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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 27, 1996
REGISTRATION NO. 33-62165
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 3
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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THE TIMES MIRROR COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 95-4481525
(STATE OR OTHER JURISDICTION OF (IRS EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
</TABLE>
TIMES MIRROR SQUARE
LOS ANGELES, CALIFORNIA 90053
(ADDRESS, INCLUDING ZIP CODE, OF PRINCIPAL EXECUTIVE OFFICES OF REGISTRANT)
REGISTRANT'S TELEPHONE NUMBER INCLUDING AREA CODE: (213) 237-3700
------------------------
MARK H. WILLES
CHAIRMAN OF THE BOARD, PRESIDENT AND CHIEF EXECUTIVE OFFICER
THE TIMES MIRROR COMPANY
TIMES MIRROR SQUARE
LOS ANGELES, CALIFORNIA 90053
(213) 237-3700
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE OF PROCESS)
COPY TO:
PETER F. ZIEGLER, ESQ.
GIBSON, DUNN & CRUTCHER
333 SOUTH GRAND AVENUE
LOS ANGELES, CALIFORNIA 90071
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Approximate date of commencement of proposed sale to the public: From time
to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement from the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. /X/
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SUCH
SECTION 8(A), MAY DETERMINE.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED FEBRUARY 27, 1996
P R O S P E C T U S
THE TIMES MIRROR COMPANY
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
WARRANTS
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The Times Mirror Company, a Delaware corporation (the "Company" or "Times
Mirror"), may offer and sell, from time to time, up to an initial aggregate
offering price of $200 million, its: (i) debt securities ("Debt Securities") in
one or more series, consisting of debentures, notes or other evidences of
indebtedness and having such prices and terms as are determined at the time of
sale; (ii) shares of Preferred Stock, par value $1.00 per share ("Preferred
Stock"), which may be issued in one or more series; (iii) shares of Series A
Common Stock, par value $1.00 per share ("Series A Common Stock"), and shares of
Series B Common Stock, par value $1.00 per share ("Series B Common Stock" and
collectively with Series A Common Stock, the "Common Stock"), which may be
issued in one or both series; and (iv) Warrants ("Warrants") to purchase Debt
Securities, Preferred Stock or Common Stock. The Debt Securities, Preferred
Stock, Common Stock and Warrants are collectively referred to herein as
"Securities." The Securities may be issued as units and in any combination.
Specific terms of the Securities ("Offered Securities") in respect of which
this Prospectus is being delivered will be set forth in an accompanying
Prospectus Supplement ("Prospectus Supplement"), together with the terms of the
offering of the Offered Securities and the initial price and net proceeds to the
Company from the sale thereof. The Prospectus Supplement will set forth with
regard to the particular Offered Securities, without limitation, the following:
(i) in the case of Debt Securities, the specific designation, aggregate
principal amount, ranking as senior or subordinated debt, authorized
denomination, maturity, rate or rates of interest (or method of calculation
thereof) and dates for payment thereof, any exchangeability, conversion,
redemption, prepayment or sinking fund provisions, the currency or currencies or
currency unit or currency units in which principal, premium, if any, or
interest, if any, is payable, and any listing on a national securities exchange;
(ii) in the case of Preferred Stock, the designation, number of shares,
liquidation preference per share, initial public offering price, dividend rate
(or method of calculation thereof), dates on which dividends shall be payable
and dates from which dividends shall accrue, any redemption or sinking fund
provisions, any voting rights, any conversion or exchange rights and any listing
on a national securities exchange; (iii) in the case of Common Stock, the number
of shares of Common Stock and the terms of the offering and sale thereof and any
listing on a national securities exchange; and (iv) in the case of Warrants, the
number and terms thereof, the designation and number of Debt Securities,
Preferred Stock or Common Stock issuable upon their exercise, the exercise
price, the terms of the offering and sale thereof, where applicable, the
duration and detachability thereof, and any listing of the Warrants or the
underlying Debt Securities, Preferred Stock or Common Stock on a national
securities exchange. The Prospectus Supplement will also contain information,
where applicable, about certain federal income tax considerations relating to
the Securities covered by the Prospectus Supplement.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON
THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
Prior to issuance there will have been no market for the Debt Securities,
Preferred Stock, Series B Common Stock or Warrants and there can be no
assurance that a secondary market for the Debt Securities or Warrants will
develop. This Prospectus may not be used to consummate sales of Securities
unless accompanied by a Prospectus Supplement. The Securities may be offered
through one or more different plans of distribution, including offerings
through underwriters. See "Plan of Distribution."
THE DATE OF THIS PROSPECTUS IS , 1996
<PAGE> 3
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement (together with all amendments and
exhibits thereto, the "Registration Statement") under the Securities Act of
1933, as amended (the "Securities Act"), with respect to the Debt Securities,
Preferred Stock, Common Stock and Warrants. This Prospectus, which constitutes
part of the Registration Statement, does not contain all of the information set
forth in the Registration Statement, certain parts of which are omitted in
accordance with the Rules and Regulations of the Commission. For further
information with respect to the Company, reference is made to the Registration
Statement.
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith, files reports, proxy statements and other information with the
Commission. Such registration statement and the other reports and information
filed by Times Mirror with the Commission can be inspected and copied at the
public reference facilities maintained by the Commission at Room 1024, Judiciary
Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549; and at its regional
offices located at Northwestern Atrium Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661-2511, and 7 World Trade Center, 13th Floor, New
York, New York 10048. Copies of such material can be obtained from the public
reference section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates. Series A Common Stock and Conversion Preferred
Stock, Series B, par value $1.00 per share ("Series B Preferred Stock"), of
Times Mirror are listed on the New York Stock Exchange (the "NYSE") and Series A
Common Stock is also listed on the Pacific Stock Exchange and reports, proxy and
information statements and other information concerning Times Mirror can be
inspected at such exchanges.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company with the Commission
(File No. 1-13492) pursuant to the Exchange Act are incorporated by reference
and shall be deemed a part hereof:
(a) Times Mirror's Annual Report on Form 10-K for the year ended
December 31, 1994;
(b) Times Mirror's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1995, June 30, 1995 and September 30, 1995;
(c) Times Mirror's Current Reports on Form 8-K dated February 1, 1995
and March 23, 1995; and
(d) The description of the Company's Series A Common Stock and Series
B Preferred Stock set forth under the caption "Description of Registrant's
Securities to be Registered" in Times Mirror's Registration Statements on
Form 8-A dated November 21, 1994 and December 22, 1994, respectively,
together with any amendment or report filed with the Commission for the
purpose of updating such descriptions.
All other reports filed by Times Mirror pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act after the date of this Prospectus and prior to
the termination of the offering of the securities hereby are incorporated herein
by reference and shall be deemed a part hereof when filed.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein,
or in any other subsequently filed document that also is incorporated or deemed
to be incorporated by reference herein, modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus. Subject to the
foregoing, all information appearing in this Prospectus is qualified in its
entirety by the information appearing in the documents incorporated by
reference.
This Prospectus may not be used to consummate sales of Offered Securities
unless accompanied by a Prospectus Supplement. The delivery of this Prospectus
together with a Prospectus Supplement relating to particular Offered Securities
in any jurisdiction shall not constitute an offer in the jurisdiction of any
other securities covered by this Prospectus.
THIS PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE WITH RESPECT TO THE
COMPANY THAT ARE NOT PRESENTED HEREIN OR DELIVERED HEREWITH. THESE DOCUMENTS ARE
AVAILABLE WITHOUT CHARGE TO ANY PERSON, INCLUDING ANY BENEFICIAL OWNER, TO WHOM
THIS PROSPECTUS IS DELIVERED, UPON WRITTEN OR ORAL REQUEST TO CORPORATE
SECRETARY, THE TIMES MIRROR COMPANY, TIMES MIRROR SQUARE, LOS ANGELES,
CALIFORNIA 90053, TELEPHONE (213) 237-3700.
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<PAGE> 4
THE COMPANY
Times Mirror is engaged principally in the newspaper publishing,
professional information and consumer media publishing businesses. Times Mirror
publishes the Los Angeles Times, Newsday, The Baltimore Sun, The Hartford
Courant, The Morning Call, The (Stamford) Advocate, the Greenwich Times, and
several smaller newspapers. Through its subsidiaries, the Company also provides
professional information to the legal, aviation and health care industries,
publishes college texts, other categories of books and magazines and also
provides training information and services. Times Mirror was incorporated in the
State of Delaware in June 1994 for the purpose of owning and operating these
businesses after a reorganization of Times Mirror's predecessor was completed in
February 1995. Times Mirror's predecessor was incorporated in 1884 in the State
of California and was reincorporated in the State of Delaware in 1986. All
references herein to the Company and Times Mirror shall include Times Mirror's
predecessor, Times Mirror's subsidiaries and Times Mirror, collectively, unless
the context suggests otherwise.
Times Mirror's principal executive offices are located at Times Mirror
Square, Los Angeles, California 90053 and its telephone number is (213)
237-3700.
USE OF PROCEEDS
Unless otherwise set forth in the accompanying Prospectus Supplement, the
net proceeds from the sale of the Securities will be used for general corporate
purposes.
RATIO OF EARNINGS TO FIXED CHARGES AND RATIO OF EARNINGS
TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table sets forth the ratio of earnings to fixed charges and
the ratio of earnings to fixed charges and preferred stock dividends for the
Company for the periods indicated.
<TABLE>
<CAPTION>
NINE MONTHS
YEAR ENDED DECEMBER 31 ENDED
---------------------------------------- SEPTEMBER 30,
1990 1991 1992 1993 1994 1995
---- ---- ---- ---- ---- -------------
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges 2.6x 1.3x (a) 2.0x 3.8x (b)
Ratio of earnings to fixed charges and
preferred stock dividends N/A N/A N/A N/A N/A (c)
</TABLE>
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(a) Earnings are approximately $7 million lower than the amount needed to cover
fixed charges in this year, as earnings in 1992 were impacted by over $200
million in restructuring charges.
(b) Earnings are approximately $237 million lower than the amount needed to
cover fixed charges in this period, as earnings were impacted by
approximately $383 million in restructuring charges.
(c) Earnings are approximately $291 million lower than the amount needed to
cover fixed charges and preferred stock dividends in this period, as
earnings were impacted by approximately $383 million in restructuring
charges.
The ratio of earnings to fixed charges was computed by dividing earnings
(income from continuing operations before income taxes, adjusted for fixed
charges (net of capitalized interest), equity income or loss from unconsolidated
affiliates and amortization of capitalized interest) by fixed charges for the
periods indicated. Fixed charges include interest incurred on long-term and
other debt, capitalized interest, the interest factor deemed to be included in
rental expense, and certain amortization.
The ratio of earnings to fixed charges and preferred stock dividends was
computed as described above, except that fixed charges were combined with the
preferred stock dividends for the period indicated. The preferred stocks were
issued in 1995 and began accruing dividends on March 1, 1995.
DESCRIPTION OF DEBT SECURITIES
The following description of the Debt Securities sets forth certain general
terms and provisions of the Debt Securities to which any Prospectus Supplement
may relate ("Offered Debt Securities"). Offered Debt Securities may be issued
from time to time in one or more series. The particular terms of each series of
Offered Debt Securities will be described in the Prospectus Supplement or
Prospectus Supplements relating to such series.
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The Offered Debt Securities will be issued under an Indenture (the
"Indenture"), between Times Mirror and a trustee (the "Trustee"), the form of
which has been filed as an exhibit to the Registration Statement of which this
Prospectus is a part. The following summaries of certain provisions of the
Indenture do not purport to be complete and are subject to, and are qualified in
their entirety by reference to, all of the provisions of the Indenture,
including the definitions therein of certain terms capitalized in this
Prospectus. Wherever particular sections, articles or defined terms of the
Indenture are referred to herein or in a Prospectus Supplement, such sections,
articles or defined terms are incorporated herein or therein by reference.
GENERAL
The Indenture does not limit the aggregate amount of Offered Debt
Securities that may be issued thereunder, and Offered Debt Securities may be
issued thereunder from time to time in one or more separate series up to the
aggregate principal amount from time to time authorized by Times Mirror for each
series. The Offered Debt Securities will be unsecured and unsubordinated
obligations of Times Mirror and will rank equally and ratably with other
unsecured and unsubordinated indebtedness of Times Mirror.
The applicable Prospectus Supplement or Prospectus Supplements will
describe, to the extent applicable, each of the following terms of the series of
Offered Debt Securities in respect of which this Prospectus is being delivered:
(i) the title of the Offered Debt Securities; (ii) any limit on the aggregate
principal amount of the Offered Debt Securities; (iii) whether any of the
Offered Debt Securities are to be issuable in permanent global form and, if so,
the terms and conditions, if any, upon which interests in such Offered Debt
Securities in global form may be exchanged, in whole or in part, for the
individual Offered Debt Securities represented thereby; (iv) the person to whom
any interest on any Offered Debt Security of the series will be payable if other
than the person in whose name the Offered Debt Security is registered on the
Regular Record Date; (v) the date or dates on which the Offered Debt Securities
will mature; (vi) the rate or rates at which the Offered Debt Securities will
bear interest (or the method by which such rate or rates will be determined), if
any; (vii) the date or dates from which any such interest will accrue, the
Interest Payment Dates on which any such interest on the Offered Debt Securities
will be payable and the Regular Record Date for any interest payable on any
Interest Payment Date; (viii) each office or agency where the principal of,
premium, if any, and interest, if any, on the Offered Debt Securities will be
payable; (ix) the period or periods within which, the events upon the occurrence
of which, and the price or prices at which, the Offered Debt Securities may,
pursuant to any optional or mandatory provisions, be redeemed or purchased, in
whole or in part, by Times Mirror and any terms and conditions relevant thereto;
(x) the denominations in which any Offered Debt Securities will be issuable, if
other than denominations of $1,000 and any integral multiple thereof; (xi) the
currency or currencies, including composite currencies, of payment of principal
of, and any premium and interest on, the Offered Debt Securities if other than
United States dollars; (xii) any index or formula used to determine the amount
of payments of principal of and any premium and any interest on the Offered Debt
Securities; (xiii) if other than the principal amount thereof, the portion of
the principal amount of the Offered Debt Securities of the series that will be
payable upon declaration of the acceleration of the maturity thereof; (xiv) the
applicability of the provisions described under "Restrictive Covenants"; (xv)
any Events of Default with respect to the Securities of such series, if not
otherwise set forth under "Events of Default"; (xvi) the applicability of the
provisions described under "Defeasance and Discharge"; (xvii) whether the
Offered Debt Securities are convertible or exchangeable into shares of Common
Stock or any other security of the Company or other entities and the terms of
any such conversion or exchange; and (xviii) any other terms of the Offered Debt
Securities not inconsistent with the provisions of the Indenture.
Offered Debt Securities may be issued at a discount from their principal
amount. Certain federal income tax considerations and other special
considerations applicable to any such original issue discount securities will be
described in the applicable Prospectus Supplement.
EXCHANGE, REGISTRATION, TRANSFER AND PAYMENT
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of principal, premium, if any, and interest, if any, on the Offered Debt
Securities will be payable, and the exchange of and the transfer of Offered Debt
Securities will be registrable, at the office or agency of Times Mirror
maintained for such
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<PAGE> 6
purpose and at any other office or agency maintained for such purpose. Unless
otherwise indicated in the applicable Prospectus Supplement, the Offered Debt
Securities will be issued in denominations of $1,000 or integral multiples
thereof. No service charge will be made for any registration of transfer or
exchange of the Offered Debt Securities, but Times Mirror may require payment of
a sum sufficient to cover any tax or other governmental charge imposed in
connection therewith.
GLOBAL SECURITIES
If the Offered Debt Securities are represented by one or more Global
Securities, the applicable Prospectus Supplement will describe the terms of the
depositary arrangement with respect to such Global Securities.
RESTRICTIVE COVENANTS
Affirmative Covenants. In addition to such other covenants, if any, as may
be described in the accompanying Prospectus Supplement and except as may
otherwise be set forth therein, the Indenture for the Offered Debt Securities
will require the Company, subject to certain limitations described therein, to,
among other things, do the following: (i) deliver to the Trustee copies of all
reports filed with the Commission; (ii) deliver to the Trustee annual officers'
certificates with respect to the Company's compliance with its obligations under
the Indenture; (iii) maintain its corporate existence subject to the provisions
described below relating to mergers and consolidations; and (iv) pay all taxes
when due except where such taxes are being contested in good faith. Except as
may be set forth in the accompanying Prospectus Supplement, the Indenture will
not restrict the business or operations of the Company or its subsidiaries,
limit their indebtedness or prohibit any liens, charges or other encumbrances on
any properties or other assets they may have from time to time.
REDEMPTION
If and to the extent set forth in the accompanying Prospectus Supplement,
the Company will have the right to redeem the Offered Debt Securities, from time
to time, in whole or in part, after the date and at the redemption prices set
forth in the accompanying Prospectus Supplement.
CONSOLIDATION, MERGER AND SALE OR LEASE OF ASSETS
Times Mirror, without consent of any holders of outstanding Debt
Securities, may consolidate with or merge into, or transfer or lease its assets
substantially as an entirety to any Person, and any Person may consolidate with
or merge into, or transfer or lease its assets substantially as an entirety to
Times Mirror, provided that (i) the Person (if other than Times Mirror) formed
by such consolidation or into which Times Mirror is merged or the Person which
acquires or leases the assets of Times Mirror substantially as an entirety is a
corporation, partnership or trust organized and existing under the laws of any
United States jurisdiction and expressly assumes Times Mirror's obligations on
the Offered Debt Securities and under the Indenture, (ii) immediately after
giving effect to such transaction no Event of Default (as defined below), and no
event which, after notice or lapse of time or both, would become an Event of
Default, happened and is continuing, and (iii) certain other conditions are met.
EVENTS OF DEFAULT
Except as may be described in the accompanying Prospectus Supplement, an
"Event of Default" will be defined under the Indenture for the Offered Debt
Securities as being any one of the following events: (i) default for 30 days in
payment of any interest on the Offered Debt Securities; (ii) default in payment
of any principal of (or premium, if any, on) the Offered Debt Securities, either
at maturity, upon redemption or otherwise; (iii) default for 90 days after
written notice in the performance of, or breach of, any covenants or warranty of
Times Mirror in the Indenture; and (iv) certain events of bankruptcy, insolvency
or reorganization.
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<PAGE> 7
The Indenture for the Offered Debt Securities will provide that if an Event
of Default (other than an Event of Default due to certain events of bankruptcy,
insolvency or reorganization) has occurred and is continuing, either the Trustee
or the holders of not less than 25% in principal amount of the Offered Debt
Securities outstanding under the Indenture for the Offered Debt Securities, or
such other amount as may be specified in the Prospectus Supplement, may declare
the principal amount of all Offered Debt Securities under that Indenture to be
due and payable immediately.
The Indenture will provide that the Trustee shall, within 90 days after the
occurrence of a default under the Indenture with respect to Offered Debt
Securities of any series, mail to all holders of Offered Debt Securities of such
series notice of such default known to the Trustee, unless such default shall
have been cured or waived; provided that, except in the case of default in the
payment of principal of or interest on any of such series, the Trustee may
withhold such notice if it in good faith determines that the withholding of such
notice is in the interest of the holders.
The Indenture will provide that Times Mirror is required to furnish to the
Trustee annually a statement of certain officers of Times Mirror to the effect
that, to the best of their knowledge, Times Mirror is not in default in the
performance and observance of any of the terms of the Indenture or, if they have
knowledge that Times Mirror is in default, specifying such default.
The Indenture will provide that the holders of not less than a majority in
aggregate principal amount of all outstanding Offered Debt Securities of any
series will have the right, on behalf of the holders of all outstanding Offered
Debt Securities of such series, to waive certain defaults and, subject to
certain limitations, to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee with respect to Offered Debt Securities of that
series. The Indenture will also provide that in case an Event of Default with
respect to Offered Debt Securities of any series has occurred and is continuing,
the Trustee shall exercise, with respect to such series, such of the rights and
powers vested in it under the Indenture, and use the same degree of care and
skill in its exercise as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs. Subject to such provisions, the
Trustee will be under no obligation to exercise any of its rights or powers
under the Indenture at the request or direction of any of the holders unless
such holders shall have offered to the Trustee reasonable security or indemnity.
DEFEASANCE AND DISCHARGE
Except as may otherwise be provided in the accompanying Prospectus
Supplement, the Company can discharge or defease its obligations under the
Indenture for the Offered Debt Securities as set forth below.
Under terms satisfactory to the Trustee, the Company may discharge certain
obligations to holders of the Offered Debt Securities that have not already been
delivered to the Trustee for cancellation and that have either become due and
payable or are by their terms due and payable within one year (or scheduled for
redemption within one year) by irrevocably depositing with the Trustee funds, as
trust funds in an amount certified to be sufficient to pay at maturity (or upon
redemption) the principal of and premium, if any, and interest on such Offered
Debt Securities.
The Company may also discharge any and all of its obligations to holders of
the Offered Debt Securities at any time ("defeasance"), but may not thereby
avoid its duty to register the transfer or exchange of the Offered Debt
Securities, to replace any temporary, mutilated, destroyed, lost or stolen
Offered Debt Securities or to maintain an office or agency in respect of such
Offered Debt Securities and certain other obligations. Alternatively, the
Company may be released with respect to the Offered Debt Securities from the
obligations imposed by specific sections of the Indenture for the Offered Debt
Securities (including the covenant described above limiting consolidations,
mergers, asset sales and leases) and omit to comply with such provisions without
creating an Event of Default ("covenant defeasance"). Defeasance or covenant
defeasance may be effected only if, among other things: (i) the Company
irrevocably deposits with the Trustee cash or U.S. Government Obligations, or a
combination thereof, as trust funds in an amount certified to be sufficient to
pay at maturity the principal of and premium, if any, and interest on all
outstanding Offered Debt Securities; (ii) no Event of Default under the
Indenture for the Offered Debt Securities has occurred and is
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then continuing; (iii) the defeasance or covenant defeasance will not result in
a breach or violation of, or constitute a default under, under any agreement to
which the Company is a party or by which it is bound; and (iv) the Company
delivers to the Trustee an opinion of counsel to the effect that the holders of
Debt Securities will not recognize income, gain or loss for federal income tax
purposes as a result of such defeasance or covenant defeasance and that such
defeasance or covenant defeasance will not otherwise alter such holders' federal
income tax treatment of principal and interest payments on the Offered Debt
Securities.
MODIFICATIONS TO THE INDENTURE
Except as may otherwise be set forth in the accompanying Prospectus
Supplement, the Indenture for the Offered Debt Securities will provide that the
Company and the Trustee may enter into supplemental indentures without the
consent of the holders of Offered Debt Securities to, among other things: (i)
add covenants, conditions and restrictions for the protection of the holders of
Offered Debt Securities; (ii) surrender any right of or power conferred upon the
Company; (iii) cure any ambiguity or correct any inconsistency in the Indenture
for the Offered Debt Securities; (iv) make any change that does not adversely
affect the legal rights of holders of Offered Debt Securities; (v) modify,
eliminate or add to the provisions of the Indenture for the Offered Debt
Securities to the extent necessary to qualify that Indenture under applicable
federal statutes; or (vi) make any other changes in the Indenture before Offered
Debt Securities are issued thereunder, provided that such changes are not
prohibited by the Trust Indenture Act.
Except as may otherwise be set forth in the accompanying Prospectus
Supplement, the Indenture for the Offered Debt Securities also will contain
provisions permitting the Company and the Trustee, with the consent of the
holders of not less than a majority in principal amount of Offered Debt
Securities outstanding affected by such supplemental indenture, to enter into
supplemental indentures in order to add any provision to, change in any manner
or eliminate any of the provisions of the Indenture for the Offered Debt
Securities or modify in any manner the rights of the holders of the Offered Debt
Securities so affected; provided that no such supplemental indenture shall,
among other things, without the consent of the holder of each outstanding
Offered Debt Security affected thereby: (i) reduce the percentage in principal
amount of Offered Debt Securities whose holders must consent to an amendment to
the Indenture or supplemental indenture or waiver with respect to the Indenture;
(ii) reduce the rate of or change the time for payment of interest on any
Offered Debt Security; (iii) reduce the principal of or change the fixed
maturity of any Offered Debt Security; or (iv) waive a default in the payment of
the principal of, or interest on, any Offered Debt Security. The holders of at
least a majority in principal amount of Offered Debt Securities outstanding of
any series may, on behalf of the holders of all Offered Debt Securities of that
series, waive any past default under the Indenture with respect to that series,
except a default in the payment of the principal of, or premium, if any, or
interest on, any Offered Debt Security of that series or in respect of a
covenant or provision that under the Indenture cannot be modified or amended
without the consent of the holder of each Offered Debt Security outstanding of
the series affected.
REGARDING THE TRUSTEE
The Indenture contains certain limitations on the right of the Trustee,
should it become a creditor of Times Mirror, to obtain payment of claims in
certain cases, or to realize for its own account on certain property received in
respect of any such claim as security or otherwise. The Trustee will be
permitted to engage in certain other transactions; provided, however, that if it
acquires any conflicting interest, it must eliminate such conflict or resign.
GOVERNING LAW
Unless otherwise specified in the accompanying Prospectus Supplement, the
Indenture for the Offered Debt Securities and the Offered Debt Securities will
be governed by New York law.
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DESCRIPTION OF CAPITAL STOCK
The Company is authorized to issue: (i) 500,000,000 shares of Series A
Common Stock, of which 76,860,290 shares were issued and outstanding at February
22, 1996; (ii) 100,000,000 shares of Series B Common Stock, none of which is
outstanding; (iii) 300,000,000 shares of Series C Common Stock, par value $1.00
per share ("Series C Common Stock"), of which 27,937,624 shares were issued and
outstanding at February 22, 1996; and (iv) 33,000,000 shares of Preferred Stock,
of which (a) 900,000 shares are designated Preferred Stock, Series A, par value
$1.00 per share ("Series A Preferred Stock"), of which 823,568 were issued and
outstanding at February 22, 1996 and (b) 25,000,000 shares are designated Series
B Preferred Stock, of which 7,789,276 were issued and outstanding at February
22, 1996.
COMMON STOCK
General
The following description of the Common Stock and the Series C Common Stock
sets forth general terms and provisions of the Common Stock to which any
Prospectus Supplement may relate, including a Prospectus Supplement providing
that Common Stock will be issuable upon conversion of Debt Securities or
Preferred Stock by the Company, upon exercise of Warrants or under the terms of
the Stock Purchase Contracts, as the case may be.
The following description of the Series A Common Stock and Series C Common
Stock is summarized from, and qualified in its entirety by reference to, the
Amended and Restated Certificate of Incorporation of the Company (the "Restated
Certificate") and the Certificate of Designation of the Series C Common Stock
(the "Series C Certificate of Designation"), filed as exhibits to the
Registration Statement of which this Prospectus constitutes a part. Except with
respect to transfer and voting, Series C Common Stock are identical in all
respects to Series A Common Stock. Series C Common Stock is entitled to 10 votes
per share and, as described below, will be subject to significant transfer
restrictions. The Series A Common Stock is listed on the NYSE and the Pacific
Stock Exchange. As discussed below, as a result of restrictions on transfer, the
Series C Common Stock is not traded.
Rights to Designate Series B Common Stock
Pursuant to the Restated Certificate, the Board of Directors of the Company
is entitled to designate certain rights, powers and preferences of a class of
Series B Common Stock in addition to the outstanding Series A Common Stock and
the Series C Common Stock, as discussed below. First, the Board may determine
the exact number of votes per share of Series B Common Stock at not less than
1/10 nor more than 1. Second, the Board may also make other changes in the
rights, powers and preferences of the Series B Common Stock, provided that in no
such case may the rights, powers and preferences of any such series be greater
than those described herein. Subject to the foregoing, it is anticipated that
Series B Common Stock, if authorized by the Board of Directors, will be
identical in all respects to the Series A Common Stock currently outstanding,
except with respect to voting. Specifically, it is anticipated that each share
of Series B Common Stock will be entitled to one-tenth (1/10) of a vote rather
than one vote per share.
The description herein of the rights, powers and preferences of the Series
B Common Stock is subject to the discretionary authority of the Board as
described above. The Board presently has no intention of issuing any shares of
Series B Common Stock or of utilizing such authority to vary the terms of the
Series B Common Stock from those described herein unless it determines that such
change is necessary in light of legal developments or in order to comply with,
or establish an exemption from, any applicable law, regulation or rule of any
governmental authority, national securities exchange or national market system.
Voting
Except as set forth below, all actions submitted to a vote of the Company's
stockholders will be voted on by holders of Series A Common Stock, Series B
Common Stock, Series C Common Stock and Series B Preferred Stock voting together
as a single class. The affirmative vote of the holders of a majority of the
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outstanding shares of Series A Common Stock, Series B Common Stock and/or Series
C Common Stock, voting separately as a class, is required (i) to approve any
amendment to the Restated Certificate that would alter or change the powers,
preferences or special rights of such series so as to affect it adversely and
(ii) to approve such other matters as may require class votes under the General
Corporation Law of the State of Delaware.
Dividends and Other Distributions (including Distributions upon Liquidation
or Sale of the Company)
Unless otherwise determined by the Board in the resolutions providing for
the issuance of Series B Common Stock, each share of Series A Common Stock,
Series B Common Stock and Series C Common Stock is equal in respect of dividends
and other distributions in cash, stock or property (including distributions upon
liquidation of the Company and consideration to be received upon a merger or
consolidation of the Company or a sale of all or substantially all of the
Company's assets), except that in the case of dividends or other distributions
payable on the Series A Common Stock, Series B Common Stock or Series C Common
Stock in shares of such stock, including distributions pursuant to stock splits
or dividends, only Series A Common Stock is to be distributed with respect to
Series A Common Stock; only Series B Common Stock is to be distributed with
respect to Series B Common Stock; and only Series C Common Stock is to be
distributed with respect to Series C Common Stock. In no event will either
Series A Common Stock, Series B Common Stock or Series C Common Stock be split,
divided or combined unless each other class is proportionately split, divided or
combined. The Series A Preferred Stock and Series B Preferred Stock rank prior
to the Common Stock. See "Preferred Stock -- Ranking" below.
Restrictions on Transfer of Series C Common Stock; Convertibility of Series
C Common Stock into Series A Common Stock
As more fully described below, the transferability of the Series C Common
Stock is significantly restricted. For example, in the case of holders of Series
C Common Stock who are individuals, permitted transferees include certain family
members of the holder and certain entities controlled by, or for the benefit of,
the holder and such family members.
As a result of such restrictions on transfer, no trading market will
develop in Series C Common Stock. The Series C Common Stock is, however,
convertible at all times and without cost to the holder (except any transfer
taxes which may be payable, as in the case of any transfer of Series A Common
Stock, if certificates are to be issued in a name other than that in which the
certificate surrendered is registered) into Series A Common Stock on a share for
share basis. To effect such a conversion, the Series C Common Stock holder must
deliver to the Company's transfer agent a certificate or certificates
representing Series C Common Stock to be converted and a written notice of the
election of such holder to convert such Series C Common Stock into Series A
Common Stock indicating, among other things, the names and addresses of persons
to whom certificates representing Series A Common Stock shall be issued.
Stockholders desiring to sell their equity interest in the Company represented
by their shares of Series C Common Stock may convert those shares into an equal
number of shares of Series A Common Stock and sell the shares of Series A Common
Stock in the public market.
A stockholder who does not wish to complete the conversion process prior to
a sale may effect a sale of the Series A Common Stock into which such
stockholder's Series C Common Stock is convertible by delivering the certificate
or certificates for such shares of Series C Common Stock to a broker, properly
endorsed. The broker will then present the Series C Common Stock certificate or
certificates to the Company's transfer agent who will issue to the purchaser a
certificate for the number of shares of Series A Common Stock sold in settlement
of the transaction. (If the stockholder sells fewer than all of the shares of
Series A Common Stock into which such Series C Common Stock certificate or
certificates could be converted, the transfer agent will return to such
stockholder a certificate for Series C Common Stock representing the balance of
such shares unless the stockholder specifies that the transfer agent should
return a certificate for Series A Common Stock). Accordingly, there should be no
delay or extra expense involved in selling the equity interest in the Company
represented by the Series C Common Stock. Series A Common Stock and Series B
Common Stock is not convertible by the holders thereof into any other class of
stock.
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The Company does not believe that Series C Common Stock will be accepted as
security for the extension of credit by securities brokers or dealers. It is
however, permissible to pledge Series C Common Stock to secure loans from banks
and other lenders, provided that such shares are not transferred to or
registered in the name of the pledgee and that upon a foreclosure of the pledge,
the pledgee may only convert such shares into Series A Common Stock or transfer
such shares only to a person to whom the pledging holder of Series C Common
Stock holder could have transferred them.
Series C Common Stock issued in a stockholder's own name is not
transferable into "nominee" or "street" name. However, if on the date that the
Series C Stock was initially distributed by the Corporation as a dividend the
("Distribution Record Date") shares of Series C Common Stock are registered in
nominee or street name, the shares of Series C Common Stock issued in respect
thereof will be registered in the same nominee or street name. Such shares of
Series C Common Stock may be transferred out of the nominee or street name into
the name of the person who was the beneficial owner of the Series C Common Stock
on the Distribution Record Date (or a "Permitted Transferee," as hereinafter
described, of such person), and once so transferred, may not be transferred back
into nominee or street name. Series C Common Stock held in nominee or street
name may be converted into Series A Common Stock, and the Series A Common Stock
received will, depending on the nature of the transaction and the instructions
of the parties, be registered in the name of the original beneficial owner, a
transferee of such owner or a nominee for such owner or transferee. (If a
certificate for Series C Common Stock is to be returned in connection with a
partial conversion or sale of Series C Common Stock held in nominee name, such
returned certificate will be registered in the name of the nominee that
presented the original certificate or certificates to the transfer agent unless
contrary instructions are given.)
