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EXHIBIT 1.1
THE TIMES MIRROR COMPANY
UNDERWRITING AGREEMENT
[DEBT/EQUITY] SECURITIES
To the Representatives named
in Schedule I hereto and
the Underwriters named
in Schedule II hereto
Dear Sirs:
The Times Mirror Company, a Delaware corporation (the "Company"), proposes
to sell to the underwriters named in Schedule II hereto (the "Underwriters")
for whom you are acting as representatives (the "Representatives"), the
principal amount of its securities identified in Schedule I hereto (the
"Securities"). The Securities will be issued [under an indenture, dated as of
_________, 199_ (the "Indenture"), between the Company and __________, as
trustee (the "Trustee")][a Certificate of Designation (the "Certificate of
Designation")][a Warrant Agreement, dated as of ___________, 199_ (the "Warrant
Agreement")]. If the firm or firms listed in Schedule II hereto include only
the firm or firms listed in Schedule I hereto, then the terms "Underwriters"
and "Representatives," as used herein, shall each be deemed to refer to such
firm or firms.
1. Representations and Warranties. The Company represents and warrants
to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933 (the "Act") and has filed with
the Securities and Exchange Commission (the "Commission") a
registration statement on such Form (the file number of which is
set forth in Schedule I hereto), which has become effective, for
the registration under the Act of the Securities. Such
registration statement, as amended at the date of this Agreement,
meets the requirements set forth in Rule 415(a)(1)(x) under the
Act and complies in all other material respects with said Rule.
The Company proposes to file with the Commission pursuant to Rule
424(b) under the Act an amendment and supplement to the form of
Prospectus included in such Registration Statement relating to the
Securities and the plan of distribution thereof and has previously
advised you of all further information (financial and other)
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with respect to the Company to be set forth therein. Such
registration statement, including the exhibits thereto, as amended
at the date of this Agreement, is hereinafter called the
"Registration Statement"; such prospectus in the form in which it
appears in the Registration Statement is hereinafter called the
"Basic Prospectus"; and such supplemented form of prospectus, in
the form in which it shall be filed with the Commission pursuant
to Rule 424(b) (including the Basic Prospectus as so amended and
supplemented) is hereinafter called the "Final Prospectus". Any
preliminary form of the Final Prospectus which has heretofore been
filed pursuant to Rule 424(b) is hereinafter called the
"Preliminary Final Prospectus". Any reference herein to the
Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the
Securities Exchange Act of 1934 (the "Exchange Act") on or before
the date of this Agreement, or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be; and any reference herein to the
terms "amend", "amendment" or "Supplement" with respect to the
Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer
to and include the filing of any document under the Exchange Act
after the date of this Agreement, or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be, deemed to be incorporated therein
by reference.
(b) As of the date hereof, when the Final Prospectus is first
filed pursuant to Rule 424(b) under the Act, when, prior to the
Closing Date (as hereinafter defined), any amendment to the
Registration Statement becomes effective (including the filing of
any document incorporated by reference in the Registration
Statement), when any supplement to the Final Prospectus is filed
with the Commission and at the Closing Date, (i) the Registration
Statement, as amended as of any such time, and the Final
Prospectus, as amended or supplemented as of any such time, [and
the Indenture] will comply in all material respects with the
applicable requirements of the Act[, the Trust Indenture Act of
1939 (the "Trust Indenture Act")] and the Exchange Act and the
respective rules thereunder and (ii)
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neither the Registration Statement, as amended as of any such
time, nor the Final Prospectus, as amended or supplemented as of
any such time, will contain any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; provided, however, that the Company makes no
representations or warranties as to (i) [that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture
Act of the Trustee or (ii)] the information contained in or
omitted from the Registration Statement or the Final Prospectus or
any amendment thereof or supplement thereto in reliance upon and
in conformity with information furnished in writing to the Company
by or on behalf of any underwriter through the Representatives
specifically for use in connection with the preparation of the
Registration Statement and the Final Prospectus.
