View:
As filed with the Securities and Exchange Commission on October 10, 2001
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
THE WASHINGTON POST COMPANY
(Exact name of registrant as specified in its charter)
Delaware 53-0182885
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1150 15TH Street, N.W.,
Washington D.C., 20071
(202) 334-6000
(Address, including zip code, and telephone number,
including area code, of registrant's principal
executive offices)
Diana M. Daniels
Vice President,
General Counsel and Secretary
The Washington Post Company
1150 15th Street, N.W.
Washington D.C., 20071
(202) 334-6000
(Name, address, including zip code and telephone number, including area
code of agent for service)
with copies to:
Ronald Cami, Esq.
Cravath, Swaine & Moore
825 Eighth Avenue
New York, NY 10019
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this registration statement, as determined
by market conditions and other factors.
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, 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 for 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.
CALCULATION OF REGISTRATION FEE
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Title of Proposed Proposed
each class of Amount maximum maximum Amount of
securities to to be price aggregate registration
be registered registered(1) per share(1) offering price(1) fee(2)
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Class B Common 420,000 shares $500.66 $210,277,200.00 $52,569.30
Stock, par value
$1.00 per share
(1) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(c) of the Securities Act of 1933. Based on the
average of the high and low sales price per share of The Washington Post
Company's Class B Common Stock on October 8, 2001 as reported by the
New York Stock Exchange.
(2) Pursuant to the Registration Rights Agreement dated as of September 21,
2001, among The Washington Post Company, the Estate of Katharine Graham and
the selling shareholders, the Estate will pay all expenses incurred in
connection with the registration of the Class B Common Stock described in
this Registration Statement including the registration fee.
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 or until the registration statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
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The information in this prospectus is not complete and may be changed. The
selling shareholders may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is effective. This
prospectus is not an offer to sell these securities and it is not soliciting
an offer to buy these securities in any state where the offer is not
permitted.
PROSPECTUS
SUBJECT TO COMPLETION, DATED OCTOBER 10, 2001
420,000 SHARES
THE WASHINGTON POST COMPANY
CLASS B COMMON STOCK
This prospectus relates to 420,000 shares of our Class B Common Stock that
the selling shareholders named in this prospectus in the section "Selling
Shareholders" may offer from time to time. We will not receive any part of the
proceeds from the sale of these shares by the selling shareholders.
This prospectus may not be used to sell securities unless accompanied by a
prospectus supplement describing the selling shareholders, the number of shares
being sold by the selling shareholder and the method of distribution.
Our Class B Common Stock is traded on the New York Stock Exchange under the
symbol "WPO".
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
The date of this prospectus is October 10, 2001.
TABLE OF CONTENTS
About This Prospectus........................................................2
Where You Can Find More Information..........................................2
Forward-Looking Information..................................................4
Description of The Washington Post Company...................................4
Use of Proceeds..............................................................5
Selling Shareholders.........................................................5
Description of Capital Stock.................................................6
Plan of Distribution.........................................................8
Legal Opinions...............................................................9
Experts......................................................................9
ABOUT THIS PROSPECTUS
This prospectus is part of a Registration Statement that we are filing with
the Securities and Exchange Commission (the "Commission") on behalf of the
selling shareholders named in this prospectus in the section "Selling
Shareholders" utilizing a "shelf" registration process. Under this shelf
process, the selling shareholders may, from time to time over approximately the
next two years or until the securities described in this prospectus no longer
constitute restricted securities under Rule 144(k) of the Securities Act of 1933
(whichever is earlier), sell the Class B Common Stock described in this
prospectus in one or more offerings.
This prospectus provides you with a general description of the securities
that the selling shareholders may offer. Each time the selling shareholders sell
securities, we will provide a prospectus supplement that will contain specific
information about the terms of that offering. The prospectus supplement may also
add, update or change information contained in this prospectus. You should read
both this prospectus and any prospectus supplement together with additional
information described under the heading "Where You Can Find More Information"
beginning on page 2 of this prospectus.
You should rely only on the information provided in this prospectus and in
any prospectus supplement, including the information incorporated by reference.
We have not authorized anyone to provide you with different information. The
selling shareholders are not offering the securities in any state where the
offer is not permitted. You should not assume that the information in this
prospectus, or any supplement to this prospectus, is accurate at any date other
than the date indicated on the cover page of these documents.
WHERE YOU CAN FIND MORE INFORMATION
We are filing with the Commission, a registration statement under the
Securities Act to register 420,000 shares of our Class B Common Stock to be
offered by and, upon effectiveness, to be sold by the selling shareholders . The
registration statement, including the attached exhibits and schedules, contains
additional relevant information about us and our Class B Common Stock. The rules
and regulations of the Commission allow us to omit certain information included
in the registration statement from this prospectus.
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In addition, we file reports, proxy statements and other information with
the Commission under the Exchange Act. You may read and copy this information at
the following locations of the SEC.