Other than pursuant to conversions into Series A Common Stock as described
above, a record or beneficial owner of shares of Series C Common Stock may
transfer such shares (whether by sale, assignment, gift, bequest, appointment or
otherwise) only to a "Permitted Transferee," as defined. A brief description of
permitted transfers is set forth below. The description is intended to be
illustrative only and is subject to the provisions set forth in the Restated
Certificate and Series C Certificate of Designation.
In the case of a holder of shares of Series C Common Stock of record who is
a natural person and the beneficial owner of the shares of Series C Common Stock
to be transferred, Permitted Transferees include:
(A) such holder of Series C Common Stock's spouse;
(B) any of the lineal descendants of a grandparent of such holder of
Series C Common Stock, including adopted children, and their spouses (such
persons and their spouses, together with the spouse of the holder of Series
C Common Stock, are hereinafter referred to as "such holder of Series C
Common Stock's family members");
(C) the guardian or conservator of a holder of Series C Common Stock
who has been adjudged disabled or incompetent by a court of competent
jurisdiction;
(D) the executor or administrator of the estate of a deceased holder
of Series C Common Stock;
(E) the trustee of the estate of a bankrupt or insolvent holder of
Series C Common Stock;
(F) the trustee of a trust principally for the benefit of such holder
of Series C Common Stock or such holder of Series C Common Stock's family
members;
(G) certain charitable organizations established by such holder of
Series C Common Stock or such holder of Series C Common Stock's family
members;
(H) a partnership, if, and only for so long as, all of the partners
are, and all of the partnership interests are owned by, such holder of
Series C Common Stock and/or one or more of the Permitted Transferees of
such holder of Series C Common Stock; and
(I) a corporation, if, and only for so long as, sufficient shares
entitled to elect at least a majority of the entire board of directors of
such corporation are beneficially owned by such holder of Series C
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Common Stock and/or one or more of the Permitted Transferees of such holder
of Series C Common Stock.
Series C Common Stock held beneficially and of record by partnerships may
be transferred to a partner who was also a partner on the Distribution Record
Date, any person transferring Series C Common Stock to such partnership after
the Distribution Record Date (up to the amount of shares so transferred) and any
Permitted Transferee of any such partner or person. Series C Common Stock held
beneficially and of record by corporations may be transferred (i) to any
stockholder of such corporation who was also a stockholder on the Distribution
Record Date and who is generally entitled to vote in the election of directors
of such corporation, provided that such corporation does not have more than 30
voting stockholders of record on the Distribution Record Date (or such greater
number of voting stockholders as may be allowed under the applicable state law
of such corporation in order to qualify as a close corporation), (ii) to any
stockholder through a pro rata dividend or liquidation, (iii) to any person
transferring Series C Common Stock to such corporation after the Distribution
Record Date (up to the amount of shares so transferred), (iv) to any Permitted
Transferee of any such stockholder or person and, (v) to the survivor of a
merger or consolidation of such corporation if those persons who owned
beneficially sufficient shares entitled to elect at least a majority of the
entire board of directors of such constituent corporation immediately prior to
the merger or consolidation own beneficially sufficient shares entitled to elect
at least a majority of the entire board of directors of the surviving
corporation. Series C Common Stock held of record by a trustee of a trust that
is irrevocable on the Distribution Record Date may be transferred (i) to a
successor trustee who is described in subparagraph (ii), (iii) or (iv), below,
or who is not and by becoming successor trustee will not otherwise become, a
Related Person, (ii) to any person to whom or for whose benefit income may be
distributed during the term of the trust, (iii) to any person to whom or for
whose benefit principal may be distributed either during or at the end of the
term of the trust, and (iv) to any lineal descendant of a grandparent of the
creator of such trust, the spouse of such creator and the spouse of any such
lineal descendant. Shares of Series C Common Stock held by a trustee of any
other trust may be transferred to a successor trustee who is not and will not
thereby become a Related Person, to the person who established such trust and to
such person's Permitted Transferees.
Each certificate representing Series C Common Stock bears a legend stating
that the shares represented thereby are subject to restrictions on transfer and
the registration of transfer. Any transfer of Series C Common Stock not
permitted under the Series C Certificate of Designation will result in the
conversion of the transferee's Series C Common Stock into Series A Common Stock,
generally effective on the date on which certificates representing such shares
are presented for transfer on the books of the Company, provided, however, that
if the Company should determine that such shares were not so presented for
transfer within 20 days after the date of such sale, transfer assignment or
other disposition, the transfer date shall be the actual date of such sale,
transfer, assignment or other disposition, as determined in good faith by the
Board or its appointed agent. As a condition to the transfer or registration of
transfer of Series C Common Stock, the Company may require the furnishing of
such affidavits or other proof as it deems necessary to establish that the
transferee is a Permitted Transferee. If no indication to the contrary is
supplied at the time shares of Series C Common Stock are presented for transfer,
the transfer shall be presumed by the Company to be a transfer to a
non-Permitted Transferee. Series C Common Stock converted into Series A Common
Stock by the holder or by the holder's transfer to a person who is not a
Permitted Transferee shall resume the status of authorized but unissued shares
of Series C Common Stock.
Termination and Conversion of Series B and/or Series C Common Stock
Either or both the Series B Common Stock and Series C Common Stock will
automatically be converted into Series A Common Stock on a share-for-share basis
(i) at any time the Board and the holders of a majority of the outstanding
shares of the series approve the conversion of all of such series into Series A
Common Stock, (ii) if, as a result of the existence of the series, the Series A
Common Stock becomes excluded from trading on the NYSE, the American Stock
Exchange and all other national securities exchanges and is also excluded from
quotation on NASDAQ or any other national quotation system then in use, (iii) if
the Board, in its sole discretion, elects to effect a conversion of such series
in connection with its approval of any sale or lease of all or any substantial
part of the Company's assets or any merger, consolidation,
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liquidation or dissolution of the Company, or (iv) if the Board, in its sole
discretion, elects to effect a conversion of such series after a determination
that there has been a material adverse change in the liquidity, marketability or
market value of the outstanding Series A Common Stock, considered in the
aggregate (a) due to the exclusion of the Series A Common Stock from trading on
a national securities exchange or the exclusion of the Series A Common Stock
from quotation on NASDAQ, or such other national quotation system then in use,
or (b) due to requirements of federal or state law, in any such case, as a
result of the existence of such series. To the extent that the Board has
discretion, the decision whether or not to exercise its authority to effect a
conversion of Series B Common Stock or Series C Common Stock would be made in
light of all the existing facts and circumstances affecting the interests of the
Company and its stockholders, including the effect such conversion could have on
the Company's vulnerability to an unsolicited hostile takeover attempt and any
of the other factors referred to herein.
In the event of any such termination of Series B Common Stock or Series C
Common Stock, certificates formerly representing outstanding shares of that
series shall thereafter be deemed to represent a like number of shares of Series
A Common Stock. If both Series B Common Stock and Series C Common Stock are
terminated, all outstanding shares of Series A Common Stock shall again be
denominated common stock and all certificates representing outstanding shares of
Series A Common Stock shall thereafter be deemed to represent a like number of
shares of common stock.
Preemptive Rights
Neither the Series A Common Stock, the Series B Common Stock nor the Series
C Common Stock carries any preemptive rights enabling a holder to subscribe for
or receive shares of stock of the Company of any class or any other securities
convertible into shares of stock of the Company. The Board will continue to
possess the power to issue shares of authorized but unissued Series A Common
Stock, Series B Common Stock, Series C Common Stock and preferred stock without
further stockholder action.
PREFERRED STOCK
The following summary contains a description of certain general terms of
the Company's Preferred Stock to which any Prospectus Supplement may relate.
Certain terms of any series of Preferred Stock offered by any Prospectus
Supplement will be described in the Prospectus Supplement relating thereto.
Preferred Stock may be convertible and, if so convertible, may be converted into
one or both of Common Stock and Debt Securities. The Preferred Stock may also be
exchangeable, at the option of the Company, for Debt Securities (see
"Description of Debt Securities"). If Preferred Stock or Warrants exercisable
for Preferred Stock are being offered, if Preferred Stock is issued under Stock
Purchase Contracts, or if Preferred Stock is exchangeable for Debt Securities,
the accompanying Prospectus Supplement will describe the rights, privileges,
preferences and restrictions of such Preferred Stock, including, without
limitation, (i) the designation, (ii) the number of authorized shares of the
series in question, (iii) the dividend rate (or method of calculation), (iv) any
voting rights, conversion rights, anti-dilution protections, exchangeability
provisions and terms of the Debt Securities that are exchangeable for the
Preferred Stock, (v) any redemption provisions, liquidation preferences and (vi)
any sinking fund provisions. If fractional interests in shares of Preferred
Stock may be issued, there will be a depositary for the shares of Preferred
Stock involved and the applicable Prospectus Supplement will describe the terms
of the depositary arrangement and related matters.
Upon issuance, against full payment of the purchase price therefor, shares
of Preferred Stock will be fully paid and nonassessable. Preferred Stock
issuable upon exercise of any Warrants exercisable for Preferred Stock (upon
payment in full of the Warrant exercise price) or conversion of any Debt
Securities convertible into Preferred Stock or under the Stock Purchase
Contracts will be fully paid and nonassessable.
The following description of the Series A Preferred Stock and Series B
Preferred Stock is summarized from, and is qualified in its entirety by
reference to, the Restated Certificate, the Certificate of Designation of the
Series A Preferred Stock (the "Series A Certificate of Designation") and the
Certificate of Designation of the Series B Preferred Stock (the "Series B
Certificate of Designation"), which are filed as exhibits to the Registration
Statement of which this Prospectus constitutes a part.
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Ranking
The Series A Preferred Stock ranks on a parity with the Series B Preferred
Stock, and ranks prior to the Common Stock with respect to dividend rights and
rights on liquidation, winding up or dissolution of the Company, and to all
other classes and series of equity securities of the Company hereafter issued,
other than any class or series of equity securities of the Company expressly
designated as being on a parity with (the "Parity Stock") or senior to (the
"Senior Stock") the Series A Preferred Stock and Series B Preferred Stock (the
Series A Preferred Stock and Series B Preferred Stock are collectively referred
to herein as the "Series A and Series B Preferred Stock"). Such other classes or
series of equity securities of the Company not expressly designated as being on
a parity with or senior to the Series A and Series B Preferred Stock are
referred to hereinafter as "Junior Stock." The rights of holders of shares of
Series A and Series B Preferred Stock are subordinate to the rights of the
Company's general creditors. The Series A and Series B Preferred Stock are
subject to creation of Senior Stock, Parity Stock and Junior Stock to the extent
not expressly prohibited by the Restated Certificate, the Series A Certificate
of Designation and the Series B Certificate of Designation.
Dividend Rights
Holders of Series A Preferred Stock are entitled to receive, when, as and
if declared by the Board of Directors of the Company out of funds legally
available therefor, cumulative cash dividends at an annual rate of 8%.
Holders of Series B Preferred Stock are entitled to receive, when, as and
if dividends on the Series B Preferred Stock are declared by the Board of
Directors of the Company out of funds legally available therefor, cumulative
cash dividends, accruing at the rate of $1.374 per share per annum. Dividends
will cease to accrue in respect of the Series B Preferred Stock on the earliest
to occur of (i) March 31, 1998 (the "Mandatory Conversion Date"), (ii) the date
of their redemption by the Company or (iii) in the event of an automatic
conversion due to a Fundamental Transaction (as defined below), on the business
day (the "Settlement Date") immediately preceding the effective date of the
Fundamental Transaction.
Dividends on the Series A and Series B Preferred Stock are payable
quarterly following each quarterly dividend period (a "Dividend Period"), or, if
any such day is a non-business day, on the next business day (each a "Dividend
Payment Date"). Dividends payable for any period less than a full Dividend
Period are computed on the basis of a 360-day year with equal months of 30 days.
Dividends are fully cumulative and accrue on a daily basis. Dividends declared
are payable to holders of record of Series A and Series B Preferred Stock as
they appear on the stock books of the Company as of the close of the business on
such record dates, not more than 60 calendar days preceding the applicable
Dividend Payment Date therefor, as determined by the Board of Directors of the
Company or a duly authorized committee thereof. Dividends are payable on March
15, June 15, September 15 and December 15, and commenced June 15, 1995.
Dividends on the Series A and Series B Preferred Stock will accrue whether
or not such dividends are declared and accumulate to the extent they are not
paid on the Dividend Payment Date for the quarter for which they accrue.
Accumulated unpaid dividends will not bear interest. Holders of the Series A and
Series B Preferred Stock are not entitled to any dividends, whether payable in
cash, property or stock, in excess of full cumulative accrued dividends as
described herein.
No dividends in any form shall be declared or paid or set apart for payment
on any Parity Stock or Junior Stock for any Dividend Period unless full
dividends on the Series A and Series B Preferred Stock for the prior Dividend
Period shall have been paid or declared and set aside. No cash dividends shall
be declared or paid or set aside for payment on Parity Stock for any Dividend
Period unless full cash dividends on the Series A and Series B Preferred Stock
for the prior Dividend Period shall have been paid or declared and set aside.
The Company shall not declare or pay any dividend or other distribution
(other than in Common Stock or other Junior Stock) with respect to any Junior
Stock or Parity Stock, including Common Stock, or redeem or set apart funds for
the purchase or redemption of any Junior Stock or Parity Stock through a sinking
fund or otherwise, or purchase any shares of its Common Stock, unless and until
(i) the Company shall have paid full cash dividends on the Series A and Series B
Preferred Stock for the most recent Dividend Period, or funds
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have been paid over to the dividend disbursing agent for the Company for payment
of such dividends, and (ii) the Company has declared a cash dividend on the
Series A and Series B Preferred Stock at the annual dividend rate for the
current Dividend Period, and sufficient funds have been paid over to the
dividend disbursing agent of the Company for the payment of a cash dividend at
the end of such Dividend Period.
No dividend shall be paid or set aside for holders of the Series A and
Series B Preferred Stock for any Dividend Period unless full dividends have been
paid or set aside for the holders of each class or series of Senior Stock.
Therefore, the Company's ability to pay dividends on the Series A and Series B
Preferred Stock may be subject to prior and superior rights of holders of
another class or series of equity securities of the Company. The Company does
not currently have outstanding any class or series of Senior Stock.
Liquidation Preference
Holders of shares of Series A and Series B Preferred Stock then outstanding
are entitled to receive the liquidation preference of each of the Series A and
Series B Preferred Stock, as the case may be, plus an amount per share equal to
any dividends accrued but unpaid, without interest, in the event of any
liquidation, dissolution or winding up of the Company whether voluntary or
involuntary, out of or to the extent of the net assets of the Company legally
available for such distribution, before any distributions are made with respect
to any Common Stock or any other Junior Stock. If the net liquidation proceeds
then available for distribution are insufficient to pay the liquidation
preferences of the Series A and Series B Preferred Stock and any Parity Stock,
such proceeds will be distributed on a pro rata basis to the Series A and Series
B Preferred Stock and Parity Stock. Following payment of such liquidation
preferences, the Series A and Series B Preferred Stock will not share in any
additional net liquidation proceeds. The liquidation preference of the Series B
Preferred Stock in the aggregate is $350 million and the per share liquidation
preference is equal to $21.131 (the "Series B Price").
Upon any such liquidation, dissolution or winding up of the Company, such
preferential amounts with respect to the Series A and Series B Preferred Stock
and any class or series of Parity Stock if not paid in full shall be distributed
pro rata in accordance with the aggregate preferential amounts of the Series A
and Series B Preferred Stock and such other classes or series of stock, if any.
The liquidation preferences of the Series A and Series B Preferred Stock
are not indicative of the price at which the shares trade.
Voting Rights of Series A Preferred Stock
The holders of shares of Series A Preferred Stock are not entitled to any
voting rights, except as required by applicable law and as summarized below.
So long as any shares of the Series A Preferred Stock are outstanding,
Times Mirror will not, without the consent of the holders of at least a majority
of the outstanding shares of Series A Preferred Stock, voting together with
holders of shares of any Parity Stock upon which like voting vote have been
conferred and are exercisable other than the Series B Preferred Stock (the
"Voting Parity Stock"), voting together as a class, (i) amend, alter or repeal
or otherwise change any provision of the Restated Certificate or the Series A
Certificate of Designation so as to materially and adversely affect the rights,
preferences, power or privileges of the Series A Preferred Stock, or (ii)
authorize, create, issue or increase the authorized or issued amount of any
class or series of any equity securities of Times Mirror, or any warrants,
options or other rights convertible or exchangeable into any class or series of
any Senior Stock or Parity Stock of Times Mirror. See "Ranking" and "Dividend
Rights" above. The creation or issuance of Junior Stock with respect to the
payment of dividends, or the distribution of assets upon liquidation,
dissolution or winding-up of Times Mirror, or a merger, consolidation,
reorganization or other business combination in which Times Mirror is not the
surviving entity, or any amendment which increases the number of authorized
shares of Series A Preferred Stock or Junior Stock with respect to the payment
of dividends, or substitutes the surviving entity in a merger or consolidation
for Times Mirror, shall not be considered to be a material and adverse change
requiring a separate vote of the holders of the Series A Preferred Stock and
Voting Parity Stock.
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At any time that dividends in an amount equal to dividend payments for six
Dividend Periods have accrued and remain unpaid, holders of Series A Preferred
Stock will have the right to a separate class vote to elect two directors to the
Board of Directors of Times Mirror (in addition to the then authorized number of
directors and any directors elected by the holders of Series B Preferred Stock)
at the next annual meeting of stockholders. Upon payment of all dividend
arrearages, holders of Series A Preferred Stock will be divested of such voting
rights until any future time when dividends in an amount equal to dividend
payments for six Dividend Periods have accrued and remained unpaid. The terms of
the special directors will thereupon terminate and the authorized number of
directors will be reduced by two.
Voting Rights of Series B Preferred Stock
The Series B Preferred Stock votes together with the Common Stock as a
single class with respect to all matters submitted to the stockholders of the
Company, except as otherwise required by law. Each share of Series B Preferred
Stock is entitled to one vote, provided that the number of votes per share will
be adjusted in the event and to the extent that the Common Equivalent Rate (as
defined below) is adjusted in the future. See "Mandatory Conversion of Series B
Preferred Stock" below.
In addition, upon the failure of the Company to pay dividends on the Series
B Preferred Stock for six Dividend Periods, the holders of Series B Preferred
Stock will be entitled to a separate class vote to elect two additional
directors to the Company's Board of Directors (in addition to the then
authorized number of directors and any directors elected by the holders of
Series A Preferred Stock) at the next annual meeting of stockholders. Upon
payment of all dividend arrearages, holders of Series B Preferred Stock will be
divested of such voting rights until any future time when dividends in an amount
equal to dividend payments for six Dividend Periods have accrued and remain
unpaid. The terms of the special directors will thereupon terminate and the
authorized number of directors will be reduced by two.
Any amendment of any of the provisions of the Restated Certificate or the
Series B Certificate of Designation that would either (i) authorize or create
any class of Senior Stock or (ii) alter or change the rights, preferences or
limitations of Series B Preferred Stock so as to affect such rights, preferences
or limitations in any material respect prejudicial to the holders thereof would
require the affirmative vote or written consent of the holders of at least
two-thirds of the total number of outstanding shares of Series B Preferred
Stock. Any amendment of any of the provisions of the Restated Certificate that
would either (A) increase the total number of authorized shares of Preferred
Stock or (B) authorize or create any class of Parity Stock would require the
affirmative vote or written consent of the holders of a majority of the total
number of outstanding shares of Series B Preferred Stock; provided, however,
that no such votes or affirmative consents of the holders of shares of Series B
Preferred Stock shall be required if, at or prior to the issuance of any Senior
Stock or Parity Stock, provision is made for the redemption of all of the shares
of Series B Preferred Stock then outstanding. Any amendment that would authorize
or create any series of Preferred Stock out of the existing authorized shares of
Preferred Stock, or that would authorize or create any class of Junior Stock
shall not be considered to affect adversely the rights, preferences or
limitations of the outstanding shares of Series B Preferred Stock and will not
require the consent of the holders of Series B Preferred Stock voting as a
separate class.
Except as otherwise required by law, the Series A Preferred Stock and the
Series B Preferred Stock do not vote together as a single class.
Optional Conversion of Series A Preferred Stock
The Series A Preferred Stock may be converted into Common Stock by Times
Mirror or by the holders thereof after the latest to occur of (i) the date on
which the assets of either Chandler Trust No. 1 or Chandler Trust No. 2
(collectively, the "Chandler Trusts") are distributed to the beneficiaries
thereof or (ii) February 1, 2025 (such later date being the "Redeemability
Date") at a conversion price measured by the average market value of Series A
Common Stock during the 20 trading days prior to the notice of election to
convert Series A Preferred Stock. It is not possible to identify the date on
which the assets of the Chandler Trusts may be distributed to their respective
beneficiaries as the assets of those trusts are to be distributed
15
<PAGE> 17
upon the death of the last of a list of specified persons. In lieu of such
conversion, each of the Chandler Trusts may elect to exchange shares of Series A
Preferred Stock for shares of Series A Common Stock and Series C Common Stock,
in the same proportion as its relative ownership of Series A Common Stock and
Series C Common Stock immediately prior to such redemption; provided, however,
that if the total votes represented by all shares of Common Stock owned by such
holder immediately after such exchange (expressed as a percentage of the total
voting power of Times Mirror outstanding immediately after such exchange) exceed
the greater of (i) the total votes represented by all Common Stock of Times
Mirror's predecessor ("Old Times Mirror Common Stock") owned by such holder as
of June 5, 1994 (expressed as a percentage of the total voting power of Times
Mirror's predecessor outstanding as of June 5, 1994) and (ii) the total votes
represented by all Common Stock owned by such holder immediately prior to such
exchange (expressed as a percentage of the total voting power of Times Mirror
outstanding immediately prior to such exchange), then, with respect to all such
excess votes, such holder has agreed that, to the extent any of such excess
votes are voted, it will cause such excess votes to be cast on all matters
proportionately on the same basis as the other votes cast at a meeting of
stockholders of Times Mirror.
Mandatory Conversion of Series B Preferred Stock
On the Mandatory Conversion Date (i.e., March 31, 1998), each outstanding
share of Series B Preferred Stock will convert automatically into (i) Series A
Common Stock at the Common Equivalent Rate and (ii) the right to receive an
amount in cash equal to all accrued and unpaid dividends on such Series B
Preferred Stock. The "Common Equivalent Rate" initially will be one share of
Series A Common Stock for each share of Series B Preferred Stock, subject to
adjustment in the event of certain stock dividends or distributions,
subdivisions, splits, combinations, issuances of certain rights or warrants or
distributions of certain assets with respect to the Series A Common Stock.
In addition, immediately prior to the effectiveness of a merger,
consolidation or similar extraordinary transaction involving the Company that
results in the conversion or exchange of Series A Common Stock into, or results
in the holders of Series A Common Stock having the right to receive, other
securities or other property (a "Fundamental Transaction"), each outstanding
share of Series B Preferred Stock will convert automatically into (i) Series A
Common Stock at the Common Equivalent Rate and (ii) the right to receive (A) an
amount in cash equal to the accrued and unpaid dividends on such Series B
Preferred Stock to and including the Settlement Date plus (B) an amount in cash
equal to the Dividend Premium (as defined below).
At the option of the Company, it may deliver on the Settlement Date, in
lieu of some or all of the cash consideration described in clause (ii) of the
preceding paragraph, a number of shares of Series A Common Stock to be
determined by dividing (i) the amount of cash consideration that the Company has
elected to pay in Series A Common Stock by (ii) the Current Market Price (as
defined below) as of the end of the second trading day immediately preceding the
date on which the Company gives notice regarding the Fundamental Transaction to
the holders of Series B Preferred Stock.
The term "Dividend Premium" with respect to a share of Series B Preferred
Stock shall mean an amount initially equal to $3.402. The amount constituting
the Dividend Premium shall be reduced following the issuance of the Series B
Preferred Stock by $.003127 per day on each day following March 23, 1995 to
$.190571 on January 30, 1998 and thereafter will be equal to zero.
The term "Current Market Price" on any date of determination means the
average closing price of a share of Series A Common Stock on the NYSE for the
five consecutive trading days ending on and including such date of
determination; provided, however, that if the closing price of the Series A
Common Stock on the NYSE on the trading day next following such five-day period
(the "next-day closing price") is less than 95% of such average closing price,
then the Current Market Price per share of Series A Common Stock on such date of
determination will be the next-day closing price; and provided further that,
with respect to any redemption or conversion of the Series B Preferred Stock, if
any event that results in an adjustment of the Common Equivalent Rate occurs
during the period beginning on the first day of such five-day period and
16
<PAGE> 18
ending on the applicable redemption or conversion date, the Current Market Price
as determined pursuant to the foregoing will be appropriately adjusted to
reflect the occurrence of such event.
The holders of Series B Preferred Stock do not have the right to require
conversion of the Series B Preferred Stock.
Optional Redemption of Series B Preferred Stock
At any time or from time to time prior to the Mandatory Conversion Date,
the Company shall have the right to call, in whole or in part, the outstanding
shares of Series B Preferred Stock for redemption. Upon any such redemption,
each holder of Series B Preferred Stock will receive in exchange for each share
of Series B Preferred Stock so called (i) a number of shares of Series A Common
Stock determined by dividing (A) the Call Price (as described below) then in
effect by (B) the Current Market Price as of the end of the second trading day
immediately preceding the date on which the Company gives notice regarding the
redemption to the holders of the Series B Preferred Stock and (ii) an amount in
cash equal to accrued and unpaid dividends on such Series B Preferred Stock to
and including the date of redemption (the "Redemption Date"). Notice of a
redemption must be given to the holders of Series B Preferred Stock at least 30
but not more than 60 days prior to the Redemption Date.
The Call Price was $31.92885 on March 23, 1995 and declines at a rate of
$.003127 on each day thereafter to $28.717421 on January 30, 1998 and thereafter
will equal $28.52685. The Call Price in effect at any time is equal to the sum
of (i) 135% of the Series B Price plus (ii) the Dividend Premium then in effect.
Market for Series A and Series B Preferred Stock
The Series A Preferred Stock is not traded on an exchange. The Series B
Preferred Stock is, however, traded on the NYSE.
BUSINESS COMBINATIONS
The Restated Certificate of Incorporation requires, subject to certain
exceptions summarized below, that any Business Combination (as defined below),
be approved by (i) an affirmative vote of the holders of not less than 80% of
all outstanding shares of capital stock entitled to vote generally in the
election of directors of the Company (the "80% Voting Requirement") and (ii) the
affirmative vote of the holders of a majority of the Disinterested Shares (as
defined below). Business Combinations include generally the following: (i)
mergers or reorganizations of the Company or its subsidiaries with or into a
Related Person (as defined below) or of a Related Person with or into the
Company or a subsidiary; (ii) reorganizations that would have the effect of
increasing the voting power of a Related Person; (iii) certain acquisitions by
the Company or a subsidiary of securities issued by or assets of a Related
Person; and (iv) liquidations, sales or transfers to a Related Person of assets
of the Company or one or more subsidiaries constituting a substantial part of
the Company.
A Business Combination does not need to satisfy the foregoing approval
requirements if the Business Combination has been approved by a majority of the
Directors who are unaffiliated with the Related Person and who were members of
the Board of Directors of the Company before the Company was incorporated in the
State of Delaware, or who became a member of the Board before the Related Person
became a Related Person. Business Combinations in which the shareholders of the
Company are to receive cash, securities or other property in exchange for their
shares of capital stock do not need to satisfy the 80% Voting Requirement if (i)
the value of the consideration meets certain thresholds of fairness, as
specified in the Restated Certificate of Incorporation, and (ii) the Business
Combination is approved by the affirmative vote of the holders of a majority of
the Disinterested Shares.
As used in the Restated Certificate of Incorporation, a Related Person is a
person or entity, or an affiliate or associate (as defined in Rule 12b-2 under
the Exchange Act) of such person or entity, that beneficially owns, in the
aggregate, five percent or more of the outstanding voting interests of the
Company; provided, however, the term Related Person does not include (i) any
person or entity that beneficially owned five percent or more of the common
stock of the Company on the date upon which the Company was incorporated
17
<PAGE> 19
in the State of Delaware, or (ii) any employee benefit plan established to
provide benefits for employees of the Company or its subsidiaries, any trust
plan thereto, or any trustee or fiduciary when acting in such capacity with
respect to any such plan or trust. The term Disinterested Shares means, as to
any Related Person, shares of voting stock held by stockholders other than such
Related Person.
DESCRIPTION OF WARRANTS
The Company may issue Warrants, including Warrants to purchase Debt
Securities ("Debt Warrants") and Warrants to purchase Common Stock or Preferred
Stock ("Stock Warrants"). Warrants may be issued independently of or together
with any other Securities and may be attached to or separate from such
Securities. Each series of Warrants will be issued under a separate Warrant
Agreement (each a "Warrant Agreement") to be entered into between the Company
and a Warrant Agent ("Warrant Agent") the form of which will be filed as an
exhibit to the Registration Statement of which this Prospectus is a part. The
Warrant Agent will act solely as an agent of the Company in connection with the
Warrant of such series and will not assume any obligation or relationship of
agency for or with holders or beneficial owners of Warrants. The following sets
forth certain general terms and provisions of the Warrants offered hereby.
Further terms of the Warrants and the applicable Warrant Agreement will be set
forth in the applicable Prospectus Supplement.
DEBT WARRANTS
The applicable Prospectus Supplement will describe the terms of any Debt
Warrants, including the following: (i) the title of such Debt Warrants; (ii) the
offering price for such Debt Warrants, if any; (iii) the aggregate number of
such Debt Warrants; (iv) the designation and terms of the Debt Securities
purchasable upon exercise of such Debt Warrants; (v) if applicable, the
designation and terms of the Securities with which such Debt Warrants are issued
and the number of such Debt Warrants issued with each such Security; (vi) if
applicable, the date from and after which such Debt Warrants and any Securities
issued therewith will be separately transferable; (vii) the principal amount of
Debt Securities purchasable upon exercise of a Debt Warrant and the price at
which such principal amount of Debt Securities may be purchased upon exercise;
(viii) the date on which the right to exercise such Debt Warrants shall commence
and the date on which such right shall expire; (ix) if applicable, the minimum
or maximum amount of such Debt Warrants that may be exercised at any one time;
(x) whether the Debt Warrants represented by the Debt Warrant certificates or
Debt Securities that may be issued upon exercise of the Debt Warrants will be
issued in registered or bearer form; (xi) information with respect to book-entry
procedures, if any; (xii) the currency, currencies or currency units in which
the offering price, if any, and the exercise price are payable; (xiii) if
applicable, a discussion of certain United States federal income tax
considerations; (xiv) the antidilution provisions of such Debt Warrants, if any;
(xv) the redemption or call provisions, if any, applicable to such Debt
Warrants; and (xvi) any additional terms of the Debt Warrants, including terms,
procedures and limitations relating to the exchange and exercise of such Debt
Warrants.
STOCK WARRANTS
The applicable Prospectus Supplement will describe the terms of any Stock
Warrants, including the following: (i) the title of such Stock Warrants; (ii)
the offering price of such Stock Warrants, if any; (iii) the aggregate number of
such Stock Warrants; (iv) the designation and terms of the Common Stock or
Preferred Stock purchasable upon exercise of such Stock Warrants; (v) if
applicable, the designation and terms of the Securities with which such Stock
Warrants are issued and the number of such Stock Warrants issued with each such
Security; (vi) if applicable, the date from and after which such Stock Warrants
and any Securities issued therewith will be separately transferable; (vii) the
number of shares of Common Stock or Preferred Stock purchasable upon exercise of
a Stock Warrant and the price at which such shares may be purchased upon
exercise; (viii) the date on which the right to exercise such Stock Warrants
shall commence and the date on which such right shall expire; (ix) if
applicable, the minimum or maximum amount of such Stock Warrants that may be
exercised at any one time; (x) the currency, currencies or currency units in
which the offering price, if any, and the exercise price are payable; (xi) if
applicable, a discussion of certain United States federal income tax
considerations; (xii) the antidilution provisions of such Stock warrants, if
any;
18
<PAGE> 20
(xiii) the redemption or call provisions, if any, applicable to such Stock
Warrants; and (xiv) any additional terms of such Stock Warrants, including
terms, procedures and limitations relating to the exchange and exercise of such
Stock Warrants.
PLAN OF DISTRIBUTION
The Company may sell the Securities to one or more underwriters for public
offering and sale by them or may sell the Securities to investors directly or
through agents. Any such underwriter or agent involved in the offer and sale of
the Securities will be named in the applicable Prospectus Supplement. The
Company may sell Securities directly to investors on its own behalf in those
jurisdictions where it is authorized to do so.
