EXHIBIT 7.2
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
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.
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(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.
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(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.
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(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]
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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.
/s/ Xxxx X. Xxxxxx
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
/s/ Xxxxx Xxxx Pulitzer
By: ---------------------------------
Xxxxx Xxxx Pulitzer, Trustee
/s/ Xxxxx X. Xxxxxxx
By: ---------------------------------
Xxxxx X. Xxxxxxx, Trustee
/s/ Xxxxxxx Xxxx
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
/s/ Xxxxx Xxxx Pulitzer
By: ---------------------------------
Xxxxx Xxxx Pulitzer, Trustee
/s/ Xxxxx X. Xxxxxxx
By: ---------------------------------
Xxxxx X. Xxxxxxx, Trustee
/s/ Xxxxxxx Xxxx
By: ---------------------------------
Xxxxxxx Xxxx, Trustee
/s/ Xxxxx Xxxx Pulitzer
-------------------------------------
Xxxxx Xxxx Pulitzer
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Xxxxx Xxxx Pulitzer, as Trustee of
the Pulitzer Family Trust
/s/ Xxxxx Xxxx Pulitzer
By: ---------------------------------
Xxxxx Xxxx Pulitzer, Trustee
Spring Foundation
/s/ Xxxxx Xxxx Pulitzer
By: ---------------------------------
Name: Xxxxx Xxxx Pulitzer
Title: President
/s/ Xxxxx X. Xxxxx
-------------------------------------
Xxxxx X. Xxxxx
Xxxxx X. Xxxxx, Trustee of Xxxxx X.
Xxxxx 1998 Grantor Annuity Trust dtd
2/5/98
/s/ Xxxxx X. Xxxxx
By: ---------------------------------
Xxxxx X. Xxxxx, Trustee
Xxxxxxx X. Xxxxxxxx, Trustee of U/A
dtd 3/22/82 F/B/O Xxxxxxx X.
Xxxxxxxx
/s/ 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
/s/ Xxxxxxx X. Xxxxxx
By: ---------------------------------
Xxxxxxx X. Xxxxxx, Trustee
The Ceil and Xxxxxxx X. Xxxxxxxx
Foundation, Inc.
/s/ Xxxxxxx X. Xxxxxxxx
By: ---------------------------------
Xxxxxxx X. Xxxxxxxx, President
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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
