EXHIBIT 10.2
PULITZER VOTING AGREEMENT
PULITZER VOTING AGREEMENT (this "Agreement"),
dated 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").
W I T N E S S E T H:
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"); and
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;
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.
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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. Notwithstanding the foregoing, during
the period commencing on the first day of the
Measurement Period and through and including the
Effective Time, (i) none of the Stockholders shall sell
his, her or its shares of Company Stock, and (ii)
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Acquiror shall not, and Acquiror shall cause each of
its Affiliates not to, purchase any shares of Acquiror
Stock.
(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 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. On 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.
(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
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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.
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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.
(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
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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 Xxxxxx 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.
(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.
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(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.
By:___________________________
Name:
Title:
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 Pulitzer
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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
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The Ceil and Xxxxxxx X.
Xxxxxxxx Foundation, Inc.
By:______________________________
Xxxxxxx X. Xxxxxxxx, President
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SCHEDULE I
TO
PULITZER VOTING AGREEMENT
RECORD OWNERSHIP OF CLASS B COMMON STOCK
Name and Address of Stockholder Number of Shares
______________________________ ________________
Xxxxx Xxxx Pulitzer, Xxxxx X. Xxxxxxx 10,560
and Xxxxxxx Xxxx, Successor Trustees
of Marital Trust A U/T Xxxxxx Xxxxxxxx,
Xx. dtd. 6/12/74, As Amended 10/20/92
Xxxxx Xxxx Pulitzer, Xxxxx X. Xxxxxxx 5,929,733
and Xxxxxxx Xxxx, Successor Trustees
of Marital Trust B U/T Xxxxxx Xxxxxxxx,
Xx. dtd. 6/12/74, As Amended 10/20/92
Xxxxx Xxxx Pulitzer 5,289
Xxxxx Xxxx Pulitzer, as Trustee of 815,935
the Pulitzer Family Trust
Spring Foundation 22,860
Xxxxx X. Xxxxx 3,212,458
Xxxxx X. Xxxxx, Trustee of Xxxxx X. 800,000
Xxxxx 1998 Grantor Annuity Trust
dtd 2/5/98
Xxxxxxx X. Xxxxxxxx, Trustee of U/A dtd 3,649,820
3/22/82 F/B/O Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxx, Trustee of U/A dtd 46,170
8/16/83 F/B/O Xxxxxxx X. Xxxxxxxx
The Ceil and Xxxxxxx X. Xxxxxxxx 44,983
Foundation, Inc.
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BENEFICIAL OWNERSHIP OF CLASS B COMMON STOCK
Name and Address of Stockholder Number of Shares
1. Xxxxx Xxxx Pulitzer 6,784,377
2. Xxxxx X. Xxxxx 4,012,458
3. Xxxxxxx X. Xxxxxxxx 3,740,973
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