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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): NOVEMBER 7, 1996
THE TIMES MIRROR COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 1-13492 95-4481525
- ------------------------------- ------------------------ -------------------
(STATE OR OTHER JURISDICTION OF (COMMISSION FILE NUMBER) (IRS EMPLOYER
OF INCORPORATION) IDENTIFICATION NO.)
TIMES MIRROR SQUARE 90053
LOS ANGELES, CALIFORNIA ----------
- ---------------------------------------- (ZIP CODE)
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (213) 237-3700
NONE
-------------------------------------------------------------
(FORMER NAME OR FORMER ADDRESS, IF CHANGED SINCE LAST REPORT)
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ITEM 5. OTHER EVENTS.
On August 28, 1995, The Times Mirror Company (the "Company) filed a
Registration Statement on Form S-3 (No. 33-62165), as amended by Amendment No.
1 filed on September 27, 1995, Amendment No. 2 filed on February 26, 1996, and
Amendment No. 3 filed on February 27, 1996, relating to the registration under
the Securities Act of 1933, as amended (the "Securities Act"), of up to an
initial aggregate offering price of $200 million of debt securities, preferred
stock, common stock and warrants of the Company, which Registration Statement
was declared effective on February 28, 1996.
On November 7, 1996, the Company entered into a Purchase Agreement (a
copy of which is attached hereto as Exhibit 1.1) with Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, BA Securities, Inc.,
Goldman, Sachs & Co. and Morgan Stanley & Co. Incorporated, as the
representatives of the several underwriters named in Schedule I thereto
(together, the "Underwriters"), pursuant to which the Company agreed to issue
and sell and the Underwriters agreed, severally and not jointly, subject to
certain conditions, to purchase $148,000,000 aggregate principal amount of the
Company's 7-1/4% Debentures due November 15, 2096 (the "Debentures") at an
initial public offering price of 99.614% (the "Public Offering Price") less
underwriting discounts and commissions.
The issuance and sale of the Debentures were completed on November 13,
1996. The Debentures were issued pursuant to an Indenture dated as of March
19, 1996 between the Company and Citibank, N.A., as trustee (a copy of such
Indenture is incorporated herein by reference to Exhibit 4.1 to the Company's
Form 8-K dated March 13, 1996).
In connection with the issuance of the Debentures under the Indenture,
the Company delivered an Officers' Certificate dated November 13, 1996 (a copy
of such Officers' Certificate and annexes thereto is attached hereto as Exhibit
4.1) setting forth the terms of the Debentures and certifying the resolutions
duly adopted by the Board of Directors of the Company at a meeting held on
March 7, 1996, authorizing the issuance of the Debentures.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(c) Exhibits.
The following exhibits are filed with this report on Form 8-K:
Exhibit No. Description
----------- -----------
1.1 Purchase Agreement dated November 7, 1996
among the Company and Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith
Incorporated, BA Securities, Inc., Goldman,
Sachs & Co., and Morgan Stanley & Co.
Incorporated, as the representatives of the
several underwriters named in Schedule I
thereto.
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4.1 Indenture dated as of March 19, 1996 between
the Company and Citibank, N.A., as trustee
(incorporated herein by reference to Exhibit
4.1 to the Company's Form 8-K dated March 13,
1996).
4.2 Officer's Certificate dated November 13, 1996
establishing the terms of the Debentures and
attaching the specimen Form of Debenture.
5 Opinion of Gibson, Dunn & Crutcher LLP
regarding the legality of the securities
being issued.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
THE TIMES MIRROR COMPANY
Date: November 13, 1996 By: /s/ KATHLEEN G. MCGUINNESS
-------------------------------
Kathleen G. McGuinness
Vice President and General
Counsel
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EXHIBIT INDEX
Exhibit Number Description
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1.1 Purchase Agreement dated November 7, 1996
among the Company and Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith
Incorporated, BA Securities, Inc., Goldman,
Sachs & Co. and Morgan Stanley & Co.
Incorporated, as the representatives of the
several underwriters named in Schedule I
thereto.
4.1 Indenture dated as of March 19, 1996 between
the Company and Citibank, N.A., as trustee
(incorporated herein by reference to Exhibit
4.1 to the Company's Form 8-K dated March 13,
1996).
4.2 Officer's Certificate dated November 13, 1996
establishing the terms of the Debentures and
attaching the specimen Form of Debenture.
5 Opinion of Gibson, Dunn & Crutcher LLP
regarding the legality of the securities
being issued.
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EXHIBIT 1.1
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THE TIMES MIRROR COMPANY
(a Delaware corporation)
DEBENTURES DUE NOVEMBER 15, 2096
PURCHASE AGREEMENT
Dated: November 7, 1996
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THE TIMES MIRROR COMPANY
(A DELAWARE CORPORATION)
$148,000,000
DEBENTURES DUE NOVEMBER 15, 2096
PURCHASE AGREEMENT
November 7, 1996
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
BA Securities, Inc.