Underwriters may offer and sell the Securities at a fixed price or prices,
which may be changed, at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices. The Company
also may offer and sell the Securities in exchange for one or more of its
outstanding debt securities or other securities. The Company also may, from time
to time, authorize dealers, acting as Company agents, to offer and sell the
Securities upon such terms and conditions as may be set forth in the Prospectus
Supplement. In connection with the sale of the Securities, underwriters may
receive compensation from the Company in the form of underwriting discounts,
concessions or commissions and may also receive commissions from purchasers of
the Securities for whom they may act as agent. Underwriters may sell the
Securities to or through dealers, and such dealers may receive compensation in
the form of discounts, concessions or commissions from the underwriters or
commissions from the purchasers for which they may act as agents.
Any underwriting compensation paid by the Company to underwriters or agents
in connection with the offering of the Securities, and any discounts or
concessions or commissions allowed by underwriters to participating dealers,
will be set forth in the applicable Prospectus Supplement. Dealers and agents
participating in the distribution of the Securities may be deemed to be
underwriters, and any discounts and commissions received by them and any profit
realized by them on resale of the Securities may be deemed to be underwriting
discounts and commissions. Underwriters, dealers and agents may be entitled,
under agreements entered into with the Company, to indemnification against and
contribution toward certain civil liabilities.
Certain of the underwriters, dealers and agents and their associates may
engage in transactions with, and perform services for, the Company in the
ordinary course of business.
The Debt Securities, Preferred Stock, Series B Common Stock and Warrants
will be new issues of securities with no established trading market. Any
underwriters or agents to or through which Securities are sold by the Company
for public offering and sale may make a market in such Securities, but such
underwriters or agents will not be obligated to do so and any of them may
discontinue any market making at any time without notice. No assurance can be
given as to the liquidity of or trading market for any Debt Securities,
Preferred Stock, Series B Common Stock or Warrants.
CERTAIN LEGAL MATTERS
Gibson, Dunn & Crutcher has rendered an opinion (filed as an exhibit to the
Registration Statement of which this Prospectus is a part) with respect to the
validity of the Securities covered by this Prospectus. Certain legal matters in
connection with offerings made by this Prospectus may be passed on for any
underwriters, agents or dealers by counsel named in the Prospectus Supplement.
EXPERTS
The consolidated financial statements of The Times Mirror Company appearing
in The Times Mirror Company's Annual Report (Form 10-K) for the year ended
December 31, 1994, have been audited by Ernst & Young LLP, independent auditors,
as set forth in their report thereon included therein and incorporated herein by
reference. Such consolidated financial statements are incorporated herein by
reference in reliance upon such report given upon the authority of such firm as
experts in accounting and auditing.
19
<PAGE> 21
- ------------------------------------------------------
- ------------------------------------------------------
NO DEALER, SALESMAN OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR IN ANY PROSPECTUS SUPPLEMENT
AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED
UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER. NEITHER THE
DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT NOR ANY SALE MADE
HEREUNDER OR THEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE ANY IMPLICATION
THAT THE INFORMATION CONTAINED HEREIN OR THEREIN IS CORRECT AS OF ANY DATE
SUBSEQUENT TO THE DATE HEREOF OR THEREOF. THIS PROSPECTUS AND ANY PROSPECTUS
SUPPLEMENT DO NOT CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY
JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH
THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO
ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information................. 2
Incorporation of Certain Documents by
Reference........................... 2
The Company........................... 3
Use of Proceeds....................... 3
Ratio of Earnings to Fixed Charges and
Ratio of Earnings to Fixed Charges
and Preferred Stock Dividends....... 3
Description of Debt Securities........ 3
Description of Capital Stock.......... 8
Description of Warrants............... 18
Plan of Distribution.................. 19
Certain Legal Matters................. 19
Experts............................... 19
</TABLE>
------------------------
- ------------------------------------------------------
- ------------------------------------------------------
- ------------------------------------------------------
- ------------------------------------------------------
THE TIMES MIRROR
COMPANY
$200,000,000
------------------------
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
WARRANTS
------------------------
--------------------
PROSPECTUS
--------------------
, 1996
- ------------------------------------------------------
- ------------------------------------------------------
<PAGE> 22
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION*
The following are the estimated expenses of the issuance and distribution
of the securities being registered, all of which will be paid by the Registrant.
<TABLE>
<S> <C>
Registration fee.................................................. $ 68,966
Blue Sky fees and expenses........................................ 1,000
Exchange listing fees............................................. 0
Printing expenses................................................. 25,000
Legal fees and expenses........................................... 15,000
Accounting fees and expenses...................................... 35,000
Trustee's fees and expenses (including counsel fees).............. 15,000
Miscellaneous..................................................... 0
--------
Total................................................... $159,966
========
</TABLE>
- ---------------
* All amounts are estimated except Commission's registration fee.
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS
Pursuant to Section 102(b)(7) of the General Corporation Law of the State
of Delaware (the "GCL"), the Amended and Restated Certificate of Incorporation
of Times Mirror eliminates the liability of directors of Times Mirror to Times
Mirror or its stockholders for breach of fiduciary duties as a director, except
for liabilities related to breach of the duty of loyalty, acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, and certain other liabilities.
As permitted by Section 145 of the GCL, Article VII, Section 1 of the
Bylaws of Times Mirror provides for the indemnification of its directors,
officers, and employees against expenses actually and reasonably incurred in
connection with certain stated proceedings and under certain stated conditions.
ITEM 16. EXHIBITS
(A) EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<C> <S>
1.1 Form of Underwriting Agreement.
4.1 Restated Certificate of Incorporation of New TMC Inc.**
4.2 Certificate of Amendment of Restated Certificate of Incorporation of New
TMC Inc.**
4.3 Certificate of Designation of Series C Common Stock, par value $1.00 per
share, of The Times Mirror Company (formerly New TMC Inc.)**
4.4 Certificate of Designation of Series A Preferred Stock, par value $1.00
per share, of The Times Mirror Company.***
4.5 Certificate of Designation of Series B Preferred Stock, par value $1.00
per share, of The Times Mirror Company.***
4.6 Bylaws of The Times Mirror Company.****
4.7 Form of the Indenture.****
4.8 Form of Certificate of Designation with respect to Preferred Stock.
4.9 Form of specimen certificate representing shares of Preferred Stock*****
</TABLE>
II-1
<PAGE> 23
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<C> <S>
4.10 Form of specimen certificate representing shares of Common Stock******
4.11 Form of Warrant Agreement (for equity securities).
4.12 Form of Warrant Agreement (for debt securities).
5 Opinion of Gibson, Dunn & Crutcher regarding the legality of securities
being registered.
12 Computation of Ratio of Earnings to Fixed Charges and Ratio of Earnings
to Fixed Charges and Preferred Stock Dividends.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Gibson, Dunn & Crutcher (included in Exhibit 5 to this
Registration Statement).
24 Powers of Attorney (included on pages II-4 and II-5 of this Registration
Statement).****
25 Statement of Eligibility of Trustee on Form T-1.****
</TABLE>
- ---------------
* To be filed by amendment or incorporated by reference in connection
with the offering of the Securities.
** Filed as an exhibit to the Registration Statement on Form S-4 of the
Registrant (File No. 33-87482) and incorporated herein by reference.
*** Filed as an exhibit to the Registration Statement on Form S-4 of the
Registrant (File No. 33-80154) and incorporated herein by reference.
**** Previously filed.
***** Filed as an exhibit to the Registration Statement on Form 8-A dated
December 22, 1994 and incorporated herein by reference.
****** Filed as an exhibit to the Registration Statement on Form 8-A dated
November 21, 1994 and incorporated herein by reference.
(b) FINANCIAL SCHEDULES.
[Not applicable.]
(c) OPINIONS OF FINANCIAL ADVISORS.
[Not applicable.]
ITEM 17. UNDERTAKINGS
(a) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with respect the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would
not exceed that which was registered) and any deviation from the low or
high and of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume
II-2
<PAGE> 24
and price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement;
provided, however, that paragraphs (i) and (ii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 and Section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(b) That, for purposes of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) That, for purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant to section 13(a) or
section 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the Exchange
Act) that is incorporated by reference in the Registration Statement shall be
deemed to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(d) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(e) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described in Item 15, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
(f) For purposes of determining any liability under the Securities Act, the
information omitted from the form of prospectus filed as a part of a
registration statement in reliance upon Rule 430A and contained in the form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of the registration
statement as of the time it was declared effective.
(g) For the purpose of determining any liability under the Securities Act,
each post-effective amendment that contains a form of prospectus shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(h) The undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Trust Indenture Act.
II-3
<PAGE> 25
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Los Angeles, State of California, on February 23, 1996.
THE TIMES MIRROR COMPANY
By: THOMAS UNTERMAN
------------------------------------
Thomas Unterman
Senior Vice President and Chief
Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
has been signed by the following persons in their capacities and on the dates
indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ----------------------------------------------- -------------------------- -------------------
<S> <C> <C>
* Chairman of the Board, February 23, 1996
- ----------------------------------------------- President, and Chief
Mark H. Willes Executive Officer
(Principal Executive
Officer)
THOMAS UNTERMAN Senior Vice President and February 23, 1996
- ----------------------------------------------- Chief Financial Officer
Thomas Unterman (Principal Financial and
Accounting Officer)
Executive Vice President February , 1996
- ----------------------------------------------- and Director
Richard T. Schlosberg III
* Director February 23, 1996
- -----------------------------------------------
C. Michael Armstrong
* Director February 23, 1996
- -----------------------------------------------
Gwendolyn Garland Babcock
* Director February 23, 1996
- -----------------------------------------------
Donald R. Beall
* Director February 23, 1996
- -----------------------------------------------
John E. Bryson
* Director February 23, 1996
- -----------------------------------------------
Bruce Chandler
* Director February 23, 1996
- -----------------------------------------------
Otis Chandler
* Director February 23, 1996
- -----------------------------------------------
Robert F. Erburu
* Director February 23, 1996
- -----------------------------------------------
Clayton W. Frye, Jr.
</TABLE>
II-4
<PAGE> 26
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ----------------------------------------------- -------------------------- -------------------
<S> <C> <C>
* Director February 23, 1996
- -----------------------------------------------
David Laventhol
* Director February 23, 1996
- -----------------------------------------------
Dr. Alfred E. Osborne, Jr.
* Director February 23, 1996
- -----------------------------------------------
Joan A. Payden
* Director February 23, 1996
- -----------------------------------------------
William Stinehart, Jr.
* Director February 23, 1996
- -----------------------------------------------
Harold M. Williams
* Director February 23, 1996
- -----------------------------------------------
Warren B. Williamson
* Director February 23, 1996
- -----------------------------------------------
Dr. Edward Zapanta
*By: THOMAS UNTERMAN
------------------------------------------
Thomas Unterman
Attorney-in-fact
</TABLE>
II-5
<PAGE> 27
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
NUMBERED
EXHIBIT NO. DESCRIPTION PAGE
----------- ------------------------------------------------------------- ------------
<C> <S> <C>
1.1 Form of Underwriting Agreement...............................
4.1 Restated Certificate of Incorporation of New TMC Inc.**......
4.2 Certificate of Amendment of Restated Certificate of
Incorporation of New TMC Inc.**..............................
4.3 Certificate of Designation of Series C Common Stock, par
value $1.00 per share, of The Times Mirror Company (formerly
New TMC Inc.)**..............................................
4.4 Certificate of Designation of Series A Preferred Stock, par
value $1.00 per share, of The Times Mirror Company***........
4.5 Certificate of Designation of Series B Preferred Stock, par
value $1.00 per share, of The Times Mirror Company***........
4.6 Bylaws of The Times Mirror Company****.......................
4.7 Form of the Indenture****....................................
4.8 Form of Certificate of Designation with respect to Preferred
Stock........................................................
4.9 Form of specimen certificate representing shares of Preferred
Stock*****
4.10 Form of specimen certificate representing shares of Common
Stock******
4.11 Form of Warrant Agreement (for equity securities)............
4.12 Form of Warrant Agreement (for debt securities)..............
5 Opinion of Gibson, Dunn & Crutcher regarding the legality of
securities being registered..................................
12 Computation of Ratio of Earnings to Fixed Charges and Ratio
of Earnings to Fixed Charges and Preferred Stock Dividends...
23.1 Consent of Ernst & Young LLP.................................
23.2 Consent of Gibson, Dunn & Crutcher (included in Exhibit 5 to
this Registration Statement).................................
24 Powers of Attorney (included on pages II-4 and II-5 of this
Registration Statement)****..................................
25 Statement of Eligibility of Trustee on Form T-1****..........
</TABLE>
- ---------------
* To be filed by amendment or incorporated by reference in connection with
the offering of the Securities.
** Filed as an exhibit to the Registration Statement on Form S-4 of the
Registrant (File No. 33-87482) and incorporated herein by reference.
*** Filed as an exhibit to the Registration Statement on Form S-4 of the
Registrant (File No. 33-80154) and incorporated herein by reference.
**** Previously filed.
***** Filed as an exhibit to the Registration Statement on Form 8-A dated
December 22, 1994 and incorporated herein by reference.
****** Filed as an exhibit to the Registration Statement on Form 8-A dated
November 21, 1994 and incorporated herein by reference.
<PAGE> 1
EXHIBIT 1.1
THE TIMES MIRROR COMPANY
UNDERWRITING AGREEMENT
[DEBT/EQUITY] SECURITIES
To the Representatives named
in Schedule I hereto and
the Underwriters named
in Schedule II hereto
Dear Sirs:
The Times Mirror Company, a Delaware corporation (the "Company"), proposes
to sell to the underwriters named in Schedule II hereto (the "Underwriters")
for whom you are acting as representatives (the "Representatives"), the
principal amount of its securities identified in Schedule I hereto (the
"Securities"). The Securities will be issued [under an indenture, dated as of
_________, 199_ (the "Indenture"), between the Company and __________, as
trustee (the "Trustee")][a Certificate of Designation (the "Certificate of
Designation")][a Warrant Agreement, dated as of ___________, 199_ (the "Warrant
Agreement")]. If the firm or firms listed in Schedule II hereto include only
the firm or firms listed in Schedule I hereto, then the terms "Underwriters"
and "Representatives," as used herein, shall each be deemed to refer to such
firm or firms.
1. Representations and Warranties. The Company represents and warrants
to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933 (the "Act") and has filed with
the Securities and Exchange Commission (the "Commission") a
registration statement on such Form (the file number of which is
set forth in Schedule I hereto), which has become effective, for
the registration under the Act of the Securities. Such
registration statement, as amended at the date of this Agreement,
meets the requirements set forth in Rule 415(a)(1)(x) under the
Act and complies in all other material respects with said Rule.
The Company proposes to file with the Commission pursuant to Rule
424(b) under the Act an amendment and supplement to the form of
Prospectus included in such Registration Statement relating to the
Securities and the plan of distribution thereof and has previously
advised you of all further information (financial and other)
<PAGE> 2
with respect to the Company to be set forth therein. Such
registration statement, including the exhibits thereto, as amended
at the date of this Agreement, is hereinafter called the
"Registration Statement"; such prospectus in the form in which it
appears in the Registration Statement is hereinafter called the
"Basic Prospectus"; and such supplemented form of prospectus, in
the form in which it shall be filed with the Commission pursuant
to Rule 424(b) (including the Basic Prospectus as so amended and
supplemented) is hereinafter called the "Final Prospectus". Any
preliminary form of the Final Prospectus which has heretofore been
filed pursuant to Rule 424(b) is hereinafter called the
"Preliminary Final Prospectus". Any reference herein to the
Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the
Securities Exchange Act of 1934 (the "Exchange Act") on or before
the date of this Agreement, or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be; and any reference herein to the
terms "amend", "amendment" or "Supplement" with respect to the
Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer
to and include the filing of any document under the Exchange Act
after the date of this Agreement, or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be, deemed to be incorporated therein
by reference.
(b) As of the date hereof, when the Final Prospectus is first
filed pursuant to Rule 424(b) under the Act, when, prior to the
Closing Date (as hereinafter defined), any amendment to the
Registration Statement becomes effective (including the filing of
any document incorporated by reference in the Registration
Statement), when any supplement to the Final Prospectus is filed
with the Commission and at the Closing Date, (i) the Registration
Statement, as amended as of any such time, and the Final
Prospectus, as amended or supplemented as of any such time, [and
the Indenture] will comply in all material respects with the
applicable requirements of the Act[, the Trust Indenture Act of
1939 (the "Trust Indenture Act")] and the Exchange Act and the
respective rules thereunder and (ii)
2
<PAGE> 3
neither the Registration Statement, as amended as of any such
time, nor the Final Prospectus, as amended or supplemented as of
any such time, will contain any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; provided, however, that the Company makes no
representations or warranties as to (i) [that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture
Act of the Trustee or (ii)] the information contained in or
omitted from the Registration Statement or the Final Prospectus or
any amendment thereof or supplement thereto in reliance upon and
in conformity with information furnished in writing to the Company
by or on behalf of any underwriter through the Representatives
specifically for use in connection with the preparation of the
Registration Statement and the Final Prospectus.
2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Company agrees to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, at the purchase price set forth in
schedule I hereto the [principal amount][number of units] of the Securities set
forth opposite such Underwriter's name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the Securities shall
be made at the office, on the date and at the time specified in Schedule I
hereto, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 9 hereof (such date
and time of delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the Securities shall be made to the
Representatives for the respective accounts of the several Underwriters through
the Representatives against payment of the purchase price thereof payable to
the Company in the funds specified in Schedule I hereto at the Company's
office, Times Mirror Square, Los Angeles, California 90053, as provided in
Schedule I hereto. Certificates for the Securities shall be registered in such
names and in such denominations as the Representatives may request not less
than three full business days in advance of the Closing Date.
The Company agrees to have the Securities available for inspection,
checking and packaging by the Representatives in New York, New York, not later
than 3:00 PM, New York time, on the business day prior to the Closing Date.
3
<PAGE> 4
4. Agreements. The Company agrees with the several Underwriters that:
(a) Prior the termination of the offering of the Securities,
the Company will not file any amendment of the Registration
Statement or amendment or supplement (including the Final
Prospectus) to the Basic Prospectus unless the Company has
furnished you a copy for your review prior to filing and will not
file any such proposed amendment or supplement to which you
reasonably object. Subject to the foregoing sentence, the Company
will cause the Final Prospectus to be filed with the Commission in
accordance with the requirements of Rule 424(b). The Company will
promptly advise the Representatives (i) when the Final Prospectus
shall have been filed with the Commission pursuant to Rule 424(b),
(ii) when any amendment to the Registration Statement relating to
the Securities shall have become effective, (iii) of any request
by the Commission for any amendment of the Registration Statement
or amendment of or supplement to the Final Prospectus or for any
additional information, (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for
that purpose and (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification
of the Securities for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose. The Company
will use every reasonable effort to prevent the issuance of any
such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event
occurs as a result of which the Final Prospectus as then amended
or supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which
they were made not misleading, or if it shall be necessary to
amend or supplement the Final Prospectus to comply with the Act or
the Exchange Act or the respective rules thereunder, the Company
promptly will prepare and file with the Commission, subject to the
first sentence of paragraph (a) of this Section 4, an amendment or
supplement which will correct such
4
<PAGE> 5
statement or omission or an amendment which will effect such
compliance.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company which will satisfy
the provisions of Section 11(a) of the Act and Rule 158 under the
Act.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto) and each
amendment thereto which shall become effective on or prior to the
Closing Date and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, as many copies
of any Preliminary Final Prospectus and the Prospectus and any
amendments thereof and supplements thereto as the Representatives
may reasonably request. The Company will pay the expenses of
printing all documents relating to the offering.
(e) The Company agrees to use its best efforts to qualify the
Securities and to assist in the qualification of the Securities by
or on behalf of the Representatives or of any of one or more of
the several Underwriters for sale under the laws of such States as
the Representatives may designate, to maintain such qualifications
in effect so long as required for the distribution of the
Securities and to assist in the determination of the legality of
the Securities for purchase by institutional investors under the
laws of such States as the Representatives may designate; provided
that the Company shall not be required to qualify as a foreign
corporation in any State, or to consent to service of process in
any State other than with respect to claims arising out of the
offering or sale of the Securities.
(f) Until the business day following the Closing Date, the
Company will not, without the consent of the Representatives,
offer, sell or contract to sell, or announce the offering of, any
[debt/equity] securities (i) covered by the Registration Statement
or any other registration statement filed under the Act or (ii) to
purchasers for resale in reliance on the exemption from
registration under the Act provided by Rule 144A under the Act.
5
<PAGE> 6
5. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Securities shall be subject to the accuracy of
the representations and warranties on the part of the Company contained herein
as of the date hereof, as of the date of the effectiveness of any amendment to
the Registration Statement filed prior to the Closing Date (including the
filing of any document incorporated by reference therein) and as of the Closing
Date, to the accuracy of the statements of the Company made in any certificates
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have
been issued and no proceedings for that purpose shall have been
instituted or threatened; and the Final Prospectus shall have been
filed with the Commission in accordance with the requirements of
Rule 424(b).
(b) At the Closing Date, the Representatives shall have
received the written opinion, dated the Closing Date, of counsel
of the Company, to the effect that:
(i) The Company is a corporation validly organized and
existing in good standing under the laws of the State of
Delaware; the Company has full corporate power to own its
properties and conduct its business as now being conducted;
and the Company is duly qualified and in good standing in
each jurisdiction in which the nature of its business or the
character of its properties makes such qualification
necessary;
(ii) [The Indenture has been duly authorized, executed
and delivered, is qualified under the Trust Indenture Act,
and][The Warrant Agreement] is a legally valid and binding
instrument, enforceable in accordance with its terms, except
as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws or equitable
principles relating to or limiting creditors' rights
generally;
(iii) The Securities have been duly authorized and,
when executed, authenticated, issued and delivered against
payment therefor in accordance with [the Indenture][the
6
<PAGE> 7
Certificate of Designation][the Warrant Agreement] and this
Agreement, will constitute legally valid and binding
obligations of the Company, enforceable in accordance with
their terms, subject, as to enforcement, to the matters set
forth in clause (ii) above;
(iv) The Registration Statement has become effective
under the Act, and, to the best of the knowledge of such
counsel: no stop order suspending the effectiveness of the
Registration Statement or of any part thereof has been
issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Act;
(v) The Registration Statement and the Final Prospectus, and
each amendment or supplement thereto, if any, as of their
respective effective or issue dates, complied as to form in all
material respects with the requirements of the Act [and the Trust
Indenture Act], and the applicable published rules and regulations
of the Commission thereunder;
(vi) The documents incorporated by reference in the Final
Prospectus, when they became effective or were filed with the
Commission, as the case may be, complied as to form in all material
respects with the requirements of the Act or the Exchange Act, as
applicable, and the applicable published rules and regulations of
the Commission thereunder;
(vii) The descriptions in the Registration Statement and the
Final Prospectus of federal and state statutes, legal and
governmental proceedings and contracts and other documents are
accurate and fairly present the information required to be shown;
and such counsel does not know of any legal or governmental
proceedings required to be described in the
7
<PAGE> 8
Final Prospectus, which are not described as required or of
any contracts or documents of a character required to be
described in the Registration Statement or the Final
Prospectus or to be filed as exhibits to the Registration
Statement which are not described and filed as required;
(viii) All legally required proceedings in connection with
the authorization of the Securities, the issue and sale of
the Securities by the Company pursuant hereto and the
authorization of the transactions related to such
authorization, issue and sale, as may be legally required
with respect to all or any of such matters, have been had or
obtained, except that the offer and sale of the Securities
in certain jurisdictions may be subject to the provisions of
the securities or Blue Sky laws of such jurisdictions;
(ix) The execution, delivery and performance of [the
Indenture][the Warrant Agreement] and this Agreement, the
issuance and sale of the Securities, and compliance with the
terms and provisions hereof or thereof, will not result in a
breach or violation of any of the terms and provisions of,
or constitute a default under, the charter or bylaws of the
Company, or, to his knowledge, any statute, rule, regulation
or order of any governmental agency or body or any court
having jurisdiction over the Company or its subsidiaries or
any of its properties or any agreement or instrument to
which the Company or any such subsidiary is a party or by
which the Company or any such subsidiary is bound or to
which any of the properties of the Company or any such
subsidiary is subject; and
(x) This Agreement has been duly authorized, executed
and delivered by the Company.
Such counsel shall also state that no facts have come to such counsel's
attention which lead such counsel to believe that the Registration Statement or
the Final Prospectus, or any amendment or supplement thereto, as of their
respective effective or issue dates, contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, or that the
Final Prospectus, at the Closing Date, contained any untrue statement of a
material fact or omitted to state any material fact necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading; it being understood that such counsel need not pass upon
the financial statements and other financial data contained in the Registration
Statement or the Final Prospectus;
In rendering the opinion called for above, counsel for the Company may
rely upon appropriate certificates of public officials and officers or
employees of the Company and the Trustee as to factual matters and upon
opinions, dated the Closing Date, of other counsel.
8
<PAGE> 9
In rendering the opinion called for by clauses (ii) and (iii) above, legal
counsel may state that they are expressing no opinion as to the availability of
equitable remedies and may advise that a Delaware court may not strictly
enforce certain covenants of [the Indenture] [the Warrant Agreement] [or] the
Securities or allow acceleration of the due date of the Securities if it
concludes that such enforcement or acceleration, would be unreasonable under
the then existing circumstances, although, in their opinion, acceleration would
be available if an event of default occurs as a result of a material breach of
a material covenant contained in [the Indenture][the Warrant Agreement] [or]
the Securities.
(c) The Representatives shall have received from
_____________, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to the issuance and
sale of the Securities, [the Indenture,][the Certificate of
Designation][the Warrant Agreement] the Registration Statement,
the Final Prospectus and other related matters as the
Representatives may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(d) The Representatives shall have received certificates of
the Chairman of the Board, the President or any Vice President of
the Company, dated the Closing Date, to the effect that the signer
of such certificate has carefully examined the Registration
Statement, the Final Prospectus and this Agreement and that to the
best of his knowledge after reasonable investigation:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect
as if made on the Closing Date and the Company has complied
with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the
Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement, as amended, has been issued and no
proceedings for that purpose have been instituted or, to the
Company's knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus, there has been
no material adverse
9
<PAGE> 10
change in the financial condition or results of operations
of the Company, except as set forth in or contemplated in
the Final Prospectus or as described in such certificate.
(e) At the Closing Date, [Ernst & Young LLP] shall have
furnished to the Representatives a letter or letters (which may
refer to letters previously delivered to one or more of the
Representatives) dated as of the Closing Date, in form and
substance satisfactory to the Representatives, confirming that
they are independent accountants with respect to the Company
within the meaning of the Act and the Exchange Act and the
respective applicable published rules and regulations thereunder,
and stating in effect that:
(i) in their opinion the audited financial statements
and financial statement schedules included or incorporated
in the Registration Statement and the Final Prospectus and
reported on by them comply as to form in all material
respects with the applicable accounting requirements of the
Act and the Exchange Act and the related published rules and
regulations;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company; carrying
out certain specified procedures (but not an examination in
accordance with generally accepted auditing standards) which
would not necessarily reveal matters of significance with
respect to the comments set forth in such letter; a reading
of the minutes of the meetings of the stockholders,
directors and executive committee of the Company; and
inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the
Company as to transactions and events subsequent to the date
of the most recent audited financial statements incorporated
in the Registration Statement and the Final Prospectus,
nothing came to their attention which caused them to believe
that:
(1) any unaudited financial statements included
or incorporated in the Registration Statement and the
Final Prospectus do not comply as to form in all
material respects with applicable
10
<PAGE> 11
accounting requirements and with the published rules
and regulations of the Commission with respect to
financial statements included or incorporated in
quarterly reports on Form 10-Q of the Company under
the Exchange Act; and said unaudited financial
statements are not fairly presented (except as
permitted by Form 10-Q) in conformity with generally
accepted accounting principles applied on a basis
substantially consistent with that of the audited
financial statements included or incorporated in the
Registration Statement and the Final Prospectus; or
(2) with respect to the period subsequent to the
date of the most recent financial statements
incorporated in the Registration Statement and the
Final Prospectus, there were any decreases, at the
date of the latest available unaudited financial
statements prepared by the Company, in the
stockholders' equity of the Company or any changes,
at a specified date not more than five business days
prior to the date of the letter, in the long-term
debt or capital stock of the Company (other than
changes resulting from conversions of outstanding
securities) as compared with the amounts shown on the
most recent consolidated balance sheet included or
incorporated in the Registration Statement and the
Final Prospectus, or for the period from the date of
the most recent financial statements incorporated in
the Registration Statement and the Final Prospectus
to the date of the latest available unaudited
financial statements prepared by the Company there
were any decreases, as compared with the
corresponding period in the preceding year, in total
operating revenues or net income, except in all
instances for changes or decreases set forth in such
letter, in which case the letter shall be accompanied
by an explanation by the Company as to the
significance thereof unless said explanation is not
deemed necessary by the Representatives; and
11
<PAGE> 12
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical
nature (which is limited to accounting, financial or
statistical information derived from the general accounting
records of the Company) set forth in the Registration
Statement, as amended, and the Final Prospectus, as amended
or supplemented, including the information included or
incorporated in Items 1, 2, 6, 7 and 11 of the Company's
annual report on Form 10-K incorporated therein or in
"Management's Discussion and Analysis of Financial Condition
and Results of operations" included or incorporated in any
of the Company's quarterly reports on Form 10-Q incorporated
therein, agrees with the accounting records of the Company
and its subsidiaries, excluding any questions of legal
interpretation.
In addition, at the Closing Date, [Ernst & Young LLP] shall have furnished
to the Representatives a letter or letters, in form and substance satisfactory
to the Representatives, to the effect set forth in the introductory paragraph
to this paragraph (f), in subparagraphs (i) and (ii) (1) above and, to the
extent referring to information contained in Exchange Act reports incorporated
in the Registration Statement and the Final Prospectus, in subparagraph (iii)
above.
(f) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Final
Prospectus, there shall not have been (i) any material adverse
change described in the certificate referred to in paragraph (e)
of this Section 5, (ii) any change or decrease specified in the
letter or letters referred to in paragraph (f) of this Section 5
or (iii) any change, or any development involving a prospective
change, in or affecting the business or properties of the Company
and its subsidiaries the effect of which, in any case referred to
in clause (i), (ii) or (iii) above, is, in the judgment of the
Representatives, so material and adverse as to make it impractical
or inadvisable to proceed with the offering or the delivery of the
Securities as contemplated by the Registration Statement and the
Final Prospectus.
(g) Subsequent to the execution of this Agreement, there
shall not have been any decrease in the ratings of any of the
Company's debt securities
12
<PAGE> 13
by Moody's Investors Service, Inc. or Standard & Poor's
Corporation.
(h) At or prior to the Closing Date, the Company shall have
furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably
request and such additional opinions and letters as are provided
for in Schedule I.
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or
if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives, this Agreement and all obligations of the
Underwriters hereunder may be cancelled at, or at any time prior to, the
Closing Date by the Representatives. Notice of such cancellation shall be
given to the company in writing or by telephone or telegraph confirmed in
writing.
6. Conditions to the Obligations of the Company. The obligations of the
Company to sell and deliver the Securities shall be subject to the following
conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have
been issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) Concurrently with or prior to the delivery of the
Securities to the several underwriters, the Company shall receive
the full purchase price herein specified for the Securities.
If any of the conditions specified in this Section 6 shall not have been
fulfilled when and as provided in this Agreement, this Agreement and all
obligations of the Company hereunder may be cancelled at, or at any time prior
to, the Closing Date. Notice of such cancellation shall be given to the
Representatives in writing or by telephone or telegraph confirmed in writing.
