1
EXHIBIT 2
AMENDED AND RESTATED PULITZER VOTING AGREEMENT
AMENDED AND RESTATED PULITZER VOTING AGREEMENT (this "Agreement"), dated as of
May 25, 1998, among Hearst-Argyle Television, Inc., a Delaware corporation
("Acquiror"), and each of the stockholders of Pulitzer Publishing Company, a
Delaware corporation (the "Company"), listed on Schedule I hereto (each a
"Stockholder" and, collectively, the "Stockholders").
WITNESSETH:
WHEREAS, concurrently herewith, 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, as an inducement and a condition to entering into the Merger
Agreement, Acquiror has required that the Stockholders agree, and the
Stockholders have agreed, to enter into this Agreement; and
WHEREAS, the parties hereto have determined to amend certain provisions of
this Agreement and to amend and restate this Agreement in accordance herewith.
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:
(a) "Company Stock" shall mean at any time, collectively, the Company Common
Stock and the Company Class B Common Stock.
(b) "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 Company Stock.
(a) Each 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 Company Stock, however called, or in connection
with any written consent of the holders of Company Stock, such Stockholder shall
vote (or cause to be voted) all shares of Company Stock held of record or
Beneficially Owned by such Stockholder, whether heretofore owned or hereafter
acquired (collectively, the "Shares"), (i) in favor of the Merger, the execution
and delivery by the Company of the Merger Agreement and the Contribution
Agreement, and the approval of the terms thereof, and each of the other
transactions and actions contemplated by the Merger Agreement (and the matters
related to the consummation thereof), the Contribution Agreement and this
Agreement and any actions required in furtherance thereof and hereof; (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
the Company under the Merger Agreement, the Contribution Agreement or this
Agreement or that would result in any of the conditions to the obligations of
the Company under the Merger Agreement not being fulfilled; and (iii) except as
otherwise agreed to in writing in advance by Acquiror, against the following
actions (other than the Merger and the transactions contemplated by the Merger
Agreement and the Contribution Agreement): (A) any extraordinary corporate
2
transaction, such as a merger, consolidation or other business combination
involving the Company or its Subsidiaries; (B) a sale, lease or transfer of a
material amount of assets of the Company or its Subsidiaries, or a
reorganization, recapitalization, dissolution or liquidation of the Company or
its Subsidiaries; (C) any change in a majority of the Persons who constitute the
board of directors of the Company; (D) any change in the present capitalization
of the Company or any amendment of the Company's Certificate of Incorporation or
Bylaws; (E) any other material change in the Company's corporate structure or
business; or (F) any other action involving the Company or its Subsidiaries
which is intended, or could reasonably be expected, to impede, interfere with,
delay, postpone, or materially adversely affect the Merger and the transactions
contemplated by the Merger Agreement, the Contribution Agreement and this
Agreement.
(b) In the event that any Stockholder desires to sell any shares of Company
Common Stock prior to the Effective Time, Acquiror shall cooperate (at the
Stockholder's or the Company's expense) in the marketing efforts of the
underwriters and/or the Stockholder and any underwriter retained by the
Stockholder, including, without limitation, by making available, as reasonably
requested by the underwriters and/or the Stockholder, the senior executive
officers of Acquiror for attendance at, and active participation with the
underwriters in, informational or so-called "road show" meetings with
prospective purchasers of the Company Common Stock being offered, including
meeting with groups of such purchasers or with individual purchasers, providing
information and answering questions about Acquiror at such meetings, and
traveling to locations in the United States and abroad as reasonably selected by
the Stockholder and/or underwriters.
(c) In the event of a stock dividend or distribution, or any change in the
Company 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. Each Stockholder hereby
represents, warrants and covenants to Acquiror as follows:
(a) Ownership of Shares. Such Stockholder is, as of the date hereof, the
record holder of, in his or her capacity as trustee under the Voting Trust
Agreement (as defined below), and Beneficially Owns the number of shares of
Company Stock set forth opposite such Stockholder's name on Schedule I hereto.
As of the date hereof, the Shares set forth opposite such Stockholder's name
on Schedule I hereto constitute all of the Shares owned of record or
Beneficially Owned by such Stockholder. Such Stockholder has sole voting power
or sole power to issue instructions with respect to the matters covered
hereby, except as provided by that certain Voting Trust Agreement, dated as of
June 19, 1995, among the Stockholders and the other Persons named therein (the
"Voting Trust Agreement").
(b) Power; Binding Agreement. Such Stockholder has the legal capacity, power
and authority to enter into and perform all of such Stockholder's obligations
under this Agreement. The execution, delivery and performance of this
Agreement by such Stockholder will not violate any other agreement to which
such Stockholder is a party including, without limitation, the Voting Trust
Agreement and any other voting agreement, stockholders agreement or voting
trust and, with respect to any Stockholder that is not a natural person, the
trust agreement or other applicable constituent document of such Stockholder.