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
The Times Mirror Company, a Delaware corporation (the
"Company"), confirms its agreement with Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated ("Merrill Lynch") and each of the other
Underwriters named in Schedule I hereto (collectively, the "Underwriters"), for
whom Merrill Lynch, BA Securities, Inc., Goldman, Sachs & Co. and Morgan
Stanley & Co. Incorporated are acting as representatives (in such capacity, the
"Representatives"), 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 $148,000,000
aggregate principal amount of the Company's Debentures Due November 15, 2096
(the "Securities"). The Securities are to be issued pursuant to an Indenture
dated as of March 19, 1996 (the "Indenture") between the Company and Citibank,
N.A., as trustee (the "Trustee"). 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.
The Company understands that the Underwriters propose to make
a public offering of the Securities as soon as the Representatives deem
advisable after this Agreement has been executed and delivered.
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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 and has filed with, or
transmitted for filing to, or 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 of 1933, as amended (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.
1. Representations and Warranties. The Company
represents and warrants to and agrees with each of the Underwriters that:
(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 and (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 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 Merrill Lynch 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.
(c) Each of the Company and its Significant Subsidiaries
has been duly organized and is validly existing as a corporation in
good standing under the laws of its jurisdiction of incorporation,
with full power and authority (corporate and other) to own
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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").
(d) Each of the Company and its Significant Subsidiaries
is duly qualified to do business as a foreign corporation 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 necessary and in which the absence of such
qualification, 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 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.
(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 Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, and when executed and
delivered by the Company and, assuming the due authorization,
execution and delivery of the 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 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 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.
(k) 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.
(l) 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 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 or 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.
(m) 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
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has been no dividend or distribution of any kind declared, paid or
made by the Company on any class of its capital stock.
(n) 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.
(o) 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.
(p) 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.
(q) Each of the total assets, the gross revenues and the
income (loss) from continuing operations of the Company and the
Significant Subsidiaries, taken as a whole, constitutes 90% or more of
each of the total assets, the gross revenues and the income (loss)
from continuing operations, respectively, of the Company and all of
its subsidiaries (other than Times Mirror Higher Education Group,
Inc.), taken as a whole, as of and for the nine months ended September
30, 1996.
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 Latham & Watkins, or at such other place, as shall be agreed upon by
the Representatives and the Company, at 7:00 A.M. (California time) on
November 13, 1996, or such other time not later than ten business days after
such date as shall be agreed upon by the Representatives 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 Representatives for the respective accounts of the
Underwriters of certificates for the Securities to be purchased by them. It is
understood that each Underwriter has authorized the Representatives, for its
account,
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to accept delivery of, receipt for, and make payment of the purchase price for,
the Securities which it has agreed to purchase. Merrill Lynch, 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
Representatives may request in writing at least one full business day before
the Closing Date. The Securities will be made available for examination and
packaging by the Representatives in The City of New York not later than 10:00
A.M. (Eastern time) on the business day prior to the Closing Date. All
references herein to "certificates" shall mean a global security 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 Representatives 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) and (iii) above and to the effect that the representations and
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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.
The officer signing and delivering such certificate
may rely upon the best of his or her knowledge as to proceedings
threatened.
(c) The Representatives shall have received on the
Closing Date an opinion of Gibson, Dunn & Crutcher, 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 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 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;
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(iv) the statements (A) in the Prospectus under
the captions "Description of the 1996 Debentures,"
"Underwriting," and "Conditional Right to Shorten Maturity"
and (B) in the Registration Statement in Items 15 and 17, in
each case insofar as such statements constitute 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 and statistical
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 and statistical 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 (including the Incorporated Documents) 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 and statistical data as
to which such counsel need not express any belief) the Prospectus (including
the Incorporated Documents) 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 Representatives shall have received on the
Closing Date an opinion of Kathleen G. McGuinness, 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 incorporated and is validly
existing as a corporation in good standing under the laws of
its jurisdiction of incorporation, 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 the performance by the Company of its obligations under,
this Agreement, the
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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 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 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
(including the Incorporated Documents and except for financial
statements and schedules and other financial and statistical
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 and statistical 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 (including the Incorporated Documents) 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 and statistical data as
to which such counsel need not express any belief) the Prospectus (including
the Incorporated Documents) 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.
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(e) The Representatives shall have received on the
Closing Date an opinion of Latham & Watkins, counsel for the
Underwriters, dated the Closing Date, covering the matters referred to
in subparagraphs (i), (ii), (iii), (iv) (but only as to the statements
in the Prospectus under "Description of the 1996 Debentures" and
"Underwriting") and (vi) of paragraph (c) above.
