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EXHIBIT 1.1
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THE TIMES MIRROR COMPANY
(a Delaware corporation)
6.65% NOTES DUE OCTOBER 15, 2001
7.45% NOTES DUE OCTOBER 15, 2009
UNDERWRITING AGREEMENT
Dated: October 14, 1999
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THE TIMES MIRROR COMPANY
(A DELAWARE CORPORATION)
$600,000,000
$200,000,000 6.65% NOTES DUE OCTOBER 15, 2001
$400,000,000 7.45% NOTES DUE OCTOBER 15, 2009
UNDERWRITING AGREEMENT
October 14, 1999
Xxxxxxx, Xxxxx & Co.
Xxxxxxx Xxxxx Xxxxxx Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The Times Mirror Company, a Delaware corporation (the
"Company"), confirms its agreement with Xxxxxxx, Xxxxx & Co. ("Xxxxxxx Sachs")
and each of the other Underwriters named in Schedule I hereto (collectively, the
"Underwriters"), with respect to the issue and sale by the Company and the
purchase by the Underwriters, acting severally and not jointly, of the
respective principal amounts set forth in said Schedule I of $200,000,000
aggregate principal amount of the Company's 6.65% Notes Due October 15, 2001 and
$400,000,000 aggregate principal amount of the Company's 7.45% Notes Due October
15, 2009 (collectively, the "Securities"). The Securities are to be issued
pursuant to an Indenture (the "Original Indenture") dated as of March 19, 1996
between the Company and Citibank, N.A., as trustee (the "Trustee"), as
supplemented by that First Supplemental Indenture, to be dated as of October 19,
1999 (the "Supplemental Indenture," collectively with the Original Indenture,
the "Indenture"). The term "Indenture," as used herein, includes the Officers'
Certificate establishing the form and terms of the Securities pursuant to
Section 301 of the Indenture.
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The Company understands that the Underwriters propose to make
a public offering of the Securities as soon as the Underwriters deem advisable
after this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement including a prospectus
relating to the issuance of securities of the Company, has filed with or
transmitted for filing to the Commission a preliminary prospectus supplement
specifically relating to the Securities pursuant to Rule 424 under the
Securities Act of 1933, as amended (the "Securities Act"), and shall promptly
hereafter file with or transmit for filing to the Commission a prospectus
supplement (the "Prospectus Supplement") specifically relating to the Securities
pursuant to Rule 424 under the Securities Act. The term Registration Statement
means the registration statement as amended to the date of this Agreement. The
term Basic Prospectus means the prospectus included in the Registration
Statement. The term Prospectus means the Basic Prospectus together with the
Prospectus Supplement. As used herein, the terms "Basic Prospectus" and
"Prospectus" shall include in each case the documents, if any, incorporated by
reference therein (the "Incorporated Documents"). The terms "supplement,"
"amendment" and "amend" as used herein shall include all documents deemed to be
incorporated by reference in the Prospectus that are filed subsequent to the
date of the Basic Prospectus by the Company with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"). The term
"Significant Subsidiaries" means the entities listed on Schedule II hereto. The
term "subsidiary" shall mean any subsidiary of the Company and shall also
include Eagle New Media Investments, LLC and Eagle Publishing Investments, LLC
(the "Eagle LLCs"), of which the Company is the sole manager pursuant to the
terms of the respective limited liability company agreements of the Eagle LLCs.
1. Representations and Warranty. The Company represents and
warrants to and agrees with each of the Underwriters:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or, to
the knowledge of the Company, threatened by the Commission.