2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Company agrees to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, at the purchase price set forth in
schedule I hereto the [principal amount][number of units] of the Securities set
forth opposite such Underwriter's name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the Securities shall
be made at the office, on the date and at the time specified in Schedule I
hereto, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 9 hereof (such date
and time of delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the Securities shall be made to the
Representatives for the respective accounts of the several Underwriters through
the Representatives against payment of the purchase price thereof payable to
the Company in the funds specified in Schedule I hereto at the Company's
office, Times ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as provided in
Schedule I hereto. Certificates for the Securities shall be registered in such
names and in such denominations as the Representatives may request not less
than three full business days in advance of the Closing Date.
The Company agrees to have the Securities available for inspection,
checking and packaging by the Representatives in New York, New York, not later
than 3:00 PM, New York time, on the business day prior to the Closing Date.
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4. Agreements. The Company agrees with the several Underwriters that:
(a) Prior the termination of the offering of the Securities,
the Company will not file any amendment of the Registration
Statement or amendment or supplement (including the Final
Prospectus) to the Basic Prospectus unless the Company has
furnished you a copy for your review prior to filing and will not
file any such proposed amendment or supplement to which you
reasonably object. Subject to the foregoing sentence, the Company
will cause the Final Prospectus to be filed with the Commission in
accordance with the requirements of Rule 424(b). The Company will
promptly advise the Representatives (i) when the Final Prospectus
shall have been filed with the Commission pursuant to Rule 424(b),
(ii) when any amendment to the Registration Statement relating to
the Securities shall have become effective, (iii) of any request
by the Commission for any amendment of the Registration Statement
or amendment of or supplement to the Final Prospectus or for any
additional information, (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for
that purpose and (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification
of the Securities for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose. The Company
will use every reasonable effort to prevent the issuance of any
such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event
occurs as a result of which the Final Prospectus as then amended
or supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which
they were made not misleading, or if it shall be necessary to
amend or supplement the Final Prospectus to comply with the Act or
the Exchange Act or the respective rules thereunder, the Company
promptly will prepare and file with the Commission, subject to the
first sentence of paragraph (a) of this Section 4, an amendment or
supplement which will correct such
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statement or omission or an amendment which will effect such
compliance.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company which will satisfy
the provisions of Section 11(a) of the Act and Rule 158 under the
Act.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto) and each
amendment thereto which shall become effective on or prior to the
Closing Date and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, as many copies
of any Preliminary Final Prospectus and the Prospectus and any
amendments thereof and supplements thereto as the Representatives
may reasonably request. The Company will pay the expenses of
printing all documents relating to the offering.
(e) The Company agrees to use its best efforts to qualify the
Securities and to assist in the qualification of the Securities by
or on behalf of the Representatives or of any of one or more of
the several Underwriters for sale under the laws of such States as
the Representatives may designate, to maintain such qualifications
in effect so long as required for the distribution of the
Securities and to assist in the determination of the legality of
the Securities for purchase by institutional investors under the
laws of such States as the Representatives may designate; provided
that the Company shall not be required to qualify as a foreign
corporation in any State, or to consent to service of process in
any State other than with respect to claims arising out of the
offering or sale of the Securities.
(f) Until the business day following the Closing Date, the
Company will not, without the consent of the Representatives,
offer, sell or contract to sell, or announce the offering of, any
[debt/equity] securities (i) covered by the Registration Statement
or any other registration statement filed under the Act or (ii) to
purchasers for resale in reliance on the exemption from
registration under the Act provided by Rule 144A under the Act.
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5. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Securities shall be subject to the accuracy of
the representations and warranties on the part of the Company contained herein
as of the date hereof, as of the date of the effectiveness of any amendment to
the Registration Statement filed prior to the Closing Date (including the
filing of any document incorporated by reference therein) and as of the Closing
Date, to the accuracy of the statements of the Company made in any certificates
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have
been issued and no proceedings for that purpose shall have been
instituted or threatened; and the Final Prospectus shall have been
filed with the Commission in accordance with the requirements of
Rule 424(b).