With respect to the last subparagraph of paragraph (c)
above and the last subparagraph of paragraph (d) above, Gibson, Dunn &
Crutcher, Kathleen G. McGuinness and Latham & Watkins 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 Gibson, Dunn & Crutcher and Kathleen
G. McGuinness 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 Representatives shall have received on the
Closing Date a letter dated the Closing Date, in form and substance
satisfactory to the Representatives 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 the financial statements and certain
financial information contained in the Registration Statement and the
Prospectus; provided that the letter delivered on the Closing Date
shall use a "cut-off" date not earlier than the date hereof.
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 10:00 A.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.
10
<PAGE> 12
(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 September 30, 1997 that
satisfies the provisions of Section 11(a) of the Securities Act and
the rules and regulations of the Commission thereunder.
(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 6(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.
11
<PAGE> 13
6. Indemnity and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter
within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all losses,
claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred by any Underwriter or any
such controlling person in connection with defending or investigating
any such action or claim) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement or any amendment thereof or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by
any such untrue statement or omission or alleged untrue statement or
omission based upon information relating to any Underwriter furnished
to the Company in writing by such Underwriter through Merrill Lynch
expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly,
to indemnify and hold harmless the Company, its directors, its
officers who sign the Registration Statement and each person, if any,
who controls the Company within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Company to such
Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter
through Merrill Lynch expressly for use in the Registration Statement,
the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to either paragraph (a) or (b)
of this Section 6, such person (the "indemnified party") shall
promptly notify the person against whom such indemnity may be sought
(the "indemnifying party") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such indemnified
party unless (i) the indemnifying party and the indemnified party
shall have mutually agreed to the retention of such counsel or (ii)
the named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified party
and the indemnified party shall have been advised by counsel that
there are actual or potential differing interests between them. It is
understood that the indemnifying party shall not, in respect of the
legal expenses of any indemnified party in connection with any
proceeding or related proceedings in the same jurisdiction, be liable
for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all
such fees and
12
<PAGE> 14
expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by Merrill Lynch, in the case of parties
indemnified pursuant to paragraph (a) above and by the Company in the
case of parties indemnified pursuant to paragraph (b) above. The
indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with
such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending
or threatened proceeding in respect of which any indemnified party is
or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes
an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
Notwithstanding the foregoing, 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 this Section 6(c) 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(c) 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.
(d) To the extent the indemnification provided for in
paragraph (a) or (b) of this Section 6 is unavailable to an
indemnified party or insufficient in respect of any losses, claims,
damages or liabilities referred to therein, then each indemnifying
party under such paragraph, in lieu of indemnifying such indemnified
party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (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 or
(ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) 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 that resulted in such losses, claims, damages or
liabilities, 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 shall be deemed to be in the same respective proportions as
the net proceeds from the offering of the Securities (before
13
<PAGE> 15
deducting expenses) received by the Company and the total underwriting
discounts and commissions received by the Underwriters, in each case
as set forth in the table on the cover of the Prospectus, bear to the
aggregate Public 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 the
untrue or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Underwriters'
respective obligations to contribute pursuant to this Section 6 are
several in proportion to the respective numbers of Securities they
have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would
not be just or equitable if contribution pursuant to this Section 6
were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to in paragraph (d) of this Section 6. The amount paid or
payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section
6, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that such Underwriter has
otherwise been required to pay by reason of 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. The remedies
provided for in this Section 6 are not exclusive and shall not limit
any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained
in this Section 6 and the representations, warranties and other
statements of the Company contained in this Agreement shall remain
operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter or
by or on behalf of the Company, its officers or directors or any
person controlling the Company and (iii) acceptance of and payment for
any of the Securities.
7. Termination. This Agreement shall be subject to
termination by notice given by you to the Company, if (a) after the execution
and delivery of this Agreement and prior to the Closing Date (i) trading
generally shall have been suspended or materially limited on or by, as the case
may be, any of the New York Stock Exchange, the American Stock Exchange, the
National Association of Securities Dealers, Inc., the Chicago Board of Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii)
trading of any securities
14
<PAGE> 16
of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse and (b) in the case of any of
the events specified in clauses (a)(i) through (iv) such event, singly or
together with any other such event, makes it, in your judgment, impracticable
to market the Securities on the terms and in the manner contemplated in the
Prospectus.
8. 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 8 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 by the Underwriters, or
any of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company shall be unable to perform its obligations under
this Agreement (other than as a direct result of a defaulting Underwriter), the
Company will reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the reasonable fees and disbursements of
their counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering contemplated hereunder.
15
<PAGE> 17
9. 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.
10. Applicable Law. This Agreement shall be governed by
and construed in accordance with the internal laws of the State of New York.
11. 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.