Public Reference Room Chicago Regional Office
450 Fifth Street, N.W. Citicorp Center
Room 1300 500 West Madison Street
Washington, D.C. 20549 Suite 1400
Chicago, Illinois 60661-2511
You may also obtain copies of this information by mail from the Public
Reference Section of the Commission, 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates. You may obtain information on the operation of the
Public Reference Room by calling the Commission at 1-800-SEC-0330.
The Commission also maintains a web site that contains reports, proxy
statements and other information about issuers, like us, who file electronically
with the Commission. The address of that site is http://www.sec.gov.
You can also inspect reports, proxy statements and other information about
us at the offices of the New York Stock Exchange, 20 Broad Street, New York, New
York.
The Commission allows us to "incorporate by reference" information into
this prospectus. This means that we can disclose important information to you by
referring you to another document filed separately with the Commission. The
information incorporated by reference is considered to be a part of this
prospectus, except for any information that is superseded by information that is
included directly in this document.
This prospectus incorporates by reference the documents listed below that
we have previously filed with the Commission. They contain important information
about us and our predecessors.
Company SEC Filings Period
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Annual Report on Form 10-K Year ended December 31, 2000
Quarterly Reports on Form 10-Q Quarters ended April 1, 2001 and July 1, 2001
We incorporate by reference additional documents that we may file with the
Commission between the date of this prospectus and the termination of the
offering of the securities. These documents include periodic reports, such as
Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports
on Form 8-K, as well as proxy statements.
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You can obtain any of the documents incorporated by reference in this
document through us, or from the Commission through the Commission's web site at
the address described above. Documents incorporated by reference are available
from us without charge, excluding any exhibits to those documents unless the
exhibit is specifically incorporated by reference as an exhibit to this
prospectus. You can obtain documents incorporated by reference in this
prospectus by requesting them in writing or by telephone from us at the
following address:
Investor Relations
The Washington Post Company
1150 15th Street N.W.
Washington, D.C. 20071
(202) 334-6000
If you request any incorporated documents from us, we will mail them to you
by first class mail, or another equally prompt means, within one business day
after we receive your request.
FORWARD-LOOKING INFORMATION
All public statements made by us and our representatives, which are not
statements of historical fact, including certain statements in this prospectus
and any prospectus supplement, are "forward-looking statements" within the
meaning of the Private Securities Litigation Reform Act of 1995. Forward-looking
statements include comments about our business strategies and objectives, the
prospects for growth in our various business operations, and our future
financial performance. As with any projection or forecast, forward-looking
statements are subject to various risks and uncertainties that could cause
actual results or events to differ materially from those anticipated in such
statements. In addition to the various matters discussed elsewhere in this
registration statement (including the financial statements and other items
incorporated by reference to this registration statement), specific factors
identified by us that might cause such a difference include the following:
changes in prevailing economic conditions, particularly in the specific
geographic and other markets served by us; actions of our competitors, including
price changes and the introduction of competitive service offerings; changes in
the preferences of readers, viewers and advertisers, particularly in response to
the growth of Internet-based media; changes in communications and broadcast
technologies; the effects of changing cost or availability of raw materials,
including changes in the cost or availability of newsprint and magazine body
paper; changes in the extent to which standardized tests are used in the
admissions process by colleges and graduate schools; changes in the extent to
which licensing or proficiency examinations are used to qualify individuals to
pursue certain careers; changes in laws or regulations, including changes that
affect the way business entities are taxed; and changes in accounting principles
or in the way such principles are applied.
DESCRIPTION OF THE WASHINGTON POST COMPANY
The Washington Post Company is a diversified media and education
organization whose principal operations consist of newspaper publishing
(principally The Washington Post), television broadcasting (through the
ownership and operation of six network-affiliated stations), the ownership and
operation of cable television systems, and magazine publishing (principally
Newsweek magazine) and the provision of educational and career services (through
our Kaplan subsidiary). We also produce news and other information products for
electronic distribution.
We were incorporated in 1947 under the laws of the State of Delaware. Our
executive offices are located at 1150 15th Street, N.W., Washington, D.C. 20071,
and our telephone number is (202) 334-6000.
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USE OF PROCEEDS
We will not receive any of the proceeds from the sale by the selling
shareholders of the 420,000 shares of our Class B Common Stock described in this
prospectus.
SELLING SHAREHOLDERS
Set forth below are the names of each selling shareholder and the number of
shares purchased by each of them from the Estate of Katharine Graham pursuant to
a Stock Purchase Agreement dated September 18, 2001, among the Estate and each
of the selling shareholders, all of which shares may be sold pursuant to this
prospectus. In connection with this transaction, we entered into a Registration
Rights Agreement dated September 21, 2001, among us, the Estate and each selling
shareholder, under which we agreed to provide registration rights to each of the
selling shareholders.
Assuming all the shares listed below had been sold on the date of this
prospectus, none of the entities listed below or persons controlling such
entities would be deemed to own more than 1% of the outstanding Class B Common
Stock, except Franklin Mutual Advisers LLC, which would be deemed to
beneficially own 539,772 shares, or 5.7% of the outstanding Class B Common
Stock, held for the accounts of a number of entities controlled by it, including
Mutual Qualified Fund, Mutual Beacon Fund, Mutual Discovery Fund, Mutual Shares
Securities Fund and Franklin Mutual Beacon Fund.