(b) At the Closing Date, the Representatives shall have
received the written opinion, dated the Closing Date, of counsel
of the Company, to the effect that:
(i) The Company is a corporation validly organized and
existing in good standing under the laws of the State of
Delaware; the Company has full corporate power to own its
properties and conduct its business as now being conducted;
and the Company is duly qualified and in good standing in
each jurisdiction in which the nature of its business or the
character of its properties makes such qualification
necessary;
(ii) [The Indenture has been duly authorized, executed
and delivered, is qualified under the Trust Indenture Act,
and][The Warrant Agreement] is a legally valid and binding
instrument, enforceable in accordance with its terms, except
as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws or equitable
principles relating to or limiting creditors' rights
generally;
(iii) The Securities have been duly authorized and,
when executed, authenticated, issued and delivered against
payment therefor in accordance with [the Indenture][the
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Certificate of Designation][the Warrant Agreement] and this
Agreement, will constitute legally valid and binding
obligations of the Company, enforceable in accordance with
their terms, subject, as to enforcement, to the matters set
forth in clause (ii) above;
(iv) The Registration Statement has become effective
under the Act, and, to the best of the knowledge of such
counsel: no stop order suspending the effectiveness of the
Registration Statement or of any part thereof has been
issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Act;
(v) The Registration Statement and the Final Prospectus, and
each amendment or supplement thereto, if any, as of their
respective effective or issue dates, complied as to form in all
material respects with the requirements of the Act [and the Trust
Indenture Act], and the applicable published rules and regulations
of the Commission thereunder;
(vi) The documents incorporated by reference in the Final
Prospectus, when they became effective or were filed with the
Commission, as the case may be, complied as to form in all material
respects with the requirements of the Act or the Exchange Act, as
applicable, and the applicable published rules and regulations of
the Commission thereunder;
(vii) The descriptions in the Registration Statement and the
Final Prospectus of federal and state statutes, legal and
governmental proceedings and contracts and other documents are
accurate and fairly present the information required to be shown;
and such counsel does not know of any legal or governmental
proceedings required to be described in the
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Final Prospectus, which are not described as required or of
any contracts or documents of a character required to be
described in the Registration Statement or the Final
Prospectus or to be filed as exhibits to the Registration
Statement which are not described and filed as required;
(viii) All legally required proceedings in connection with
the authorization of the Securities, the issue and sale of
the Securities by the Company pursuant hereto and the
authorization of the transactions related to such
authorization, issue and sale, as may be legally required
with respect to all or any of such matters, have been had or
obtained, except that the offer and sale of the Securities
in certain jurisdictions may be subject to the provisions of
the securities or Blue Sky laws of such jurisdictions;
(ix) The execution, delivery and performance of [the
Indenture][the Warrant Agreement] and this Agreement, the
issuance and sale of the Securities, and compliance with the
terms and provisions hereof or thereof, will not result in a
breach or violation of any of the terms and provisions of,
or constitute a default under, the charter or bylaws of the
Company, or, to his knowledge, any statute, rule, regulation
or order of any governmental agency or body or any court
having jurisdiction over the Company or its subsidiaries or
any of its properties or any agreement or instrument to
which the Company or any such subsidiary is a party or by
which the Company or any such subsidiary is bound or to
which any of the properties of the Company or any such
subsidiary is subject; and
(x) This Agreement has been duly authorized, executed
and delivered by the Company.
Such counsel shall also state that no facts have come to such counsel's
attention which lead such counsel to believe that the Registration Statement or
the Final Prospectus, or any amendment or supplement thereto, as of their
respective effective or issue dates, contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, or that the
Final Prospectus, at the Closing Date, contained any untrue statement of a
material fact or omitted to state any material fact necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading; it being understood that such counsel need not pass upon
the financial statements and other financial data contained in the Registration
Statement or the Final Prospectus;
In rendering the opinion called for above, counsel for the Company may
rely upon appropriate certificates of public officials and officers or
employees of the Company and the Trustee as to factual matters and upon
opinions, dated the Closing Date, of other counsel.