16
<PAGE> 18
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 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/ Thomas Unterman
----------------------------
Title: Senior Vice President
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
BA SECURITIES, INC.
GOLDMAN, SACHS & CO.
MORGAN STANLEY & CO. INCORPORATED
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By /s/ Mathew M. Pendo
-------------------------------------
Authorized Signatory
For themselves and as Representatives of the other Underwriters named in
Schedule I hereto.
17
<PAGE> 19
SCHEDULE I
<TABLE>
<CAPTION>
Principal
Amount of
Name of Underwriter Securities
- -------------------- ------------
<S> <C>
Merrill Lynch, Pierce,
Fenner & Smith Incorporated . . . . . . . . . . . . $ 35,000,000
BA Securities, Inc. . . . . . . . . . . . . . . . . . . . . . 35,000,000
Goldman, Sachs & Co. . . . . . . . . . . . . . . . . . . . . 35,000,000
Morgan Stanley & Co. Incorporated . . . . . . . . . . . . . . 35,000,000
Bear Stearns & Co. Inc. . . . . . . . . . . . . . . . . . . . 2,000,000
CS First Boston Corporation . . . . . . . . . . . . . . . . . 2,000,000
Salomon Brothers Inc . . . . . . . . . . . . . . . . . . . . 2,000,000
Smith Barney Inc. . . . . . . . . . . . . . . . . . . . . . . 2,000,000
------------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . $148,000,000
============
</TABLE>
<PAGE> 20
SCHEDULE II
Significant Subsidiaries of the Company
The Baltimore Sun Company
Newsday, Inc.
Jeppesen Sanderson, Inc.
Mosby-Year Book, Inc.
Matthew Bender & Company, Incorporated
CRC Press, Inc.
The Hartford Courant Company
Jeppesen & Co., GmbH
The Morning Call, Inc.
Times Mirror Magazines, Inc.
Times Mirror Training, Inc.
Times Mirror Services Company, Inc.
<PAGE> 21
SCHEDULE III
THE TIMES MIRROR COMPANY
$148,000,000 DEBENTURES DUE NOVEMBER 15, 2096
1. The initial public offering price of the Securities
shall be 99.614% 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 Securities shall be 98.489% of the principal amount thereof.
3. The interest rate on the Securities shall be 7 1/4%
per annum.
<PAGE> 1
EXHIBIT 4.2
OFFICERS' CERTIFICATE PURSUANT TO
SECTIONS 102 AND 301 OF THE INDENTURE
The undersigned officers of The Times Mirror Company, a Delaware
corporation (the "Company"), pursuant to the authority granted such officers
pursuant to resolutions adopted by the Board of Directors of the Company on
March 7, 1996, hereby establish a series of the Company's Securities (as
provided for in the Indenture (the "Indenture") dated as of March 19, 1996
between the Company and Citibank, N.A., as Trustee), designated as the "7 1/4%
Debentures due November 15, 2096" and hereby certify, pursuant to Sections 102
and 301 of the Indenture, as follows (capitalized terms used but not defined
herein shall have the meanings ascribed thereto in the Indenture):
1. Attached hereto as Annex A is a true and correct copy of a
specimen Form of Debenture, representing the 7 1/4% Debentures due November 15,
2096 (the "Securities"). The attached Form of Debenture sets forth certain
terms required to be set forth in this Certificate pursuant to Section 301 of
the Indenture, and said terms are incorporated herein by reference.
2. The limit upon the aggregate principal amount of the
Securities that may be authenticated and delivered under the Indenture (except
for Securities authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities pursuant to Sections 304, 305,
306, 906 or 1107 of the Indenture and except for any Securities that, pursuant
to Section 303 of the Indenture, are deemed never to have been authenticated
and delivered under the Indenture) is $148,000,000.
3. The principal of the Securities shall be payable on November
15, 2096. The Company may, however, shorten the maturity of the Securities in
certain circumstances as set forth in the Form of Debenture.
4. The Securities shall bear interest at a rate of 7 1/4% per
annum. Interest on the Securities will accrue from November 13, 1996.
Interest on the Securities shall be payable on the Interest Payment Dates of
May 15 and November 15 of each year, commencing May 15, 1997. The Regular
Record Dates for the Securities for the interest payable shall be the 15th day
immediately preceding each Interest Payment Date.
5. The issue price to the public for the Securities is 99.614%
plus accrued interest, if any, from November 13, 1996.
6. The Underwriters' commission/discount on the Securities (as a
percentage of the principal amount of the Securities) is 1.125%.
7. Pursuant to Section 301 of the Indenture, provision is hereby
made that both (x) defeasance of the Securities under Section 1402 of the
Indenture and (y) covenant defeasance of the Securities under Section 1403 of
the Indenture, be made applicable to the Securities.