Selling Shareholders Number of Shares of Class B Common
Stock Owned and That May Be Offered
Under This Prospectus
Owned To be Sold
AXP Variable Portfolio Managed Fund 20,000 20,000
Weitz Series Fund, Inc. Value Fund 172,000 172,000
Weitz Partners, Inc. Partners Value Fund 120,000 120,000
Weitz Partners III Ltd. Partnership 7,000 7,000
Mutual Qualified Fund 68,850 14,000
Mutual Beacon Fund 134,022 3,000
Mutual Discovery Fund 72,503 6,500
Mutual Shares Securities Fund 21,325 2,000
Franklin Mutual Beacon Fund 3,692 500
Chilton International, L.P. 32,861 23,261
Chilton Investment Partners, L.P. 10,077 7,052
Chilton QP Investment Partners, L.P 8,347 6,071
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Chilton Opportunity Trust, L.P. 1,992 1,399
Chilton Opportunity International, L.P. 2,558 1,731
Chilton New Era Partners, L.P. 4,791 3,808
Chilton New Era International, L.P. 8,789 6,678
Fayez Sarofim (individual) 25,000 25,000
DESCRIPTION OF CAPITAL STOCK
Our authorized capital consists of 1,000,000 shares of Preferred Stock,
$1.00 par value, of which 13,132 shares of Series A Redeemable Preferred Stock
are issued and outstanding as of August 31, 2001, 7,000,000 shares of Class A
Common Stock, $1.00 par value, of which 1,722,250 shares are issued and
outstanding as of August 31, 2001, and 40,000,000 shares of Class B Common
Stock, $1.00 par value, of which 7,767,661 shares are issued and outstanding as
of August 31, 2001. The Preferred Stock is issuable in such series as may be
designated by our board of directors. In creating any such series, our board of
directors has the authority to fix the dividend rights, dividend rates, voting
rights, conversion rights (if any), the redemption provisions, liquidation
preferences and other rights and restrictions of such series.
Our Class B Common Stock has limited voting rights, including the right to
elect 30% of our board of directors. The Class A Common Stock has full voting
rights and is entitled to elect the balance of our board of directors. As of the
date of this prospectus, all of the Class A Common Stock is owned by members of
the Graham family or trusts established for their benefit. The Grahams have the
power to vote a majority of the Class A Common Stock. As a result, control of
the Company has been and is expected to remain with members of the Graham
family.
Voting Rights
The Class B Common Stock has the right as a class to elect 30% of our board
of directors, and accordingly presently elects three directors.
The holders of Class B Common Stock are entitled to vote with the holders
of Class A Common Stock (each, voting as a separate class) upon (i) the
reservation in the future of any additional shares of stock for issuance
pursuant to options granted or to be granted to officers, directors or key
employees and (ii) the acquisition of the stock or assets of another company if,
in the case of either (i) or (ii), any national stock exchange on which the
Class B Common Stock is listed requires such a vote as a condition to the
listing of the additional shares to be issued in the transaction and, in the
case of (ii), either:
(a) a director, officer or holder of 10% of any class of voting stock of
the Company has an interest in the company or assets to be acquired or
in the consideration to be paid in the transaction;
(b) the transaction would presently or potentially increase the aggregate
of the Class A Common Stock and Class B Common Stock by 20% or more;
or
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(c) the aggregate market value of the stock issuable or potentially
issuable and of any other consideration to be paid is 20% or more of
the market value of the outstanding Class A Common Stock and Class B
Common Stock.
Except as stated above and as otherwise expressly provided by the
laws of the State of Delaware, all voting power is vested in the holders of
the Class A Common Stock. The Board of Directors could authorize the issuance
of shares of Preferred Stock with voting power, but so long as any Class A
Common Stock shall be outstanding the holders of the Class A Common Stock
shall always have the absolute right under all conditions and circumstances to
elect a majority of the directors, and any voting powers granted to shares of
Preferred Stock on any matter other than the election of directors will be
limited (except as required by statute) to the right to vote pari passu with
the holders of Class B Common Stock on matters upon which the holders of Class
B Common Stock are entitled to vote.
Shares of Class A Common Stock are convertible into an equal number of
shares of Class B Common Stock in whole or in part, at any time and from time to
time, at the option of the individual holders thereof; they are also subject to
mandatory conversion into an equal number of shares of Class B Common Stock in
whole or in part, at any time and from time to time, at the option of the holder
or holders of a majority of the shares of Class A Common Stock. If all the
outstanding shares of Class A Common Stock were converted into Class B Common
Stock, the holders of the Class B Common Stock would have general voting power
in the election of all members of the Board of Directors and in all other
matters upon which shareholders of the Company are entitled to vote. However, it
is not anticipated that the holders of Class A Common Stock will ever elect to
convert all of their shares of Class A Common Stock into Class B Common Stock.