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In rendering the opinion called for by clauses (ii) and (iii) above, legal
counsel may state that they are expressing no opinion as to the availability of
equitable remedies and may advise that a Delaware court may not strictly
enforce certain covenants of [the Indenture] [the Warrant Agreement] [or] the
Securities or allow acceleration of the due date of the Securities if it
concludes that such enforcement or acceleration, would be unreasonable under
the then existing circumstances, although, in their opinion, acceleration would
be available if an event of default occurs as a result of a material breach of
a material covenant contained in [the Indenture][the Warrant Agreement] [or]
the Securities.
(c) The Representatives shall have received from
_____________, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to the issuance and
sale of the Securities, [the Indenture,][the Certificate of
Designation][the Warrant Agreement] the Registration Statement,
the Final Prospectus and other related matters as the
Representatives may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(d) The Representatives shall have received certificates of
the Chairman of the Board, the President or any Vice President of
the Company, dated the Closing Date, to the effect that the signer
of such certificate has carefully examined the Registration
Statement, the Final Prospectus and this Agreement and that to the
best of his knowledge after reasonable investigation:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect
as if made on the Closing Date and the Company has complied
with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the
Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement, as amended, has been issued and no
proceedings for that purpose have been instituted or, to the
Company's knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus, there has been
no material adverse
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change in the financial condition or results of operations
of the Company, except as set forth in or contemplated in
the Final Prospectus or as described in such certificate.
(e) At the Closing Date, [Ernst & Young LLP] shall have
furnished to the Representatives a letter or letters (which may
refer to letters previously delivered to one or more of the
Representatives) dated as of the Closing Date, in form and
substance satisfactory to the Representatives, confirming that
they are independent accountants with respect to the Company
within the meaning of the Act and the Exchange Act and the
respective applicable published rules and regulations thereunder,
and stating in effect that:
(i) in their opinion the audited financial statements
and financial statement schedules included or incorporated
in the Registration Statement and the Final Prospectus and
reported on by them comply as to form in all material
respects with the applicable accounting requirements of the
Act and the Exchange Act and the related published rules and
regulations;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company; carrying
out certain specified procedures (but not an examination in
accordance with generally accepted auditing standards) which
would not necessarily reveal matters of significance with
respect to the comments set forth in such letter; a reading
of the minutes of the meetings of the stockholders,
directors and executive committee of the Company; and
inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the
Company as to transactions and events subsequent to the date
of the most recent audited financial statements incorporated
in the Registration Statement and the Final Prospectus,
nothing came to their attention which caused them to believe
that:
(1) any unaudited financial statements included
or incorporated in the Registration Statement and the
Final Prospectus do not comply as to form in all
material respects with applicable
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accounting requirements and with the published rules
and regulations of the Commission with respect to
financial statements included or incorporated in
quarterly reports on Form 10-Q of the Company under
the Exchange Act; and said unaudited financial
statements are not fairly presented (except as
permitted by Form 10-Q) in conformity with generally
accepted accounting principles applied on a basis
substantially consistent with that of the audited
financial statements included or incorporated in the
Registration Statement and the Final Prospectus; or
(2) with respect to the period subsequent to the
date of the most recent financial statements
incorporated in the Registration Statement and the
Final Prospectus, there were any decreases, at the
date of the latest available unaudited financial
statements prepared by the Company, in the
stockholders' equity of the Company or any changes,
at a specified date not more than five business days
prior to the date of the letter, in the long-term
debt or capital stock of the Company (other than
changes resulting from conversions of outstanding
securities) as compared with the amounts shown on the
most recent consolidated balance sheet included or
incorporated in the Registration Statement and the
Final Prospectus, or for the period from the date of
the most recent financial statements incorporated in
the Registration Statement and the Final Prospectus
to the date of the latest available unaudited
financial statements prepared by the Company there
were any decreases, as compared with the
corresponding period in the preceding year, in total
operating revenues or net income, except in all
instances for changes or decreases set forth in such
letter, in which case the letter shall be accompanied
by an explanation by the Company as to the
significance thereof unless said explanation is not
deemed necessary by the Representatives; and
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(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical
nature (which is limited to accounting, financial or
statistical information derived from the general accounting
records of the Company) set forth in the Registration
Statement, as amended, and the Final Prospectus, as amended
or supplemented, including the information included or
incorporated in Items 1, 2, 6, 7 and 11 of the Company's
annual report on Form 10-K incorporated therein or in
"Management's Discussion and Analysis of Financial Condition
and Results of operations" included or incorporated in any
of the Company's quarterly reports on Form 10-Q incorporated
therein, agrees with the accounting records of the Company
and its subsidiaries, excluding any questions of legal
interpretation.