8. The Securities will be issued only in fully registered form in
denominations of $1,000 and integral multiples thereof.
<PAGE> 2
9. The Securities are not redeemable by the Company prior to
maturity.
10. The Depository Trust Company, New York, New York, will act as
the Depositary for the Securities. The Securities will be represented by one or
more Global Securities registered in the name of Cede & Co., the nominee of the
Depositary. Principal and interest payments on the Securities registered in the
name of the Depositary's nominee will be made in immediately available funds to
the Depositary's nominees as the registered owner of the Global Securities. The
Company and the Trustee will treat the persons in whose names the Securities are
registered as the owners of such Securities for the purpose of receiving payment
of principal and interest on such securities and for all other purposes
whatsoever. Securities represented by a Global Security will be exchangeable
for Securities in definitive form of like tenor as such Global Security in
denominations of $1,000 and in any greater amount that is an integral multiple
if the Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for such Global Security or if at any time the Depositary
ceases to be a clearing agency registered under applicable law and a successor
depositary is not appointed by the Company within 90 days or the Company in its
discretion at any time determines not to require all of the Securities of such
series to be represented by a Global Security and notifies the Trustee thereof.
Any Securities that are exchangeable pursuant to the preceding sentence are
exchangeable for Securities issuable in authorized denominations and registered
in such names as the Depositary shall direct. Subject to the foregoing, a Global
Security is not exchangeable, except for a Global Security or Global Securities
of the same aggregate denominations to be registered in the name of the
Depositary or its nominee.
11. (a) The following defined terms apply for purposes of
this Officers' Certificate and the Securities:
"1995 Debentures" means the Company's 7-1/2% Debentures due July 1,
2023 and the Company's 7-1/4% Debentures due March 1, 2013, both issued under
the 1995 Indenture.
"1995 Indenture" means the Indenture, dated January 30, 1995, by and
between the Company and Wells Fargo Bank, NA, as successor trustee, as amended,
supplemented or otherwise modified from time to time.
"Principal Property" shall have the meaning set forth from time to
time in the 1995 Indenture. Under the 1995 Indenture as in effect on the date
hereof, the term "Principal Property" means "any manufacturing plant or
facility located within the United States of America (other than its
territories or possessions) and owned by the Company or any Subsidiary, except
such plant or facility which, in the opinion of the Board of Directors of the
Company, is not of material importance to the business conducted by the Company
and its Subsidiaries, taken as a whole."
"Restricted Subsidiary" shall have the meaning set forth from time to
time in the 1995 Indenture. Under the 1995 Indenture as in effect on the date
hereof, the term "Restricted Subsidiary" means "any Subsidiary which owns or
leases a Principal Property."
"Subsidiary" and "Voting Shares" shall have the meanings set forth
from time to time in the 1995 Indenture. Under the 1995 Indenture as in effect
on the date hereof, the term
2
<PAGE> 3
"Subsidiary" means "any corporation a majority of the Voting Shares of which is
at the time owned directly or indirectly by the Company and its other
Subsidiaries" and the term "Voting Shares" means "outstanding shares of capital
stock having voting power for the election of directors, whether at all times
or only so long as no senior class of stock has such voting power because of
default in dividends or other default."
(b) The following covenant shall be applicable to the Securities,
and any default in the performance, or breach, thereof shall constitute an
Event of Default for the Securities under the Indenture:
Covenant to Secure Notes Equally. The Company will not, nor
will it permit any Subsidiary to, secure any of the 1995 Debentures by
mortgage, pledge, lien or other encumbrance (mortgages, pledges, liens
and other encumbrances being hereinafter called "mortgage" or
"mortgages") upon any Principal Property or on any shares of stock or
indebtedness of any Restricted Subsidiary (whether such Principal
Property, shares of stock or indebtedness is now owned or hereafter
acquired) without in any such case effectively providing, concurrently
with such mortgage in favor of the 1995 Debentures, that the
Securities (together with, if the Company shall so determine, any
other indebtedness of or guaranteed by the Company or such Restricted
Subsidiary ranking equally with the Securities then existing or
thereafter created) shall be secured equally and ratably with the 1995
Debentures, so long as any of the 1995 Debentures shall be so secured;
provided, that if the 1995 Debentures are no longer secured by such
Principal Property, shares of stock or indebtedness (whether as a
result of a repayment of the 1995 Debentures, voluntary release or
otherwise), then, upon delivery to the Trustee of an Officers'
Certificate to that effect, any mortgage on such Principal Property,
shares of stock or indebtedness in favor of the Securities shall be
reconveyed, released and terminated. In the event that the 1995
Debentures shall no longer be outstanding whether by discharge,
defeasance or otherwise, then, upon delivery to the Trustee of an
Officers' Certificate to that effect, this covenant shall immediately
cease to be applicable to the Securities (provided that if this
covenant requires the release of any mortgage securing the Securities,
this covenant shall remain in effect solely for the purpose of
effecting such release).