Dividends
Each share of Class A Common Stock and Class B Common Stock is entitled to
share pro rata in any dividends when declared and paid, but only after dividends
have been paid on any Preferred Stock then outstanding. Any dividend payable in
shares of Class A Common Stock to holders of such class and payable in the same
proporation in shares of Class B Common Stock to holders of such class shall be
deemed to be shared pro rata.
Restrictions Concerning Ownership
To enable the Company to comply with the provisions of the Federal
Communications Act prohibiting alien control of broadcasting licenses, the
terms of the Restated Certificate of Incorporation and the By-laws of the
Company: (a) provide that not more than one-fifth of the shares of voting
stock of any class outstanding shall at any time be owned of record, or voted,
by or for the account of aliens (as defined); and (b) provide that the Company
shall not be owned or controlled directly or indirectly by any other
corporation of which any officer or more than one-fourth of the directors are
aliens, or of which more than one-fourth of the stock is owned of record, or
voted, by aliens. If the stock records of the Company shall at any time
disclose one-fifth alien ownership, (1) no transfers of shares represented by
domestic share certificates shall be made to aliens and (2) if it shall
thereafter be found that any such shares are in fact held by or for the
account of an alien, such shares shall not be entitled to vote, to receive
dividends, or to have any other rights, except that the holder thereof shall
have the right to transfer such shares to a United States citizen. Pursuant to
the Company's By-laws, shares of its Class B Common Stock issued or
transferred to an alien are represented by "foreign share certificates" and
all other shares are represented by "domestic share certificates".
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In addition, regulations of the Federal Communications Commission (the
"FCC") governing multiple ownership apply with regard to persons who directly
or indirectly hold the right to vote 5% or more of a licensee's stock (or 20%
or more in the case of insurance companies, investment companies and bank
trust departments which do not exercise control over the management or
policies of a licensee; for this purpose, holdings by such investors under
common management are aggregated). The FCC's "multiple ownership" rules
restrict the number of broadcast stations (a) in a given market (for radio or
television), and (b) nationally (for television), in which a single person or
corporation may have either such a voting interest or an interest as an
officer or director . The multiple ownership rules also restrict the common
ownership in a given market of a broadcast station, on the one hand, and a
cable television system or newspaper on the other hand. Individuals and
institutional investors who have such interest, direct or indirect, in another
broadcast station, daily newspaper or cable television system should not
acquire an interest in the Company's Class B Common Stock that would create a
multiple ownership prohibited by the FCC's rules.
Other Provisions
In the event of liquidation, dissolution or winding-up of the affairs of
the Company, the holders of any Preferred Stock then outstanding will be
entitled to be paid their liquidation preferences and accumulated dividends in
full before any distribution may be made to the holders of Class A Common Stock
and of Class B Common Stock, who are then entitled to share pro rata in any such
distribution. The outstanding shares of the Class B Common Stock are fully paid
and non-assessable. There are no preemptive rights to subscribe for or to
purchase any additional stock or other securities issued by the Company. The
holder or holders of a majority of the outstanding shares of Class A Common
Stock must consent to any issue of additional Class A Common Stock.
The Transfer Agent and Registrar for the Class B Common Stock is EquiServe
Trust Company, N.A.
PLAN OF DISTRIBUTION
Distribution of the shares by the selling shareholders may be effected
from time to time in one or more transactions (which may involve block
transactions) (1) on the New York Stock Exchange, (2) in the over-the-counter
market, (3) in transactions otherwise than on such exchange or in the
over-the-counter market or (4) in a combination of any such transactions. Such
transactions may be effected by the selling shareholders at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices, at negotiated prices or at fixed prices. The selling shareholder may
effect such transactions by selling shares (1) directly to purchasers, (2)
through agents, or through broker-dealers, (3) through underwriters or a group
of underwriters or (4) through a combination of those methods of sale. The
applicable prospectus supplement with respect to the securities will describe
the terms of the offering of these securities and the method of distribution
of these securities.
If an underwriter or underwriters are utilized in the sale, the selling
shareholders choosing to sell the Class B Common Stock pursuant to such
underwriting agreement, will enter into an underwriting agreement with such
underwriters at the time of sale to them and the names of the underwriters and
the terms of the transaction will be set forth in the applicable prospectus
supplement, which will be used by the underwriters to make resales of the
securities in respect of which this prospectus is delivered to the public. The
selling shareholders may be entitled, under the registration rights agreement,
to indemnification by us against certain liabilities, including liabilities
under the Securities Act.
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The agents and underwriters may be deemed to be underwriters and any
discounts, commissions or concessions received by them from the selling
shareholders or any profit on the resale of securities by them may be deemed
to be underwriting discounts and commissions under the Securities Act. Any
such person who may be deemed to be an underwriter and any such compensation
received from the selling shareholders will be described in the applicable
prospectus supplement. Agents and underwriters may be customers of, engage in
transactions with, or perform services for, the selling shareholders in the
ordinary course of business.
The place and time of delivery for the securities that are described
generally in this prospectus will be set forth in the applicable prospectus
supplement.