(b) (i) Each part of the Registration Statement, when such
part became effective, did not contain and each such part, as amended
or supplemented, if applicable, will not contain any untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading. (ii) The Registration Statement and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder. (iii) The Prospectus does not
contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which
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they were made, not misleading, except that the representations and
warranties set forth in this Section 1(b) do not apply (A) to
statements or omissions in the Registration Statement or the Prospectus
based upon information relating to any Underwriter furnished to the
Company in writing by such Underwriter through Xxxxxxx Xxxxx expressly
for use therein or (B) to that part of the Registration Statement that
constitutes the Statement of Eligibility (Form T-1) under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), of the
Trustee (the "Form T-1"). (iv) The Prospectus as delivered from time to
time shall incorporate by reference the most recent Annual Report of
the Company on Form 10-K filed with the Commission and each Quarterly
Report of the Company on Form 10-Q and each Current Report of the
Company on Form 8-K filed with the Commission since the filing of the
then most recent Annual Report of the Company on Form 10-K. The
documents incorporated or deemed to be incorporated by reference in the
Registration Statement and Prospectus at the time they were or
hereafter are filed with the Commission complied and will comply in all
material respects with the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder (the "Exchange Act
Regulations"), and, when read together with the other information in
the Registration Statement and Prospectus, at the date of the
Prospectus and at the Closing Date, will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading. (v) The accountants who certified the financial statements
and supporting schedules included or incorporated by reference in the
Registration Statement and Prospectus are independent certified public
accountants with respect to the Company and its subsidiaries within the
meaning of Regulation S-X under the Securities Act. (vi) The financial
statements included or incorporated by reference in the Registration
Statement and Prospectus, together with the related schedules and
notes, present fairly, in all material respects, the financial position
of the Company and its consolidated subsidiaries at the dates indicated
and the statements of operations, shareholders' equity and cash flows
of the Company and its consolidated subsidiaries for the periods
specified; such financial statements have been prepared in conformity
with generally accepted accounting principles ("GAAP"). The supporting
schedules, if any, included in the Registration Statement and
Prospectus present fairly in all material respects the information
required to be stated therein.
(c) Each of the Company and its Significant Subsidiaries has
been duly organized and is validly existing as a corporation or limited
liability company, as the case may be, in good standing under the laws
of its jurisdiction of organization, with full power and authority
(corporate and other) to own its properties and conduct its business as
described in the Prospectus, except where the failure to be in good
standing, either singly or in the aggregate, would not have a material
adverse effect on the condition, financial or otherwise, or the
earnings, business or operations of the Company and its subsidiaries,
taken as a whole (each, a "Material Adverse Effect").
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(d) Each of the Company and its Significant Subsidiaries is
duly qualified or registered, as applicable, to do business as a
foreign corporation or limited liability company, as the case may be,
and is in good standing in each jurisdiction where the character of the
business conducted by it or the location of its properties owned or
leased by it makes such qualification or registration necessary and in
which the absence of such qualification or registration, either singly
or in the aggregate, would have a Material Adverse Effect.
(e) The outstanding shares of capital stock of each of the
Significant Subsidiaries (other than Eagle LLCs) of the Company have
been duly authorized and validly issued, are fully paid and
nonassessable and are owned beneficially by the Company free and clear
of all liens, encumbrances, equities and claims. The Company is the
sole manager of the Eagle LLCs and, therefore, controls such companies.
(f) Each of the Company and its Significant Subsidiaries is in
compliance with all laws, ordinances and regulations applicable to its
properties (whether owned or leased) and its business as described in
the Prospectus, except where failure to so comply, either singly or in
the aggregate, would not have a Material Adverse Effect.
(g) Each of the Company and its Significant Subsidiaries has
all government licenses or permits necessary to carry on its business
as such business is presently conducted and as described in the
Prospectus, except where failure to have such licenses or permits,
either singly or in the aggregate, would not have a Material Adverse
Effect. Except as set forth in the Prospectus or as previously
disclosed to you in writing, the Company has no reason to believe that
any federal or state authorities are considering modifying, suspending
or revoking any such licenses, or that such authorities or any other
agencies are investigating the Company or any of its Significant
Subsidiaries other than in the ordinary course of administrative
review.
(h) This Agreement has been duly authorized, executed and
delivered by the Company.
(i) The Supplemental Indenture has been duly authorized, and
when executed and delivered by the Company and, assuming the due
authorization, execution and delivery of the Supplemental Indenture by
the Trustee, will be a valid and binding agreement of the Company,
enforceable in accordance with its terms subject to the effect of (a)
applicable bankruptcy, reorganization, insolvency, moratorium and other
similar laws and court decisions of general application (including,
without limitation, statutory or other laws regarding fraudulent or
preferential transfers) relating to, limiting or affecting the
enforcement of creditors' rights generally, (b) general principles of
equity that may limit the enforceability of the remedies, covenants or
other provisions of the Supplemental Indenture and the availability of
injunctive relief or other equitable remedies and (c) the application
of principles of equity (regardless of
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whether enforcement is considered in proceedings at law or in equity)
as such principles relate to, limit or affect the enforcement of
creditors' rights generally.