7. Reimbursement of Underwriters' Expenses. The Company will pay all
expenses incident to the performance of its obligations under this Agreement
and will reimburse the Underwriters for any expenses (including fees and
disbursements of counsel) incurred by them in connection with qualification of
the Securities for sale and determination of their eligibility for investment
under the laws of such
13
<PAGE> 14
jurisdictions as the Representatives may designate and the printing of
memoranda relating thereto, for any fees charged by investment rating agencies
for the rating of the Securities, for any filing fee of the National
Association of Securities Dealers, Inc. relating to the Securities and for
expenses incurred in distributing the Prospectus and all supplements thereto,
any preliminary prospectuses and any preliminary prospectus supplements to each
Underwriter. If the sale of the Securities provided for herein is not
consummated because any condition to the obligations of the Underwriters set
forth in Section 5 hereof is not satisfied or because of any refusal, inability
or failure on the part of the Company to perform any agreement herein or comply
with any provision hereof other than by reason of a default by any of the
Underwriters, the Company will reimburse the Underwriters severally upon demand
for all out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by them in connection with the proposed
purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the securities as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that (i) the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished
to the Company by or on behalf of any Underwriter through the Representatives
specifically for use in connection with the preparation thereof, and (ii) such
indemnity with respect to the Basic Prospectus or any Preliminary Final
Prospectus shall not inure
14
<PAGE> 15
to the benefit of any Underwriter (or any person controlling such Underwriter)
from whom the person asserting any such loss, claim, damage or liability
purchased the Securities which are the subject thereof if such person did not
receive a copy of the Final Prospectus (or the Final Prospectus as amended or
supplemented) excluding documents incorporated therein by reference at or prior
to the confirmation of the sale of such Securities to such person in any case
where such delivery is required by the Act and the untrue statement or omission
of a material fact contained in the Basic Prospectus or any Preliminary Final
Prospectus was corrected in the Final Prospectus (or the Final Prospectus as
amended or supplemented). This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers
who signs the Registration Statement, and each person who controls
the Company within the meaning of either the Act or the Exchange
Act, to the same extent as the foregoing indemnity from the
Company to each Underwriter, but only with reference to written
information relating to such Underwriter furnished to the Company
by or on behalf of such Underwriter through the Representatives
specifically for use in the preparation of the documents referred
to in the foregoing indemnity. This indemnity agreement will be
in addition to any liability which any Underwriter may otherwise
have. The Company acknowledges that the statements set forth in
the second sentence of the second paragraph under the heading
"Underwriting" in the Final Prospectus constitute the only
information furnished in writing by or on behalf of the several
Underwriters for inclusion in the documents referred to in the
foregoing indemnity, and you, as the Representatives, confirm that
such statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 8, notify
the indemnifying party in writing of the commencement thereof; but
the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party
otherwise than under this Section 8. In case any such action is
brought against any indemnified party, and it notifies the
indemnifying party of the
15
<PAGE> 16
commencement thereof, the indemnifying party will be entitled to
participate therein, and to the extent that it may elect by
written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to
assume the defense thereof, with counsel satisfactory to such
indemnified party; provided, however, that if the defendants in
any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or
other indemnified parties which are different from or additional
to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel
to assert such legal defenses and to otherwise participate in the
defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to
such indemnified party of its election so to assume the defense of
such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party
under this Section 8 for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal
defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying
party shall not be liable for the expenses of more than one
separate counsel, approved by the Representatives in the case of
paragraph (a) of this Section 8, representing the indemnified
parties under such paragraph (a) who are parties to such action),
(ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that, if clause (i) or (iii) is
applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii). Each indemnified party
agrees promptly to notify each indemnifying party of the
commencement of any litigation or proceedings against it in
connection with the issue and sale of the Securities.
16
<PAGE> 17
(d) In order to provide for just and equitable contribution
in circumstances in which the indemnification provided for in
paragraph (a) of this Section 8 is due in accordance with its
terms but is for any reason held by a court to be unavailable from
the Company on grounds of policy or otherwise, the Company on the
one hand and the Underwriters on the other hand shall contribute
to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in
connection with investigating or defending same) to which the
Company and one or more of the Underwriters may be subject (i) in
such proportion so that the Underwriters are responsible for that
portion represented by the percentage that the underwriting
discount bears to the sum of such discount and the purchase price
of the Securities specified in Schedule I hereto and the Company
is responsible for the balance or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect the relative benefit
represented by the percentage that the underwriting discount bears
to the sum of such discount and the purchase price for the
Securities referred to in clause (i) above, but also the relative
fault of the Company on the one hand and the Underwriters on the
other in connection with the statements or omissions which
resulted in such loss, claim, damage or liability as well as any
other relevant equitable considerations. The relative fault of
the Company and the Underwriters 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 the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if
contribution pursuant to this subsection (d) 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
which does not take account of the equitable considerations
referred to above in this subsection (d). Notwithstanding
anything in this subsection (d) to the contrary, (x) in no case
shall any Underwriter (except as may be provided in any agreement
among underwriters relating to the offering of the Securities) be
responsible for any
17
<PAGE> 18
amount in excess of the underwriting discount applicable to the
Securities purchased by such Underwriter hereunder and (y) no
person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person
who controls an Underwriter within the meaning of the Act shall
have the same rights to contribution as the Underwriter, and each
person who controls the Company within the meaning of either the
Act or the Exchange Act, each officer of either of the Company who
shall have signed the Registration Statement and each director of
the Company shall have the same rights to contribution as the
Company, subject in each case to clause (x) of this paragraph (d).
Any party entitled to contribution will, promptly after receipt
of notice of commencement of any action, suit or proceeding
against such party in respect of which a claim for contribution
may be made against another party or parties under this paragraph
(d), notify such party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall
not relieve the party or parties from whom contribution may be
sought from any other obligation it or they may have hereunder or
otherwise than under this paragraph (d). No party shall be liable
for contribution with respect to any action or claim settled
without its consent.
9. Default by an Underwriter. If any one or more Underwriters shall fail
to purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate amount
of Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriters or Underwriters agreed but
failed to purchase; provided, however, that in no event shall any
non-defaulting Underwriter be obligated to purchase additional Securities under
this Section 9 in an amount exceeding 10% of the amount of the Securities set
forth opposite its name in Schedule II hereto. In the event that the amount of
Securities which all such non-defaulting Underwriters shall be obligated to
purchase under the preceding sentence shall be less than the amount of
Securities which all such defaulting Underwriters shall have failed to
purchase, the non-defaulting
18
<PAGE> 19
Underwriters shall have the right (but not the obligation) to purchase the
remaining Securities. If all such remaining Securities are not purchased by
non-defaulting Underwriters as above provided, the Company may, at its option,
(a) cancel this Agreement pursuant to the provisions of Section 6 hereof or (b)
elect to proceed with the sale and delivery hereunder of less than all of the
Securities to be purchased by the Underwriters. In the event of a default by
any Underwriter as set forth in this Section 9, the Closing Date shall be
postponed for such period, not exceeding seven days, as the Representatives
shall determine in order that the required changes in the Registration
Statement and the Final Prospectus or in any other documents or arrangements
may be effected. Nothing contained in this Agreement shall relieve any
defaulting Underwriter of its liability, if any, to the Company and any
non-defaulting Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Securities, if prior to such time (i)
trading in the Series A Common Stock of the Company shall have been suspended
by the Commission or the New York Stock Exchange or trading in securities
generally on the New York Stock Exchange shall have been suspended or limited
or minimum prices shall have been established on such Exchange, (ii) a banking
moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or material
escalation of hostilities or other calamity or crisis the effect of which on
the financial markets of the United States is such as to make it, in the
judgment of the Representatives, impracticable to market the Securities.
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
the Company or its officers and of the Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of any Underwriter, or the Company or
any of the officers, directors or controlling persons referred to in Section 8
hereof, and will survive delivery of and payment for the Securities. The
provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telegraphed and confirmed to them, at the address specified in
Schedule I hereto; or, if sent to the Company, will be mailed, delivered
19
<PAGE> 20
or telegraphed and confirmed to it at Times Mirror Square, Los Angeles,
California 90053, attention of the Corporate Secretary.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8 hereof,
and no other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of [New York][California].
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
THE TIMES MIRROR COMPANY
BY:__________________________
NAME:________________________
TITLE:_______________________
The foregoing Agreement is hereby
confirmed and accepted as of the
date specified in Schedule I hereto.
BY:
BY:_____________________________
Name:
Title:
For themselves and the other several
Underwriters, if any, named in Schedule
II to the foregoing Agreement.
20
<PAGE> 21
SCHEDULE I
Underwriting Agreement dated _________
Registration Statement No. 33-________
Representatives and Address:
Title, Purchase Price and Description of Securities:
Title:
Principal Amount:
Purchase Price:
Maturity:
Interest:
Sinking Fund Provisions:
Optional Redemption:
Closing Date and Time:
Method of Payment:
Modification of items to be covered by the letter from [Ernst & Young LLP]
delivered pursuant to Section 5(f):
Items to be delivered pursuant to Section 5(i):
21
<PAGE> 22
SCHEDULE II
<TABLE>
<S> <C>
[Principal Amount][Units] of
Underwriters Securities to be Purchased
- ------------ ----------------------------
</TABLE>
22
<PAGE> 1
EXHIBIT 4.8
CERTIFICATE OF DESIGNATION[, POWERS, PREFERENCES AND RELATIVE PARTICIPATING,
OPTIONAL OR OTHER SPECIAL RIGHTS, AND THE QUALIFICATIONS,
LIMITATIONS OR RESTRICTIONS] OF THE ___% [NONCUMULATIVE] [CUMULATIVE]
[REDEEMABLE] [NON-REDEEMABLE] [CONVERTIBLE] [EXCHANGEABLE] PREFERRED
STOCK, SERIES ___
($1.00 Par Value) *
OF
THE TIMES MIRROR COMPANY
----------
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
----------
The undersigned hereby certify that the following resolution was duly
adopted by the Board of Directors of The Times Mirror Company, a Delaware
corporation (the "Company"), with respect to the [name of series of Preferred
Stock]:
RESOLVED, That pursuant to the authority conferred upon the Board of
Directors by the Amended and Restated Certificate of Incorporation of the
Company (the "Certificate of Incorporation"), the Board of Directors (the
"Board") of the Company on ____________, 199_ approved the creation and the
voting powers of the following series of Preferred Stock, $.001 par value [,
and on __________, 199_ a duly authorized committee of the Board adopted the
following resolution creating a series of ______ shares of Preferred Stock,
$1.00 par value] (the "Series __ Preferred Stock"), with the powers,
designations, preferences and relative, participating, optional or other
special rights, and the qualifications, limitations or restrictions thereof, of
the shares of such series (in addition to the powers, designations, preferences
and relative, participating, optional or other special rights, and the
qualifications, limitations or restrictions thereof, set forth in the
Certificate of Incorporation that may be applicable to the Preferred Stock), as
follows:
1. Designation and Rank. The designation of such series of the
Preferred Stock authorized by this resolution shall be the ___% [Noncumulative]
[Cumulative] [Redeemable] [Non-Redeemable] [Convertible] Preferred Stock,
Series __ (the "Series ___ Preferred Stock"). The maximum number of shares of
Series ___ Preferred Stock shall be _____. Shares of the Series ___ Preferred
Stock shall have a liquidation preference of $______ per share. The Series ___
Preferred Stock shall rank prior to the Company's Common Stock and to all other
classes and series of equity securities of the Company now or hereafter
authorized, issued or outstanding (the
__________________________________
* Language in brackets in this form of Certificate of Designations may or
may not be included in the final Certificate of Designations. Appropriate
disclosure will be made in the Prospectus Supplement of which alternate terms
have been selected and the final Certificate of Designations will be filed as
an Exhibit to an 8-K or other periodic report.
<PAGE> 2
Common Stock and such other classes and series of equity securities
collectively may be referred to herein as the "Junior Stock"), other than any
classes or series of equity securities of the Company ranking on a parity with
(the "Parity Stock") or senior to (the "Senior Stock") the Series ___ Preferred
Stock as to dividend rights and rights upon liquidation, winding up or
dissolution of the Company as have been [or may in the future] be designated by
the Board. The Series ___ Preferred Stock shall be junior to all outstanding
debt of the Company. The Series ___ Preferred Stock shall be subject to
creation of Senior Stock, Parity Stock and Junior Stock, to the extent not
expressly prohibited by the Company's Certificate of Incorporation, with
respect to the payment of dividends and upon liquidation, and shall be
initially issued at a price (payable by the underwriter(s) thereof) of $___ per
share.
2. [Noncumulative] [Cumulative] Dividends; Priority.
(a) Payment of Dividends. The holders of record of shares of
Series ___ Preferred Stock shall be entitled to receive, when, as and if
declared by the Board out of funds legally available therefor, [noncumulative]
[cumulative] cash dividends at the rate per annum per share of ____%
($_________ per annum) (the "Dividend Rate"), which shall accrue from
_______________, 19__ and be payable _________ [in arrears] on the ___ day of
_______, _______, _______ and _______ in each year (or if such day is a
non-business day, on the next business day), commencing on ____________, 19__
(each of such dates a "Dividend Payment Date"). Each declared dividend shall
be payable to holders of record as they appear on the stock books of the
Company at the close of business on such record dates, not more than 60
calendar days preceding the payment dates therefor, as are determined by the
Board (each of such dates a "Record Date"). _________ dividend periods (each a
"Dividend Period") shall commence on and include the _____ day of ______,
______, ______ and ______ of each year and shall end on and include the date
next preceding the next following Dividend Payment Date. [If cumulative,
insert -- Dividends on the Shares of Series ___ Preferred Stock shall be fully
cumulative, shall accrue (whether or not declared) from the first day of each
Dividend Period and shall be payable on the Dividend Payment Date first
succeeding the end of each Dividend Period, except that with respect to the
first dividend, such dividend shall accrue from the date of issue of the Series
___ Preferred Stock. For any Dividend Period in which dividends are not paid
in cash at the Dividend Rate on the Dividend Payment Date first succeeding the
end of such Dividend Period, such accrued dividends shall be added (solely for
the purpose of calculating dividends payable on the Series __ Preferred Stock)
to the Liquidation Preference (as defined below) of the Series __ Preferred
Stock effective at the beginning of the Dividend Period succeeding the Dividend
Period as to which such dividends were not paid and shall thereafter accrue
additional dividends in respect thereof ("Additional Dividends") at the
Dividend Rate applicable from time to time until such unpaid dividends have
been paid in full.]
[If Noncumulative, insert -- Dividends on the shares of Series ___
Preferred Stock shall be noncumulative, so that if a dividend on the shares of
Series ___ Preferred Stock with respect to any Dividend Period is not declared
by the Board of the Company, then the Company shall have no obligation at any
time to pay a dividend on the shares of Series ___ Preferred Stock in respect
of such Dividend Period. Holders of the shares of the Series ___ Preferred
Stock shall not be entitled to any dividends, whether payable in cash, property
or stock, in excess of the noncumulative dividends declared by the Board, as
set forth herein.]
The amount of dividends payable per share for each full Dividend
Period shall be computed by dividing by _____ the $ ______ annual amount.
Dividends on the Series ___ Preferred Stock shall accrue day by day, and all
shares issued within 45 days of the first day on which such shares are issued
shall accrue dividends from such date of first issuance. The initial ________
dividend payable on ______, 19__ and the amount of any dividend payable for any
other period shorter than a full Dividend Period shall be computed on the basis
of a 360-day year composed of twelve 30-day months and the actual number of
days elapsed in the Period.
2
<PAGE> 3
(b) Priority as to Dividends. No full dividends shall be declared
or paid or set apart for payment on Preferred Stock of any series ranking, as
to dividends, on a parity with the Series ___ Preferred Stock for any period
unless full dividends on the Series ___ Preferred Stock for the immediately
preceding Dividend Period have been or contemporaneously are declared and paid
(or declared and a sum sufficient for the payment thereof set apart for such
payment). When dividends are not paid in full (or declared and a sum
sufficient for such full payment so set apart) upon the Series ___ Preferred
Stock and any other Preferred Stock ranking on a parity as to dividends with
the Series ___ Preferred Stock, all dividends declared upon shares of Series
___ Preferred Stock and any other Preferred Stock ranking on a parity as to
dividends shall be declared pro rata with respect thereto, so that in all cases
the amount of dividends declared per share on the Series ___ Preferred Stock
and such other Preferred Stock shall bear to each other the same ratio that
accrued dividends for the then-current Dividend Period per share on the shares
of Series ___ Preferred Stock (which shall not include any accumulation in
respect of unpaid dividends for prior Dividend Periods) and for dividends,
including accumulations, if any, of such other Preferred Stock, bear to each
other.
Except as provided in the preceding sentence, full dividends on the
Series ___ Preferred Stock must be declared and paid or set apart for payment
for the immediately preceding Dividend Period before (i) any cash dividend or
other distribution (other than in Common Stock or other Junior Stock) shall be
declared or paid or set aside for payment upon the Common Stock of the Company
or any other Junior Stock or (ii) any Common Stock or any other Junior Stock is
redeemed, purchased or otherwise acquired by the Company for any consideration
(or any moneys are paid to or made available for a sinking fund for the
redemption of any shares of any such stock) except by conversion into or
exchange for Junior Stock or (iii) any Series ___ Preferred Stock or Parity
Stock is redeemed, purchased or otherwise acquired by the Company for any
consideration (or any moneys are paid to or made available for a sinking fund
for the redemption of any shares of any such stock) otherwise than pursuant to
a pro rata offer to purchase or a concurrent redemption of all, or a pro rata
portion, of the outstanding shares of Series ___ Preferred Stock and Parity
Stock (except by conversion into or exchange for Junior Stock).
The Company shall not permit any subsidiary of the Company to purchase
or otherwise acquire for consideration any shares of stock of the Company if,
under the preceding paragraph, the Company would be prohibited from purchasing
or otherwise acquiring such shares at such time and in such manner.
3. [[Optional] [Mandatory] Redemption] [Non-Redeemability].
(a) General. [If Optional Redemption, insert -- The shares of the
Series ___ Preferred Stock will not be redeemable before _______________, ____.
Thereafter, subject to the applicable restrictions in this Section 3 and
applicable law, the shares of Series ___ Preferred Stock may be redeemed, in
whole or in part, at the election of the Company, upon notice as provided in
Section 3(b), by resolution of its Board, at any time or from time to time, at
the following redemption prices plus, in each case, an amount equal to all
accrued and unpaid dividends for the then-current Dividend Period to the date
fixed for redemption:
3
<PAGE> 4
<TABLE>
<CAPTION>
If Redeemed During
the 12-Month Per Share If Redeemed During the Per Share
Period Ending Redemption 12-Month Period Ending Redemption
on , Price on , Price
------------- --------- ------------- ---------
<S> <C> <C> <C>
199__ $ 199__ $
199__ 199__
199__ 199__
________ and thereafter
</TABLE>
If less than all the outstanding shares of Series ___ Preferred Stock
are to be redeemed, the Company shall select those to be redeemed pro rata, by
lot or by a substantially equivalent method. On and after the redemption date,
dividends shall cease to accrue on the shares, and they shall be deemed to
cease to be outstanding, provided that the redemption price (including any
accrued and unpaid dividends to the date fixed for redemption) has been duly
paid or provided for.]
[If mandatory redemption, insert -- As a mandatory redemption for the
retirement of the shares of Series ____ Preferred Stock, the Company shall
redeem, out of funds legally available therefor, on _____________ (if such
shares remain outstanding) ___% of all shares issued [then outstanding], in
each case at the redemption price of $_____ per share. Immediately prior to
authorizing or making such redemption with respect to the Series _____
Preferred Stock, the Company, by resolution of the Board shall, to the extent
funds are legally available therefor, declare a mandatory dividend on the
Series ______ Preferred Stock payable on the redemption date in the amount
equal to any accrued and unpaid dividends on the Series _____ Preferred Stock
as of such date and, if the Company does not have sufficient funds legally
available to declare and pay all dividends accrued at the time of such
redemption, any remaining accrued and unpaid dividends shall be added to the
redemption price. If the Company shall fail to discharge its obligation to
redeem all of the outstanding shares of Series _____ Preferred Stock required
to be redeemed pursuant to this Section 3(a) of this Certificate (the
"Mandatory Redemption Obligation"), the Mandatory Redemption Obligation shall
be discharged as soon as the Company is able to discharge such Mandatory
Redemption Obligation. If and so long as the Mandatory Redemption Obligation
shall not fully be discharged, (i) dividends on the Series ____ Preferred Stock
shall continue to accrue and be added to the dividend payable pursuant to the
second preceding sentence and (ii) the Company shall not declare or pay any
dividend or make any distribution on its securities not otherwise permitted by
this Certificate.
[If Non-Redeemable, insert -- The shares of the Series ____ Preferred
Stock shall not be redeemed by the Company.]
[If optional or mandatory redemption, insert -- (b) Notice of
Redemption. Notice of any redemption, setting forth (i) the date and place
fixed for the redemption, (ii) the redemption price[,] [and] (iii) a statement
that dividends on the shares to be redeemed will cease to accrue on such
redemption date [and (iv) a statement of or reference to the conversion right
set forth in Section 5 hereof (including that the right to give a notice of
conversion in respect of any shares to be redeemed shall terminate at the close
of business on the redemption date)], shall be mailed, postage prepaid, at
least __ days but not more than __ days prior to the redemption date to each
holder of record of the Series ___ Preferred Stock to be redeemed at his, her
or its address as the same shall appear on the books of the Company. If less
than all the shares of the Series ___ Preferred Stock owned by such holder are
then to be redeemed, the notice shall specify the number of shares thereof that
are to be redeemed and the numbers of the certificates representing such
shares.
4
<PAGE> 5
If such notice of redemption shall have been so mailed, and if on or
before the redemption date specified in such notice all funds necessary for
such redemption shall have been set aside by the Company separate and apart
from its other funds, in trust for the account of the holders of the shares so
to be redeemed, so as to be and continue to be available therefor, then, on and
after the redemption date, notwithstanding that any certificate for shares of
the Series ___ Preferred Stock so called for redemption shall not have been
surrendered for cancellation, the shares represented thereby so called for
redemption shall be deemed to be no longer outstanding, the dividends thereon
shall cease to accrue and all rights with respect to such shares of the Series
___ Preferred Stock so called for redemption shall forthwith cease and
terminate, [including the right to convert such shares pursuant to Section 5
below,] except only the right of the holders thereof to receive out of the
funds so set aside in trust the amount payable on redemption thereof, but
without interest, upon surrender (and endorsement or assignment for transfer,
if required by the Company) of their certificates.
However, if the notice of redemption shall have been so mailed, and if
prior to the date of redemption specified in the notice all funds necessary for
the redemption have been irrevocably deposited in trust, for the account of the
holders of the shares of the Series ___ Preferred Stock to be redeemed (and so
as to be and continue to be available therefor), with a bank or trust company
named in such notice doing business in the States of _________ or _________ and
having capital surplus and undivided profits of at least [$50,000,000],
thereupon and without awaiting the redemption date, all shares of the Series
___ Preferred Stock with respect to which such notice shall have been so mailed
and such deposit shall have been so made shall be deemed to be no longer
outstanding and all rights with respect to such shares of the Series ___
Preferred Stock shall forthwith upon such deposit in trust cease and terminate,
[except only the right of the holders thereof to convert such shares in
accordance with the provisions of Section 5 hereof at any time prior to the
close of business on the redemption date,] and the right of the holders thereof
on or after the redemption date to receive from such deposit the amount payable
upon the redemption, but without interest, upon surrender (and endorsement or
assignment to transfer, if required by the Company) of their certificates. In
case the holders of shares of the Series ___ Preferred Stock that shall have
been redeemed shall not within [two] years (or any longer period if required by
law) after the redemption date claim any amount so deposited in trust for the
redemption of such shares, such bank or trust company shall, upon demand and if
permitted by applicable law, pay over to the Company any such unclaimed amount
so deposited with it, and shall thereupon be relieved of all responsibility in
respect thereof, and thereafter the holders of such shares shall, subject to
applicable escheat laws, look only to the Company for payment of the redemption
price thereof, but without interest.
(c) Status of Shares Redeemed [or Converted]. Shares of Series
___ Preferred Stock redeemed, purchased or otherwise acquired for value by the
Company, [including by conversion in accordance with Section 5 hereof,] shall,
after such acquisition, have the status of [authorized and unissued shares of
Preferred Stock] [Treasury Stock] [and may be reissued by the Company at any
time as shares of any series of Preferred Stock other than as shares of Series
___ Preferred Stock].
4. Voting Rights.
(a) General. Except as expressly provided hereinafter in this
Section 4, or as otherwise from time to time required by applicable law, the
Series ___ Preferred Stock shall have no voting rights.
(b) Voting Rights Upon Dividend Arrearages.
(i) Right to Elect Directors. If [an amount equal to] [six]
[consecutive] quarterly dividend payments on the Series ___ Preferred Stock
have accrued and are unpaid, the holders of
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the Series ___ Preferred Stock shall have the right, voting separately as a
class together with holders of shares of any Parity Stock upon which like
voting rights have been conferred and are exercisable ("Voting Parity Stock"),
to elect [two] members of the Board, each member to be in addition to the then
authorized number of directors, at the next annual meeting of stockholders or
at a special meeting called as described below and thereafter until dividends
on the Series ___ Preferred Stock have been paid in full for ____ [consecutive]
Dividend Periods, including the last preceding Dividend Period.
(ii) Special Meeting. Whenever such right shall vest, it
may be exercised initially by the vote of the holders of a [plurality]
[majority] of the shares of Series ___ Preferred Stock and Voting Parity Stock
present and voting, in person or by proxy, at a special meeting of holders of
the Series ___ Preferred Stock and Voting Parity Stock or at the next annual
meeting of stockholders. A special meeting for the exercise of such right
shall be called by the Secretary of the Company as promptly as possible, and in
any event within l0 days after receipt of a written request signed by the
holders of record of at least 25% of the outstanding shares of the Series ___
Preferred Stock, subject to any applicable notice requirements imposed by law
or regulation. Notwithstanding the provisions of this paragraph, no such
special meeting shall be required to be held during the [90]-day period
preceding the date fixed for the annual meeting of stockholders.
(iii) Term of Office of Directors. Any director who has been
elected by holders of the Series ___ Preferred Stock and Voting Parity Stock
entitled to vote in accordance with this subparagraph (b) shall hold office for
a term expiring (subject to the earlier payment, or declaration and setting
aside for payment, of dividends on the Series ___ Preferred Stock for ____
consecutive Dividend Periods as described below) at the next annual meeting of
stockholders and during such term may be removed at any time, either for or
without cause, by, and only by, the affirmative vote of the holders of record
of a majority of the shares of the Series ___ Preferred Stock and Voting Parity
Stock present and voting, in person or by proxy, at a special meeting of such
stockholders called for such purpose, and any vacancy created by such removal
may also be filled at that meeting. A meeting for the removal of a director
elected by the holders of the Series ___ Preferred Stock and Voting Parity
Stock and the filling of the vacancy created thereby shall be called by the
Secretary of the Company as promptly as possible and in any event within 10
days after receipt of a request therefor signed by the holders of not less than
25% of the outstanding shares of the Series ___ Preferred Stock, subject to any
applicable notice requirements imposed by law or regulation. Such meeting
shall be held at the earliest practicable date thereafter, provided that no
such meeting shall be required to be held during the [90]-day period preceding
the date fixed for the annual meeting of stockholders. Upon payment, or
declaration and setting aside for payment, of dividends on the Series ___
Preferred Stock so that dividends are not then in arrears (or upon payment of
the funds so set aside will not be in arrears) for [six] [consecutive] Dividend
Periods the terms of office of all directors elected by the holders of the
shares of Series ___ Preferred Stock and the Voting Parity Stock pursuant
thereto then in office shall, without further action, thereupon terminate
unless otherwise required by law. Upon such termination the number of
directors constituting the Board of the Company shall, without further action,
be reduced by two, subject always to the increase of the number of directors
pursuant to the foregoing provisions in the case of the future right of holders
of the shares of Series ___ Preferred Stock and Voting Parity Stock to elect
directors as provided above.
(iv) Vacancies. Any vacancy caused by the death or resignation of a
director who has been elected in accordance with this subparagraph (b) may be
filled by the remaining director so elected or, if not so filled, by a vote of
holders of a [plurality] [majority] of the shares of the Series ___
Preferred Stock and Voting Parity Stock present and voting, in person or by
proxy, at a meeting called for such purpose. Unless such vacancy shall have
been so filled by the remaining director, such meeting shall be called by the
Secretary of the Company at the earliest practicable date after such death or
resignation, and in any event within l0 days after receipt of a written request
signed by the holders of record of at least 25% of the outstanding shares of
the Series ___
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<PAGE> 7
Preferred Stock, subject to any applicable notice requirements
imposed by law or regulation. Notwithstanding the provisions of this
paragraph, no such special meeting shall be required to be held during the
[90]-day period preceding the date fixed for the annual meeting of
stockholders.
(v) Stockholders' Right to Call Meeting. If any meeting of the
holders of the Series ___ Preferred Stock and Voting Parity Stock required by
this subparagraph (b) to be called shall not have been called within 30 days
after personal service of a written request therefor upon the Secretary of the
Company or within 30 days after mailing the same within the United States of
America by registered mail, return receipt requested, addressed to the
Secretary of the Company at its principal executive offices, subject to any
applicable notice requirements imposed by law or regulation, then the holders
of record of at least 25% of the outstanding shares of the Series ___ Preferred
Stock may designate in writing one of their number to call such meeting at the
expense of the Company, and such meeting may be called by such person so
designated upon the notice required for annual meetings of stockholders or such
shorter notice (but in no event shorter than permitted by law or regulation) as
may be acceptable to the holders of a majority of the total number of shares of
the Series ___ Preferred Stock. Any holder of Series ___ Preferred Stock so
designated shall have access to the Series ___ Preferred Stock books of the
Company for the purpose of causing such meeting to be called pursuant to these
provisions.
(vi) Quorum. At any meeting of the holders of the Series ___
Preferred Stock called in accordance with the provisions of this subparagraph
(b) for the election or removal of directors, the presence in person or by
proxy of the holders of a majority of the total number of shares of the Series
___ Preferred Stock and Voting Parity Stock shall be required to constitute a
quorum; in the absence of a quorum, a majority of the holders present in person
or by proxy shall have power to adjourn the meeting from time to time without
notice other than an announcement at the meeting, until a quorum is present.
(c) Voting Rights on Extraordinary Matters. So long as any shares
of Series ___ Preferred Stock is outstanding and unless the consent or approval
of a greater number of shares is then required by law, without first obtaining
the approval of the holders of at least two- thirds of the number of shares of
the Series ___ Preferred Stock at the time outstanding (voting separately as a
class together with the holders of shares (on a one vote per share basis) of
Voting Parity Stock) given in person or by proxy at a meeting at which the
holders of such shares shall be entitled to vote separately as a class, the
Company shall not either directly or indirectly or through merger or
consolidation with any other company[, (i) authorize, create or issue, or
increase the authorized or issued amount, of any class or series of capital
stock ranking prior to the shares of the Series ___ Preferred Stock in rights
and preferences or (ii)] approve any amendment to (or otherwise alter or
repeal) its Certificate of Incorporation (or this resolution) that would
materially and adversely change the specific terms of the Series ___ Preferred
Stock. [An amendment that increases the number of authorized shares of any
class or series of Preferred Stock or authorizes the creation or issuance of
other classes or series of Preferred Stock, in each case ranking junior to the
Series ___ Preferred Stock with respect to the payment of dividends and
distribution of assets upon liquidation, dissolution or winding up, or
substitutes the surviving entity in a merger or consolidation for the Company,
shall not be considered to be such an adverse change.]
(d) One Vote Per Share. In connection with any matter on which
holders of the Series ___ Preferred Stock are entitled to vote as provided in
subparagraphs (b) and (c) above, or any matter on which the holders of the
Series ___ Preferred Stock are entitled to vote as one class or otherwise
pursuant to law or the provisions of the Certificate of Incorporation, each
holder of Series ___ Preferred Stock shall be entitled to one vote for each
share of Series ___ Preferred Stock held by such holder.
[5. Conversion. Shares of the Series ___ Preferred Stock shall be
convertible into Common Stock on the following terms and conditions:
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<PAGE> 8
(a) Conversion Right. Subject to and upon compliance with the
provisions of this Section 5, the holder of any shares of Series ___ Preferred
Stock may at such holder's option, at any time or from time to time, convert
any such shares into fully paid and non-assessable shares (calculated to the
nearest 1/100 of a share) of Common Stock at the conversion rate, determined as
provided below, in effect on the conversion date. The rate at which shares of
Common Stock shall be delivered upon conversion (the "Conversion Rate") shall
be initially _____ shares of Common Stock for each share of Series ___
Preferred Stock. The Conversion Rate is subject to adjustment as set forth in
paragraph (d) of this Section 5. [If any shares of Series ___ Preferred Stock
shall be called for redemption under Section 3(a) hereof, the right to convert
such shares shall terminate and expire at the close of business on the
redemption date.]
(b) Dividends Upon Conversion. No payment or adjustment shall be
made by the Company to any holder of shares of Series ___ Preferred Stock
surrendered for conversion in respect of dividends accrued since the last
preceding Dividend Payment Date on the shares of Series ___ Preferred Stock
surrendered for conversion; provided, however, that if shares of Series ___
Preferred Stock shall be converted subsequent to any record date with respect
to any Dividend Payment Date and prior to the next such succeeding Dividend
Payment Date, the dividend falling due on such Dividend Payment Date shall be
payable on such Dividend Payment Date notwithstanding such conversion, and such
dividend (whether or not punctually paid or duly provided for) shall be paid to
the person in whose name such shares are registered at the close of business on
such record date [(unless such shares shall have been called for redemption and
the redemption date is prior to such Dividend Payment Date)]. In such event
[(unless the immediately preceding parenthetical phrase is applicable)], the
shares of Series ___ Preferred Stock surrendered for conversion during such
period must be accompanied by payment by the holder of an amount equal to the
dividend thereon which the holder of record is to receive on such Dividend
Payment Date.
(c) Method of Conversion.
(i) The surrender of any shares of Series ___ Preferred Stock for
conversion shall be made by the holder thereof by delivering the certificate or
certificates evidencing ownership of such shares with proper endorsement or
instruments of transfer to the Company at the office or agency in the State of
________ to be maintained by the Company for that purpose, and such holder
shall give written notice to the Company at that office or agency that he, she
or it elects to convert such shares of Series ___ Preferred Stock in accordance
with the provisions thereof and of this Section 5. That notice must also state
the number of whole shares of Series ___ Preferred Stock and the name or names
(with addresses) in which the certificate or certificates evidencing ownership
of Common Stock to be issued on such conversion shall be issued. In the case
of lost or destroyed certificates evidencing ownership of shares of Series ___
Preferred Stock to be surrendered for conversion, the holder shall submit proof
of loss or destruction and such indemnity and bond as shall be required by the
Company.
(ii) Subject to the provisions of Section 5(f) hereof, every such
notice of election to convert shall constitute a contract between the holder of
such shares of Series ___ Preferred Stock and the Company, whereby such holder
shall be deemed to agree to the conversion on the terms set forth herein.