LEGAL OPINIONS
Certain legal matters in connection with the securities will be passed upon
by Diana M. Daniels, Vice President, General Counsel and Secretary of The
Washington Post Company. The legality of the securities will be passed upon for
any underwriters as set forth in the prospectus supplement.
EXPERTS
The consolidated financial statements as of December 31, 2000 and
January 2, 2000 and for each of the three years in the period ended December 31,
2000 incorporated by reference in this prospectus have been so included in
reliance on the report of PricewaterhouseCoopers LLP, independent accountants,
given on the authority of said firm as experts in auditing and accounting.
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[The Washington Post Company Logo]
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated expenses, other than
underwriting discounts and commissions, to be paid by the Estate of Katharine
Graham, an affiliate of The Washington Post Company, in connection with the
issuance and distribution of the securities registered hereby:
SEC registration fee $ 52,569.30
Printing and engraving costs 30,000.00
Legal fees and expenses 65,000.00
Miscellaneous 75,000.00
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Total $ 222,569.30
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Item 15. Indemnification of Officers and Directors.
(A) Section 145 of the Delaware General Corporation Law, under which we are
organized, generally empowers a corporation, subject to certain
limitations, to indemnify its officers, directors, employees and agents, or
others acting in similar capacities for other entities at the request of
the corporation, against certain expenses (including attorneys' fees),
judgments, fines and other amounts that may be paid or incurred by them in
their capacities as directors, officers, employees or agents of the
corporation.
(B) The Certificate of Incorporation of the Registrant authorizes its Board of
Directors to indemnify directors, officers, employees or agents of the
Registrant to the fullest extent permitted by law.
(C) The Registrant's By-laws authorize its Board of Directors to indemnify
directors, officers, employees and agents of the Registrant in the same
circumstances set forth in the Certificate of Incorporation. The
Registrant's By-laws also authorize it to purchase liability insurance on
behalf of its directors, officers, employees and agents and to enter into
indemnity agreements with its directors, officers, employees and agents.
(D) The Registrant has entered into indemnification agreements with its
directors and its officers which provide broader indemnification than the
indemnification specifically available under Section 145 of the Delaware
General Corporation Law. The agreements provide that the Registrant will
indemnify its directors and its officers to the fullest extent permitted by
its Certificate of Incorporation (and that is otherwise lawful) against
expenses (including attorneys' fees), judgments, fines, taxes, penalties
and settlement payments incurred by reason of the fact that they were
directors or officers of the Registrant. Unlike Section 145 of the Delaware
General Corporation Law, this indemnification would, to the extent that it
is lawful, cover judgments, fines and amounts paid in settlement of claims
against the director or officer by or in the right of the Registrant.
(E) The Registrant is the owner of an insurance policy which covers it for
losses incurred pursuant to indemnification obligations set forth above
during any policy year, subject to specified exclusions, terms and
conditions. The policy also covers the officers and
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directors of the Registrant for certain of such losses if they are not
indemnified by the Registrant.
(F) The Registrant is also the owner of an insurance policy which would
reimburse it for certain losses incurred by it pursuant to its fiduciary
obligations under the Employee Retirement Income Security Act of 1974,
subject to specified exclusions, terms and conditions. This policy also
covers the officers, directors and employees of the Registrant for certain
of their losses incurred as fiduciaries under the Act, subject to specified
exclusions, terms and conditions.
Item 16. Exhibits.
3.1 Certificate of Incorporation of the Company as amended through May 12,
1988 and the Certificate of Designation for the Company's Series A
Preferred Stock filed January 22, 1996 (incorporated by reference to
Exhibit 3.1 to the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1995).
3.2 By-laws of the Company as amended through March 8, 2001 (incorporated
by reference to Exhibit 3.2 to the Company's Annual Report or Form
10-K for the fiscal year ended December 31, 2001).
4.1 Registration Rights Agreement dated as of September 21, 2001 among the
Estate of Katherine Graham, the Company and each Purchaser.
5.1 Opinion of Diana M. Daniels, Vice President, General Counsel and
Secretary of The Washington Post Company.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Diana M. Daniels, Vice President, General Counsel and
Secretary of The Washington Post Company (included in her opinion
filed as Exhibit 5.1).
24.2 Powers of Attorney (included on the signature page of this
registration statement).
Item 17. Undertakings.
(A) The Registrant hereby undertakes:
(1) 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 of 1933;
(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.
Notwithstanding the foregoing, any increase or decrease in volume of
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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 end
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 and price represent no more than a 20 percent
change in the maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective registration statement; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (1) (i) and (ii) 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 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement;
(2) that, for the purpose of determining any liability under the Securities
Act of 1933, 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; and
(3) 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.
(B) The undersigned Registrant hereby undertakes to deliver or cause to be
delivered with this prospectus, to each person to whom the prospectus is sent or
given, the last annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim information.
(C) The Registrant hereby undertakes that:
(1) for purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a 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 this registration
statement as of the time it was declared effective; and
(2) for the purpose of determining any liability under the Securities Act
of 1933, 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.