This Agreement has been duly and validly executed and delivered and
authorized, to the extent required, by such Stockholder and constitutes a
valid and binding agreement of such Stockholder, enforceable against such
Stockholder in accordance with its terms. There is no beneficiary or holder of
a voting trust certificate or other interest of any trust of which such
Stockholder is a trustee whose consent is required for the execution and
delivery of this Agreement or the consummation by such Stockholder of the
transactions contemplated hereby. If such Stockholder is married and such
Stockholder's Shares constitute community property, this Agreement has been
duly authorized, executed and delivered by, and constitutes a valid and
binding agreement of, such Stockholder's spouse, enforceable against such
Person in accordance with its terms. A true and complete copy of the Voting
Trust Agreement has been delivered to Acquiror.
2
3
(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 such Stockholder and the consummation by
such 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 such Stockholder, the consummation by such Stockholder of the
transactions contemplated hereby or compliance by such 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 such Stockholder is a party or by which such Stockholder or any
of such Stockholder's properties or assets may be bound, or (B) violate any
order, writ, injunction, decree, judgment, order, statute, rule or regulation
applicable to such Stockholder or any of such Stockholder's properties or
assets.
(d) No Encumbrances. Except for transfers of a Stockholder's Shares made
without violation of Section 6(b), such Stockholder's Shares and the
certificates representing such Shares are now, and at all times during the
term hereof will be, held by the trustees under the Voting Trust Agreement for
the benefit of such Stockholder.
(e) 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, no Stockholder shall, 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 (except as the Voting Trust Agreement may be amended to permit
conversion of shares of Class B Common Stock into Common Stock) with respect
to any Shares, or (ii) take any action that would have the effect of
preventing or disabling such Stockholder from performing such Stockholder's
obligations under this Agreement; provided, however, that nothing contained in
this Agreement shall restrict the ability of any Stockholders to convert his,
her or its shares of Class B Common Stock into Common Stock.
(f) Reliance by Acquiror. Such Stockholder understands and acknowledges that
Acquiror is entering into the Merger Agreement in reliance upon such
Stockholder's execution and delivery of this Agreement.
(g) 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 (including, without limitation, Section
8.01(d) of the Merger Agreement), 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. Stockholder Capacity. No Person executing this Agreement who is or becomes
during the term hereof a director of the Company makes any agreement or
understanding herein in his or her capacity as such director. Each Stockholder
signs solely in his or her capacity as the record and/or beneficial owner of, or
the trustee of a trust whose beneficiaries are the beneficial owners of, such
Stockholder's Shares.
6. 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.
3
4
(b) Certain Events. Each Stockholder agrees that (i) this Agreement and the
obligations hereunder shall attach to such 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, such Stockholder's heir, guardians, administrators or successors and
(ii) such Stockholder 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, of such Stockholder's Shares or of any
voting certificates such Stockholder may hold in connection with the Voting
Trust Agreement or instruct or permit the trustees under the Voting Trust
Agreement to Transfer or enter into any contract, option or other arrangement
with respect to the Transfer of such Stockholder's Shares, unless as a condition
of such Transfer the transferee agrees in writing to be bound by the terms and
conditions of this Agreement; provided, however, that each Stockholder shall be
entitled to Transfer without such a condition, and this Agreement and the
obligations hereunder shall not so attach to, any Shares which are sold, gifted
or otherwise transferred, whether in a single or multiple transaction(s), to an
unaffiliated third party in a bona fide transaction; provided, further, that the
total number of Shares so sold, gifted or otherwise transferred by each
Stockholder shall not reduce at any time during the term of this Agreement the
number of shares held in the aggregate by all of the Stockholders below 51% of
the issued and outstanding shares of Class B Common Stock.
(c) Assignment. This Agreement shall not be assigned by operation of law or
otherwise by any party without the prior written consent of the other parties,
and any purported assignment in violation hereof shall be null and void,
provided that Acquiror may assign, in its sole discretion, its rights and
obligations hereunder to any direct or indirect wholly owned subsidiary of
Acquiror, but no such assignment shall relieve Acquiror of its obligations
hereunder if such assignee does not perform such obligations.
(d) Amendments, Waivers, Etc. This Agreement may not be amended, changed,
supplemented, waived or otherwise modified or terminated, with respect to, any
one or more Stockholders, except upon the execution and delivery of a written
agreement executed by the relevant parties hereto; provided that Schedule I
hereto may be supplemented by Acquiror by adding the name and other relevant
information concerning any other stockholder of the Company who agrees to be
bound by the terms of this Agreement without the agreement of any other party
hereto, and thereafter such added stockholder shall be treated as a
"Stockholder" for all purposes of this Agreement.
