if any provision or
portion of any provision of this Agreement is held to
be invalid, illegal or unenforceable in any respect
under any applicable law or rule in any jurisdiction,
such invalidity, illegality or unenforceability will
not affect any other provision or portion of any
provision in such jurisdiction, and this Agreement will
be reformed, construed and enforced in such
jurisdiction as if such invalid, illegal or
unenforceable provision or portion of any provision had
never been contained herein.
(g) Specific Performance. Each of the
parties hereto recognizes and acknowledges that a
breach by it of any covenants or agreements contained
in this Agreement will cause the other party to sustain
damages for which it would not have an adequate remedy
at law for money damages, and therefore each of the
parties hereto agrees that in the event of any such
breach the aggrieved party shall be entitled to the
remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in
addition to any other remedy to which it may be
entitled, at law or in equity.
(h) Remedies Cumulative. All rights, powers
and remedies provided under this Agreement or otherwise
available in respect hereof at law or in equity shall
be cumulative and not alternative, and the exercise of
any thereof by any party shall not preclude the
simultaneous or later exercise of any other such right,
power or remedy by such party.
(i) No Waiver. The failure of any party
hereto to exercise any right, power or remedy provided
under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon
compliance by any other party hereto with its
obligations hereunder, and any custom or practice of
the parties at variance with the terms hereof, shall
not constitute a waiver by such party of its right to
exercise any such or other right, power or remedy or to
demand such compliance.
(j) No Third Party Beneficiaries. This
Agreement is not intended to be for the benefit of, and
shall not be enforceable by, any Person who or which is
not a party hereto.
(k) Governing Law. This Agreement shall be
governed and construed in accordance with the laws of
the State of Delaware, without giving effect to the
principles of conflicts of law thereof.
(l) Jurisdiction. Each party hereby
irrevocably submits to the exclusive jurisdiction of
the Court of Chancery in the State of Delaware or the
United States District Court for the Southern District
of New York or any court of the State of New York
located in the City of New York in any action, suit or
proceeding arising in connection with this Agreement,
and agrees that any such action, suit or proceeding
shall be brought only in such court (and waives any
objection based on forum non conveniens or any other
objection to venue therein); provided, however, that
such consent to jurisdiction is solely for the purpose
referred to in this paragraph (l) and shall not be
deemed to be a general submission to the jurisdiction
of said courts or in the States of Delaware or New York
other than for such purposes. Each party hereto hereby
waives any right to a trial by jury in connection with
any such action, suit or proceeding.
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(m) Descriptive Headings. The descriptive
headings used herein are inserted for convenience of
reference only and are not intended to be part of or to
affect the meaning or interpretation of this Agreement.
(n) Counterparts. This Agreement may be
executed in counterparts, each of which shall be deemed
to be an original, but all of which, taken together,
shall constitute one and the same Agreement.
IN WITNESS WHEREOF, the Company and the
Acquiror Stockholder have caused this Agreement to be
duly executed as of the day and year first above
written.
Pulitzer Publishing
Company
By:_____________________
Name:
Title:
Hearst Broadcasting,
Inc.
By:______________________
Name:
Title:
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