(c) An Event of Default (the "Additional Event of Default") shall
exist for the Securities under the Indenture if an Event of Default (as defined
in the 1995 Indenture) has occurred and is continuing as a result of a breach
of any covenant set forth in Section 1006 or Section 1007 of the 1995 Indenture
as such covenants are in effect from time to time. Any such Event of Default
under the 1995 Indenture which is waived by the requisite holders of the 1995
Debentures, or which is otherwise cured, shall no longer be continuing for
purposes of the Securities and the Indenture. In the event that the 1995
Debentures shall no longer be outstanding whether by discharge, defeasance or
otherwise, or if Section 1006 and Section 1007 are eliminated from the 1995
Indenture, then, upon delivery to the Trustee of an Officers' Certificate to
that effect, the Additional Event of Default established by this Officers'
Certificate for the Securities under the Indenture shall thereupon be
eliminated.
3
<PAGE> 4
12. Attached hereto as Annex B are true and correct copies of
resolutions duly adopted by the Board of Directors of the Company at a meeting
held on March 7, 1996; such resolutions have not been amended, modified or
rescinded and remain in full force and effect; and such resolutions are the
only resolutions adopted by the Company's Board of Directors or any committee
thereof relating to the Securities, and the transactions related thereto.
Each of the undersigned officers further states that he or she has
read the provisions of such Indenture setting forth the conditions precedent to
the issuance, authentication and delivery of the Securities and the definitions
relating thereto, the board resolutions authorizing the issuance of the
Securities and the Form of Debenture; that the statements made in this
Certificate are based upon the examination of the provisions of such Indenture,
the board resolutions, the Form of Debenture and the relevant books and records
of the Company; that he or she has, in his or her opinion, made such
examination or investigation as is necessary to enable him or her to express an
informed opinion as to whether or not the conditions for the issuance,
authentication and delivery of the Securities have been complied with; and
that, in his or her opinion, such conditions have been complied with.
This Officers' Certificate shall constitute evidence of, and shall be,
action by the undersigned Vice President and Treasurer as one of the officers
designated in the above-referenced resolutions, determining and setting the
specific terms of the Securities as set forth herein and in the Form of
Debenture.
The undersigned Secretary, by execution of this Officers' Certificate,
hereby certifies the actions taken by the undersigned Vice President and
Treasurer in determining and setting the specific terms of the Securities.
4
<PAGE> 5
IN WITNESS WHEREOF, said officers have signed this certificate.
Dated: November 13, 1996
By: /s/ STEVEN J. SCHOCH By: /s/ KATHLEEN G. MCGUINNESS
------------------------------ ----------------------------------
Steven J. Schoch Kathleen G. McGuinness
Vice President and Treasurer Vice President, General Counsel
and Secretary
5
<PAGE> 6
ANNEX A
THE TIMES MIRROR COMPANY
7 1/4% DEBENTURE DUE NOVEMBER 15, 2096
CUSIP No. 887360 AT 2
No.______ $________________
[THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED
TO, OR REGISTERED OR EXCHANGED FOR SECURITIES REGISTERED IN THE NAME
OF, ANY PERSON OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF AND NO
SUCH TRANSFER MAY BE REGISTERED, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE OFFICERS' CERTIFICATE ESTABLISHING THE TERMS OF THIS
SECURITY UNDER THE INDENTURE. EVERY SECURITY AUTHENTICATED AND
DELIVERED UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR OR IN
LIEU OF, THIS SECURITY SHALL BE A GLOBAL SECURITY SUBJECT TO THE
FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.](1)
THE TIMES MIRROR COMPANY, a Delaware corporation (herein called the
"Company," which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
____________________________,(2) or registered assigns, the principal sum of
___________________________ Dollars ($_________) on November 15, 2096, and to
pay interest thereon from November 13, 1996 or from the most recent Interest
Payment Date to which interest has been paid or duly provided for,
semi-annually on May 15 and November 15 in each year, commencing May 15, 1997,
at the rate of 7 1/4% per annum, until the principal hereof is paid or made
available for payment. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the 15th day (whether or not a Business Day)
immediately preceding such Interest Payment Date.
Payment of the principal of (and premium, if any) and interest on this
Security will be made [in immediately available funds](3) at the office or
agency of the Company maintained for that purpose in the Borough of Manhattan in
the City of New York, in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and
___________________
(1) Insert for Global Security.
(2) Insert "CEDE & CO." for Global Security.
(3) Insert for Global Security.
<PAGE> 7
private debts[; provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register](4).