(j) The Original Indenture, upon the filing of the Current
Report on Form 8-K dated October 12, 1999 with the Commission filing
the Form T-1, was duly qualified under the Trust Indenture Act, and the
Original Indenture has been duly authorized, executed and delivered by
the Company, and, assuming the due authorization, execution and
delivery of the Original Indenture by the Trustee, is a valid and
binding agreement of the Company, enforceable in accordance with its
terms subject to the effect of (a) applicable bankruptcy,
reorganization, insolvency, moratorium and other similar laws and court
decisions of general application (including, without limitation,
statutory or other laws regarding fraudulent or preferential transfers)
relating to, limiting or affecting the enforcement of creditors' rights
generally, (b) general principles of equity that may limit the
enforceability of the remedies, covenants or other provisions of the
Indenture and the availability of injunctive relief or other equitable
remedies and (c) the application of principles of equity (regardless of
whether enforcement is considered in proceedings at law or in equity)
as such principles relate to, limit or affect the enforcement of
creditors' rights generally.
(k) The Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will be entitled to the
benefits of the Indenture and will be valid and binding obligations of
the Company, enforceable in accordance with their terms subject to the
effect of (a) applicable bankruptcy, reorganization, insolvency,
moratorium and other similar laws and court decisions of general
application (including, without limitation, statutory or other laws
regarding fraudulent or preferential transfers) relating to, limiting
or affecting the enforcement of creditors' rights generally, (b)
general principles of equity that may limit the enforceability of the
remedies, covenants or other provisions of the Securities and the
availability of injunctive relief or other equitable remedies and (c)
the application of principles of equity (regardless of whether
enforcement is considered in proceedings at law or in equity) as such
principles relate to, limit or affect the enforcement of creditors'
rights generally.
(l) The Securities and the Indenture will conform in all
material respects to the respective statements relating thereto
contained in the Prospectus and will be in substantially the respective
forms filed as exhibits to, or incorporated by reference in, as the
case may be, the Registration Statement.
(m) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Indenture and the Securities will not contravene any provision of
applicable law or the certificate of incorporation or by-laws of the
Company or any agreement or other instrument binding upon the
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Company or any of its subsidiaries that is material to the Company and
its subsidiaries, taken as a whole, or any judgment, order or decree of
any governmental body, agency or court having jurisdiction over the
Company or any subsidiary, and no consent, approval, authorization or
order of, or qualification with, any governmental body or agency is
required for the performance by the Company of its obligations under
this Agreement, the Indenture, the Securities, except such as may be
required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Securities.
(n) Since the most recent date as of which information is
given in the Prospectus, except as otherwise stated therein, (A) there
has not occurred any material adverse change, or any development
involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of
the Company and its subsidiaries, taken as a whole, (B) there have been
no transactions entered into by the Company or any of its subsidiaries,
other than those in the ordinary course of business, which are material
with respect to the Company and its subsidiaries considered as one
enterprise, and (C) except for regular quarterly dividends on the
capital stock of the Company in amounts per share that are consistent
with past practice, there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital
stock.
(o) There are no legal or governmental proceedings pending or,
to the knowledge of the Company, threatened to which the Company or any
of its Significant Subsidiaries is a party or to which any of the
properties of the Company or any of its Significant Subsidiaries is
subject that are required to be described in the Registration Statement
or the Prospectus and are not so described or any statutes,
regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement that are not described
or filed as required.
(p) The Company is not an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended.
(q) To its best knowledge, the Company has complied with all
provisions of Section 517.075, Florida Statutes relating to doing
business with the Government of Cuba or with any person or affiliate
located in Cuba, except where the failure to so comply would not have a
Material Adverse Effect.
(r) Each of the total assets, the revenues and the income
(loss) before income taxes of the Company and the Significant
Subsidiaries, taken as a whole, constitutes 90% or more of each of the
total assets, the revenues and the income (loss) before income taxes,
respectively, of the Company and all of its subsidiaries, taken as a
whole, as of and for the six months ended June 30, 1999.
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(s) The Company has reviewed its operations and that of its
subsidiaries and any third parties with which the Company or any of its
subsidiaries has a material relationship to evaluate the extent to
which the business or operations of the Company or any of its
subsidiaries will be affected by the Year 2000 Problem. As a result of
such review, the Company has no reason to believe, and does not
believe, that the Year 2000 Problem will have a material adverse effect
on the general affairs, management, the current or future consolidated
financial position, business prospects, stockholders' equity or results
of operations of the Company and its subsidiaries or result in any
material loss or interference with the Company's business or
operations. The "Year 2000 Problem" as used herein means any
significant risk that computer hardware or software used in the
receipt, transmission, processing, manipulation, storage, retrieval,
retransmission or other utilization of data or in the operation of
mechanical or electrical systems of any kind will not, in the case of
dates or time periods occurring after December 31, 1999, function at
least as effectively as in the case of dates or time periods occurring
prior to January 1, 2000.