(iii) As soon as practicable after its receipt of such notice and
the certificate or certificates evidencing ownership of such shares of Series
___ Preferred Stock (and the payment contemplated by the last sentence of
Section 5(b), if applicable), the Company shall issue and shall deliver, at the
office or agency referred to above and to the person for whose account such
shares of Series ___ Preferred Stock were so surrendered, or on his, her or its
written order, a certificate or certificates for the number of full shares of
Common Stock issuable upon the conversion of such shares of Series ___
Preferred Stock and a check or cash payment (if any) to which such
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<PAGE> 9
holder is entitled with respect to fractional shares as determined by the
Company, in accordance with Section 5(e) hereof, at the close of business on
the date of conversion.
(iv) The conversion shall be deemed to have been effected on the
date on which the Company has received both such notice and the certificate or
certificates for such shares of Series ___ Preferred Stock (and the payment
contemplated by the last sentence of Section 5(b), if applicable); and the
person or persons in whose name or names any certificate or certificates for
Common Stock are issuable upon the conversion shall be deemed to have become on
that date the holder or holders of record of the shares represented
thereby; provided, however, that any such surrender on any date when the stock
transfer books of the Company shall be closed shall become effective for all
purposes on the next succeeding day on which such stock transfer books are
open, but such conversion shall be at the Conversion Rate in effect on the date
upon which such surrender occurs.
(d) Adjustments to Conversion Rate. The Conversion Rate shall be
subject to adjustment from time to time as follows:
(i) In case the Company shall at any time (A) declare a
dividend on the Common Stock in shares of its capital stock, (B) subdivide
its outstanding Common Stock, (C) combine the outstanding Common Stock
into a smaller number of shares or (D) issue any shares of its capital
stock by reclassification of the Common Stock (including any such
reclassification in connection with a consolidation or merger in which the
Company is the surviving company), the Conversion Rate in effect on the record
date for such dividend or on the effective date of such subdivision,
combination or reclassification shall be proportionately adjusted so that the
holder of any Series ___ Preferred Stock converted after such time shall be
entitled to receive the aggregate number and kind of shares that, if such
Series ___ Preferred Stock had been converted immediately prior to such time,
the holder would have owned upon such conversion and been entitled to receive
by virtue of such dividend, subdivision, combination or reclassification. Such
adjustment shall be made successively whenever any event listed above shall
occur.
(ii) In case the Company shall issue rights or warrants to
all holders of its Common Stock (which rights or warrants are not available on
an equivalent basis to holders of the Series ___ Preferred Stock on conversion)
entitling them to subscribe for or purchase Common Stock at a price per share
less than the current market price per share (as defined in subparagraph (iv)
of this paragraph (d)), at the record date for the determination of
stockholders entitled to receive such rights or warrants, the Conversion Rate
shall be adjusted (subject to the limitations contained in subparagraph (vii)
of this paragraph (d)) by multiplying the Conversion Rate in effect immediately
prior to such record date by a fraction, the numerator of which shall be the
number of shares of Common Stock outstanding on such date of issue plus the
number of additional shares of Common Stock to be offered for subscription or
purchase and the denominator of which shall be the number of shares of Common
Stock outstanding on the date of issue plus the number of shares of Common
Stock that the aggregate offering price of the total number of shares of Common
Stock so to be offered would purchase at such current market price. Such
adjustment shall become effective at the close of business on such record date;
provided, however, to the extent that Common Stock is not delivered after the
expiration of such rights or warrants, the Conversion Rate shall be readjusted
(but only with respect to Series ___ Preferred Stock converted after such
expiration) to the Conversion Rate that would then be in effect had the
adjustments made upon the issuance of such rights or warrants been made upon
the basis of delivery of only the number of shares of Common Stock actually
issued and, provided, further, that, in the case of rights or warrants
exercisable for [__] days or less, the Company may
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<PAGE> 10
delay delivering any shares of Common Stock based on the adjusted conversion
rate until the expiration of the rights or warrants and, if it does so, it
shall as soon as practical after such expiration make whatever retroactive
delivery is appropriate in light of the number of actual shares of Common Stock
so actually delivered on exercise of such rights or warrants.*
(iii) In case the Company shall distribute to all holders of Common
Stock (including any such distribution made in connection with a consolidation
or merger in which the Company is the surviving entity) evidences of its
indebtedness or assets (including securities but excluding cash dividends or
distributions paid out of retained earnings and dividends payable in Common
Stock) or subscription rights or warrants (excluding those referred to in
subparagraph (ii) of this paragraph (d)), the Conversion Rate shall be adjusted
(subject to the limitations contained in subparagraph (vii) of this paragraph
(d)) by multiplying the Conversion Rate in effect immediately prior to the
record date for determination of stockholders entitled to receive such
distribution by a fraction, the numerator of which shall be the current market
price per share of Common Stock (as defined in subparagraph (iv) of this
paragraph (d)) on such record date and the denominator of which shall be such
current market price per share of Common Stock, less the fair market value (as
determined by the Board, whose determination shall be conclusive) of the
portion of the evidences of indebtedness or assets or subscription rights or
warrants so to be distributed that are applicable to one share of Common Stock.
Such adjustment shall become effective at the close of business on such record
date.
If after the distribution date (the "Distribution Date") for purposes
of distributing to holders of the Common Stock any stockholder protection,
"poison pill" or other similar rights to subscribe for securities of the
Company or any other entity ("Shareholder Rights"), converting holders of the
Series ___ Preferred Stock are not entitled to receive the Shareholder Rights
that would otherwise be attributable (but for the date of conversion) to the
shares of Common Stock received upon such conversion, then adjustment of the
Conversion Rate shall be made under this subparagraph (iii) as if the
Shareholder Rights were then being distributed to holders of the Company's
Common Stock. If such an adjustment is made and the Shareholder Rights are
later [redeemed,] invalidated or terminated, then a corresponding reversing
adjustment shall be made to the Conversion Rate, on an equitable basis, to take
account of such event. However, the Company may elect to make provision with
respect to the Shareholder Rights so that each share of Common Stock issuable
upon conversion of the Series ___ Preferred Stock, whether or not issued after
the Distribution Date for such Shareholder Rights, will be accompanied by the
Shareholder Rights that would otherwise be attributable (but for the date of
conversion) to such shares of Common Stock, in which event the preceding two
sentences will not apply. The foregoing provisions shall be applicable to all
such rights plan(s) of the Company.
(iv) For the purpose of any computation under subparagraphs (ii) and
(iii) of this paragraph (d), the current market price per share of Common Stock
on any record date shall be deemed to be the average of the daily closing
prices for the five consecutive business days selected by the Board commencing
not more than 20 trading days before, and ending not later than, the earlier of
the day in question and the day before the "ex" date with respect to the
issuance or distribution requiring such computation. For this purpose, the
term "'ex' date," when
__________________________________
* Any other or alternative anti-dilution provisions as are agreed to (whether
current quotient, market price or other) may be added here and the
subparagraphs in this Section renumbered, as appropriate.
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used with respect to any issuance or distribution, means the first date on
which the Common Stock trades regular way on the applicable exchange or in the
applicable market without the right to receive such issuance or distribution.
The closing price for each date shall be the reported last sale price regular
way or, in case no such reported sale takes place on such day, the average of
the high and low sales price.
(v) In the case of any (a) consolidation or merger of the
Company with or into any entity (other than a consolidation or merger that does
not result in any reclassification, conversion, exchange or cancellation of
outstanding shares of Common Stock of the Company), (b) sale, transfer, lease
or conveyance of all or substantially all of the assets of the Company or (c)
reclassification, capital reorganization or change of the Common Stock (other
than solely a change in par value, or from par value to no par value), each
holder of a share of Series ___ Preferred Stock then outstanding shall have the
right thereafter to convert such share only into the kind and amount of
securities, cash and other property receivable upon such consolidation, merger,
sale, transfer, capital reorganization or reclassification by a holder of the
number of shares of Common Stock of the Company into which such shares of
Series ___ Preferred Stock would have been converted immediately prior to such
consolidation, merger, sale, transfer, capital reorganization or
reclassification, assuming (x) such holder of Common Stock of the Company is
not an entity with which the Company consolidated or into which the Company
merged or which merged into the Company or to which such sale or transfer was
made, as the case may be ("constituent entity"), or an affiliate of a
constituent entity, and (y) such holder of Common Stock failed to exercise his,
her or its rights of election, if any, as to the kind or amount of securities,
cash and other property receivable upon such consolidation, merger, sale or
transfer (provided that if the kind or amount of securities, cash and other
property receivable upon such consolidation, merger, sale or transfer is not
the same for each share of Common Stock of the Company held immediately prior
to such consolidation, merger, sale or transfer by other than a constituent
entity or an affiliate thereof ("non-electing share"), then, for the purpose of
this subsection (v), the kind and amount of securities, cash and other property
receivable upon such consolidation, merger, sale or transfer by each
non-electing share shall be deemed to be the kind and amount so receivable per
share by a plurality of the non-electing shares). If necessary, appropriate
adjustment shall be made in the application of the provisions set forth herein
with respect to the rights and interests thereafter of the holders of shares of
Series ___ Preferred Stock, to the end that the provisions set forth herein
shall thereafter correspondingly be made applicable, as nearly as may
reasonably be, in relation to any shares of stock or other securities or
property thereafter deliverable on the conversion of the shares. The above
provisions shall similarly apply to successive consolidations, mergers, sales,
transfers, capital reorganizations and reclassifications. The Company shall
not effect any such consolidation, merger, sale or transfer, unless prior to or
simultaneously with the consummation thereof the successor company or entity
(if other than the Company) resulting from such consolidation, merger, sale or
transfer shall assume, by written instrument, the obligation to deliver to the
holder of each share of Series ___ Preferred Stock such shares of stock,
securities or assets as, in accordance with the foregoing provisions, such
holder may be entitled to receive under this Section 5(d).
(vi) The Company may make such increases in the Conversion Rate, in
addition to those required by subparagraphs (i) through (v) of this Section
5(d), as it considers to be advisable in order that any event treated for
federal income tax purposes as a dividend of stock or stock rights shall not be
taxable to the recipients.
(vii) No adjustment in the Conversion Rate will be made for the
issuance of shares of capital stock to employees pursuant to the Company's or
any of its subsidiaries' stock option, stock ownership or other benefit plans.
No adjustment will be required to be made in the Conversion Rate until
cumulative adjustments require an adjustment of at least 1% of such Conversion
Rate, but rather such cumulative adjustment shall be carried forward and made
when such 1% threshold is reached or exceeded.
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(e) Fractional Shares. No fractional shares or scrip representing
fractional shares shall be issued upon the conversion of any shares of Series
___ Preferred Stock, but the holder thereof will receive in cash an amount
equal to the value of such fractional share of Common Stock based on the
current market price (as defined in subparagraph (iv) of Section 5(d)). If
more than one share of Series ___ Preferred Stock is surrendered for conversion
at one time by the same holder, the number of full shares issuable upon
conversion thereof shall be computed on the basis of the aggregate number of
such shares so surrendered.
(f) Payment of Taxes. The Company shall pay any tax in respect of
the issuance of stock certificates on conversion of shares of Series __
Preferred Stock. The Company shall not, however, be required to pay any tax
that may be payable in respect of any transfer involved in the issuance and
delivery of stock in any name other than that of the holder of the shares
converted, and the Company shall not be required to issue or deliver any such
stock certificate unless and until the person or persons requesting the
issuance hereof shall have paid to the Company the amount of any such tax or
shall have established to the satisfaction of the Company that such tax has
been paid.
(g) Common Stock Reserved for Conversion. The Company shall at
all times reserve and keep available out of its authorized and unissued Common
Stock the full number of shares of Common Stock deliverable upon the conversion
of all outstanding shares of Series ___ Preferred Stock and shall take all such
action as may be required from time to time in order that it may validly and
legally issue fully paid and non-assessable shares of Common Stock upon
conversion of the Series ___ Preferred Stock.
(h) Notice. If:
(w) the Company shall declare a dividend (or any other
distribution) on its Common Stock (other than a cash
dividend payable out of retained earnings); or
(x) the Company shall authorize the issuance to holders of
its Common Stock of rights or warrants to subscribe for
or purchase Common Stock; or
(y) of any reclassification of the Common Stock of the
Company (other than a subdivision or combination of its
outstanding Common Stock, or a change in par value, or
from par value to no par value, or from no par value to
par value) or of any consolidation or merger to which
the Company is a party or of the sale or transfer of all
or substantially all of the assets of the Company and
for which approval of any stockholders of the Company is
required; or
(z) of the voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then, and in each event, the Company shall cause to be mailed to each holder of
Series ___ Preferred Stock, at his, her or its address as the same shall appear
on the books of the Company, as promptly as possible but in any event at least
[15] days prior to the applicable date hereinafter specified, a notice stating
(A) the date on which a record is to be taken for the purpose of such dividend,
distribution, rights or warrants, or, if a record is not to be taken, the date
as of which the holders of Common Stock of record to be entitled to such
dividend, distribution or rights are to be determined, and the nature and
amount of such dividend, distribution, rights or warrants or (B) the date on
which such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up is expected to become effective, and the
date as of which it is expected that holders of Common Stock of record shall be
entitled to exchange their Common Stock for
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securities or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding up.
(i) "Common Stock". For the purposes of this Section 5, "Common
Stock" means stock of the Company of any class, whether now or hereafter
authorized, that has the right to participate in the distribution of either
earnings or assets of the Company without limit as to the amount or percentage,
including, without limitation, the Common Stock. In case by reason of the
operation of paragraph (d) of this Section 5, the shares of Series ___
Preferred Stock shall be convertible into any other shares of stock or other
securities or property of the Company or of any other company, any reference
herein to the conversion of shares of Series ___ Preferred Stock pursuant to
this Section 5 shall be deemed to refer to and include the conversion of shares
of Series ___ Preferred Stock into such other shares of stock or other
securities or property.]
6. [Exchange.
(a) Subject to the other provisions set forth in this Section 6,
the Series __ Preferred Stock shall be exchangeable [in whole, but not] in
part, at the option of the Company, [on any Dividend Payment Date] beginning
__________________, 199_, for the [identify Debt Securities of the Company] as
set forth below. [Holders of outstanding shares of Series __ Preferred Stock
will be entitled to receive $_____ principal amount of [identify Debt
Securities] in exchange for each share of Preferred Stock held by them at the
time of exchange; provided that the [identify Debt Securities] will be issuable
in denominations of $1,000 and integral multiples thereof. If the exchange
results in an amount of [identify Debt Securities] that is not an integral
multiple of $1,000, the amount in excess of the closest integral multiple of
$1,000 will be paid in cash by the Company.
(b) The Company will mail to each record holder of the Series __
Preferred Stock [whose Preferred Stock is to be Exchanged] written notice of
its intention to exchange the Preferred Stock for the [identify Debt
Securities] no less than 30 nor more than 60 days prior to the date of the
exchange (the "Exchange Date"). The notice shall specify the effective date of
the exchange and the place where certificates for shares of Series __ Preferred
Stock are to be surrendered for [identify Debt Securities] and shall state that
dividends on [such] Series __ Preferred Stock will cease to accrue on the
Exchange Date.
Prior to giving notice of intention to exchange, the Company shall
have executed and delivered to a bank or trust company selected by the Company
to act as Trustee with respect to the [identify Debt Securities], which Trustee
shall meet the eligibility requirements of the Section 310(a) of the Trust
Indenture Act of 1939 as then in effect, and which Trustee shall have executed
and delivered to the Company an Indenture [substantially in the form filed as
an exhibit to the [identify Registration Statement]]; with such changes as may
be required by law, stock exchange rule, NASDAQ National Market System rule or
customary usage].
(c) If the Company has caused [identify Debt Securities] to be
authenticated on or prior to the Exchange Date and has complied with the other
provisions of this Section 6, then, notwithstanding that any certificates for
shares of Series __ Preferred Stock called for Exchange have not been
surrendered for exchange, on the Exchange Date dividends shall cease to accrue
on [the] [such] Series __ Preferred Stock and at the close of business on the
Exchange Date the holders of [the] [such] Series __ Preferred Stock shall cease
to be stockholders with respect to [the] [such] [Series __] Preferred Stock and
shall have no interest in or other claims against the Company by virtue thereof
and shall have no voting or other rights with respect to [the] [such] Series __
Preferred Stock, except the right to receive the [identify Debt Securities]
issuable upon such exchange and the right to accrued and unpaid dividends to
and including the Exchange Date, without interest thereon, upon surrender (and
endorsement, if required by the Company) of their
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<PAGE> 14
certificates, and the shares evidenced thereby shall no longer be deemed
outstanding for any purpose.
The Company will cause the [identify Debt Securities] to be
authenticated on or before the Exchange Date.
[(d) Notwithstanding the foregoing, if notice of exchange has been
given pursuant to this Section 6 and any holder of shares of Preferred Stock
has, prior to the close of business on the Exchange Date, give written notice
to the Company pursuant to Section 5 of the conversion of any or all of the
shares held by the holder (accompanied by a certificate or certificates for
such shares, duly endorsed or assigned to the Company), then the exchange shall
not become effective as to the shares to be converted and the conversion shall
become effective as provided in Section 5.]
(e) The [identify Debt Securities] will be delivered to the
persons entitled thereto upon surrender to the Company or its agent appointed
for that purpose of the certificates for the shares of Series __ Preferred
Stock being exchanged therefor.
(f) Notwithstanding the other provisions of this Section 6, if on
the Exchange Date the Company has not paid in full all accrued and unpaid
dividends on the Series __ Preferred Stock (or set aside a sum therefor), the
Company may not exchange [the] [any] Series __ Preferred Stock for [identify
Debt Securities] and any notice previously given pursuant to this Section 6
shall be of no effect.
(g) Prior to the Exchange Date, the Company will comply with any
applicable securities and blue sky laws with respect to the exchange of the
Series __ Preferred Stock for [identify Debt Securities].
7. [No] Sinking Fund. [No sinking fund will be established for
the retirement or redemption of shares of Series ___ Preferred Stock.] [If
sinking fund provisions are to be included, they will be inserted here.]
8. Liquidation Rights; Priority.
(a) In the event of any liquidation, dissolution or winding up of
the affairs of the Company, whether voluntary or involuntary, after payment or
provision for payment of the debts and other liabilities of the Company, the
holders of shares of the Series ___ Preferred Stock shall be entitled to
receive, out of the assets of the Company, whether such assets are capital or
surplus and whether or not any dividends as such are declared, $_______ per
share [plus an amount equal to all accrued and unpaid dividends for the
[then-current] [plus all prior] dividend period[s], and no more], before any
distribution shall be made to the holders of the Common Stock or any other
class of stock or series thereof ranking junior to the Series ___ Preferred
Stock with respect to the distribution of assets. Unless specifically
designated as junior or senior to the Series ___ Preferred Stock with respect
to the distribution of assets, all other series or classes of Preferred Stock
of the Company shall rank on a parity with the Series ___ Preferred Stock with
respect to the distribution of assets.
(b) [Nothing contained in this Section 8 shall be deemed to
prevent redemption of shares of the Series ___ Preferred Stock by the Company
in the manner provided in Section 3.] Neither the merger nor consolidation of
the Company into or with any other company, nor the merger or consolidation of
any other company into or with the Company, nor a sale, transfer or lease of
all or any part of the assets of the Company, shall be deemed to be a
liquidation, dissolution or winding up of the Company within the meaning of
this Section 8.
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<PAGE> 15
(c) Written notice of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Company, stating a payment date
and the place where the distributable amounts shall be payable and containing a
statement of or reference to the conversion right set forth in Section 5
hereof, shall be given by mail, postage prepaid, no less than 30 days prior to
the payment date stated therein, to the holders of record of the Series ___
Preferred Stock at their respective addresses as the same shall appear on the
books of the Company.
(d) If the amounts available for distribution with respect to the
Series ___ Preferred Stock and all other outstanding stock of the Company
ranking on a parity with the Series ___ Preferred Stock upon liquidation are
not sufficient to satisfy the full liquidation rights of all the outstanding
Series ___ Preferred Stock and stock ranking on a parity therewith, then the
holders of each series of such stock will share ratably in any such
distribution of assets in proportion to the full respective preferential amount
(which in the case of the Series __ Preferred Stock shall mean the amounts
specified in Section 8(a) and in the case of any other series of preferred
stock may include accumulated dividends if contemplated by such series) to
which they are entitled.
9. Record Holders. The Company and the Transfer Agent may deem
and treat the record holder of any shares of Series __ Preferred Stock as the
true and lawful owner thereof for all purposes, and neither the Company nor the
Transfer Agent shall be affected by any notice to the contrary.
10. Notices. Except as may otherwise by provided for herein, all
notices referred to herein shall be in writing, and all notices hereunder shall
be deemed to have been given upon receipt, in the case of a notice of
conversion given to the Company as contemplated in Section 5(c) hereof, or, in
all other cases, upon the earlier of receipt of such notice or three Business
Days after the mailing of such notice if sent by registered mail (unless
first-class mail shall be specifically permitted for such notice under the
terms of this Certificate) with postage prepaid, addressed: if to the Company,
to its offices at Times Mirror Square, Los Angeles, California 90053,
Attention: Corporate Secretary or to an agent of the Company designated as
permitted by this Certificate, or, if to any holder of the Series __ Preferred
Stock, to such holder at the address of such holder of the Series __ Preferred
Stock as listed in the stock record books of the Company (which may include the
records of any transfer agent for the Series __ Preferred Stock); or to such
other address as the Company or holder, as the case may be, shall have
designated by notice similarly given.]
IN WITNESS WHEREOF, The Times Mirror Company has caused this
Certificate of Designations [complete title of certificate to be continued] to
be executed by ______________, its [Vice] President, and by _______________,
its [Assistant] Secretary, and its corporate seal to be affixed hereto, this
_____ day of ____________, 199_.
THE TIMES MIRROR COMPANY
By:___________________________
Name:____________________
Title: [Vice] President
(Corporate Seal)
ATTEST:
By:___________________________
Name:____________________
Title: [Assistant] Secretary
15
<PAGE> 1
EXHIBIT 4.11
THE TIMES MIRROR COMPANY
[COMMON STOCK] [PREFERRED STOCK] WARRANT AGREEMENT
THIS WARRANT AGREEMENT, dated as of ________________, is
between The Times Mirror Company, a Delaware corporation (hereinafter called
the "Company"), and ________________, as Warrant Agent (herein called the
"Warrant Agent").
WHEREAS, the Company proposes to sell [if Warrants are sold
with other securities -- [title of such other securities being offered] (the
"Offered Securities") with] warrant certificates evidencing one or more
warrants (the "Warrants" or individually a "Warrant") representing the right to
purchase the [Common Stock] [Preferred Stock] of the Company (the "Warrant
Securities"), such warrant certificates and other warrant certificates issued
pursuant to this Agreement being herein called the "Warrant Certificates"; and
WHEREAS, the Company desires the Warrant Agent to act on
behalf of the Company in connection with the issuance, exchange, exercise and
replacement of the Warrant Certificates, and in this Agreement wishes to set
forth, among other things, the form and provisions of the Warrant Certificates
and the terms and conditions on which they may be issued, exchanged, exercised
and replaced;
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the parties hereto agree as follows:
___________________________
* Complete or modify the provisions of this Warrant Agreement as
appropriate to reflect the terms of the Warrants, Warrant Securities
and offered Securities.
<PAGE> 2
ARTICLE 1.
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
SECTION 1.01. Issuance of Warrants. [If Warrants alone --
Upon issuance, each Warrant Certificate shall evidence one or more Warrants.]
[If Offered Securities and Warrants -- Warrants shall be [initially] issued in
connection with the issuance of the Offered Securities [but shall be separately
transferable on and after (the "Detachable Date")] [and shall not be separately
transferable], and each Warrant Certificate shall evidence one or more
Warrants.] Each Warrant evidenced thereby shall represent the right, subject
to the provisions contained herein and therein, to purchase one Warrant
Security. If Offered Securities and Warrants -- Warrant Certificates shall be
initially issued in units with the Offered Securities, and each Warrant
Certificate included in such a unit shall evidence ______ Warrants for each
[$__________ in principal amount] [______ shares] of Offered Securities
included in such unit.]
SECTION 1.02. Execution and Delivery of Warrant Certificates.
Each Warrant Certificate, whenever issued, shall be in registered form
substantially in the form set forth in Exhibit A hereto, shall be dated
_______________ and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the officers of the Company executing the
same may approve (execution thereof to be conclusive evidence of such approval)
and as are not inconsistent with the provisions of this Agreement, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which the
Warrants may be listed, or to conform to usage. The Warrant Certificates shall
be signed on behalf of the Company by its Chairman of the Board, its Vice
Chairman of the Board, the Chief Executive Officer, its President or one of its
Vice Presidents and by its Secretary or one of its Assistant Secretaries under
its corporate seal reproduced thereon. Such signatures may be manual or
facsimile signatures of such authorized officers and may be imprinted or
otherwise reproduced on the Warrant Certificates. The seal of the company may
be in the form of a facsimile thereof and may be impressed, affixed, imprinted
or otherwise reproduced on the warrant Certificates.
No warrant certificate shall be valid for any purpose, and no
Warrant evidenced thereby shall be exercisable, until such Warrant Certificate
has been countersigned by the manual signature of the Warrant Agent. Such
signature by the Warrant Agent upon any Warrant
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<PAGE> 3
Certificate executed by the Company shall be conclusive evidence that
the Warrant Certificate so countersigned has been duly issued hereunder.
In case any officer of the Company who shall have signed any
of the Warrant Certificates either manually or by facsimile signature shall
cease to be such officer before the Warrant Certificates so signed shall have
been countersigned and delivered by the Warrant Agent, such Warrant
Certificates may be countersigned and delivered notwithstanding that the person
who signed such Warrant Certificates ceased to be such officer of the Company,
and any Warrant Certificate may be signed on behalf of the Company by such
persons as, at the actual date of the execution of such Warrant Certificate,
shall be the proper officers of the Company, although at the date of the
execution of this Agreement any such person was not such officer.
The term "holder" or "holder of a Warrant Certificate" as used
herein shall mean any person in whose name at the time any Warrant Certificate
shall be registered upon the books to be maintained by the Warrant Agent for
that purpose [If Offered Securities and Warrants are not immediately detachable
- -- or upon the register of the Offered Securities prior to the Detachable Date.
Prior to the Detachable Date, the Company will, or will cause the registrar of
the Offered Securities to, make available at all times to the Warrant Agent
such information as to holders of the Offered Securities with Warrants as may
be necessary to keep the Warrant Agent's records up to date].
SECTION 1.03. Issuance of Warrant Certificates. Warrant
Certificates evidencing the right to purchase an aggregate not exceeding
_________ Warrant Securities (except as provided in Sections 2.04(c), 3.02 and
4.01) may be executed by the Company and delivered to the Warrant Agent upon
the execution of this Warrant Agreement or from time to time thereafter. The
Warrant Agent shall, upon receipt of Warrant Certificates duly executed on
behalf of the Company, countersign Warrant Certificates evidencing warrants
representing the right to purchase up to ______ Warrant Securities and shall
deliver such Warrant Certificates to or upon the order of the Company.
Subsequent to such original issuance of the Warrant Certificates, the Warrant
Agent shall countersign a Warrant Certificate only if the Warrant certificate
is issued in exchange or substitution for one or more previously countersigned
Warrant Certificates or in connection with their transfer, as hereinafter
provided.
Section 1.04. Temporary Warrant Certificates. Pending the
preparation of definitive Warrant Certificates, the Company may execute, and
upon the order of the Company,
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<PAGE> 4
the Warrant Agent shall authenticate and deliver, temporary Warrant
Certificates which are printed, lithographed, typewritten, mimeographed or
otherwise produced substantially of the tenor of the definitive Warrant
Certificate in lieu of which they are issued and with such insertions,
omissions, substitutions and other variations as the officers executing such
Warrant Certificate may determine as appropriate, as evidenced by their
execution of such Warrant Certificates.
If temporary Warrant Certificates are issued, the Company will
cause definitive Warrant Certificates to be prepared without unreasonable
delay. After the preparation of definitive Warrant Certificates, the temporary
Warrant Certificates shall be exchangeable for definitive Warrant Certificates
upon surrender of the temporary Warrant Certificates at the corporate trust
office of the Warrant Agent [or _______________], without charge to the holder.
Upon surrender for cancellation of any one or more temporary Warrant
Certificates the Company shall execute and the Warrant Agent shall authenticate
and deliver in exchange therefor definitive Warrant Certificates representing
the same aggregate number of Warrants. Until so exchanged, the temporary
Warrant Certificates shall in all respects be entitled to the same benefits
under this Agreement as definitive Warrant Certificates.
ARTICLE II.
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS
SECTION 2.01. Warrant Price. During the period from
_______________, through and including _______________, the exercise price of
each Warrant will be ____________, subject to adjustment as provided in Section
2.02. Such purchase price of Warrant Securities is referred to in this
Agreement as the "Warrant Price." Other than as provided in Section 2.02
herein, no adjustment shall be made for any dividends on any Warrant Securities
issuable upon exercise of any Warrant.
SECTION 2.02. Adjustments in Warrant Price.
(1) The Warrant Price, the number of shares purchasable
upon exercise of the Warrants and the number of Warrants outstanding shall be
subject to adjustment as follows:
(A) In case the Company shall at any time (i)
declare a dividend on the [Common Stock] [Preferred Stock] in shares of its
capital stock, (ii) subdivide its outstanding [Common Stock] [Preferred Stock],
(iii) combine the
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<PAGE> 5
outstanding [Common Stock] [Preferred Stock] into a smaller number of shares or
(iv) issue any shares of its capital stock by reclassification of the [Common
Stock] [Preferred Stock] (including any such reclassification in connection
with a consolidation or merger in which the Company is the surviving company),
the number of shares purchasable upon exercise of each Warrant immediately
prior to the date of such event shall be proportionately adjusted so that the
holder of each Warrant shall be entitled to receive upon payment of the Warrant
Price the aggregate number of shares of the Company that, if such Warrant had
been exercised immediately prior to the occurrence of such event, such holder
would have owned or have been entitled to receive immediately after the
occurrence of such event. Such adjustment shall be made successively whenever
any event listed above shall occur.
(B) In case the Company shall issue rights or
warrants to all holders of its [Common Stock] [Preferred Stock] (which rights
or warrants are not available on an equivalent basis to holders of the
Warrants) entitling them to subscribe for or purchase [Common Stock] [Preferred
Stock] at a price per share less than the current market price per share (as
defined in subparagraph (E) of this Section), at the record date for the
determination of stockholders entitled to receive such rights or warrants, the
number of shares purchasable upon exercise of each Warrant shall be adjusted
(subject to the limitations contained in subparagraph (G) of this Section) by
multiplying the number of shares purchasable upon exercise of each Warrant in
effect immediately prior to such record date by a fraction, the numerator of
which shall be the number of shares of [Common Stock] [Preferred Stock]
outstanding on such date of issue plus the number of additional shares of
[Common Stock] [Preferred Stock] to be offered for subscription or purchase and
the denominator of which shall be the number of shares of [Common Stock]
[Preferred Stock] outstanding on the date of issue plus the number of shares of
[Common Stock] [Preferred Stock] that the aggregate offering price of the total
number of shares of [Common Stock] [Preferred Stock] so to be offered would
purchase at such current market price. Such adjustment shall become effective
at the close of business on such record date; provided, however, to the extent
that [Common Stock] [Preferred Stock] is not delivered after the expiration of
such rights or warrants, the number of shares purchasable upon exercise of each
Warrant shall be readjusted (but only with respect to Warrants exercised after
such expiration) to the number of shares purchasable upon exercise of each
Warrant that would then be in effect had the adjustments made upon the issuance
of such rights or warrants been made upon the basis of delivery of only the
number of shares of [Common Stock] [Preferred Stock] actually issued.
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<PAGE> 6
(C) In case the Company shall distribute to all
holders of [Common Stock] [Preferred Stock] (including any such distribution
made in connection with a consolidation or merger in which the Company is the
surviving company) evidences of its indebtedness or assets (including
securities but excluding cash dividends or distributions paid out of retained
earnings and dividends payable in [Common Stock] [Preferred Stock]) or
subscription rights or warrants (excluding those referred to in subparagraph
(B) of this Section), the number of shares purchasable upon exercise of each
Warrant shall be adjusted (subject to the limitations contained in subparagraph
(G) of this Section) by multiplying the number of shares purchasable upon
exercise of each Warrant in effect immediately prior to the record date for
determination of stockholders entitled to receive such distribution by a
fraction, the numerator of which shall be the current market price per share of
[Common Stock] [Preferred Stock] (as defined in subparagraph (E) of this
Section) on such record date and the denominator of which shall be such current
market price per share of [Common Stock] [Preferred Stock], less the fair
market value (as determined by the Board of Directors, whose determination
shall be conclusive) of the portion of the evidences of indebtedness or assets
or subscription rights or warrants so to be distributed that are applicable to
one share of [Common Stock] [Preferred Stock]. Such adjustment shall become
effective at the close of business on such record date.