II-3
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 the
requirements for filing on Form S-3 and has duly caused this amended
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Washington, D.C. on October 10, 2001.
The WASHINGTON POST COMPANY
By: /s/ Diana M. Daniels
Name: Diana M. Daniels
Title: Vice President, General
Counsel and Secretary
Each of the undersigned directors and officers of the Registrant hereby
severally constitutes and appoints Diana M. Daniels, as attorney-in-fact for
the undersigned, in any and all capacities, with full power of substitution,
to sign any amendments to this registration statement (including
post-effective amendments) and any subsequent registration statement filed by
The Washington Post Company pursuant to Rule 462(b) of the Securities Act of
1933, and to file the same with exhibits thereto and other documents in
connection therewith with the Securities and Exchange Commission, granting
unto said attorney-in-fact, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as she might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact, may
lawfully do or cause to be done by virtue hereof.
Signature Title Date
By: /s/ Donald E. Graham Chairman of the Board and Chief October 10, 2001
Donald E. Graham Executive Officer (Principal
Executive Officer) and Director
By: /s/ John B. Morse Jr. Vice President-Finance (Principal October 10, 2001
John B. Morse Jr. Financial and Accounting Officer)
By: /s/ Warren E. Buffett Director October 10, 2001
Warren E. Buffett
By: /s/ Daniel B. Burke Director October 10, 2001
Daniel B. Burke
By: /s/ Barry Diller Director October 10, 2001
Barry Diller
By: /s/ John L. Dotson Jr. Director October 10, 2001
John L. Dotson Jr.
By: /s/ George J. Gillespie, III Director October 10, 2001
George J. Gillespie III
By: /s/ Ralph E. Gomory Director October 10, 2001
Ralph E. Gomory
II-4
By: /s/ Donald R. Keough Director October 10, 2001
Donald R. Keough
By: /s/ Richard D. Simmons Director October 10, 2001
Richard D. Simmons
By: /s/ George W. Wilson Director October 10, 2001
George W. Wilson
II-5
Exhibit No. Exhibit
3.1 Certificate of Incorporation of the Company as amended through
May 12, 1988 and the Certificate of Designation for the Company's
Series A Preferred Stock filed January 22, 1996 (incorporated by
reference to Exhibit 3.1 to the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1995).
3.2 By-laws of the Company as amended through March 8, 2001
(incorporated by reference to Exhibit 3.2 to the Company's Annual
Report or Form 10-K for the fiscal year ended December 31, 2001).
4.1 Registration Rights Agreement dated as of September 21, 2001,
among the Estate of Katherine Graham, the Company and each
Purchaser.
5.1 Opinion of Diana M. Daniels, Vice President, General Counsel and
Secretary of The Washington Post Company.
23.3 Consent of PricewaterhouseCoopers LLP.
23.4 Consent of Diana M. Daniels, Vice President, General Counsel and
Secretary of The Washington Post Company (included in her opinion
filed as Exhibit 5.1).
24.2 Powers of Attorney (included on the signature page of this
registration statement)
II-6
EXHIBIT 4.1
EXECUTION COPY
THE WASHINGTON POST COMPANY
and
THE ESTATE OF KATHARINE GRAHAM
REGISTRATION RIGHTS AGREEMENT
New York, New York
September 21, 2001
Ladies and Gentlemen:
The Estate of Katharine Graham, an affiliate of The Washington Post
Company, a Delaware corporation (the "Estate") (the "Company"), proposes to
sell to you (the "Purchasers"), upon the terms set forth in the Stock Purchase
Agreement, dated September 18, 2001 (the "Stock Purchase Agreement"), between
the Estate and the Purchasers, 420,000 Shares of Class B Common Stock, $1.00
par value of the Company (the "Shares") set forth on Schedule I to the Stock
Purchase Agreement, (the "Private Placement"). In satisfaction of a condition
to the Purchaser's obligations under the Stock Purchase Agreement, both the
Company and the Estate (together "we") agree with you (i) for your benefit and
(ii) for the benefit of the holders of the Shares (including you) from time to
time until such time as such Shares shall no longer constitute restricted
securities pursuant to Rule 144(k) of the Act or until all such Shares have
been sold pursuant to the Shelf Registration Statement (as defined below)
(each of the foregoing a "Holder" and together the "Holders") as follows:
1. Definitions. Capitalized terms used herein without definition
shall have their respective meanings set forth in the Stock Purchase
Agreement. As used in this agreement, the following capitalized defined terms
shall have the following meanings:
"Affiliate" of any specified person means any other person that,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such specified person. For purposes of this definition, control
of a person means the power, direct or indirect, to direct or cause the
direction of the management and policies of such person whether by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
2
"Shares" has the meaning set forth in the preamble hereto.
"Commission" means the Securities and Exchange Commission.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Holder" has the meaning set forth in the preamble hereto.
"Private Placement" has the meaning set forth in the preamble
hereto.
"Majority Holders" means the Holders of a majority of the aggregate
principal amount of Shares registered under a Shelf Registration Statement.