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: November 13, 1996
THE TIMES MIRROR COMPANY
By:____________________________________
Attest: _____________________________
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
CITIBANK, N.A., As Trustee
By: ___________________________
Authorized Signatory
__________________
(4) Remove for Global Security.
<PAGE> 8
[Reverse]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or
more series under an Indenture, dated as of March 19, 1996, and all indentures
supplemental thereto (the "Indenture"), between the Company and Citibank, N.A.,
as Trustee (herein called the "Trustee", which term includes any successor
trustee under the Indenture). Reference is hereby made to the Indenture and to
an Officers' Certificate delivered to the Trustee establishing the terms of the
Securities of this series under the Indenture for statements of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is
one of the series designated on the face hereof, limited in aggregate principal
amount to $148,000,000.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of a majority in principal amount of the Securities
at the time Outstanding of each series to be affected. The Indenture also
contains provisions permitting the Holders of specified percentages in
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee
or for any other remedy thereunder, unless such Holder shall have previously
given the Trustee written notice of a continuing Event of Default with respect
to the Securities of this series, the Holders of not less than 25% in principal
amount of the Securities of this series at the time Outstanding shall have made
written request to the Trustee to institute proceedings in respect of such
Event of Default as Trustee and offered the Trustee reasonable indemnity, and
the Trustee shall not have received from the Holders of a majority in principal
amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder
of this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, places and rates, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Trustee in any place where the principal of
<PAGE> 9
and any premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
or her attorney duly authorized in writing, and thereupon one or more new
Securities of this series and of like tenor, of authorized denominations and
for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
Upon the occurrence of a Tax Event (as defined below), the Company
will have the right to shorten the maturity of the Securities of this series to
the extent required, in the opinion of a nationally recognized independent tax
counsel experienced in such matters, such that, after the shortening of the
maturity, interest paid on the Securities of this series will be deductible for
Federal income tax purposes.
In the event that the Company elects to exercise its right to shorten
the maturity of the Securities of this series on the occurrence of a Tax Event,
the Company will mail a notice of shortened maturity to each holder of record
of the Securities of this series by first-class mail not more than 60 days
after the occurrence of such Tax Event, stating the new maturity date of the
Securities of this series. Such notice shall be effective immediately upon
mailing.
"Tax Event" means that the Company shall have received an opinion of a
nationally recognized independent tax counsel experienced in such matters to
the effect that on or after November 13, 1996, as a result of (a) any amendment
to, clarification of, or change (including any announced prospective change) in
laws, or any regulations thereunder, of the United States, (b) any judicial
decision, official administrative pronouncement, ruling, regulatory procedure,
notice or announcement, including any notice or announcement of intent to adopt
such procedures or regulation (an "Administrative Action"), or (c) any
amendment to, clarification of, or change in the official position or the
interpretation of such Administrative Action or judicial decision that differs
from the theretofore generally accepted position, in each case, on or after
November 13, 1996, such change in tax law creates a more than insubstantial
risk that interest paid by the Company on the Securities is not, or will not
be, deductible, in whole or in part, by the Company for purposes of Federal
income tax.
The Indenture contains provisions for defeasance at any time of (i)
the entire indebtedness of the Securities of this series and (ii) certain
restrictive covenants and certain Events of Default applicable to the
Securities of this series, in each case upon compliance by the Company with
certain conditions set forth in the Indenture.
Customary abbreviations may be used in the name of a Holder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint
<PAGE> 10
tenants with rights of survivorship and not as tenants in common), CUST
(=custodian), and U/G/M/A (=Uniform Gift to Minors Act).
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Securities of this series and has directed the Trustee to use
CUSIP numbers in notices of redemption as a convenience to Holders. No
representations is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption, and reliance may be
placed only on the other identification numbers placed thereon.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS
OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
<PAGE> 11
ASSIGNMENT
(To be executed by the registered Holder
if such Holder desires to transfer this Security)
FOR VALUE RECEIVED ___________________________ hereby sells, assigns and
transfers unto _____________________________________________________ this
Security, together with all right, title and interest herein, and does hereby
irrevocably constitute and appoint ____________________________ Attorney to
transfer this Security on the Security Register, with full power of
substitution.
PLEASE INSERT SOCIAL SECURITY OR OTHER
TAX IDENTIFYING NUMBER OF TRANSFEREE: _______________________
PLEASE PRINT NAME AND ADDRESS OF TRANSFEREE:
_____________________________________
_____________________________________
_____________________________________
_____________________________________
Dated:
Signature of Holder: ________________ Signature Guaranteed: ________________
NOTICE: The signature to the foregoing Assignment must correspond to the name
as written upon the face of this Security in every particular, without
alteration or any change whatsoever.