2. Agreements to Sell and Purchase. The Company hereby agrees
to sell to the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Company, at the price set forth in Schedule III hereto, the aggregate principal
amount of Securities set forth in Schedule I hereto opposite its name plus any
additional principal amount of Securities which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 8 hereof.
3. Payment and Delivery. Payment of the purchase price for,
and delivery of certificates for, the Securities shall be made at the offices of
Xxxxxx & Xxxxxxx, or at such other place, as shall be agreed upon by the
Underwriters and the Company, at 7:00 A.M. (California time) on October 19,
1999, or such other time not later than ten business days after such date as
shall be agreed upon by the Underwriters and the Company (such time and date of
payment and delivery being herein called "Closing Date").
Payment shall be made to the Company by wire transfer of
immediately available funds to a bank account designated by the Company, against
delivery to the Underwriters of certificates for the Securities to be purchased
by them. It is understood that each Underwriter has authorized Xxxxxxx Sachs,
for its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Securities which it has agreed to purchase. Xxxxxxx
Xxxxx, individually and not as representative of the Underwriters, may (but
shall not be obligated to) make payment of the purchase price for the Securities
to be purchased by any Underwriter whose funds have not been received by the
Closing Date, but such payment shall not relieve such Underwriter from its
obligations hereunder.
Certificates for the Securities shall be in such denominations
($1,000 or integral multiples thereof) and registered in such names as the
Underwriters may request in writing at least one full business day before the
Closing Date. The Securities will be made available for
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examination and packaging by the Underwriters in The City of New York not later
than 12:00 P.M. (Eastern time) on the business day prior to the Closing Date.
All references herein to "certificates" shall mean a global security or
securities registered in the name of The Depository Trust Company or its
nominee.
4. Conditions to the Underwriters' Obligations. The
obligations of the Company to sell the Securities to the Underwriters and the
several obligations of the Underwriters to purchase and pay for such Securities
are subject to the satisfaction of each of the following conditions.
(a) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date:
(i) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change,
in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the
Securities Act;
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of
this Agreement) that, in your judgment, is material and
adverse and that makes it, in your judgment, impracticable to
market the Securities on the terms and in the manner
contemplated in the Prospectus; and
(iii) no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no
proceedings for that purpose shall have been commenced or
shall be pending before or contemplated by the Commission.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in clauses (a)(i), (ii) and
(iii) above (except that in the case of clause (a)(ii), the
determination shall be in the judgment of such officer) and to the
effect that the representations and warranties of the Company contained
in this Agreement are true and correct as of the Closing Date and that
the Company has complied in all material respects with all of the
agreements and satisfied in all material respects all of the conditions
on its part to be performed or satisfied hereunder on or before the
Closing Date.
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The officer signing and delivering such certificate may rely
upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date
an opinion of Xxxxxx, Xxxx & Xxxxxxxx LLP, outside counsel for the
Company, dated the Closing Date, to the effect that:
(i) this Agreement has been duly authorized, executed
and delivered by the Company;
(ii) the Indenture has been duly qualified under the
Trust Indenture Act and has been duly authorized, executed and
delivered by the Company and, assuming the due authorization,
execution and delivery of the Indenture by the Trustee, is a
valid and binding agreement of the Company, enforceable in
accordance with its terms subject to the effect of (a)
applicable bankruptcy, reorganization, insolvency, moratorium
and other similar laws and court decisions of general
application (including, without limitation, statutory or other
laws regarding fraudulent or preferential transfers) relating
to, limiting or affecting the enforcement of creditors' rights
generally, (b) general principles of equity that may limit the
enforceability of the remedies, covenants or other provisions
of the Indenture and the availability of injunctive relief or
other equitable remedies and (c) the application of principles
of equity (regardless of whether enforcement is considered in
proceedings at law or in equity) as such principles relate to,
limit or affect the enforcement of creditors' rights
generally;
(iii) the Securities have been duly authorized by the
Company and, when executed and authenticated in accordance
with the provisions of the Indenture and delivered to and paid
for by the Underwriters in accordance with the terms of this
Agreement, will be entitled to the benefits of the Indenture
and will be valid and binding obligations of the Company,
enforceable in accordance with their terms subject to the
effect of (a) applicable bankruptcy, reorganization,
insolvency, moratorium and other similar laws and court
decisions of general application (including, without
limitation, statutory or other laws regarding fraudulent or
preferential transfers) relating to, limiting or affecting the
enforcement of creditors' rights generally, (b) general
principles of equity that may limit the enforceability of the
remedies, covenants or other provisions of the Securities and
the availability of injunctive relief or other equitable
remedies and (c) the application of principles of equity
(regardless of whether enforcement is considered in
proceedings at law or in equity) as such principles relate to,
limit or affect the enforcement of creditors' rights
generally;
(iv) the statements (A) in the Prospectus under the
captions "Description of the Notes," and "Underwriting," and
(B) in the Registration Statement in Items 15 and 17, in each
case insofar as such statements constitute
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summaries of the legal matters, documents or proceedings
referred to therein, fairly present the information called for
with respect to such legal matters, documents and proceedings
and fairly summarize the matters referred to therein;
(v) the Company is not an "investment company" or an
entity "controlled" by an "investment company," as such terms
are defined in the Investment Company Act of 1940, as amended;
(vi) the Registration Statement and Prospectus
(excluding the Incorporated Documents and except for financial
statements and schedules and other financial data included
therein as to which such counsel need not express any opinion)
comply as to form in all material respects with the Securities
Act and the applicable rules and regulations of the Commission
thereunder.