In addition, at the Closing Date, [Ernst & Young LLP] shall have furnished
to the Representatives a letter or letters, in form and substance satisfactory
to the Representatives, to the effect set forth in the introductory paragraph
to this paragraph (f), in subparagraphs (i) and (ii) (1) above and, to the
extent referring to information contained in Exchange Act reports incorporated
in the Registration Statement and the Final Prospectus, in subparagraph (iii)
above.
(f) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Final
Prospectus, there shall not have been (i) any material adverse
change described in the certificate referred to in paragraph (e)
of this Section 5, (ii) any change or decrease specified in the
letter or letters referred to in paragraph (f) of this Section 5
or (iii) any change, or any development involving a prospective
change, in or affecting the business or properties of the Company
and its subsidiaries the effect of which, in any case referred to
in clause (i), (ii) or (iii) above, is, in the judgment of the
Representatives, so material and adverse as to make it impractical
or inadvisable to proceed with the offering or the delivery of the
Securities as contemplated by the Registration Statement and the
Final Prospectus.
(g) Subsequent to the execution of this Agreement, there
shall not have been any decrease in the ratings of any of the
Company's debt securities
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by ▇▇▇▇▇'▇ Investors Service, Inc. or Standard & Poor's
Corporation.
(h) At or prior to the Closing Date, the Company shall have
furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably
request and such additional opinions and letters as are provided
for in Schedule I.
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or
if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives, this Agreement and all obligations of the
Underwriters hereunder may be cancelled at, or at any time prior to, the
Closing Date by the Representatives. Notice of such cancellation shall be
given to the company in writing or by telephone or telegraph confirmed in
writing.
6. Conditions to the Obligations of the Company. The obligations of the
Company to sell and deliver the Securities shall be subject to the following
conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have
been issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) Concurrently with or prior to the delivery of the
Securities to the several underwriters, the Company shall receive
the full purchase price herein specified for the Securities.
If any of the conditions specified in this Section 6 shall not have been
fulfilled when and as provided in this Agreement, this Agreement and all
obligations of the Company hereunder may be cancelled at, or at any time prior
to, the Closing Date. Notice of such cancellation shall be given to the
Representatives in writing or by telephone or telegraph confirmed in writing.