If after the distribution date (the "Distribution Date") for
purposes of distributing to holders of the [Common Stock] [Preferred Stock] any
stockholder protection, "poison pill" or other similar rights to subscribe for
securities of the Company or any other entity ("Shareholder Rights"),
exercising holders of the Warrant are not entitled to receive the Shareholder
Rights that would otherwise be attributable (but for the date of exercise) to
the shares of [Common Stock] [Preferred Stock] received upon such exercise,
then adjustment of the number of shares purchasable upon exercise of each
Warrant shall be made under this subparagraph (C) as if the Shareholder Rights
were then being distributed to holders of the Company's [Common Stock]
[Preferred Stock]. If such an adjustment is made and the Shareholder Rights
are later [redeemed,] invalidated or terminated, then a corresponding reversing
adjustment shall be made to the number of shares purchasable upon exercise of
each Warrant, on an equitable basis, to take account of such event. However,
the Company may elect to make provision with respect to the Shareholder Rights
so that each share of [Common Stock] [Preferred Stock] issuable upon exercise
of each Warrant, whether or not issued after the Distribution Date for such
Shareholder Rights, will be accompanied by the Shareholder Rights that would
otherwise be attributable (but for the date of exercise) to such shares
6
<PAGE> 7
of [Common Stock] [Preferred Stock], in which event the preceding two sentences
will not apply. The foregoing provisions shall be applicable to all such
rights plan(s) of the Company.
(D) After each adjustment of the number of shares
purchasable upon exercise of each Warrant pursuant to this Section, the Warrant
Price shall be adjusted by multiplying such Warrant Price immediately prior to
such adjustment by a fraction of which the numerator shall be the number of
shares purchasable upon exercise of each Warrant immediately prior to such
adjustment, and the denominator of which shall be the number of shares so
purchasable immediately thereafter.
(E) For the purpose of any computation under
subparagraphs (B) and (C) of this Section, the current market price per share
of [Common Stock] [Preferred Stock] on any record date shall be deemed to be
the average of the daily closing prices for the five consecutive business days
selected by the Board of Directors commencing not more than 20 trading days
before, and ending not later than, the earlier of the day in question and the
day before the "ex" date with respect to the issuance or distribution requiring
such computation. For this purpose, the term "'ex' date," when used with
respect to any issuance or distribution, shall mean the first date on which the
[Common Stock] [Preferred Stock] trades regular way on the applicable exchange
or in the applicable market without the right to receive such issuance or
distribution. The closing price for each date shall be the reported last sale
price regular way or, in case no such reported sale takes place on such day,
the average of the reported closing bid and asked prices regular way, in either
case on the New York Stock Exchange or, if the [Common Stock] [Preferred Stock]
is not listed or admitted to trading on such exchange, on the principal
national securities exchange on which the [Common Stock] [Preferred Stock] is
listed or admitted to trading, or, if not listed or admitted to trading on any
national securities exchange, on the National Association of Securities Dealers
Automated Quotations National Market System or, if the [Common Stock]
[Preferred Stock] is not listed or admitted to trading on any national
securities exchange or quoted on such National Market System, the average of
the closing bid and asked prices in the over-the-counter market as furnished by
any New York Stock Exchange member firm selected from time to time by the
Company for that purpose.
(F) In the case of any (i) consolidation or
merger of the Company with or in to any entity (other than a consolidation or
merger that does not result in any reclassification, conversion, exchange or
cancellation of outstanding shares of [Common Stock] [Preferred Stock] of the
7
<PAGE> 8
Company), (ii) sale, transfer, lease or conveyance of all or substantially all
of the assets of the Company or (iii) reclassification, capital reorganization
or change of the [Common Stock] [Preferred Stock] (other than solely a change
in par value, or from par value to no par value), each holder of any Warrant
then outstanding shall have the right thereafter upon exercise of such Warrant
to receive only the kind and amount of securities, cash and other property
receivable upon such consolidation, merger, sale, transfer, capital
reorganization or reclassification by a holder of the number of shares of
[Common Stock] [Preferred Stock] of the Company for which such Warrant would
have been exercised immediately prior to such consolidation, merger, sale,
transfer, capital reorganization or reclassification, assuming such holder of
[Common Stock] [Preferred Stock] of the Company is not an entity with which the
Company consolidated or into which the Company merged or which merged into the
Company or to which such sale or transfer was made, as the case may be
("constituent entity"), or an affiliate of a constituent entity, and failed to
exercise his or her rights of election, if any, as to the kind or amount of
securities, cash and other property receivable upon such consolidation, merger,
sale or transfer (provided that if the kind or amount of securities, cash and
other property receivable upon such consolidation, merger, sale or transfer is
not the same for each share of [Common Stock] [Preferred Stock] of the Company
held immediately prior to such consolidation, merger, sale or transfer by other
than a constituent entity or an affiliate thereof and in respect of which such
rights of election shall not have been exercised ("non-electing share"), then
for the purpose of this subsection (E) the kind and amount of securities, cash
and other property receivable upon such consolidation, merger, sale or transfer
by each non-electing share shall be deemed to be the kind and amount so
receivable per share by a plurality of the non-electing shares). If
necessary, appropriate adjustment shall be made in the application of the
provisions set forth herein with respect to the rights and interests thereafter
of the holders of the Warrant, to the end that the provisions set forth herein
shall thereafter correspondingly be made applicable, as nearly as may
reasonably be, in relation to any shares of stock or other securities or
property thereafter deliverable on the exercise of the Warrant. The above
provisions shall similarly apply to successive consolidations, mergers, sales,
transfers, capital reorganizations and reclassifications. The Company shall
not effect any such consolidation, merger, sale or transfer, unless prior to or
simultaneously with the consummation thereof the successor company or entity
(if other than the Company) resulting from such consolidation, merger, sale or
transfer shall assume, by written instrument, the obligation to deliver to the
holder of each Warrant such shares of stock, securities or assets as, in
accordance with the foregoing
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<PAGE> 9
provisions, such holder may be entitled to receive under this Section 2.02.
(G) No adjustment in the number of shares
purchasable upon exercise of each Warrant will be made for the issuance of
shares of capital stock to employees pursuant to the Company's or any of its
subsidiaries' stock option, stock ownership or other benefit plans. No
adjustment will be required to be made in the number of shares purchasable upon
exercise of each Warrant until cumulative adjustments require an adjustment of
at least 1% of such number of shares.
(H) In any case in which this Section 2.02(1)
shall require that an adjustment be made retroactively immediately following a
record date, the Company may elect to defer for a reasonable period not to
exceed _____ days issuing to the holder of any warrant exercised after such
record date the shares of the Company issuable upon such exercise over and
above the shares issuable upon such exercise only on the basis of the warrant
exercise price prior to adjustment.
(I) Except as herein otherwise expressly
provided, no adjustment in the Warrant Price shall be made by reason of the
issuance of shares, or securities convertible into or exchangeable for shares,
or securities carrying the right to purchase any of the foregoing or for any
other reason whatsoever.
(J) Irrespective of any of the adjustments in the
Warrant Price or the number of shares, Warrant Certificates theretofore issued
may continue to express the same prices and number of shares as are stated in a
similar Warrant Certificate issuable initially, or at some subsequent time,
pursuant to this Agreement, and such number of shares specified therein shall
be deemed to have been so adjusted.
[(2) No fractional shares of [Common Stock] [Preferred Stock]
shall be issued upon the exercise of Warrants. If more than one Warrant shall
be exercised at one time by the same holder, the number of full shares that
shall be issuable upon such exercise shall be computed on the basis of the
aggregate number of shares purchased pursuant to the Warrants so exercised.
Instead of any fractional share of [Common Stock] [Preferred Stock] that would
otherwise be issuable upon exercise of any Warrant, the Company shall pay a
cash adjustment in respect of such fraction in an amount equal to the same
fraction of the last sales price (or bid price if there were no sales) per
share of [Common Stock] [Preferred Stock] in either case as reported in the
principal consolidated transaction reporting system with respect to securities
listed or admitted to trading on the New York Stock Exchange on the business
day that next precedes the day of
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<PAGE> 10
exercise or, if the [Common Stock] [Preferred Stock] is not then listed or
admitted to trading on the New York Stock Exchange, an amount equal to the same
fraction of the market price per share of [Common Stock] [Preferred Stock] (as
determined in a manner described by the Board of Directors of the Company) at
the close of business on the business day that next precedes the day of
exercise.]
(3) Before taking any action that would cause an
adjustment decreasing the Warrant Price so that the Warrant Price is below the
then par value of the shares of [Common Stock] [Preferred Stock], the Company
will take any corporate action that may, in the opinion of its counsel, be
necessary in order that the Company may validly and legally issue fully paid
and nonassessable shares of [Common Stock] [Preferred Stock] at the Warrant
Price as so adjusted.
(4) Whenever the Warrant Price then in effect is adjusted
as herein provided, the Company shall mail to each holder of the Warrants at
such holder's address as it shall appear on the books of the Company a
statement setting forth the adjusted Warrant Price, then and thereafter
effective under the provisions hereof together with the facts, in reasonable
detail, upon which such adjustment is based.
[(5) In case (i) the Company shall declare a dividend (or any
other distribution) on its [Common Stock] [Preferred Stock] payable otherwise
than in cash out of its current or retained earnings, or (ii) the Company shall
authorize the granting to the holders of its [Common Stock] [Preferred Stock]
of rights to subscribe for or purchase any shares of capital stock of any class
or of any other rights, or (iii) there is to be any reclassification of the
[Common Stock] [Preferred Stock] of the Company (other than a subdivision or
combination of its outstanding shares of [Common Stock] [Preferred Stock]), or
any consolidation or merger to which the Company is a party as described in
Section 3.04 herein and for which approval of any stockholders of the Company
is required, or (iv) any distribution is to be made on or in respect of the
[Common Stock] [Preferred Stock] in connection with the dissolution,
liquidation or winding up of the Company as described in Section 3.04 herein,
then the Company shall mail to each holder of Warrants at such holder's address
as it shall appear on the books of the Company, at least (twenty (20) days (or
ten (10) days in any case specified in clause (i) or (ii) above)) prior to the
applicable record date hereinafter specified, a notice stating (x) the record
date for such dividend, distribution or granting of rights, or, if a record is
not to be taken, the date as of which the holders of [Common Stock] [Preferred
Stock] of record to be entitled to such dividend, distribution or granting of
rights are to be determined, or (y) the date on
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which such reclassification, consolidation, merger, dissolution, liquidation or
winding up is expected to become effective, and the date as of which it is
expected that holders of [Common Stock] [Preferred Stock] of record shall be
entitled to exchange their shares of [Common Stock] [Preferred Stock] for
securities or other property deliverable upon such reclassification,
consolidation, merger, dissolution, liquidation or winding up. No failure to
mail such notice nor any defect therein or in the mailing thereof shall affect
any such transaction or any adjustment in the Warrant Price required by this
Section 2.02.]
SECTION 2.03. Duration of Warrants. Each Warrant may be
exercised in whole at any time, as specified herein, on or after [the date
thereof] [_________________] and at or before 5 P.M., [New York City] [Los
Angeles] time, on _______________ or such later date as the Company may
designate, by notice to the Warrant Agent and the holders of Warrant
Certificates mailed to their addresses as set forth in the record books of the
Warrant Agent (the "Expiration Date"). Each Warrant not exercised at or before
5 P.M., [New York City] [Los Angeles] time, on the Expiration Date shall become
void, and all rights of the holder of the Warrant Certificate evidencing such
Warrant under this Agreement shall cease.
SECTION 2.04. Exercise of Warrants.
(a) During the period specified in Section 2.03, any
whole number of Warrants may be exercised by providing certain information as
set forth on the reverse side of the Warrant Certificate and by paying in full,
in [lawful money of the United States of America] [in cash or by certified
check or official bank check or by bank wire transfer, in each case,] [by bank
wire transfer] in [immediately available] [next-day] funds the Warrant Price
for each Warrant exercised, to the Warrant Agent at its corporate trust office
[or at __________], provided that such exercise is subject to receipt within
five (5) business days of such [payment] [wire transfer] by the Warrant Agent
of the Warrant Certificate with the form of election to purchase warrant
securities set forth on the reverse side of the Warrant Certificate properly
completed and duly executed. The date on which payment in full of the Warrant
Price is received by the Warrant Agent shall, subject to receipt of the Warrant
Certificate as aforesaid, be deemed to be the date on which the Warrant is
exercised. The Warrant Agent shall deposit all funds received by it in payment
of the Warrant Price in an account of the Company maintained with it and shall
advise the Company by telephone at the end of each day on which a [payment]
[wire transfer] for the exercise of Warrants is received of the amount so
deposited to its account. The Warrant Agent shall
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promptly confirm such telephone advice to the Company in writing.
(b) The Warrant Agent shall, from time to time, as
promptly as reasonably practicable, advise the Company of (i) the number of
Warrants exercised, (ii) the instructions of each holder of the Warrant
Certificates evidencing such Warrants with respect to delivery of the Warrant
Securities to which such holder is entitled upon such exercise, (iii) delivery
of Warrant Certificates evidencing the balance, if any, of the Warrants
remaining after such exercise, and (iv) such other information as the Company
shall reasonably require.
(c) As soon as reasonably practicable after the exercise
of any Warrant, the Company shall issue to or upon the order of the holder of
the Warrant Certificate evidencing such Warrant, the Warrant Securities to
which such holder is entitled, in fully registered form, registered in such
name or names as may be directed by such holder. If fewer than all of the
Warrants evidenced by such Warrant Certificate are exercised, the Company shall
execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver a new Warrant Certificate evidencing the number of such
Warrants remaining unexercised.
(d) The Company shall not be required to pay any stamp or
other tax or other governmental charge required to be paid in connection with
any transfer involved in the issue of the Warrant Securities, and in the event
that any such transfer is involved, the Company shall not be required to issue
or delivery any Warrant Security until such tax or other charge shall have been
paid or it has been established to the Company's satisfaction that no such tax
or other charge is due.
(e) Prior to the issuance of any Warrants there shall
have been reserved, and the Company shall at all times keep reserved, out of
its authorized but unissued Warrant Securities, a number of shares sufficient
to provide for the exercise of the Warrant Certificates.
ARTICLE III.
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
SECTION 3.01. No Rights as Warrant Securityholder Conferred
by Warrants or Warrant Certificates. No Warrant Certificates or Warrant
evidenced thereby shall entitle the holder thereof to any of the rights of a
holder of Warrant Securities, including, without limitation, the right to
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receive the payment of dividends or distributions, if any, on the Warrant
Securities or to exercise any voting rights.
SECTION 3.02. Lost, Stolen, Mutilated or Destroyed Warrant
Certificates. Upon receipt by the Warrant Agent of evidence reasonably
satisfactory to it and the Company of the ownership of and the loss, theft,
destruction or mutilation of any Warrant Certificate and of indemnity
reasonably satisfactory to the Warrant Agent and the Company and, in the case
of mutilation, upon surrender thereof to the Warrant Agent for cancellation,
then, in the absence of notice to the Company or the Warrant Agent that such
Warrant Certificate has been acquired by a bona fide purchaser, the Company
shall execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver, in exchange for or in lieu of the lost, stolen,
destroyed or mutilated Warrant Certificate, a new Warrant Certificate of the
same tenor and evidencing a like number of Warrants. Upon the issuance of any
new Warrant Certificate under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Warrant Agent) in connection therewith. Every substitute
Warrant Certificate executed and delivered pursuant to this Section in lieu of
any lost, stolen or destroyed Warrant Certificate shall be at any time
enforceable by anyone, and shall be entitled to the benefits of this Agreement
equally and proportionately with any and all other Warrant Certificates duly
executed and delivered hereunder. The provisions of this Section are exclusive
and shall preclude (to the extent lawful) all other rights and remedies with
respect to the replacement of mutilated, lost, stolen or destroyed Warrant
Certificates.
SECTION 3.03. Holder of Warrant Certificate May Enforce
Rights. Notwithstanding any of the provisions of this Agreement, any holder of
a Warrant Certificate, without the consent of the Warrant Agent, the holder of
any Warrant Securities or the holder of any other Warrant Certificate, may, in
such holder's own behalf and for such holder's own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the Company
suitable to enforce, or otherwise in respect of, such holder's right to
exercise the Warrants evidenced by such holder's Warrant Certificate in the
manner provided in such holder's Warrant Certificate and in this Agreement.
SECTION 3.04. Reclassification, Consolidation, Merger, Sale,
Conveyance or Lease. In case any of the following shall occur while any
Warrants are outstanding: (a) any reclassification or change of the outstanding
shares of Warrant Securities (other than solely a change in par value
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or from par value to no par value), or (b) any consolidation or merger to which
the Company is party (other than a consolidation or a merger in which the
Company is the continuing corporation and which does not result in any
reclassification of, or change in, the outstanding shares of warrant securities
issuable upon exercise of the Warrants), or (c) any sale, transfer, conveyance
or lease to another corporation of the property of the Company as an entirety
or substantially as an entirety, the Company, or such successor or purchasing
corporation, as the case may be, shall make appropriate provision by amendment
of this Agreement or otherwise so that the holders of the Warrants then
outstanding shall have the right at any time thereafter, upon exercise of such
Warrants, to purchase the kind and amount of shares of stock and other
securities and property receivable upon such a reclassification, change,
consolidation, merger, sale, transfer, conveyance or lease as would be received
by a holder of the number of shares of Warrant Securities issuable upon
exercise of such Warrant immediately prior to such reclassification, change,
consolidation, merger, sale, transfer, conveyance or lease, and, in the case of
a consolidation, merger, sale, conveyance or lease the Company shall thereupon
be relieved of any further obligation hereunder or under the Warrants, and the
Company as the predecessor corporation may thereupon or any time thereafter be
dissolved, wound up or liquidated. Such successor or assuming corporation
thereupon may cause to be signed, and may issue either in its own name or in
the name of the Company, any or all of the Warrants issuable hereunder that
theretofore shall not have been signed by the Company, and may execute and
deliver Warrant Securities in its own name, in fulfillment of its obligations
to deliver Warrant Securities upon exercise of the Warrants. All the Warrants
so issued shall in all respects have the same legal rank and benefit under this
Agreement as the Warrants theretofore or thereafter issued in accordance with
the terms of this Agreement as though all of such Warrants had been issued at
the date of the execution hereof. In any case of any such reclassification,
change, consolidation, merger, conveyance, transfer or lease, such changes in
phraseology and form (but not in substance) may be made in the Warrants
thereafter to be issued as may be appropriate.
The Warrant Agent may receive a written opinion of legal
counsel as conclusive evidence that any such reclassification, change,
consolidation, merger, conveyance, transfer or lease complies with the
provisions of this Section 3.04.
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ARTICLE IV.
EXCHANGE AND TRANSFERS
OF WARRANT CERTIFICATES
SECTION 4.01. Exchange and Transfer of Warrant Certificates.
[If Offered Securities with Warrants that are immediately detachable -- Upon]
[If Offered Securities with Warrants that are not immediately detachable --
Prior to the Detachable Date a Warrant Certificate may be exchanged or
transferred only together with the Offered Security to which the Warrant
Certificate was initially attached, and only for the purpose of effecting or in
conjunction with an exchange or transfer of such Offered Security. Prior to
any Detachable Date, each transfer of the Offered Security [on the register of
the Offered Securities] shall operate also to transfer the related Warrant
Certificates. After the Detachable Date upon] surrender at the corporate trust
office of the Warrant Agent [or _____________], Warrant Certificates
evidencing Warrants may be exchanged for Warrant Certificates in other
denominations evidencing such Warrants or the transfer thereof may be
registered in whole or in part; provided that such other Warrant Certificates
evidence the same aggregate number of Warrants as the Warrant Certificates so
surrendered. The Warrant Agent shall keep, at its corporate trust office [and
at ________], books in which, subject to such reasonable regulations as it may
prescribe, it shall register Warrant Certificates and exchanges and transfers
of outstanding Warrant Certificates, upon surrender of the Warrant Certificates
to the Warrant Agent at its corporate trust office [or _____________] for
exchange or registration of transfer, properly endorsed or accompanied by
appropriate instruments of registration of transfer and written instructions
for transfer, all in form satisfactory to the Company and the Warrant Agent.
No service charge shall be made for any exchange or registration of transfer of
Warrant Certificates, but the company may require payment of a sum sufficient
to cover any stamp or other tax or other governmental charge that may be
imposed in connection with any such exchange or registration of transfer.
Whenever any Warrant Certificates are so surrendered for exchange or
registration of transfer, an authorized officer of the Warrant Agent shall
manually countersign and deliver to the person or persons entitled thereto a
Warrant Certificate or Warrant Certificates duly authorized and executed by the
Company, as so requested. The Warrant Agent shall not be required to effect
any exchange or registration or transfer that will result in the issuance of a
Warrant Certificate evidencing a fraction of a Warrant or a number of full
Warrants and a fraction of a Warrant. All Warrant Certificates issued upon any
exchange or registration of transfer of Warrant Certificates shall be the valid
obligation of the Company,
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evidencing the same obligations, and entitled to the same benefits under this
Agreement, as the Warrant Certificate surrendered for such exchange or
registration of transfer.
SECTION 4.02. Treatment of Holders of Warrant Certificates.
[If Offered Securities and Warrants are not immediately detachable -- Prior to
the Detachable Date, the Company, the Warrant Agent and all other persons may
treat the owner of the Offered Security as the owner of the Warrant
Certificates initially attached thereto for any purpose and as the person
entitled to exercise the rights represented by the Warrants evidenced by such
Warrant Certificates, any notice to the contrary notwithstanding. After the
Detachable Date and prior to due presentment of a Warrant Certificate for
registration of transfer,] [t][T]he Company and the Warrant Agent may treat the
registered holder of a Warrant Certificate as the absolute owner thereof for
any purpose and as the person entitled to exercise the rights represented by
the Warrants evidenced thereby, any notice to the contrary notwithstanding.
SECTION 4.03. Cancellation of Warrant Certificates. Any
Warrant Certificate surrendered for exchange, registration of transfer or
exercise of the Warrants evidenced thereby shall, if surrendered to the
Company, be delivered to the Warrant Agent and all Warrant Certificates
surrendered or so delivered to the Warrant Agent shall be promptly cancelled by
the Warrant Agent and shall not be reissued and, except as expressly permitted
by this Agreement, no Warrant Certificate shall be issued hereunder in exchange
or in lieu thereof. The Warrant Agent shall delivery to the Company from time
to time or otherwise dispose of cancelled Warrant Certificates in a manner
satisfactory to the Company.
ARTICLE V.
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent. The Company hereby appoints
______________________ as the Warrant Agent of the Company in respect of the
Warrants and the Warrant Certificates upon the terms and subject to the
conditions herein set forth, and _________________________ hereby accepts such
appointment. The Warrant Agent shall have the powers and authority granted to
and conferred upon it in the Warrant Certificates and hereby and such further
powers and authority to act on behalf of the Company as the Company may
hereafter grant to or confer upon it. All of the terms and provisions with
respect to such powers and authority contained in the Warrant Certificates are
subject to and governed by the terms and provisions hereof.
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SECTION 5.02. Conditions of Warrant Agent's Obligations. The
Warrant Agent accepts its obligations herein set forth upon the terms and
conditions hereof, including the following to all of which the Company agrees
and to all of which the rights hereunder of the holders from time to time of
the Warrant Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees
promptly to pay the Warrant Agent the compensation agreed upon with the Company
for all services rendered by the Warrant Agent and to reimburse the Warrant
Agent for reasonable out-of-pocket expenses (including counsel fees)
reasonably incurred without negligence or bad faith by the Warrant Agent in
connection with the services rendered hereunder by the Warrant Agent. The
Company also agrees to indemnify the Warrant Agent for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad
faith on the part of the Warrant Agent, arising out of or in connection with
its acting as Warrant Agent hereunder, as well as the costs and expenses of
defending against any claim of such liability.
(b) Agent for the Company. In acting under this Warrant
Agreement and in connection with the Warrant Certificates, the Warrant Agent is
acting solely as agent of the Company and does not assume any obligations or
relationship of agency or trust for or with any of the holders of Warrant
Certificates or beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with
nationally recognized counsel satisfactory to it, and the written advice of
such counsel shall be full and complete authorization and protection in respect
of any action reasonably taken, suffered or omitted by it hereunder in good
faith and in accordance with the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and
shall incur no liability for or in respect of any action taken or thing
suffered by it in reliance upon any Warrant Certificate, notice, direction,
consent, certificate, affidavit, statement or other paper or document
reasonably believed by it to be genuine and to have been presented or signed by
the proper parties.
(e) Certain Transactions. The Warrant Agent, and its
officers, directors and employees, may become the owner of, or acquire any
interest in, Warrants, with the same rights that it or they would have if it
were not the Warrant Agent hereunder, and, to the extent permitted by
applicable law, it or they may engage or be interested in any financial or
other transaction with the Company and may act on, or as depositary, trustee or
agent for, any committee or body of holders of
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Warrant Securities or other obligations of the Company as freely as if it were
not the Warrant Agent hereunder. Nothing in this Warrant Agreement shall be
deemed to prevent the Warrant Agent from acting as Trustee under any of the
Indentures.
(f) No Liability for Interest. Unless otherwise agreed
with the Company, the Warrant Agent shall have no liability for interest on any
monies at any time received by it pursuant to any of the provisions of this
Agreement or of the Warrant Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall
have no liability with respect to any invalidity of this Agreement or any of
the Warrant Certificates (except as to the Warrant Agent's countersignature
thereon).
(h) No Responsibility for Representations. The Warrant
Agent shall not be responsible for any of the recitals or representations
herein or in the Warrant Certificates (except as to the Warrant Agent's
countersignature thereon), all of which are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be
obligated to perform only such duties as are herein and in the Warrant
Certificates specifically set forth and no implied duties or obligations shall
be read into this Agreement or the Warrant Certificates against the Warrant
Agent. The Warrant Agent shall not be accountable or under any duty or
responsibility for the use by the Company of any of the Warrant Certificates
authenticated by the Warrant Agent and delivered by it to the Company pursuant
to this Agreement or for the application by the Company of the proceeds of the
Warrant Certificates. The Warrant Agent shall have no duty or responsibility
in case of any default by the Company in the performance of its covenants or
agreements contained herein or in the Warrant Certificates or in the case of a
receipt of any written demand from a holder of a Warrant Certificate with
respect to such default, including, without limiting the generality of the
foregoing, any duty or responsibility to initiate or attempt to initiate any
proceedings at law or otherwise or, except as provided in Section 7.02 hereof,
to make any demand upon the Company.
SECTION 5.03. Resignation and Appointment of Successor.
(a) The Company agrees, for the benefit of the holders
from time to time of the Warrant Certificates, that there shall at all times be
a Warrant Agent hereunder until all the Warrants have been exercised or are no
longer exercisable.
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(b) The Warrant Agent may at any time resign as such
agent by giving written notice to the Company of such intention on its part,
specifying the date on which its desired resignation shall become effective;
provided that such date shall be not less than three (3) months after the date
on which such notice is given unless the Company otherwise agrees. The Warrant
Agent hereunder may be removed at any time by the filing with it of an
instrument in writing signed by or on behalf of the Company and specifying such
removal and the intended date when it shall become effective. Such resignation
or removal shall take effect upon the appointment by the Company, as
hereinafter provided, of a successor Warrant Agent (which shall be a bank or
trust company authorized under the laws of the jurisdiction of its organization
to exercise corporate trust powers) and the acceptance of such appointment by
such successor Warrant Agent. The obligation of the Company under Section
5.02(a) shall continue to the extent set forth therein, notwithstanding the
resignation or removal of the Warrant Agent.
(c) In case at any time the Warrant Agent shall resign,
or shall be removed, or shall become incapable of acting, or shall be adjudged
a bankrupt or insolvent, or shall commence a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or under any other applicable
Federal or state bankruptcy, insolvency or similar law or shall consent to the
appointment of or taking possession by a receiver, custodian, liquidator,
assignee, trustee, sequestrator (or other similar official) of the Warrant
Agent or its property or affairs, or shall make an assignment for the benefit
of creditors, or shall admit in writing its inability to pay its debts
generally as they become due, or shall take corporate action in furtherance of
any such action, or a decree or order for relief by a court having jurisdiction
in the premises shall have been entered in respect of the Warrant Agent in an
involuntary case under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or state bankruptcy, insolvency or
similar law; or a decree or order by a court having jurisdiction in the
premises shall have been entered for the appointment of a receiver, custodian,
liquidator, assignee, trustee, sequestrator (or similar official) of the
Warrant Agent or of its property or affairs, or any public officer shall take
charge or control of the Warrant Agent or of its property or affairs for the
purpose of rehabilitation, conservation, winding up or liquidation, a successor
Warrant Agent, qualified as aforesaid, shall be appointed by the Company by an
instrument in writing, filed with the successor Warrant Agent. Upon the
appointment as aforesaid of a successor Warrant Agent and acceptance by the
successor Warrant Agent of
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such appointment, the Warrant Agent shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall
execute, acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment hereunder, and thereupon such successor
Warrant Agent, without any further act, deed or conveyance, shall become vested
with all the authority, rights, powers, trusts, duties and obligations of such
predecessor with like effect as if originally named as Warrant Agent hereunder,
and such predecessor, upon payment of its charges and disbursements then
unpaid, shall thereupon become obligated to transfer, deliver and pay over, and
such successor Warrant Agent shall be entitled to receive, all monies,
securities and other property on deposit with or held by such predecessor, as
Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent
hereunder may be merged or converted or any corporation with which the Warrant
Agent may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Warrant Agent shall be a party, or any
corporation to which the Warrant Agent shall sell or otherwise transfer all or
substantially all the assets and business of the Warrant Agent, provided that
it shall be qualified as aforesaid, shall be the successor Warrant Agent under
this Agreement without the execution or filing of any paper or any further act
on the part of any of the parties hereto.
ARTICLE VI.
[ACCELERATION OF WARRANTS
SECTION 6.01. Acceleration. At any time on or after
__________, the Company shall have the right to accelerate any or all Warrants
at any time by causing them to expire at the Close of Business on the day next
preceding a specified date (the "Acceleration Date"), if the Market Price (as
hereinafter defined) of the [Common Stock] [Preferred Stock] equals or exceeds
____ percent (__%) of the then-effective Warrant Price, adjusted as if no
changes in such Warrant Price had been made pursuant to Section 2.02, on any
twenty (20) Trading Days (as hereinafter defined) within a period of thirty
(30) consecutive Trading Days ending no more than five (5) Trading Days prior
to the date on which the Company gives notice to the Warrant Agent of its
election to accelerate the Warrants.
SECTION 6.02. Determination of Market Price. "Market Price"
for each Trading Day shall be the last reported
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closing price regular way (or, if no such price is reported, the average of the
reported closing bid and asked prices regular way) reported in the principal
consolidated transaction reporting system with respect to securities listed or
admitted to trading on the New York Stock Exchange, or if the [Common Stock]
[Preferred Stock] is not listed or admitted to trading on such Exchange, as
reported in the principal consolidated transaction reporting system with
respect to securities listed or admitted to trading on the principal national
securities exchange on which the [Common Stock] [Preferred Stock] is listed or
admitted to trading, or if not listed or admitted to trading on any national
securities exchange, the last quoted price or, if not so quoted, the average of
the high bid and low asked prices in the over-the-counter market, as reported
by NASDAQ, or such other system then in use, or if on any such date the Shares
of [Common Stock] [Preferred Stock] are not quoted by any such organization,
the average of the closing bid and asked prices as furnished by any New York
Stock Exchange firm selected from time to time by the Company for the purpose.
"Trading Day" shall be each Monday through Friday, other than any day on which
securities are not traded in the system or on the exchange that is the
principal market for the [Common Stock] [Preferred Stock], as determined by the
Board of Directors of the Company.
SECTION 6.03. Acceleration of Portion of Warrants. In the
event of an acceleration of less than all of the Warrants, the Warrant Agent
shall select the Warrants to be accelerated by lot, pro rata or in such other
manner as it deems, in its discretion, to be fair and appropriate.
SECTION 6.04. Notice. Notice of an acceleration specifying
the Acceleration Date, shall be sent by mailing first class, postage prepaid,
to each registered holder of a Warrant Certificate representing a Warrant
accelerated as such holder's address appearing on the Warrant register not more
than sixty (60) days nor less than thirty (30) days before the Acceleration
Date. Such notice of an acceleration also shall be given no more than twenty
(20) days, and no less than ten (10) days, prior to the mailing of notice to
registered holders of Warrant pursuant to this Section, by publication at least
once in a newspaper of general circulation in the City of Los Angeles,
California, and the City of New York, New York.
SECTION 6.05. Time of Acceleration. Any Warrant accelerated
may be exercised until the 5:00 P.M. Los Angeles, California time on the
business day next preceding the Acceleration Date. The Warrant Price shall be
payable as provided in this Warrant Agreement.]
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ARTICLE VII.
MISCELLANEOUS
SECTION 7.01. Amendment. This Agreement may be amended by
the parties hereto, without the consent of the holder of any Warrant
Certificate, for the purpose of curing any ambiguity, or of curing, correcting
or supplementing any defective provision contained herein, or making any other
provisions with respect to matters or questions arising under this Agreement as
the Company and the Warrant Agent may deem necessary or desirable; provided,
however, that such action shall not affect adversely the interests of the
holders of the Warrant Certificates.
SECTION 7.02. Notices and Demands to the Company and Warrant
Agent. If the Warrant Agent shall receive any notice or demand addressed to
the Company by the holder of a Warrant Certificate pursuant to the provisions
of the Warrant Certificates, the Warrant Agent shall promptly forward such
notice or demand to the Company.