"Managing Underwriters" means the investment banker or investment
bankers and manager or managers that shall administer an underwritten offering
of the securities covered by the Shelf Registration Statement.
"Prospectus" means the prospectus included in any Shelf Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended
or supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Shares or Common Stock issuable upon conversion
thereof covered by such Shelf Registration Statement, and all amendments and
supplements to the Prospectus, including post-effective amendments.
"Shelf Registration" means a registration of Shares effected
pursuant to Section 2 hereof.
"Shelf Registration Period" has the meaning set forth in Section
2(b) hereof.
"Shelf Registration Statement" means a "shelf" registration
statement of the Company pursuant to the provisions of Section 2 hereof which
covers some or all of the Shares, on an appropriate form under Rule 415 under
the Act or any similar rule that may be adopted by the Commission, and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all
3
exhibits thereto and all material incorporated by reference therein.
"underwriter" means any underwriter of Shares in connection with an
offering thereof under a Shelf Registration Statement.
2. Shelf Registration; Suspension of Use of Prospectus.
(a) The Company shall prepare and, not later than 45 days following
the Closing Date, shall file with the Commission and as soon as possible
thereafter, shall use its best efforts to cause to be declared effective under
the Act but no later than 90 days following the Closing Date, a Shelf
Registration Statement relating to the offer and sale of the Shares by the
Holders from time to time in accordance with the methods of distribution
elected by such Holders and set forth in such Shelf Registration Statement.
(b) The Company shall use its best efforts to keep the Shelf
Registration Statement continuously effective in order to permit the
Prospectus forming part thereof to be usable by the Holders until the second
anniversary of the Closing Date or such earlier date as of which the Shares
shall no longer constitute restricted securities under Rule 144(k) of the Act
or all the Shares covered by the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement (in any such case, such period
being called the "Shelf Registration Period"). The Company shall be deemed not
to have used its best efforts to keep the Shelf Registration Statement
effective during the requisite period if it voluntarily takes any action that
would result in Holders of Shares covered thereby not being able to offer and
sell such securities during that period, unless such action is (i) required by
applicable law or (ii) pursuant to Section 2(c) hereof, and, in either case,
so long as the Company promptly thereafter complies with the requirements of
Section 3(i) hereof, if applicable.
(c) The Company may suspend the use of the Prospectus for a period
not to exceed 45 days in any three month period for valid business reasons
(not including avoidance of the Company's obligations hereunder), including
the acquisition or divestiture of assets, public filings with the Commission,
pending corporate developments and similar events.
4
3. Registration Procedures. In connection with any Shelf
Registration Statement, the following provisions shall apply to:
(a) The Company shall furnish to you and the Holders, prior to the
filing thereof with the Commission, a copy of any Shelf Registration
Statement, and each amendment thereof and each amendment or supplement,
if any, to the Prospectus included therein and shall use its best efforts
to reflect in each such document, when so filed with the Commission, such
comments insofar as such comments relate to the Holders and the methods
of distribution that the Holders reasonably may propose.
(b) The Company shall ensure that (i) any Shelf Registration
Statement and any amendment thereto and any Prospectus forming part
thereof and any amendment or supplement to such Prospectus complies in
all material respects with the Act and the rules and regulations
thereunder, (ii) any Shelf Registration Statement and any amendment
thereto does not, when it becomes effective, contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading and
(iii) any Prospectus forming part of any Shelf Registration Statement,
and any amendment or supplement to such Prospectus, does not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(c) (1) The Company shall advise the Holders and, if requested by
any such Holder, to confirm such advice in writing:
(i) when a Shelf Registration Statement and any amendment
thereto has been filed with the Commission and when the Shelf
Registration Statement or any post-effective amendment thereto has
become effective; and
(ii) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement or the Prospectus
included therein or for additional information.
5
(2) The Company shall advise the Holders and, if requested by any
such Holder, to confirm such advice in writing:
(i) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration
Statement or the initiation of any proceedings for that
purpose;
(ii) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the
securities included in any Shelf Registration Statement for
sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose; and
(iii) of the suspension of the use of the Prospectus
pursuant to Section 2(c) hereof or of the happening of any
event that requires the making of any changes in the Shelf
Registration Statement or the Prospectus so that, as of such
date, the statements therein are not misleading and do not omit
to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were
made) not misleading (which advice shall be accompanied by an
instruction to suspend the use of the Prospectus until the
requisite changes have been made); provided that such notice
shall not be required to specify the nature of the event giving
rise to the notice requirement hereunder.
(d) The Company shall use its best efforts to obtain the withdrawal
of any order suspending the effectiveness of any Shelf Registration
Statement at the earliest possible time.
(e) The Company shall furnish to each Holder of Shares included
within the coverage of any Shelf Registration Statement, without charge,
at least one copy of such Shelf Registration Statement and any post-
effective amendment thereto, including financial statements and
schedules, and, if the Holder so requests in writing, all exhibits
(including those incorporated by reference).