In addition to the foregoing opinions, such counsel shall
state that based upon certain specified activities, such counsel has no reason
to believe that (except for financial statements and schedules and other
financial data as to which such counsel need not express any belief and except
for that part of the Registration Statement that constitutes the Form T-1
heretofore referred to) the Registration Statement and the Prospectus at the
time the Registration Statement became effective, and the Registration Statement
and the Prospectus on the date of this Agreement, or at the Closing Date,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading and that (except for financial statements and schedules and other
financial data as to which such counsel need not express any belief) the
Prospectus contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(d) The Underwriters shall have received on the Closing Date
an opinion of Xxxxxxx X. Xxxxx, General Counsel for the Company, dated
the Closing Date, to the effect that:
(i) each of the Company and its Significant
Subsidiaries has been duly organized and is validly existing
as a corporation or limited liability company, as the case may
be, in good standing under the laws of its jurisdiction of
organization, with full power and authority (corporate and
other) to own its properties and conduct its business as
described in the Prospectus, except where the failure to be in
good standing, either singly or in the aggregate, would not
have a Material Adverse Effect;
(ii) the execution and delivery by the Company of,
and, as of the date of such opinion, the performance by the
Company of its obligations under, this Agreement, the
Securities and the Indenture will not contravene any provision
of applicable law, known to such counsel, or the certificate
of incorporation or by-laws of the Company or, to the best of
such counsel's
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knowledge, any agreement or other instrument binding upon the
Company or any of its Significant Subsidiaries that is
material to the Company and its subsidiaries, taken as a
whole, or, to the best of such counsel's knowledge, any
judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any Significant
Subsidiary, and, as of the date of such opinion, no consent,
approval, authorization or order of, or qualification with,
any governmental body or agency is required for the
performance by the Company of its obligations under this
Agreement, the Securities and the Indenture, except such as
may be required by the securities or Blue Sky laws of the
various states in connection with the offer and sale of the
Securities;
(iii) after due inquiry, such counsel does not know
of any legal or governmental proceedings pending or threatened
to which the Company or any of its Significant Subsidiaries is
a party or to which any of the properties of the Company or
any of its Significant Subsidiaries is subject that are
required to be described in the Registration Statement or the
Prospectus and are not so described or of any statutes,
regulations, contracts or other documents that are required to
be described in the Registration Statement or the Prospectus
or to be filed as exhibits to the Registration Statement that
are not described or filed as required; and
(iv) the Registration Statement and Prospectus
(except for financial statements and schedules and other
financial data included therein as to which such counsel need
not express any opinion) comply as to form in all material
respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
In addition to the foregoing opinions, such counsel shall
state that based upon certain specified activities, such counsel has no reason
to believe that (except for financial statements and schedules and other
financial data as to which such counsel need not express any belief and except
for that part of the Registration Statement that constitutes the Form T-1
heretofore referred to) the Registration Statement and the Prospectus at the
time the Registration Statement became effective, and the Registration Statement
and the Prospectus on the date of this Agreement, contained any untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading and that
(except for financial statements and schedules and other financial data as to
which such counsel need not express any belief) the Prospectus contains any
untrue statement of a material fact or omits to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(e) The Underwriters shall have received on the Closing Date
an opinion of Xxxxxx & Xxxxxxx, counsel for the Underwriters, dated the
Closing Date, covering the
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matters referred to in subparagraphs (i), (ii), (iii), (iv) (but only
as to the statements in the Prospectus under "Description of the Notes"
and "Underwriting") and (vi) of paragraph (c) above (but without any
exclusion for Incorporated Documents).