7. Reimbursement of Underwriters' Expenses. The Company will pay all
expenses incident to the performance of its obligations under this Agreement
and will reimburse the Underwriters for any expenses (including fees and
disbursements of counsel) incurred by them in connection with qualification of
the Securities for sale and determination of their eligibility for investment
under the laws of such
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jurisdictions as the Representatives may designate and the printing of
memoranda relating thereto, for any fees charged by investment rating agencies
for the rating of the Securities, for any filing fee of the National
Association of Securities Dealers, Inc. relating to the Securities and for
expenses incurred in distributing the Prospectus and all supplements thereto,
any preliminary prospectuses and any preliminary prospectus supplements to each
Underwriter. If the sale of the Securities provided for herein is not
consummated because any condition to the obligations of the Underwriters set
forth in Section 5 hereof is not satisfied or because of any refusal, inability
or failure on the part of the Company to perform any agreement herein or comply
with any provision hereof other than by reason of a default by any of the
Underwriters, the Company will reimburse the Underwriters severally upon demand
for all out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by them in connection with the proposed
purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the securities as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that (i) the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished
to the Company by or on behalf of any Underwriter through the Representatives
specifically for use in connection with the preparation thereof, and (ii) such
indemnity with respect to the Basic Prospectus or any Preliminary Final
Prospectus shall not inure
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to the benefit of any Underwriter (or any person controlling such Underwriter)
from whom the person asserting any such loss, claim, damage or liability
purchased the Securities which are the subject thereof if such person did not
receive a copy of the Final Prospectus (or the Final Prospectus as amended or
supplemented) excluding documents incorporated therein by reference at or prior
to the confirmation of the sale of such Securities to such person in any case
where such delivery is required by the Act and the untrue statement or omission
of a material fact contained in the Basic Prospectus or any Preliminary Final
Prospectus was corrected in the Final Prospectus (or the Final Prospectus as
amended or supplemented). This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers
who signs the Registration Statement, and each person who controls
the Company within the meaning of either the Act or the Exchange
Act, to the same extent as the foregoing indemnity from the
Company to each Underwriter, but only with reference to written
information relating to such Underwriter furnished to the Company
by or on behalf of such Underwriter through the Representatives
specifically for use in the preparation of the documents referred
to in the foregoing indemnity. This indemnity agreement will be
in addition to any liability which any Underwriter may otherwise
have. The Company acknowledges that the statements set forth in
the second sentence of the second paragraph under the heading
"Underwriting" in the Final Prospectus constitute the only
information furnished in writing by or on behalf of the several
Underwriters for inclusion in the documents referred to in the
foregoing indemnity, and you, as the Representatives, confirm that
such statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 8, notify
the indemnifying party in writing of the commencement thereof; but
the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party
otherwise than under this Section 8. In case any such action is
brought against any indemnified party, and it notifies the
indemnifying party of the
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commencement thereof, the indemnifying party will be entitled to
participate therein, and to the extent that it may elect by
written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to
assume the defense thereof, with counsel satisfactory to such
indemnified party; provided, however, that if the defendants in
any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or
other indemnified parties which are different from or additional
to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel
to assert such legal defenses and to otherwise participate in the
defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to
such indemnified party of its election so to assume the defense of
such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party
under this Section 8 for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal
defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying
party shall not be liable for the expenses of more than one
separate counsel, approved by the Representatives in the case of
paragraph (a) of this Section 8, representing the indemnified
parties under such paragraph (a) who are parties to such action),
(ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that, if clause (i) or (iii) is
applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii). Each indemnified party
agrees promptly to notify each indemnifying party of the
commencement of any litigation or proceedings against it in
connection with the issue and sale of the Securities.
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(d) In order to provide for just and equitable contribution
in circumstances in which the indemnification provided for in
paragraph (a) of this Section 8 is due in accordance with its
terms but is for any reason held by a court to be unavailable from
the Company on grounds of policy or otherwise, the Company on the
one hand and the Underwriters on the other hand shall contribute
to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in
connection with investigating or defending same) to which the
Company and one or more of the Underwriters may be subject (i) in
such proportion so that the Underwriters are responsible for that
portion represented by the percentage that the underwriting
discount bears to the sum of such discount and the purchase price
of the Securities specified in Schedule I hereto and the Company
is responsible for the balance or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect the relative benefit
represented by the percentage that the underwriting discount bears
to the sum of such discount and the purchase price for the
Securities referred to in clause (i) above, but also the relative
fault of the Company on the one hand and the Underwriters on the
other in connection with the statements or omissions which
resulted in such loss, claim, damage or liability as well as any
other relevant equitable considerations. The relative fault of
the Company and the Underwriters shall be determined by reference
to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the
Company or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by
pro rata allocation (even if the Underwriters 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 subsection (d). Notwithstanding
anything in this subsection (d) to the contrary, (x) in no case
shall any Underwriter (except as may be provided in any agreement
among underwriters relating to the offering of the Securities) be
responsible for any
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amount in excess of the underwriting discount applicable to the
Securities purchased by such Underwriter hereunder and (y) no
person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person
who controls an Underwriter within the meaning of the Act shall
have the same rights to contribution as the Underwriter, and each
person who controls the Company within the meaning of either the
Act or the Exchange Act, each officer of either of the Company who
shall have signed the Registration Statement and each director of
the Company shall have the same rights to contribution as the
Company, subject in each case to clause (x) of this paragraph (d).