SECTION 7.03. Addresses. Any communication from the Company
to the Warrant Agent with respect to this Agreement shall be addressed to
_____________________________, Attention: ____________________ and any
communication from the Warrant Agent to the Company with respect to this
Agreement shall be addressed to The Times Mirror Company, Times Mirror Square,
Los Angeles, California 90053, Attention: ___________ (or such other address as
shall be specified in writing by the Warrant Agent or by the Company).
SECTION 7.04. Applicable Law. The validity, interpretation
and performance of this Agreement and each Warrant Certificate issued hereunder
and of the respective terms and provisions thereof shall be governed by, and
construed in accordance with, the laws of the State of [California][New York].
SECTION 7.05. Delivery of Prospectus. The Company will
furnish to the Warrant Agent sufficient copies of a prospectus relating to the
Warrant Securities deliverable upon exercise of the Warrants (the
"Prospectus"), and the Warrant Agent agrees that upon the exercise of any
Warrant, the Warrant Agent will deliver a Prospectus to the holder of the
Warrant Certificate evidencing such Warrant prior or concurrently with the
delivery of the Warrant Securities issued upon such exercise. The Warrant
Agent shall not, by reason of any such delivery, assume any responsibility for
the accuracy or adequacy of such Prospectus.
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SECTION 7.06. Obtaining of Governmental Approvals. The
Company will from time to time take all action which may be necessary to obtain
and keep effective any and all permits, consents and approvals of governmental
agencies and authorities and securities acts filings under Federal and state
laws (including without limitation a registration statement in respect of the
Warrants and Warrant Securities under the Securities Act of 1933, as amended),
which may be or become requisite in connection with the issuance, sale,
transfer, and delivery of the Warrant Securities issued upon exercise of the
Warrant Certificates, the exercise of the Warrants, the issuance, sale,
transfer and delivery of the Warrants or upon the expiration of the period
during which the Warrants are exercisable.
SECTION 7.07. Persons Having Rights under Warrant Agreement.
Nothing in this Agreement shall give to any person other than the Company, the
Warrant Agent and the holders of the Warrant Certificates any right, remedy or
claim under or by reason of this Agreement.
SECTION 7.08. Headings. The descriptive headings of the
several Articles and Sections of this Agreement are inserted for convenience
only and shall not control or affect the meaning or construction of any of the
provisions hereof.
SECTION 7.09. Counterparts. This Agreement may be executed
in any number of counterparts, each of which as so executed shall be deemed to
be an original, but such counterparts shall together constitute but one and the
same instrument.
SECTION 7.10. Inspection of Agreement. A copy of this
Agreement shall be available at all reasonable times at the principal corporate
trust office of the Warrant Agent for inspection by the holder of any Warrant
Certificate. The Warrant Agent may require such holder to submit his Warrant
Certificate for inspection by it.
IN WITNESS WHEREOF The Times Mirror Company and
________________________ have caused this Agreement to be signed by their
respective duly authorized officers, and their respective corporate seals to be
affixed hereunto, and the same to be attested by their respective Secretaries
or one of their respective Assistant Secretaries, all as of the day and year
first above written.
THE TIMES MIRROR COMPANY
By: ___________________________
Title:
23
<PAGE> 24
Attest:
__________________________
Title:
[Warrant Agent]
By: ___________________________
Title:
Attest:
__________________________
Title:
24
<PAGE> 25
EXHIBIT A
FORM OF WARRANT CERTIFICATE
[FACE OF WARRANT CERTIFICATE]
<TABLE>
<S> <C>
[Form of Legend if Offered Securities with Prior to ______________ this Warrant Certificate
Warrants that are not immediately detachable. cannot be transferred or exchanged unless attached
to a [Title of Offered Securities].]
[Form of Legend if Warrants are not immediately Prior to ______________, Warrants evidenced by
exercisable. this Warrant Certificate cannot be exercised.]
</TABLE>
EXERCISABLE ONLY IF COUNTERSIGNED BY THE
WARRANT AGENT AS PROVIDED HEREIN
THE TIMES MIRROR COMPANY
WARRANTS TO PURCHASE
COMMON STOCK
VOID AFTER 5 P.M. [NEW YORK CITY TIME][LOS ANGELES TIME], ON
_____________.
No. ____________ ____________ Warrants
This certifies that __________________________ or registered assigns is
the registered owner of the above indicated number of Warrants, each Warrant
entitling such owner [if Offered Securities with Warrants that are not
immediately detachable --, subject to the registered owner qualifying as a
"holder" of this Warrant Certificate, as hereinafter defined] to purchase, at
any time [after 5 P.M., [New York City] [Los Angeles] time, on _____________,
_________ shares of [Common Stock] [Preferred Stock] (the "Warrant Securities"),
of The Times Mirror Company (the "Company") on the following basis: [during the
period from ______________, through and including ________________, the exercise
price of each Warrant will be ________________, during the period from
___________, through and including _________________,] the exercise price of
each Warrant will be _____________ (the "Warrant Price"), subject to such
adjustments as provided in Section 2.02 of the Warrant Agreement (as defined
below). Other than as provided in Section 2.02 of the Warrant Agreement, no
adjustment shall be made for any dividends on any Warrant Securities issuable
upon exercise of any Warrant. The holder may exercise the Warrants evidenced
hereby by providing certain information set forth on
A-1
<PAGE> 26
the back hereof and by paying in full [in lawful money of the United States of
America] [in cash or by certified check or official bank check or by bank wire
transfer, in each case,] [by bank wire transfer] in [immediately available]
[next-day] funds, the Warrant Price for each Warrant exercised to the Warrant
Agent (as hereinafter defined) and by surrendering this Warrant Certificate,
with the purchase form on the back hereof duly executed, at the corporate trust
office of [name of Warrant Agent], [or __________], which is, on the date
hereof, at the address specified on the reverse hereof, and upon compliance
with and subject to the conditions set forth herein an in the Warrant Agreement
(as hereinafter defined).
The term "holder" as used herein shall mean [if Offered
Securities with Warrants that are not immediately detachable --, prior to
___________ (the "Detachable Date"), the registered owner of the Company's
[title of Offered Securities] to which this Warrant Certificate is initially
attached, and after such Detachable Date,] the person in whose name at the time
of this Warrant Certificate shall be registered upon the books to be maintained
by the Warrant Agent for that purpose pursuant to Section 4.01 of the Warrant
Agreement.
Any whole number of Warrants evidenced by this Warrant
Certificate may be exercised to purchase Warrant Securities in registered form.
Upon any exercise of fewer than all of the Warrants evidenced by this Warrant
Certificate, there shall be issued to the holder hereof a new Warrant
Certificate evidencing the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance
with the Warrant Agreement dated as of ____________ (the "Warrant Agreement")
by and between the Company and the Warrant Agent and is subject to the terms
and provisions contained in the Warrant Agreement, to all of which terms and
provisions the holder of this Warrant Certificate consents by acceptance
hereof. Copies of the Warrant Agreement are on file at the above-mentioned
office of the Warrant Agent [and at ______________].
[If Offered Securities with registered Warrants that are not
immediately detachable -- Prior to __________________, this Warrant Certificate
may be exchanged or transferred only together with the [Title of Offered
Securities] (the "Offered Securities") to which this Warrant Certificate was
initially attached, and only for the purpose of effecting, or in conjunction
with, an exchange or transfer of such Offered Security. After such date, this]
[if Offered Securities with registered Warrants that are immediately detachable
- -- Transfer of this] Warrant Certificate may be registered when
A-2
<PAGE> 27
this Warrant Certificate is surrendered at the corporate trust office of the
Warrant Agent [or ____________] by the registered owner or such owner's
assigns, in person or by an attorney duly authorized in writing, in the manner
and subject to the limitations provided in the Warrant Agreement.]
[If Offered Securities with Warrants that are not immediately
detachable -- Except as provided in the immediately preceding paragraph, after]
[If Offered Securities with Warrants which are immediately detachable or
Warrant alone -- After] countersignature by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent [or ___________]
for Warrant Certificates representing the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the holder hereof
to any of the rights of a holder of the warrant securities, including, without
limitation, the right to receive payments of dividends or distributions, if
any, on the Warrant Securities or to exercise any voting rights.
This Warrant Certificate shall not be valid or obligatory for
any purpose until countersigned by the Warrant Agent.
Dated as of _______________
THE TIMES MIRROR COMPANY
By: ___________________________
Attest:
__________________________
Countersigned:
__________________________
As Warrant Agent
By:_______________________
Authorized Signature
A-3
<PAGE> 28
[REVERSE OF WARRANT CERTIFICATE]
INSTRUCTIONS FOR EXERCISE OF WARRANT
To exercise the Warrants evidenced hereof, the holder must pay
in United States dollars [in cash or by certified check or official bank check
or by bank wire transfer] [by bank wire transfer] in [immediately available]
[next-day] funds the Warrant Price in full for Warrants exercised to [insert
name of Warrant Agent] [Corporate Trust Department] [insert address of Warrant
Agent], Attn. _______ [or ___________], which [payment] [wire transfer] must
specify the name of the holder and the number of Warrants exercised by such
holder. In addition, the holder must complete the information required below
and present this Warrant Certificate in person or by mail (certified or
registered mail is recommended) to the Warrant Agent at the appropriate address
set forth below. This Warrant Certificate, completed and duly executed, must
be received by the Warrant Agent within five business days of the [payment]
[wire transfer].
TO BE EXECUTED UPON EXERCISE OF WARRANT
The undersigned hereby irrevocably elects to exercise
__________ Warrants, evidenced by this Warrant Certificate, to purchase
___________ shares of the [Common Stock] [Preferred Stock] (the "Warrant
Securities") of The Times Mirror Company and represents that the undersigned
has tendered payment for such Warrant Securities in Dollars [in cash or by
certified check or official bank check or by bank wire transfer, in each case]
[by bank wire transfer] in [immediately available] [next-day] funds to the
order of The Times Mirror Company, c/o [insert name and address of Warrant
Agent], in the amount of ___________ in accordance with the terms hereof. The
undersigned requests that said amount of Warrant Securities be in fully
registered form in the authorized denominations, registered in such names and
delivered all as specified in accordance with the instructions set forth below.
If the number of Warrants exercised is less than all of the
Warrants evidenced hereby, the undersigned requests that a new Warrant
Certificate representing the remaining warrant evidenced hereby be issued and
delivered to the undersigned unless otherwise specified in the instruction
below.
A-4
<PAGE> 29
<TABLE>
<S> <C>
Dated: ____________________ Name ________________________
Address _____________________
___________________________
(Insert Social Security or _________________________
Other Identifying Number of (Signature must conform in all respects
Holder) to name of holder as specified on the
Signature Guaranteed face of this Warrant Certificate and
must bear a signature guarantee by a
____________________ bank, trust company or member broker of
the New York or Pacific Stock Exchange)
</TABLE>
The Warrants evidenced hereby may be exercised at the
following addresses:
By hand at _________________________
_________________________
_________________________
_________________________
By mail at _________________________
_________________________
_________________________
_________________________
A-5
<PAGE> 30
ASSIGNMENT
[FORM OF ASSIGNMENT TO BE EXECUTED IF HOLDER
DESIRES TO TRANSFER WARRANTS EVIDENCED HEREBY]
FOR VALUE RECEIVED _________________________________ hereby sells, assigns and
transfers unto
<TABLE>
<S> <C>
__________________________ ________________________
(Please print name) (Please insert social security or other
identifying number
___________________________
(Address)
___________________________
(City, including zip code)
</TABLE>
the Warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint ______________ as Attorney to transfer said
Warrant Certificate on the books of the Warrant Agent with full power of
substitution in the premises.
Dated:
_____________________________________
Signature
(Signature must conform in all respects
to name of holder as specified on the
face of this Warrant Certificate and
must bear a signature guarantee by
a bank, trust company or member
broker of the New York or Pacific
Stock Exchange)
Signature Guaranteed
_______________________
A-6
<PAGE> 1
EXHIBIT 4.12
THE TIMES MIRROR COMPANY
DEBT WARRANT AGREEMENT
THIS WARRANT AGREEMENT, dated as of _____________, is by and
between The Times Mirror Company, a Delaware corporation (hereinafter called
the "Company," which term includes any successor corporation under the
Indenture hereinafter referred to), and ____________________, as Warrant Agent
(herein called the "Warrant Agent").
WHEREAS, the Company has entered into an indenture (the
"[Senior] [Subordinated] Indenture") dated as of __________________ between the
Company and __________________________, providing for the issuance from time to
time of its unsecured [senior] [subordinated] debentures, notes or other
evidences of indebtedness (the "[Senior] [Subordinated] Debt Securities"), to
be issued in one or more series as provided in the [Senior] [Subordinated]
Indenture; [if Warrant Securities are not under same Indenture as Debt
securities to which they are attached -- and an Indenture (the "[Senior]
[Subordinated] Indenture," the Senior and Subordinated Indentures being
referred to collectively as the "Indentures") dated as of ________________
between the Company and __________________, as trustee (the
"[Senior][Subordinated] Trustee," (the Senior and Subordinated Trustees being
referred to collectively, as the "Trustees"), providing for the issuance from
time to time of its [senior] [subordinated] debentures, notes or other
evidences of indebtedness (the "[Senior] [Subordinated] Debt Securities", the
[Senior] and [Subordinated] Debt Securities being referred to collectively as
the "Debt Securities"), to be issued in one or more series as provided in the
[____________] Indenture]; and
WHEREAS, the Company proposes to sell [if Warrants are sold
with Debt Securities -- [title of Debt Securities being offered] (the "Offered
Securities") with] warrant certificates evidencing one or more warrants (the
"Warrants" or individually a "Warrant") representing the right to purchase
[title of Debt Securities purchasable through
_______________
* Complete or modify the provisions of this Warrant Agreement as
appropriate to reflect the terms of the Warrants, Warrant Securities and
Offered Securities. Monetary amounts may be in U.S. dollars or in foreign
currency or European Currency Units ("ECU").
<PAGE> 2
exercise of Warrants] (the "Warrant Securities"), such warrant certificates and
other warrant certificates issued pursuant to this Agreement being herein
called the "Warrant Certificates"; and
WHEREAS, the Company desires the Warrant Agent to act on
behalf of the Company in connection with the issuance, exchange, exercise and
replacement of the Warrant Certificates, and in this Agreement wishes to set
forth, among other things, the form and provisions of the Warrant Certificates
and the terms and conditions on which they may be issued, exchanged, exercised
and replaced;
NOW THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the parties hereto agree as follows:
ARTICLE I.
ISSUANCE 0F WARRANTS AND EXECUTION
AND DELIVERY OF WARRANT CERTIFICATES
SECTION 1.01. Issuance of Warrants. [If Warrants alone --
Upon issuance, each Warrant Certificate shall evidence one or more Warrants.]
[If Offered Securities and Warrants -- Warrants shall be [initially] issued in
connection with the issuance of the Offered Securities [but shall be separately
transferable on and after _________________ (the "Detachable Date")] [and shall
not be separately transferable], and each Warrant Certificate shall evidence
one or more Warrants.] Each Warrant evidenced thereby shall represent the
right, subject to the provisions contained herein and therein, to purchase a
Warrant Security in the principal amount of _________________. [If Offered
Securities and Warrants -- Warrant Certificates shall be initially issued in
units with the Offered Securities, and each Warrant Certificate included in
such a unit shall evidence Warrants for each $[_____________] in principal
amount of Offered Securities included in such unit.]
SECTION 1.02. Execution and Delivery of Warrant Certificates.
Each Warrant Certificate, whenever issued, shall be in [registered] [bearer]
form substantially in the form set forth in Exhibit A hereto, shall be dated
________________________ and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the officers of the Company executing the
same may approve (execution thereof to be conclusive evidence of such approval)
and as are not inconsistent with the provisions of this Agreement, or as may be
required to comply with any law or with any
2
<PAGE> 3
rule or regulation made pursuant thereto or with any rule or regulation of any
stock exchange on which the Warrants may be listed, or to conform to usage.
The Warrant Certificates shall be signed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its President or one of
its Vice Presidents, and by its Secretary or one of its Assistant Secretaries
under its corporate seal reproduced thereon. Such signatures may be manual or
facsimile signatures of such authorized officers and may be imprinted or
otherwise reproduced on the Warrant Certificates. The seal of the Company may
be in the form of a facsimile thereof and may be impressed, affixed, imprinted
or otherwise reproduced on the Warrant Certificates.
No Warrant Certificates shall be valid for any purpose, and no
Warrant evidenced thereby shall be exercisable, until such Warrant Certificate
has been countersigned by the manual signature of the Warrant Agent. Such
signature by the Warrant Agent upon any Warrant Certificate executed by the
Company shall be conclusive evidence that the Warrant Certificate so
countersigned has been duly issued hereunder.
In case any officer of the Company who shall have signed any
of the Warrant Certificates either manually or by facsimile signature shall
cease to be such officer before the Warrant Certificate so signed shall have
been countersigned and delivered by the Warrant Agent, such Warrant
Certificates may be countersigned and delivered notwithstanding that the person
who signed such Warrant Certificates ceased to be such officer of the Company;
and any Warrant Certificate may be signed on behalf of the Company by such
persons as, at the actual date of the execution of such Warrant Certificate,
shall be the proper officers of the Company, although at the date of the
execution of this Agreement any such person was not such officer.
The term "holder" or "holder of a Warrant Certificate" as used
herein shall mean [the bearer of such Warrant Certificate] [any person in whose
name at the time any Warrant Certificate shall be registered upon the books to
be maintained by the Warrant Agent for that purpose] [If Offered Securities
and Warrants are not immediately detachable -- or [the bearer] [upon the
register] of the Offered Securities prior to the Detachable Date. [Prior to
the Detachable Date, the Company will, or will cause the registrar of the
Offered Securities to, make available at all times to the Warrant Agent such
information as to holders of the Offered Securities with Warrants as may be
necessary to keep the Warrant Agent's records up to date]].
SECTION 1.03. Issuance of Warrant Certificates. Warrant
Certificates evidencing the right to purchase an
3
<PAGE> 4
aggregate principal amount not exceeding ___________ aggregate principal amount
of Warrant Securities (except as provided in Sections 2.03(c), 3.02 and 4.01)
may be executed by the Company and delivered to the Warrant Agent upon the
execution of this Warrant Agreement or from time to time thereafter. The
Warrant Agent shall, upon receipt of Warrant Certificates duly executed on
behalf of the Company, countersign Warrant Certificates evidencing Warrants
representing the right to purchase up to ___________ principal amount of
Warrant Securities and shall deliver such Warrant Certificates to or upon the
order of the Company. Subsequent to such original issuance of the Warrant
Certificates, the Warrant Agent shall countersign a Warrant Certificate only if
the Warrant Certificate is issued in exchange or substitution for one or more
previously countersigned Warrant Certificates or in connection with their
transfer, as hereinafter provided or as provided in Section 2.03(c).
Section 1.04. Temporary Warrant Certificates. Pending the
preparation of definitive Warrant Certificates, the Company may execute, and
upon the order of the Company, the Warrant Agent shall authenticate and
deliver, temporary Warrant Certificates which are printed, lithographed,
typewritten, mimeographed or otherwise produced substantially of the tenor of
the definitive warrant Certificate in lieu of which they are issued and with
such insertions, omissions, substitutions and other variations as the officers
executing such Warrant Certificate may determine as appropriate, as evidenced
by their execution of such Warrant Certificates.
If temporary Warrant Certificates are issued, the Company will
cause definitive Warrant Certificates to be prepared without unreasonable
delay. After the preparation of definitive Warrant Certificates, the temporary
Warrant Certificates shall be exchangeable for definitive Warrant Certificates
upon surrender of the temporary Warrant Certificates at the corporate trust
office of the Warrant Agent [or ________________ ], without charge to the
holder. Upon surrender for cancellation of any one or more temporary Warrant
Certificates the Company shall execute and the Warrant Agent shall authenticate
and deliver in exchange therefor definitive Warrant Certificates representing
the same aggregate number of Warrants. Until so exchanged, the temporary
Warrant Certificates shall in all respects be entitled to the same benefits
under this Agreement as definitive Warrant Certificates.
4
<PAGE> 5
ARTICLE II.
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS
SECTION 2.01. Warrant Price. During the period from
_____________, through and including ________________, the exercise price of
each Warrant will be _____________ plus [accrued amortization of the original
issue discount] [accrued interest] from ______________. [In each case, the
original issue discount will be amortized at a ____% annual rate, computed on
an annual basis using the "interest" method and using a 360-day year consisting
of twelve 30-day months]. Such purchase price of Warrant Securities is
referred to in this Agreement as the "Warrant Price". [The original issue
discount for each ______________ principal amount of Warrant Securities is
________________.]
SECTION 2.02. Duration of Warrants. Each Warrant may be
exercised in whole at any time, as specified herein, on or after [the date
thereof] [_______________] and at or before 5 P.M., [New York City] [Los
Angeles] time, on ___________ [or such later date as the Company may designate,
by notice to the Warrant Agent and the holders of Warrant Certificates mailed
to their addresses as set forth in the record books of the Warrant Agent] (the
"Expiration Date"). Each Warrant not exercised at or before 5 P.M., [New York
City] [Los Angeles] time, on the Expiration Date shall become void, and all
rights of the holder of the Warrant Certificate evidencing such Warrant under
this Agreement shall cease.
SECTION 2.03. Exercise of Warrants. (a) During the period
specified in Section 2.02 any whole number of Warrants may be exercised by
providing certain information as set forth on the reverse side of the Warrant
Certificate and by paying in full, in [lawful money of the United States of
America] [applicable currency,] [in cash or by certified check or official bank
check or by bank wire transfer, in each case,] [by bank wire transfer] in
[immediately available] [next-day] funds the Warrant Price for each Warrant
exercised, to the Warrant Agent at its corporate trust office [or at
____________], provided that such exercise is subject to receipt within five
(5) business days of such [payment] [wire transfer] by the Warrant Agent of the
Warrant Certificate with the form of election to purchase Warrant Securities
set forth on the reverse side of the Warrant Certificate property completed and
duly executed [including any applicable certifications if the Warrant
Securities are issuable in bearer form]. The date on which payment in full of
the Warrant Price is received by the Warrant Agent shall, subject to receipt of
the Warrant Certificate as aforesaid, be deemed to be the date on which the
Warrant is exercised. The Warrant
5
<PAGE> 6
Agent shall deposit all funds received by it in payment of the Warrant Price in
an account of the Company maintained with it [if non-dollar denominated funds
- -- or in such other account designated by the Company] and shall advise the
Company by telephone at the end of each day on which a [payment] [wire
transfer] for the exercise of Warrants is received of the amount so deposited
to its account. The Warrant Agent shall promptly confirm such telephone advice
to the Company in writing.
(b) The Warrant Agent shall, from time to time, as
promptly as practicable, advise the Company and the [Trustee under the
Indenture relating to the Warrant Securities] of (i) the number of Warrants
exercised, (ii) the instructions of each holder of the Warrant Certificates
evidencing such Warrants with respect to delivery of the Warrant Securities to
which such holder is entitled upon such exercise, (iii) delivery of Warrant
Certificates evidencing the balance, if any, of the Warrants remaining after
such exercise, and (iv) such other information as the Company or such Trustee
shall reasonably require.
(c) As promptly as reasonably practicable after the
exercise of any Warrant, the Company shall issue, pursuant to the Indenture, in
authorized denominations to or upon the order of the holder of the Warrant
Certificate evidencing such Warrant, the Warrant Securities to which such
holder is entitled, in [fully registered form, registered in such name or names
as may be directed by such holder] [bearer form, provided the holder has
furnished to the Warrant Agent all certifications required by applicable U.S.
Treasury regulations for the delivery of bearer securities and only if the
Company has no reason to know that the certifications are false. If fewer than
all of the Warrants evidenced by such Warrant Certificate are exercised, the
Company shall execute, and an authorized officer of the Warrant Agent shall
manually countersign and deliver, a new Warrant Certificate evidencing the
number of such Warrants remaining unexercised. [Unless otherwise instructed by
the Company, Warrant Securities in bearer form shall be delivered to or upon
the order of the holder of such Warrant Certificate only outside the United
States and its possessions.]
(d) The Company shall not be required to pay any stamp or
other tax or other governmental charge required to be paid in connection with
any transfer involved in the issue of the Warrant Securities, and in the event
that any such transfer is involved, the Company shall not be required to issue
or deliver any Warrant Security until such tax or other charge shall have been
paid or its has been established to the Company's satisfaction that no such tax
or other charge is due.
6
<PAGE> 7
ARTICLE III.
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
SECTION 3.01. No Rights as Warrant Securityholder Conferred
by Warrants or Warrant Certificates. No Warrant Certificate or Warrant
evidenced thereby shall entitle the holder thereof to any of the rights of a
holder of Warrant Securities, including, without limitation, the right to
receive the payment of principal of, premium, if any, or interest on Warrant
Securities or to enforce any of the covenants in the [Indenture relating to the
Warrant Securities].
SECTION 3.02. Lost, Stolen, Mutilated or Destroyed Warrant
Certificates. Upon receipt by the Warrant Agent of evidence reasonably
satisfactory to it and the Company of the ownership of and the loss, theft,
destruction or mutilation of any Warrant Certificate and of indemnity
reasonably satisfactory to the Warrant Agent and the Company and, in the case
of mutilation, upon surrender thereof to the Warrant Agent for cancellation,
then, in the absence of notice to the Company or the Warrant Agent that such
Warrant Certificate has been acquired by a bona fide purchaser, the Company
shall execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver, in exchange for or in lieu of the lost, stolen,
destroyed or mutilated Warrant Certificate, a new Warrant Certificate of the
same tenor and evidencing a like number of Warrants. Upon the issuance of any
new Warrant Certificate under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Warrant Agent) in connection therewith. Every substitute
Warrant Certificate executed and delivered pursuant to this Section in lieu of
any lost, stolen or destroyed Warrant Certificate shall represent an additional
contractual obligation of the Company, whether or not the mutilated, lost,
stolen or destroyed Warrant Certificate shall be at any time enforceable by
anyone, and shall be entitled to the benefits of this Agreement equally and
proportionately with any and all other Warrant Certificates duly executed and
delivered hereunder. The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement of mutilated, lost, stolen or destroyed Warrant Certificates.
SECTION 3.03. Holder of Warrant Certificate May Enforce
Rights. Notwithstanding any of the provisions of this Agreement, any holder of
a Warrant Certificate, without the consent of the Warrant Agent, the Trustee,
the holder of any
7
<PAGE> 8
Warrant Securities or the holder of any other Warrant Certificate, may, in his
own behalf and for his own benefit, enforce, and may institute and maintain any
suit, action or proceeding against the Company suitable to enforce, or
otherwise in respect of, his right to exercise the Warrants evidenced by his
Warrant Certificate in the manner provided in his Warrant Certificate and in
this Agreement.
SECTION 3.04. Merger, Consolidation, Conveyance, Transfer or
Lease. If at any time there shall be a merger, consolidation, conveyance,
transfer or lease of assets subject to Section ___ of the [Indenture relating
to the Warrant Securities], then in any such event the successor or assuming
corporation referred to therein shall succeed to and be substituted for the
Company, with the same effect, subject to such Indenture, as if it had been
named herein and in the Warrant as the Company; the Company shall thereupon be
relieved of any further obligation hereunder or under the Warrants, and the
Company as the predecessor corporation may thereupon or at any time thereafter
be dissolved, wound up or liquidated. Such successor or assuming corporation
thereupon may cause to be signed, and may issue either in its own name or in
the name of the Company, any or all of the Warrants issuable hereunder that
theretofore shall not have been signed by the Company, and may execute and
deliver Warrant Securities in its own name pursuant to such Indenture, in
fulfillment of its obligations to deliver Warrant Securities upon exercise of
the Warrants. All the Warrants so issued shall in all respects have the same
legal rank and benefit under this Agreement as the Warrants theretofore or
thereafter issued in accordance with the terms of this Agreement as though all
of such Warrants had been issued at the date of the execution hereof. In any
case of any such consolidation, merger, conveyance, transfer or lease, such
changes in phraseology and form (but not in substance) may be made in the
Warrants thereafter to be issued as may be appropriate.
The Warrant Agent may receive a written opinion of legal
counsel as conclusive evidence that any such consolidation, merger, conveyance,
transfer or lease complies with the provisions of this Section 3.04 and such
Indenture.
ARTICLE IV.
EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES
SECTION 4.01. Exchange and Transfer of Warrant Certificates.
[If Offered Securities with Warrants that are immediately detachable -- Upon]
[[If offered Securities with Warrants that are not immediately detachable --
Prior to the Detachable Date a Warrant Certificate may be exchanged or
transferred only together with the Offered Security to which
8
<PAGE> 9
the Warrant Certificate was initially attached, and only for the purpose of
effecting or in conjunction with an exchange or transfer of such Offered
Security. Prior to any Detachable Date, each transfer of the Offered Security
[on the register of the Offered Securities] shall operate also to transfer the
related Warrant Certificates. After the Detachable Date upon] surrender at the
corporate trust office of the Warrant Agent [or ___________], Warrant
Certificates evidencing Warrants may be exchanged for Warrant Certificates in
other denominations evidencing such Warrants [or the transfer thereof may be
registered in whole or in part]; provided that such other Warrant Certificates
evidence the same aggregate number of Warrants as the Warrant Certificates so
surrendered. [The Warrant Agent shall keep, at its corporate trust office [and
at], books in which, subject to such reasonable regulations as it may
prescribe, it shall register Warrant Certificates and exchanges and transfers
of outstanding Warrant Certificates, upon surrender of the Warrant Certificates
to the Warrant Agent at its corporate trust office [_______________] for
exchange or registration of transfer, properly endorsed or accompanied by
appropriate instruments of registration of transfer and written instructions
for transfer, all in form satisfactory to the Company and the Warrant Agent.]
No service charge shall be made for any exchange [or registration of transfer]
of Warrant Certificates, but the Company may require payment of a sum
sufficient to cover any stamp or other tax or other governmental charge that
may be imposed in connection with any such exchange [or registration or
transfer]. Whenever any Warrant Certificates are so surrendered for exchange
[or registration of transfer], an authorized officer of the Warrant Agent shall
manually countersign and deliver to the person or persons entitled thereto a
Warrant Certificate or Warrant Certificates duly authorized and executed by the
Company, as so requested. The Warrant Agent shall not be required to effect
any exchange [or registration of transfer] that will result in the issuance of
a Warrant Certificate evidencing a fraction of a Warrant or a number of full
Warrants and a fraction of a Warrant. All Warrant certificates issued upon any
exchange [or registration of transfer] of Warrant Certificates shall be the
valid obligations of the Company, evidencing the same obligations, and entitled
to the same benefits under this Agreement, as the Warrant Certificate
surrendered for such exchange [or registration of transfer].
SECTION 4.02. Treatment of Holders of Warrant Certificates.
[If offered Securities and Warrants are not immediately detachable -- Prior to
the Detachable Date, the Company, the Warrant Agent, and all other persons may
treat the owner of the Offered Security as the owner of the Warrant
Certificates initially attached thereto for any purpose or as the person
entitled to exercise the rights represented by the
9
<PAGE> 10
Warrants evidenced by such Warrant Certificates, any notice to the contrary
notwithstanding. After the Detachable Date,] [if registered Warrants -- and
prior to due presentment of a Warrant Certificate for registration of
transfer,] [t][T]he Company, the Warrant Agent and all other persons may treat
the holder of a Warrant Certificate as the owner thereof for any purpose and as
the person entitled to exercise the rights represented by the Warrants
evidenced thereby, any notice to the contrary notwithstanding.
SECTION 4.03. Cancellation of Warrant Certificates. Any
Warrant Certificate surrendered for exchange[, registration of transfer] or
exercise of the Warrants evidenced thereby shall, if surrendered to the
Company, be delivered to the Warrant Agent and all Warrant Certificates
surrendered or so delivered to the Warrant Agent shall be promptly cancelled by
the Warrant Agent and shall not be reissued and, except as expressly permitted
by this Agreement, no Warrant Certificate shall be issued hereunder in exchange
or in lieu thereof. The Warrant Agent shall deliver to the Company from time
to time or otherwise dispose of cancelled Warrant Certificates in a manner
satisfactory to the Company.
ARTICLE V
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent. The Company hereby appoints
_______________ as Warrant Agent of the Company in respect of the Warrants and
the Warrant Certificates upon the terms and subject to the conditions herein
set forth; and ______________ hereby accepts such appointment. The Warrant
Agent shall have the powers and authority granted to and conferred upon it in
the Warrant Certificates and hereby and such further powers and authority to
act on behalf of the Company as the Company may hereafter grant to or confer
upon it. All of the terms and provisions with respect to such powers and
authority contained in the Warrant Certificates are subject to and governed by
the terms and provisions hereof.
SECTION 5.02. Conditions of Warrant Agent's Obligations. The
Warrant Agent accepts its obligations herein set forth upon the terms and
conditions hereof, including the following to all of which the Company agrees
and to all of which the rights hereunder of the holders from time to time of
the Warrant Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees
promptly to pay the Warrant Agent the compensation agreed upon with the Company
for all services rendered by the Warrant Agent and to reimburse the Warrant
Agent for reasonable out- of-pocket expenses (including counsel fees)
10
<PAGE> 11
reasonably incurred without negligence or bad faith by the Warrant Agent in
connection with the services rendered hereunder by the Warrant Agent. The
Company also agrees to indemnify the Warrant Agent for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad
faith on the part of the Warrant Agent, arising out of or in connection with
its acting as Warrant Agent hereunder, as well as the costs and expenses of
defending against any claim of such liability.