With respect to the last subparagraph of paragraph (c) above
and the last subparagraph of paragraph (d) above, Xxxxxx, Xxxx & Xxxxxxxx LLP,
Xxxxxxx X. Xxxxx and Xxxxxx & Xxxxxxx may state that their opinion and belief
are based upon their participation in the preparation of the Registration
Statement and Prospectus and any amendments or supplements thereto and review
and discussion of the contents thereof, but are without independent check or
verification, except as specified.
The opinions of Xxxxxx, Xxxx & Xxxxxxxx LLP and Xxxxxxx X.
Xxxxx described in paragraphs (c) and (d) above shall be rendered to the
Underwriters at the request of the Company and shall so state therein.
(f) The Underwriters shall have received, at the time of the
execution of this Agreement, a letter dated such date, in form and
substance satisfactory to the Underwriters from Ernst & Young LLP,
independent public accountants, containing statements and information
of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to financial statements and certain financial
information included or incorporated by reference in the Registration
Statement and Prospectus. At the Closing Date, the Underwriters shall
have received from Ernst & Young LLP, a letter dated as of the Closing
Date, to the effect that they reaffirm the statements made in the
letter referred to in the preceding sentence, except that the specified
date referred to shall be a date not more than three business days
prior to the Closing Date.
(g) At the Closing Date, the Securities shall be rated at
least "A2" by Xxxxx'x Investor Services and "A" by Standard & Poor's
Rating Services, a division of XxXxxx-Xxxx, Inc., and the Company shall
have delivered to the Underwriters a letter dated the Closing Date,
from each such rating agency, or other evidence satisfactory to the
Underwriters, confirming that the Securities have such ratings.
(h) At the Closing Date, counsel for the Underwriters shall
have been furnished with such documents as they may require for the
purpose of enabling them to pass upon the issuance and sale of the
Securities as herein contemplated, or in order to evidence the accuracy
of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contemplated; and all proceedings taken by
the Company in connection with the issuance and sale of the Securities
as herein contemplated shall be reasonably satisfactory in form and
substance to the Underwriters and counsel for the Underwriters.
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5. Covenants of the Company. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish to you, without charge, 2 conformed copies of
the Registration Statement (including exhibits thereto) and for
delivery to each other Underwriter a conformed copy of the Registration
Statement (without exhibits thereto) and furnish to you in New York
City, without charge, prior to 2:00 P.M., local time on the business
day next succeeding the date of this Agreement and during the period
mentioned in paragraph (c) below, as many copies of the Prospectus and
any supplements and amendments thereto or to the Registration Statement
as you may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus in a manner that relates to or affects the
Securities, to furnish to you a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to
which you reasonably object, and to file with the Commission within the
applicable period specified in Rule 424(b) under the Securities Act any
prospectus required to be filed pursuant to such Rule.
(c) If, during such period after the first date of the public
offering of the Securities as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall
occur or condition exist as a result of which it is necessary to amend
or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the Underwriters and to
the dealers (whose names and addresses you will furnish to the Company)
to which Securities may have been sold by you on behalf of the
Underwriters and to any other dealers upon request, either amendments
or supplements to the Prospectus so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or supplemented, will
comply with law.
(d) To endeavor to qualify the Securities for offer and sale
under the securities or blue sky laws of such jurisdictions as you
shall reasonably request.
(e) To make generally available to the Company's security
holders and to you as soon as practicable an earning statement covering
the twelve-month period ending October 31, 2000 that satisfies the
provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder.
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(f) To pay all expenses incident to the performance of its
obligations under this Agreement, including: (i) the preparation and
filing of the Registration Statement and the Prospectus and all
amendments and supplements thereto; (ii) the preparation, issuance and
delivery of the Securities; (iii) the fees and disbursements of the
Company's counsel and accountants and of the Trustee and its counsel;
(iv) the qualification of the Securities under state securities or blue
sky laws in accordance with the provisions of Section 5(d), including
filing fees and the fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the
preparation of any blue sky or legal investment memoranda; (v) the
printing and delivery to the Underwriters in quantities as hereinabove
stated of copies of the Registration Statement and all amendments
thereto and of each preliminary prospectus and the Prospectus and any
amendments or supplements thereto; (vi) the printing and delivery to the
Underwriters of copies of any blue sky or legal investment memoranda;
(vii) any fees charged by rating agencies for the rating of the
Securities; (viii) the filing fees and expenses, if any, incurred with
respect to any filing with the National Association of Securities
Dealers, Inc. made in connection with the offering of the Securities;
and (ix) any expenses incurred by the Company in connection with a "road
show" presentation to potential investors.