Any party entitled to contribution will, promptly after receipt
of notice of commencement of any action, suit or proceeding
against such party in respect of which a claim for contribution
may be made against another party or parties under this paragraph
(d), notify such party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall
not relieve the party or parties from whom contribution may be
sought from any other obligation it or they may have hereunder or
otherwise than under this paragraph (d). No party shall be liable
for contribution with respect to any action or claim settled
without its consent.
9. Default by an Underwriter. If any one or more Underwriters shall fail
to purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate amount
of Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriters or Underwriters agreed but
failed to purchase; provided, however, that in no event shall any
non-defaulting Underwriter be obligated to purchase additional Securities under
this Section 9 in an amount exceeding 10% of the amount of the Securities set
forth opposite its name in Schedule II hereto. In the event that the amount of
Securities which all such non-defaulting Underwriters shall be obligated to
purchase under the preceding sentence shall be less than the amount of
Securities which all such defaulting Underwriters shall have failed to
purchase, the non-defaulting
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Underwriters shall have the right (but not the obligation) to purchase the
remaining Securities. If all such remaining Securities are not purchased by
non-defaulting Underwriters as above provided, the Company may, at its option,
(a) cancel this Agreement pursuant to the provisions of Section 6 hereof or (b)
elect to proceed with the sale and delivery hereunder of less than all of the
Securities to be purchased by the Underwriters. In the event of a default by
any Underwriter as set forth in this Section 9, the Closing Date shall be
postponed for such period, not exceeding seven days, as the Representatives
shall determine in order that the required changes in the Registration
Statement and the Final Prospectus or in any other documents or arrangements
may be effected. Nothing contained in this Agreement shall relieve any
defaulting Underwriter of its liability, if any, to the Company and any
non-defaulting Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Securities, if prior to such time (i)
trading in the Series A Common Stock of the Company shall have been suspended
by the Commission or the New York Stock Exchange or trading in securities
generally on the New York Stock Exchange shall have been suspended or limited
or minimum prices shall have been established on such Exchange, (ii) a banking
moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or material
escalation of hostilities or other calamity or crisis the effect of which on
the financial markets of the United States is such as to make it, in the
judgment of the Representatives, impracticable to market the Securities.
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
the Company or its officers and of the Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of any Underwriter, or the Company or
any of the officers, directors or controlling persons referred to in Section 8
hereof, and will survive delivery of and payment for the Securities. The
provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telegraphed and confirmed to them, at the address specified in
Schedule I hereto; or, if sent to the Company, will be mailed, delivered
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or telegraphed and confirmed to it at Times ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of the Corporate Secretary.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8 hereof,
and no other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of [New York][California].
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
THE TIMES MIRROR COMPANY
BY:__________________________
NAME:________________________
TITLE:_______________________
The foregoing Agreement is hereby
confirmed and accepted as of the
date specified in Schedule I hereto.
BY:
BY:_____________________________
Name:
Title:
For themselves and the other several
Underwriters, if any, named in Schedule
II to the foregoing Agreement.
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SCHEDULE I
Underwriting Agreement dated _________
Registration Statement No. 33-________
Representatives and Address:
Title, Purchase Price and Description of Securities:
Title:
Principal Amount:
Purchase Price:
Maturity:
Interest:
Sinking Fund Provisions:
Optional Redemption:
Closing Date and Time:
Method of Payment:
Modification of items to be covered by the letter from [Ernst & Young LLP]
delivered pursuant to Section 5(f):
Items to be delivered pursuant to Section 5(i):
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SCHEDULE II
[Principal Amount][Units] of
Underwriters Securities to be Purchased
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