(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 communications hereunder shall be delivered to the respective
parties at the following addresses:
If to Stockholders:
At the addresses and telecopier numbers set forth on
Schedule I hereto
If to Acquiror: Hearst-Argyle Television, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000 (telecopier)
Attention: Xxxx X. Xxxxxx
Copy to: Xxxxxx & Xxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000 (telecopier)
Attention: Xxxxxx X. Xxxxx, 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.
4
5
(f) Severability. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such manner as to be
effective 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.
(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.
[The remainder of this page intentionally left blank]
5
6
IN WITNESS WHEREOF, Acquiror and each Stockholder have caused this Agreement
to be duly executed as of the day and year first above written.
Hearst-Argyle Television, Inc.
By: ---------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice-President
Secretary and General
Counsel
Xxxxx Xxxx Pulitzer, Xxxxx X.
Xxxxxxx and Xxxxxxx Xxxx, Successor
Trustees of Marital Trust A U/T
Xxxxxx Xxxxxxxx, Xx. dtd 6/12/74, As
Amended 10/20/92
By: ---------------------------------
Xxxxx Xxxx Pulitzer, Trustee
By: ---------------------------------
Xxxxx X. Xxxxxxx, Trustee
By: ---------------------------------
Xxxxxxx Xxxx, Trustee
Xxxxx Xxxx Pulitzer, Xxxxx X.
Xxxxxxx and Xxxxxxx Xxxx, Successor
Trustees of Marital Trust B U/T
Xxxxxx Xxxxxxxx, Xx. dtd 6/12/74, As
Amended 10/20/92
By: ---------------------------------
Xxxxx Xxxx Pulitzer, Trustee
By: ---------------------------------
Xxxxx X. Xxxxxxx, Trustee
By: ---------------------------------
Xxxxxxx Xxxx, Trustee
-------------------------------------
Xxxxx Xxxx Xxxxxxxx
0
0
Xxxxx Xxxx Pulitzer, as Trustee of
the Pulitzer Family Trust
By: ---------------------------------
Xxxxx Xxxx Pulitzer, Trustee
Spring Foundation
By: ---------------------------------
Name: Xxxxx Xxxx Pulitzer
Title:
-------------------------------------
Xxxxx X. Xxxxx
Xxxxx X. Xxxxx, Trustee of Xxxxx X.
Xxxxx 1998 Grantor Annuity Trust dtd
2/5/98
By: ---------------------------------
Xxxxx X. Xxxxx, Trustee
Xxxxxxx X. Xxxxxxxx, Trustee of U/A
dtd 3/22/82 F/B/O Xxxxxxx X.
Xxxxxxxx
By: ---------------------------------
Xxxxxxx X. Xxxxxxxx, Trustee
Xxxxxxx X. Xxxxxx, Trustee of U/A
dtd 8/16/83 F/B/O Xxxxxxx X.
Xxxxxxxx
By: ---------------------------------
Xxxxxxx X. Xxxxxx, Trustee
The Ceil and Xxxxxxx X. Xxxxxxxx
Foundation, Inc.
By: ---------------------------------
Xxxxxxx X. Xxxxxxxx, President
7
8
SCHEDULE I
TO
PULITZER VOTING AGREEMENT
Record Ownership of Class B Common Stock
Number of
Shares
as of
May 25,
Name and Address of Stockholder 1998
------------------------------- ---------
Xxxxx Xxxx Pulitzer, Xxxxx X. Xxxxxxx and Xxxxxxx Xxxx, Successor Trustees of
Marital Trust A U/T Xxxxxx Xxxxxxxx, Xx. dtd. 6/12/74, As Amended 10/20/92 10,560
Xxxxx Xxxx Pulitzer, Xxxxx X. Xxxxxxx and Xxxxxxx Xxxx, Successor Trustees of
Marital Trust B U/T Xxxxxx Xxxxxxxx, Xx. dtd. 6/12/74, As Amended 10/20/92 5,929,733
Xxxxx Xxxx Pulitzer 5,289
Xxxxx Xxxx Pulitzer, as Trustee of the Pulitzer Family Trust 815,935
Spring Foundation 22,860
Xxxxx X. Xxxxx 3,212,458
Xxxxx X. Xxxxx, Trustee of Xxxxx X. Xxxxx 1998 Grantor Annuity Trust dtd.
2/5/98 800,000
Xxxxxxx X. Xxxxxxxx, Trustee of U/A dtd. 3/22/82 F/B/O Xxxxxxx X. Xxxxxxxx 3,649,820
Xxxxxxx X. Xxxxxx, Trustee of U/A dtd. 8/16/83 F/B/O Xxxxxxx X. Xxxxxxxx 46,170
The Ceil and Xxxxxxx X. Xxxxxxxx Foundation, Inc. 44,983
1. Xxxxx Xxxx Pulitzer 6,784,377
2. Xxxxx X. Xxxxx 4,012,458
3. Xxxxxxx X. Xxxxxxxx 3,740,973
1