(g) During the period of time beginning from the date hereof
and continuing until the Closing Date, not to offer, sell, contract to
sell or otherwise dispose of, except as provided hereunder, any
securities of the Company that are substantially similar to the
Securities (other than commercial paper issued in the ordinary course
of business).
6. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls each Underwriter
within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act as follows:
(i) against any and all loss, liability, claim,
damage and reasonable expense (including the reasonable fees
and disbursements of counsel) whatsoever, as incurred, arising
out of any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any
amendment thereto or the Prospectus (or any amendment or
supplement thereto) and any preliminary prospectus supplement
relating to the Securities, or the omission or alleged
omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim,
damage and reasonable expense (including the reasonable fees
and disbursements of counsel) whatsoever, as incurred, to the
extent of the aggregate amount paid in settlement of any
litigation, or any investigation or proceeding by any
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governmental agency or body, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission;
provided that (subject to Section 6(d) below) any such
settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as
incurred (including the fees and disbursements of counsel
chosen by the Underwriters), reasonably incurred in
investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever
based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any
such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of
any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with written
information furnished to the Company by the Underwriters expressly for
use therein.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, each of its
officers who signed the Registration Statement, and each person, if
any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act against any and all
loss, liability, claim, damage and reasonable expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but
only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement, the
Prospectus, or any amendments or supplements thereto, and any
preliminary prospectus supplement relating to the Securities, in
reliance upon and in conformity with written information furnished to
the Company by the Underwriters expressly for use therein.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the
extent it is not materially prejudiced as a result thereof and in any
event shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. In the case of
parties indemnified pursuant to Section 6(a) above, counsel to the
indemnified parties shall be selected by the Underwriters, which
counsel shall be reasonably acceptable to the Company, and, in the case
of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying
party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall
not (except with the consent of the indemnified party) also be counsel
to the indemnified
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party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of
any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 or Section 7 hereof
(whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified
party.
(d) If at any time an indemnified party shall have requested
in writing an indemnifying party to reimburse the indemnified party for
fees and expenses of counsel, such indemnifying party agrees that it
shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such
settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying
party shall have received notice in writing of the terms of such
settlement at least 30 days prior to such settlement being entered into
and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of
such settlement; provided, however, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel, an indemnifying party shall not
be liable for any settlement of the nature contemplated by this Section
6(d) effected without its written consent if (x) such indemnifying
party reimburses such indemnified party in accordance with such request
to the extent it considers such request to be reasonable; and (y) such
indemnifying party provides written notice to the indemnified party
substantiating the unpaid balance as unreasonable, in each case prior
to the date of such settlement.
7. Contribution. If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the offering
of the Securities pursuant to this Agreement or (ii) if the allocation provided
by clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
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above but also the relative fault of the Company on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand
and the Underwriters on the other hand in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total purchase discount received by the Underwriters, in
each case as set forth in the Prospectus, bear to the aggregate initial offering
price of the Securities.
The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities sold by it exceeds the amount
of any damages which such Underwriter has otherwise been required to pay by
reason of any such untrue or alleged untrue statement or omission or alleged
omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 7, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act shall have the same rights to contribution as
the Underwriter, and each director of the Company, each officer of the Company,
and each person, if any, who controls the
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Company within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act shall have the same rights to contribution as the Company.
The Underwriters' respective obligations to contribute
pursuant to this Section 7 are several in proportion to the respective principal
amounts of Securities they have purchased hereunder, and not joint.
8. Termination.
(a) The Underwriters may terminate this Agreement, by notice
to the Company, at any time at or prior to Closing Date (i) if there has
been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Registration
Statement and Prospectus, except as otherwise stated therein, any
material adverse change, or any development involving a prospective
material adverse change, in the condition, financial or otherwise, or in
the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, or (ii) if there has occurred any
material adverse change in the financial markets in the United States or
the international financial markets, any outbreak of hostilities or
escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of
which is such as to make it in the judgment of the Underwriters,
impracticable to market the Securities or to enforce contracts for the
sale of the Securities, or (iii) if trading in any securities of the
Company has been suspended or materially limited by the Commission or
the New York Stock Exchange, if trading generally on the American Stock
Exchange or the New York Stock Exchange or in the Nasdaq National Market
has been suspended or materially limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been
required, by any of said exchanges or by such system or by order of the
Commission, the National Association of Securities Dealers, Inc. or any
other governmental authority, or (iv) if a banking moratorium has been
declared by either Federal or New York authorities.