(b) Agent for the Company. In acting under this Warrant
Agreement and in connection with the Warrant Certificates, the Warrant Agent is
acting solely as agent of the Company and does not assume any obligations or
relationship of agency or trust for or with any of the holders of Warrant
Certificates or beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with
nationally recognized counsel satisfactory to it, and the written advice of
such counsel shall be full and complete authorization and protection in respect
of any action reasonably taken, suffered or omitted by it hereunder in good
faith and in accordance with the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and
shall incur no liability for or in respect of any action taken or thing
suffered by it in reliance upon any Warrant Certificate, notice, direction,
consent, certificate, affidavit, statement or other paper or document
reasonably believed by it to be genuine and to have been presented or signed by
the proper parties.
(e) Certain Transactions. The Warrant Agent, and its
officers, directors and employees, may become the owner of, or acquire any
interest in, Warrants, with the same rights that it or they would have if it
were not the Warrant Agent hereunder, and, to the extent permitted by
applicable law, it or they may engage or be interested in any financial or
other transaction with the Company and may act on, or as depositary, trustee or
agent for, any committee or body of Holders of Warrant Securities or other
obligations of the Company as freely as if it were not the Warrant Agent
hereunder. Nothing in this Warrant Agreement shall be deemed to prevent the
Warrant Agent from acting as Trustee under any of the Indentures.
(f) No Liability for Interest. Unless otherwise agreed
with the Company, the Warrant Agent shall have no liability for interest on any
monies at any time received by it pursuant to any of the provisions of this
Agreement or of the Warrant Certificates.
11
<PAGE> 12
(g) No Liability for Invalidity. The Warrant Agent shall
have no liability with respect to any invalidity of this Agreement or any of
the Warrant Certificates (except as to the Warrant Agent's countersignature
thereon).
(h) No Responsibility for Representations. The Warrant
Agent shall not be responsible for any of the recitals or representations
herein or in the Warrant Certificates (except as to the Warrant Agent's
countersignature thereon), all of which are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be
obligated to perform only such duties as are herein and in the Warrant
Certificates specifically set forth and no implied duties or obligations shall
be read into this Agreement or the Warrant Certificates against the Warrant
Agent. The Warrant Agent shall not be accountable or under any duty or
responsibility for the use by the Company of any of the Warrant Certificates
authenticated by the Warrant Agent and delivered by it to the Company pursuant
to this Agreement or for the application by the Company of the proceeds of the
Warrant Certificates. The Warrant Agent shall have no duty or responsibility
in case of any default by the Company in the performance of its covenants or
agreements contained herein or in the Warrant Certificates or in the case of
the receipt of any written demand from a holder of a Warrant Certificate with
respect to such default, including, without limiting the generality of the
foregoing, any duty or responsibility to initiate or attempt to initiate any
proceedings at law or otherwise or, except as provided in Section 6.02 hereof,
to make any demand upon the Company.
SECTION 5.03. Resignation and Appointment of Successor.
(a) The Company agrees, for the benefit of the holders
from time to time of the Warrant Certificates, that there shall at all times be
a Warrant Agent hereunder until all the Warrants have been exercised or are no
longer exercisable.
(b) The Warrant Agent may at any time resign as such
agent by giving written notice to the Company of such intention on its part,
specifying the date on which its desired resignation shall become effective;
provided that such date shall be not less than three (3) months after the date
on which such notice is given, unless the Company otherwise agrees. The
Warrant Agent hereunder may be removed at any time by the filing with it of an
instrument in writing signed by or on behalf of the Company and specifying such
removal and the intended date when it shall become effective. Such resignation
or removal shall take effect upon the appointment
12
<PAGE> 13
by the Company, as hereinafter provided, of a successor Warrant Agent (which
shall be a bank or trust company authorized under the laws of the jurisdiction
of its organization to exercise corporate trust powers) and the acceptance of
such appointment by such successor Warrant Agent. The obligation of the
Company under Section 5.02(a) shall continue to the extent set forth therein
notwithstanding the resignation or removal of the Warrant Agent.
(c) In case at any time the Warrant Agent shall resign,
or shall be removed, or shall become incapable of acting, or shall be adjudged
a bankrupt or insolvent, or shall commence a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or under any other applicable
Federal or state bankruptcy, insolvency or similar law or shall consent to the
appointment of or taking possession by a receiver, custodian, liquidator,
assignee, trustee, sequestrator (or other similar official) of the Warrant
Agent or its property or affairs, or shall admit in writing its inability to
pay its debts generally as they become due, or shall take corporate action in
furtherance of any such action, or a decree or order for relief by a court
having jurisdiction in the premises shall have been entered in respect of the
Warrant Agent in an involuntary case under the Federal bankruptcy laws, as now
or hereafter constituted, or any other applicable Federal or state bankruptcy,
insolvency or similar law; or a decree or order by a court having jurisdiction
in the premises shall have been entered for the appointment of a receiver,
custodian, liquidator, assignee, trustee, sequestrator (or similar official) of
the Warrant Agent or of its property or affairs, or any public officer shall
take charge or control of the Warrant Agent or of its property or affairs for
the purpose of rehabilitation, conservation, winding up or liquidation, a
successor Warrant Agent, qualified as aforesaid, shall be appointed by the
Company by an instrument in writing, filed with the successor Warrant Agent.
Upon the appointment as aforesaid of a successor Warrant Agent and acceptance
by the successor Warrant Agent of such appointment, the Warrant Agent shall
cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder
shall execute, acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment hereunder, and thereupon such successor
Warrant Agent, without any further act, deed or conveyance, shall become vested
with all the authority, rights, powers, trusts, duties and obligations of such
predecessor with like effect as if originally named as Warrant Agent hereunder,
and such predecessor, upon payment of its charges and disbursements then
unpaid, shall thereupon become obligated to transfer, deliver and pay over, and
such successor Warrant Agent shall
13
<PAGE> 14
be entitled to receive, all monies, securities and other property on deposit
with or held by such predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent
hereunder may be merged or converted or any corporation with which the Warrant
Agent may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Warrant Agent shall be a party, or any
corporation to which the Warrant Agent shall sell or otherwise transfer all or
substantially all the assets and business of the Warrant Agent, provided that
it shall be qualified as aforesaid, shall be the successor Warrant Agent under
this Agreement without the execution or filing of any paper or any further act
on the part of any of the parties hereto.
ARTICLE VI.
MISCELLANEOUS
SECTION 6.01. Amendment. This Agreement may be amended by
the parties hereto, without the consent of the holder of any Warrant
Certificate, for the purpose of curing any ambiguity, or of curing, correcting
or supplementing any defective provision contained herein, or making any other
provisions with respect to matters or questions arising under this Agreement as
the Company and the Warrant Agent may deem necessary or desirable; provided,
however, that such action shall not affect adversely the interests of the
holders of the Warrant Certificates.
SECTION 6.02. Notices and Demands to the Company and Warrant
Agent. If the Warrant Agent shall receive any notice or demand addressed to
the Company by the holder of a Warrant Certificate pursuant to the provisions
of the Warrant Certificates, the Warrant Agent shall promptly forward such
notice or demand to the Company.
SECTION 6.03. Addresses. Any communication from the Company
to the Warrant Agent with respect to this Agreement shall be addressed to
________________________ Attention: _______________________ and any
communication from the Warrant Agent to the Company with respect to this
Agreement shall be addressed to The Times Mirror Company, Times Mirror Square,
Los Angeles, California 90053, Attention: _______________ (or such other
address as shall be specified in writing by the Warrant Agent or by the
Company).
SECTION 6.04. Applicable Law. The validity, interpretation
and performance of this Agreement and each Warrant Certificate issued hereunder
and of the respective
14
<PAGE> 15
terms and provisions thereof shall be governed by, and construed in accordance
with, the laws of the State of [California] [New York].
SECTION 6.05. Delivery of Prospectus. The Company will
furnish to the Warrant Agent sufficient copies of a prospectus relating to the
Warrant Securities deliverable upon exercise of the Warrants (the
"Prospectus"), and the Warrant Agent agrees that upon the exercise of any
Warrant, the Warrant Agent will deliver to the holder of the Warrant
Certificate evidencing such Warrant, prior to or concurrently with the delivery
of the Warrant Securities issued upon such exercise, a Prospectus. The Warrant
Agent shall not, by reason of any such delivery, assume any responsibility for
the accuracy or adequacy of such Prospectus.
SECTION 6.06. Obtaining of Governmental Approvals. The
Company will from time to time take all action which may be necessary to obtain
and keep effective any and all permits, consents and approvals of governmental
agencies and authorities and securities acts filings under Federal and state
laws (including without limitation a registration statement in respect of the
Warrants and Warrant Securities under the Securities Act of 1933, as amended),
which may be or become requisite in connection with the issuance, sale,
transfer, and delivery of the Warrant Securities issued upon exercise of the
Warrant Certificates, the exercise of the Warrants, the issuance, sale,
transfer and delivery of the Warrants or upon the expiration of the period
during which the Warrants are exercisable.
SECTION 6.07. Persons Having Rights under Warrant Agreement.
Nothing in this Agreement shall give to any person other than the Company, the
Warrant Agent and the holders of the Warrant Certificates any right, remedy or
claim under or by reason of this Agreement.
SECTION 6.08. Headings. The descriptive headings of the
several Articles and Sections of this Agreement are inserted for convenience
only and shall not control or affect the meaning or construction of any of the
provisions hereof.
SECTION 6.09. Counterparts. This Agreement may be executed
in any number of counterparts, each of which as so executed shall be deemed to
be an original, but such counterparts shall together constitute but one and the
same instrument.
SECTION 6.10. Inspection of Agreement. A copy of this
Agreement shall be available at all reasonable times at the principal corporate
trust office of the Warrant Agent for inspection by the holder of any Warrant
Certificate. The
15
<PAGE> 16
Warrant Agent may require such holder to submit his Warrant Certificate for
inspection by it.
IN WITNESS WHEREOF The Times Mirror Company and ____________
have caused this Agreement to be signed by their respective duly authorized
officers, and their respective corporate seals to be affixed hereunto, and the
same to be attested by their respective Secretaries or one of their respective
Assistant Secretaries, all as of the day and year first above written.
THE TIMES MIRROR COMPANY
By_________________________
Title:
Attest:
______________________
Title:
(Warrant Agent)
By_________________________
Title:
Attest:
______________________
Title:
16
<PAGE> 17
EXHIBIT A
FORM OF WARRANT CERTIFICATE
[FACE OF WARRANT CERTIFICATE]
<TABLE>
<S> <C>
[Form of Legend if Offered Securities with Prior to ___________ this Warrant Certificate
Warrants that are not immediately detachable. cannot be transferred or exchanged unless attached
to a [Title of Offered Securities].]
[Form of Legend if Warrants are not immediately Prior to ____________, Warrants evidenced by this
exercisable. Warranty Certificate cannot be exercised.]
</TABLE>
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
THE TIMES MIRROR COMPANY
WARRANTS TO PURCHASE
[TITLE OF WARRANT SECURITIES]
VOID AFTER 5:00 P.M. [NEW YORK CITY TIME] [LOS ANGELES TIME],
ON ___________________
No.____________ _____________________
Warrants
This certifies that [the bearer is the] [___________________
or registered assigns is the registered] owner of the above indicated number of
Warrants, each Warrant entitling such owner [if Offered Securities with
Warrants that are not immediately detachable -- , subject to the [bearer]
[registered] owner] qualifying as a "holder" of this Warrant Certificate, as
hereinafter defined to purchase, at any time [after 5 P.M., [New York City]
[Los Angeles] time, on _________________ and] on or before 5 P.M., [New York
City] [Los Angeles] time, on _______________ principal amount of [Title of
Warrant Securities] (the "Warrant Securities"), of The Times Mirror Company
(the "Company"), issued and to be issued under the Indenture (as hereinafter
defined), on the following basis: [during the period from _____________,
through and including ____________] the exercise price of each Warrant will be
_____________ plus [accrued amortization of the original issue discount]
[accrued interest] from
A-1
<PAGE> 18
__________; [during the period from ____________, through and including
________________, the exercise price of each Warrant will be ___________ plus
[accrued amortization of the original issue discount] [accrued interest] from
_______________;] [in each case, the original issue discount will be amortized
at a ____________% annual rate, computed on an annual basis using the
"interest" method and using a 360-day year consisting of twelve 30-day months]
(the "Warrant Price"). [The original issue discount for each ____________
principal amount of Warrant Securities is __________________.] The holder may
exercise the Warrants evidenced hereby by providing certain information set
forth on the back hereof, including any applicable certifications if the
Warrant Securities are issuable in bearer form, and by paying in full [in
lawful money of the United States of America] [applicable currency] [in cash or
by certified check or official bank check or by bank wire transfer, in each
case,] [by bank wire transfer] in [immediately available] [next-day] funds, the
Warrant Price for each Warrant exercised to the Warrant Agent (as hereinafter
defined) and by surrendering this Warrant Certificate, with the purchase form
on the back hereof duly executed, at the corporate trust office of [name of
Warrant Agent], or its successor as warrant agent (the "Warrant Agent"), [or
___________], which is, on the date hereof, at the address on the reverse
hereof, and upon compliance with and subject to the conditions set forth herein
and in the Warrant Agreement (as hereinafter defined).
The term "holder" as used herein shall mean [if Offered
Securities with Warrants that are not immediately detachable -- , prior to
___________ (the "Detachable Date"), the [bearer] [registered owner] of the
Company's [title of Offered Securities] to which this Warrant Certificate is
initially attached, and after such Detachable Date,] [the bearer of this
Warrant Certificate] [the person in whose name at the time this Warrant
Certificate shall be registered upon the books to be maintained by the Warrant
Agent for that purpose pursuant to Section 4.01 of the Warrant Agreement].
Any whole number of Warrants evidenced by this Warrant
Certificate may be exercised to purchase Warrant Securities in registered form
in denominations of __________________ and any integral multiples thereof.
Upon any exercise of fewer than all of the Warrants evidenced by this Warrant
Certificate, there shall be issued to the holder hereof a new Warrant
Certificate evidencing the number of warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance
with the Warrant Agreement dated as of __________________ (the "Warrant
Agreement") between the Company and the Warrant Agent and is subject to the
terms and
A-2
<PAGE> 19
provisions contained in the Warrant Agreement, to all of which terms and
provisions the holder of this Warrant Certificate consents by acceptance
hereof. Copies of the Warrant Agreement are on file at the above-mentioned
office of the Warrant Agent [and at ______________].
[If offered Securities with Warrants that are not immediately
detachable -- Prior to _________________, this Warrant Certificate may be
exchanged or transferred only together with the [Title of Offered Securities]
("Offered Securities") to which this Warrant Certificate was initially
attached, and only for the purpose of effecting, or in conjunction with, an
exchange or transfer of such Offered Security. After such date, this] [if
Offered Securities with Warrants that are immediately detachable -- Transfer of
this] Warrant Certificate may be registered when this Warrant Certificate is
surrendered at the corporate trust office of the Warrant Agent [or
_______________] by the registered owner or his assigns, in person or by an
attorney duly authorized in writing, in the manner and subject to the
limitations provided in the Warrant Agreement.] [effected by delivery and the
Company and the Warrant Agent may treat the bearer hereof as the owner for all
purposes.]
[If Offered Securities with Warrants that are not immediately
detachable -- Except as provided in the immediately preceding paragraph, after]
[If Offered Securities with Warrants which are immediately detachable or
Warrants alone -- After] countersignature by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent [or __________]
for Warrant Certificates representing the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the holder hereof
to any of the rights of a holder of the Warrant Securities, including, without
limitation, the right to receive payments of principal of, premium, if any, or
interest, if any, on the Warrant Securities or to enforce any of the covenants
of the Indenture.
A-3
<PAGE> 20
This Warrant Certificate shall not be valid or obligatory for
any purpose until countersigned by the Warrant Agent.
Dated as of ________________
THE TIMES MIRROR COMPANY
By:_______________________
Authorized Officer
By:_______________________
Authorized Officer
Attest:
___________________________
Countersigned:
___________________________
As Warrant Agent
By:________________________
Authorized Signature
A-4
<PAGE> 21
[Reverse of Warrant Certificate]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the holder must pay
in [Dollars] [applicable currency] [in cash or by certified check or official
bank check or by bank wire transfer] [by bank wire transfer] in [immediately
available] [next-day] funds the Warrant Price in full for Warrants exercised to
[insert name of Warrant Agent] [corporate trust department] [insert address of
Warrant Agent], Attn. __________ [or _____________], which [payment] [wire
transfer] must specify the name of the holder and the number of Warrants
exercised by such holder. In addition, the holder must complete the
information required below, including any applicable certifications if the
Warrant Securities are issuable in bearer form, and present this Warrant
Certificate in person or by mail (certified or registered mail is recommended)
to the Warrant Agent at the appropriate address set forth below. This Warrant
Certificate, completed and duly executed, must be received by the Warrant Agent
within five (5) business days of the [payment] [wire transfer].
TO BE EXECUTED UPON EXERCISE OF WARRANT
The undersigned hereby irrevocably elects to exercise
__________ Warrants, evidenced by this Warrant Certificate, to purchase
____________ principal amount of the [Title of Warrant Securities] (the
"Warrant Securities") of The Times Mirror Company and represents that he has
tendered payment for such Warrant Securities in [Dollars] [applicable currency]
[in cash or by certified check or official bank check or by bank wire transfer,
in each case] [by bank wire or transfer] in [immediately available] [next-day]
funds to the order of The Times Mirror Company, c/o [insert name and address of
Warrant Agent], in the amount of in accordance with the terms hereof. The
undersigned requests that said principal amount of Warrant Securities be in
[bearer] [fully registered] form in the authorized denominations, registered in
such names and delivered all as specified in accordance with the instructions
set forth below. [However, unless otherwise designated by the Company, Warrant
Securities in bearer form shall be delivered to or upon the order of the holder
of such Warrant Certificate only outside the United States and its
possessions.]
If the number of Warrants exercised is less than all of the
Warrants evidenced hereby, the undersigned requests that a new Warrant
Certificate representing the remaining Warrants hereby be issued and delivered
to the undersigned unless otherwise specified in the instructions below.
A-5
<PAGE> 22
<TABLE>
<S> <C>
Dated:_______________________ Name_________________________
_____________________________ Address______________________
(Insert Social Security or Other Identifying _____________________________
Number of Holder
Signature____________________
[If registered Warrant -- Signature Guaranteed [If registered Warrant -- Signature must conform
in all respects to name of holder as specified on
___________________________] face of this Warrant Certificate and must bear a
signature guarantee by a bank, trust company or
member broker of the New York or Pacific Stock
Exchange]
</TABLE>
The Warrants evidenced hereby may be exercised at the
following addresses:
By hand at ______________________________________________
______________________________________________
______________________________________________
______________________________________________
By hand at ______________________________________________
______________________________________________
______________________________________________
______________________________________________
[Instructions as to form and delivery of Warrant Securities
and, if applicable, Warrant Certificates evidencing unexercised Warrants --
complete as appropriate.]
A-6
<PAGE> 23
[IF REGISTERED WARRANT]
ASSIGNMENT
[Form of Assignment To Be Executed If Holder
Desires To Transfer Warrants Evidenced Hereby]
FOR VALUE RECEIVED ___________________________ hereby sells,
assigns and transfers unto
<TABLE>
<S> <C>
_____________________________ _______________________________________
(Please print name) (Please insert social security or other
identifying number)
_____________________________
(Address)
_____________________________
(City, including zip code)
</TABLE>
the Warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint as Attorney to transfer said Warrant
Certificate on the books of the Warrant Agent with full power of substitution
in the premises.
Dated:
_______________________________
Signature
(Signature must conform in all respects
to name of holder as specified on the face of this Warrant Certificate and must
bear a signature guarantee by a bank, trust company or member broker of the New
York or Pacific Stock Exchange.)
Signature Guaranteed:
________________________________
A-7
<PAGE> 24
CERTIFICATIONS AS TO NON-U.S. OWNERSHIP
[To be completed if Securities
in bearer form are requested]
[Form of certificate to be given by person requesting
delivery of bearer [Warrant] Security upon
exercise of Warrant]
CERTIFICATE
THE TIMES MIRROR COMPANY
[Title of Warrant Securities] Issuable Upon Exercise of Warrants ("Warrant
Securities")
To: The Times Mirror Company
[Name of Warrant Agent], or
Warrant Agent
This certificate is submitted in connection with the exercise
of the Warrant Certificate relating to the Warrant Securities, by delivery to
you of the election to purchase dated as of ________________________.
The undersigned hereby certifies that as of the date hereof,
the [Warrant] Securities which are to be delivered to the undersigned in bearer
form upon the exercise by the undersigned of such Warrant Certificate (i) are
owned by persons that are not United States Persons, as defined below; (ii) are
owned by United States Persons that are (a) foreign branches of United States
financial institutions (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v)) ("financial institutions") purchasing for their own account
or for resale, or (b) United States Persons who acquired the obligations
through foreign branches of United States financial institutions and who hold
the obligations through such financial institutions on the date hereof (and in
either case (a) or (b), each such United States financial institution provides
a certificate in the form that follows this certificate); or (iii) are owned by
United States or foreign financial institutions for purposes of resale during
the restricted period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), which United States or foreign institutions described
in clause (iii) above (whether or not also described in clause (i) or (ii))
certify that they have not acquired the obligations for purposes of resale
directly or indirectly to a United States Person or to a person within the
United States or its possessions. The undersigned undertakes to advise you by
tested telex followed by written confirmation if the statement in the
immediately
A-8
<PAGE> 25
preceding sentence is not correct on the date of delivery of the
above-captioned [Warrant) Securities in bearer form.
We understand that this certificate is required in connection
with United States tax laws. We irrevocably authorize you to produce this
certificate or a copy hereof to any interested party in any administrative or
legal proceedings with respect to the matters covered by this certificate.
"United States Person" shall mean a citizen or resident of the United States of
America (including the District of Columbia), a corporation, partnership or
other entity created or organized in or under the laws of the United States or
any political subdivision thereof or an estate or trust that is subject to
United States Federal income taxation regardless of the source of its income.
Date: ___________________
[Name of Person Entitled to Receive
Warrant Security Described Herein]
______________________________________
(Authorized Signatory)
Name:_________________________________
Title:
_______________
Subject to change in accordance with changes in applicable tax laws and
regulations.
A-9
<PAGE> 26
[Form of Certificate of Status as a
Foreign Branch of a United States Financial Institution]
CERTIFICATE
THE TIMES MIRROR COMPANY
[Title of Warrant Securities] Issuable Upon Exercise of Warrants ("Warrant
Securities")
To: The Times Mirror Company
[Name of Warrant Agent], or
Warrant Agent
This certificate is submitted in connection with the exercise
of the Warrant Certificate relating to the Warrant Securities, by delivery to
you of the election to purchase dated as of _________________________.
The undersigned represents that it is a branch located outside
the United States of a United States securities clearing organization, bank or
other financial institution (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v)) that holds customers' securities in the ordinary course of
its trade or business and agrees that it will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder and is not purchasing for resale
directly or indirectly to a United States Person or to a person within the
United States or its possessions. We undertake to advise you by tested telex
followed by written confirmation if the statement in the immediately preceding
sentence is not correct on the date of delivery of the above-captioned
Securities in bearer form.
We understand that this certificate is required in connection
with the United States tax laws. We irrevocably authorize you to produce this
certificate or a copy hereof to any interested party in any administrative or
legal
A-10
<PAGE> 27
proceedings with respect to the matters covered by this certificate.
Date: _______________________
[Name of Person Entitled to Delivery
of Warrant Securities Described Herein]
______________________________________
(Authorized Signatory)
Name:_________________________________
Title:________________________________
_______________
Subject to change in accordance with changes in applicable tax laws and
regulations.
A-11
<PAGE> 1
EXHIBIT 5
February 27, 1996
(213) 229-7000 C 91007-03901
The Times Mirror Company
Times Mirror Square
Los Angeles, California 90053
Re: Public Offering of $200 million of Debt Securities,
Preferred Shares, Common Shares and Warrants
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"), pursuant to the
Registration Statement to which this opinion is an Exhibit (the "Registration
Statement"), of $200 million of the Company's (i) debt securities (the "Debt
Securities"), (ii) shares of Preferred Stock (the "Preferred Shares"), (iii)
shares of Common Stock (the "Common Shares") and (iv) Warrants (the "Warrants")
to purchase Debt Securities, shares of Common Stock or shares of Preferred
Stock of the Company. The Debt Securities, Preferred Shares, Common Shares and
Warrants may be issued as part of units consisting of any combination of such
securities.
We are familiar with the corporate action taken and proposed
to be taken by the Company in connection with the authorization, issuance and
sale of the Debt Securities, the Preferred Shares, the Common Shares and the
Warrants 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
completion of the corporate action proposed to be taken by the Company referred
to above (including without limitation the due reservation of the Common Shares
and Preferred Shares for issuance, with
<PAGE> 2
The Times Mirror Company
February 27, 1996
Page 2
- -
respect to the Preferred Shares, the due authorization, approval and filing of
the Certificate of Designations referred to below, with respect to the Debt
Securities, the due authorization of the Indenture (as defined below) and with
respect to the Warrants, the due authorization of the Warrant Agreement (as
defined below)), the effectiveness of the Registration Statement, the due
execution and delivery of the Indenture(s) pursuant to which the Debt
Securities will be issued (together, the "Indenture") and the Warrant Agreement
relating to the Warrants (the "Warrant Agreement"), each in materially the form
filed as an Exhibit to the Registration Statement, and the qualifications and
limitations set forth below, we are of the opinion that:
(a) the Debt Securities and Warrants, upon the
issuance thereof and timely payment in full
therefor in the manner described in the
Registration Statement and the Prospectus
Supplement describing the terms of the Debt
Securities and Warrants as issued, will be
validly issued, fully paid and nonassessable;
(b) the Debt Securities so issued will be legally
binding obligations of the Company, entitled
to the benefits provided under the Indenture
pursuant to which they are issued;
(c) any Warrants so issued will be legally binding
obligations of the Company, entitled to the
benefits provided under the applicable Warrant
Agreement; and
(d) the Preferred Shares and Common Shares issued
separately or upon the conversion of any Debt
Securities so issued that are convertible and
upon the exercise of any Warrants so issued (as
to the Preferred Shares, when issued pursuant to
the Certificate of Designations pursuant to
Section 151 of the Delaware General Corporation
Law in materially the form filed as an Exhibit to
the Registration Statement (the "Certificate of
Designations")), and the Common Shares issued
upon conversion of any such Preferred Shares so
issued that are convertible into Common Shares
(i) will have been duly authorized and reserved
for issuance separately, upon conversion of such
Debt Securities, exercise of any such Warrants
and conversion of any such convertible Preferred
Shares, upon the respective issuance of each, as
the case may be, and (ii) upon the issuance of
such Preferred Shares and Common Shares
separately against payment in full therefor or
pursuant to (x) the Indenture upon valid
conversion of such Debt Securities, (y) exercise
of such Warrants and payment in full of the
exercise price provided for therein or (z) valid
conversion of any such Preferred Shares so issued
that are convertible into Common Shares in
<PAGE> 3
The Times Mirror Company
February 27, 1996
Page 3
accordance with the Certificate of Designations,
as the case may be, will be validly issued, fully
paid and nonassessable.
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 Debt Securities,
the Indenture, the Warrants, the Warrant Agreement and the Certificate of
Designations 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 Debt Securities, the Indenture, the Warrant Agreement, the Warrants or
the Certificate of Designations 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 Debt Securities, the Indenture, the Warrant
Agreement, the Warrants or the Certificate of Designations 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 Debt Securities, the Indenture, the Warrant
Agreement, the Warrants or the Certificate of Designations; or (b) the
provisions of the Debt Securities 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.
You have informed us that you intend to issue one or more of
the Common Shares, Preferred Shares, Debt Securities and Warrants from time to
time on a delayed or continuous basis, and this opinion is limited to the laws
referred to above as in effect on the date hereof. We understand that prior to
issuing any Common Shares, Preferred Shares, Debt Securities or Warrants you
will advise us in writing of the terms thereof, will afford us an opportunity
to review the operative documents pursuant to which such Common Shares,
Preferred Shares, Debt Securities and Warrants are to be issued (including the
applicable
<PAGE> 4
The Times Mirror Company
February 27, 1996
Page 4
Prospectus Supplement) and will file such supplement or amendment to this
opinion (if any) as we may reasonably consider necessary or appropriate by
reason of the terms of such Debt Securities.
We hereby consent to the use of our name under the caption
"Certain Legal Matters" in the Prospectus forming a part of the Registration
Statement and to the filing of this opinion as Exhibit 5 to the Registration
Statement. 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 Securities and Exchange Commission.
Very truly yours,
GIBSON, DUNN & CRUTCHER
PFZ/MSU
LC960570.022
<PAGE> 1
EXHIBIT 12
THE TIMES MIRROR COMPANY AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(IN THOUSANDS OF DOLLARS)
<TABLE>
<CAPTION>
NINE MONTHS
YEAR ENDED DECEMBER 31 ENDED
---------------------------------------------------- SEPTEMBER 30,
1990 1991 1992 1993 1994 1995
-------- -------- -------- -------- -------- -------------
<S> <C> <C> <C> <C> <C> <C>
Fixed Charges
Interest expense............. $ 74,817 $ 76,724 $ 74,281 $ 84,054 $ 69,322 $ 21,740
Interest related to
ESOP(a)................... 6,473 5,074 4,113 2,611 1,376
Capitalized interest......... 17,802 13,537 3,963 391 1,142 485
Portion of rents deemed to be
interest.................. 21,180 21,190 21,857 21,007 20,418 16,787
Amortization of debt
expense................... 512 866 600 995 339 43
-------- -------- -------- -------- -------- ---------
Total Fixed
Charges............ $120,784 $117,391 $104,814 $109,058 $ 92,597 $ 39,055
======== ======== ======== ======== ======== =========
Earnings (Loss)
Income (loss) from continuing
operations before income
taxes..................... $204,399 $ 55,348 $ (7,102) $109,785 $257,899 $(238,229)
Fixed charges, less
capitalized interest and
interest related to
ESOP(a)................... 96,509 98,780 96,738 106,056 90,079 38,570
Amortization of capitalized
interest.................. 3,937 4,576 5,963 4,222 4,229 3,362
Distributed income from less
than 50% owned
unconsolidated
affiliates................ 9,191 190 214 281 292 96
Subtract: Equity loss
(income) from less than
50% owned unconsolidated
affiliates................ (5,901) (2,857) 2,025 1,067 1,158 (1,764)
-------- -------- -------- -------- -------- ---------
Total Earnings
(Loss)............. $308,135 $156,037 $ 97,838 $221,411 $353,657 $(197,965)
======== ======== ======== ======== ======== =========
Ratio of earnings to fixed
charges...................... 2.6x 1.3x (b) 2.0x 3.8x (c)
</TABLE>
- ---------------
(a) The Company has guaranteed repayment of debt of the Employee Stock Ownership
Plan and, accordingly, has included the related interest in fixed charges.
This debt was repaid on December 15, 1994.
(b) Earnings are approximately $7 million lower than the amount needed to cover
fixed charges in this year, as earnings in 1992 were impacted by over $200
million in restructuring charges.
(c) Earnings are approximately $237 million lower than the amount needed to
cover fixed charges in this period, as earnings in this period were impacted
by approximately $383 million in restructuring charges.
Page 1 of 2
<PAGE> 2
EXHIBIT 12
THE TIMES MIRROR COMPANY AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED
CHARGES AND PREFERRED STOCK DIVIDENDS
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
SEPTEMBER 30,
1995
-------------
<S> <C>
Fixed Charges
Interest expense........................................................... $ 21,740
Capitalized interest....................................................... 485
Portion of rents deemed to be interest..................................... 16,787
Amortization of debt expense............................................... 43
---------
Total Fixed Charges................................................ 39,055
Preferred Stock Dividend Requirements........................................ 54,154
---------
Fixed Charges and Preferred Stock Dividends........................ $ 93,209
=========
Earnings (Loss)
Loss from continuing operations before income taxes........................ $(238,229)
Fixed charges, less capitalized interest................................... 38,570
Amortization of capitalized interest....................................... 3,362
Distributed income from less than 50% owned unconsolidated affiliates...... 96
Subtract: Equity income from less than 50% owned unconsolidated
affiliates.............................................................. (1,764)
---------
Total Loss......................................................... $(197,965)
=========
Ratio of earnings to fixed charges and preferred stock dividends............. (a)
</TABLE>
- ---------------
(a) Earnings are approximately $291 million lower than the amount needed to
cover fixed charges and preferred stock dividends in this period, as
earnings were impacted by approximately $383 million in restructuring
charges.
Page 2 of 2
<PAGE> 1
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3 No. 33-62165) and related Prospectus of The
Times Mirror Company and to the incorporation by reference therein of our report
dated February 1, 1995, with respect to the consolidated financial statements
and schedule of The Times Mirror Company included in its Annual Report (Form
10-K) for the year ended December 31, 1994, filed with the Securities and
Exchange Commission.
ERNST & YOUNG LLP
Los Angeles, California
February 26, 1996