<PAGE> 12
ANNEX B
RESOLUTIONS
WHEREAS, the Company has on file an omnibus shelf registration
statement on Form S-3 (the "Registration Statement") pursuant to which the
Company may offer and sell, from time to time, (i) debt securities ("Debt
Securities"), (ii) preferred stock, (iii) common stock, and (iv) warrants of
the Company in an aggregate amount not to exceed $200 million;
WHEREAS, the Registration Statement was declared effective by the
Securities and Exchange Commission on February 28, 1996.
NOW, THEREFORE, BE IT...
RESOLVED FURTHER, that the Registration Statement be, and it hereby
is, ratified, approved and confirmed;
RESOLVED FURTHER, that the Chairman of the Board, Chief Executive
Officer and Chief Financial Officer, and the Treasurer, any Assistant
Treasurer, Secretary or any Assistant Secretary may, at any time and from time
to time, on behalf of the Company, authorize the issuance of one or more series
of Debt Securities under the Indenture [dated March 19, 1996 by and between the
Company and Citibank, N.A., as trustee (the "Indenture")] and, with the
approval of the Reviewing Officers [(the Chairman of the Board, Chief Executive
Officer, Chief Financial Officer, Vice President and General Counsel and the
Treasurer)], establish the terms and conditions of such series; and
RESOLVED FURTHER, that, in connection with each such series of Debt
Securities, the Chairman of the Board, Chief Executive Officer and Chief
Financial Officer, and the Treasurer, any Assistant Treasurer, Secretary and
any Assistant Secretary be, and they hereby are, authorized to execute and
deliver one or more Officers' Certificates (as defined in the Indenture)
setting forth the terms of Debt Securities of such series established in
accordance with the foregoing.
<PAGE> 1
EXHIBIT 5
[GIBSON, DUNN & CRUTCHER LLP LETTERHEAD]
November 13, 1996
WRITER'S DIRECT DIAL NUMBER OUR FILE NUMBER
(213) 229-7000 C 91007-03961
The Times Mirror Company
Times Mirror Square
Los Angeles, California 90053
Re: Issuance and Sale of up to $148,000,000 Principal Amount of
7 1/4% Debentures Due November 15, 2096
-------------------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel to The Times Mirror Company, a Delaware
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended (the "Act"), of $148,000,000 principal
amount of 7 1/4% Debentures Due November 15, 2096 of the Company (the
"Debentures"). The Debentures are being issued pursuant to an Indenture dated
as of March 19, 1996 between the Company and Citibank, N.A., as Trustee (the
"Indenture").
We are familiar with the corporate action taken by the Company in
connection with the authorization, issuance and sale of the Debentures and have
made such other legal and factual inquiries as we deem necessary for purposes
of rendering this opinion.
Based on the foregoing and in reliance thereon, and subject to the
qualifications and limitations set forth below, we are of the opinion that (a)
the Debentures, upon the issuance thereof and timely payment in full therefor
in the manner described in the Registration Statement on Form S-3 (File No.
33-62165) of the Company (the "Registration Statement"), the Prospectus dated
February 28, 1996 and the Prospectus Supplement dated November 7, 1996
describing the terms of the Debentures as issued, will be validly issued, fully
paid and nonassessable and (b) the Debentures so issued will be legally binding
obligations of the Company, entitled to the benefits provided under the
Indenture pursuant to which they are to be issued.
<PAGE> 2
GIBSON, DUNN & CRUTCHER LLP
The Times Mirror Company
November 13, 1996
Page 2
Our opinions set forth above are 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 any of the remedies, covenants or other provisions of the Debentures and 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.
In addition, we express no opinion as to: (a) any provisions of the
Debentures or the Indenture regarding the remedies available to any person (1)
to take action that is arbitrary, unreasonable or capricious or is not taken in
good faith or in a commercially reasonable manner, whether or not such action
is permitted under the Debentures or the Indenture or (2) for violations or
breaches that are determined by a court to be non-material or without
substantially adverse effect upon the ability of the Company to perform its
material obligations under the Debentures or the Indenture; or (b) the
provisions of the Debentures or the Indenture that may provide for interest on
interest or penalty interest.
The Company is a Delaware corporation. We are not admitted to
practice in Delaware. However, we are generally familiar with the Delaware
General Corporation Law and have made such review thereof as we consider
necessary for the purpose of this opinion. Subject to the foregoing, this
opinion is limited to Delaware, New York and federal law.
This opinion may not be quoted in whole or in part without the prior
written consent of this Firm.
We hereby consent to the filing of this opinion as an exhibit to the
Company's Current Report on Form 8-K. In giving this consent, we do not admit
that we are within the category of persons whose consent is required under
Section 7 of the Act or the General Rules and Regulations of the Commission.
Very truly yours,
/s/GIBSON, DUNN & CRUTCHER LLP
GIBSON, DUNN & CRUTCHER LLP
PFZ/JRH/SNG