(b) If this Agreement is terminated pursuant to this Section
or pursuant to Section 9, such termination shall be without liability
of any party to any other party except as provided in Sections
5(f)(iv), 6, 7 and 9 hereof, and provided further that Sections 1, 6
and 7 shall survive such termination and remain in full force and
effect, and provided further that in the event that, for any reason
other than Section 8(a)(ii), 8(a)(iii) (not including, however, the
first clause thereof, relating to suspension or limitation on trading
in securities of the Company), 8(a)(iv), and 9 the Securities are not
delivered by or on behalf of the Company as provided herein, the
Company will reimburse the Underwriters through you for all
out-of-pocket expenses approved in writing by you, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in
making preparations for the purchase, sale and delivery of the
Securities.
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9. Effectiveness; Defaulting Underwriters. This Agreement
shall become effective upon the execution and delivery hereof by the parties
hereto.
If, on the Closing Date, any one or more of the Underwriters
shall fail or refuse to purchase Securities that it has or they have agreed to
purchase hereunder on such date, and the aggregate number of Securities which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate number of the Securities to
be purchased on such date, the other Underwriters shall be obligated severally
in the proportions that the number of Securities set forth opposite their
respective names in Schedule I bears to the number of Securities set forth
opposite the names of all such non-defaulting Underwriters, or in such other
proportions as you may specify, to purchase the Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the number of Securities that any
Underwriter has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 9 by an amount in excess of one-ninth of such number of
Securities without the written consent of such Underwriter. If, on the Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase
Securities and the aggregate number of Securities with respect to which such
default occurs is more than one-tenth of the aggregate number of Securities to
be purchased on such date, and arrangements satisfactory to you and the Company
for the purchase of such Securities are not made within 36 hours after such
default this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either you or the
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
If this Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any liability to any Underwriter
except as provided in Sections 5(f), 6 and 7 hereof.
10. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
11. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
12. Headings. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along
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with all counterparts, will become a binding agreement between the Underwriters
and the Company in accordance with its terms.
Very truly yours,
THE TIMES MIRROR COMPANY
By: /s/ XXXXXXXX X. XXXXXXXX
----------------------------------
Title: Vice President and Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX, SACHS & CO.
XXXXXXX XXXXX XXXXXX INC.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
XXXXXX XXXXXXX & CO. INCORPORATED
By: XXXXXXX SACHS & CO.
By /s/ XXXXXXX, XXXXX & CO.
----------------------------------------
Xxxxxxx, Sachs & Co.
For themselves and as representatives of the other Underwriters named in
Schedule I hereto.
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SCHEDULE I
Principal Amount of Principal Amount of
Name of Underwriter 6.65% Notes 7.45% Notes
------------------- ------------------- -------------------
Xxxxxxx, Xxxxx & Co....................... $120,000,000 $240,000,000
Xxxxxxx Xxxxx Barney Inc. 40,000,000 80,000,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated.............................. 20,000,000 40,000,000
Xxxxxx Xxxxxxx & Co. Incorporated.........
20,000,000 40,000,000
---------- ----------
Total..................................... $200,000,000 $400,000,000
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SCHEDULE II
Significant Subsidiaries of the Company
The Baltimore Sun Company
Newsday, Inc.
Jeppesen Xxxxxxxxx, Inc.
The Hartford Courant Company
Jeppesen & Co., GmbH
The Morning Call, Inc.
Times Mirror Magazines, Inc.
Eagle New Media Investments, LLC*
Eagle Publishing Investments, LLC*
AchieveGlobal, Inc.
EZ Buy & EZ Sell Recycler Corporation
The StayWell Company
--------
* Affiliates that are controlled by the Company.
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SCHEDULE III
THE TIMES MIRROR COMPANY
$200,000,000 6.65% NOTES DUE OCTOBER 15, 2001
$400,000,000 7.45% NOTES DUE OCTOBER 15, 2009
1. The initial public offering price of the 6.65% Notes due
October 15, 2001 and the 7.45% Notes due October 15, 2009 shall be 99.931% and
99.869%, respectively, of the principal amount thereof, plus accrued interest,
if any, from the date of issuance.
2. The purchase price to be paid by the Underwriters for the
6.65% Notes due October 15, 2001 and the 7.45% Notes due October 15, 2009 shall
be 99.681% and 99.219%, respectively, of the principal amount thereof.
3. The interest rate on the 6.65% Notes due October 15, 2001
and the 7.45% Notes due October 15, 2009 shall be 6.65% and 7.45%, respectively,
per annum.