(f) The Company shall, during the Shelf Registration Period, deliver
to each Holder of Shares included within the coverage of any Shelf
Registration Statement, without charge, as many copies of the
6
Prospectus (including each preliminary Prospectus) included in such Shelf
Registration Statement and any amendment or supplement thereto as such
Holder may reasonably request; and the Company consents to the use of the
Prospectus or any amendment or supplement thereto by each of the selling
Holders of securities in connection with the offering and sale of the
securities covered by the Prospectus or any amendment or supplement
thereto.
(g) Prior to any offering of securities pursuant to any Shelf
Registration Statement, the Company shall register or qualify or
cooperate with the Holders of Shares included therein and their
respective counsel in connection with the registration or qualification
of such securities for offer and sale under the securities or blue sky
laws of such jurisdictions as any such Holders reasonably request in
writing and do any and all other acts or things reasonably necessary or
advisable to enable the offer and sale in such jurisdictions of the
securities covered by such Shelf Registration Statement; provided,
however, that the Company will not be required to qualify generally to do
business in any jurisdiction where it is not then so qualified or to take
any action which would subject it to general service of process or to
taxation in any such jurisdiction where it is not then so subject.
(h) The Company shall cooperate with the Holders of Shares to
facilitate the timely preparation and delivery of certificates
representing the Shares to be sold pursuant to any Shelf Registration
Statement free of any restrictive legends and in such denominations and
registered in such names as Holders may request prior to sales of
securities pursuant to such Shelf Registration Statement.
(i) Upon the occurrence of any event contemplated by paragraph
(c)(2)(iii) above, the Company shall, if required pursuant to the Act or
paragraph (c)(2)(iii) above, promptly prepare a post-effective amendment
to any Shelf Registration Statement or an amendment or supplement to the
related Prospectus or file any other required document so that, as
thereafter delivered to purchasers of the securities included therein,
the Prospectus will not include an 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.
7
(j) The Company shall use its best efforts to comply with all
applicable rules and regulations of the Commission and shall make
generally available to its security holders as soon as practicable after
the effective date of the applicable Shelf Registration Statement an
earnings statement satisfying the provisions of Section 11(a) of the Act.
(k) The Company may require each Holder of Shares to be sold
pursuant to any Shelf Registration Statement to furnish to the Company
such information regarding the Holder and the distribution of such Shares
as the Company may from time to time reasonably require for inclusion in
such Shelf Registration Statement. Any Holder who fails to provide such
information shall not be entitled to use the Prospectus.
(l) In the event Holders owning at least 300,000 Shares determine to
engage the services of an underwriter and provide notice to the other
Holders of such determination, each Holder of shares who chooses to sell
pursuant to an underwriting agreement agrees to enter into and perform
such Holder's obligations under an underwriting agreement, in usual and
customary form, including, without limitation, customary indemnification
and contribution obligations, with the Managing Underwriter of such
offering and take such other actions as are reasonably required in order
to expedite or facilitate the disposition of the Shares, unless such
Holder has notified the Company in writing of such Holder's election to
exclude all of such Holder's Shares from such underwritten offering. The
Company shall, if requested, promptly incorporate in a Prospectus
supplement or post-effective amendment to a Shelf Registration Statement,
such information as the Managing Underwriters and Holders reasonably
agree should be included therein and shall make all required filings of
such Prospectus supplement or post-effective amendment as soon as
notified of the matters to be incorporated in such Prospectus supplement
or post- effective amendment.
(m) The Company shall enter into such agreements (including
underwriting agreements) in connection with the registration or the
disposition of the Shares, and in connection therewith, if an
underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures no less favorable than those
set forth in Section 5 (or such other provisions and procedures
acceptable to the Holders and the Managing Underwriters), with respect to
8
all parties to be indemnified pursuant to Section 5 by Holders of Shares
to the Company, it being understood that all underwriting discounts and
commissions, and all other underwriting fees, associated with such
agreement in connection with such offering of the Shares shall, except as
otherwise expressly agreed herein (including, without limitation, those
expenses covered by Section 4), be for the account of the Holders or the
underwriters.
(n) The Company shall (i) make reasonably available for inspection
by the Holders of Shares to be registered thereunder, any underwriter
participating in any disposition pursuant to such Shelf Registration
Statement, and any attorney, accountant or other agent retained by the
Holders or any such underwriter all relevant financial and other records,
pertinent corporate documents and properties of the Company and its
subsidiaries; (ii) cause the Company's officers, directors and employees
to supply all relevant information reasonably requested by the Holders or
any such underwriter, attorney, accountant or agent in connection with
such Shelf Registration Statement as is customary for similar due
diligence examinations; provided, however, that any information that is
designated in writing by the Company, in good faith, as confidential at
the time of delivery of such information shall be kept confidential by
the Holders or any such underwriter, attorney, accountant or agent,
unless disclosure thereof is made in connection with a court proceeding
or required by law, or such information has become available (not in
violation of this agreement) to the public generally or through a third
party without an accompanying obligation of confidentiality; (iii) make
such representations and warranties to the Holders of securities
registered thereunder and the underwriters, if any, in form, substance
and scope as are customarily made by issuers to underwriters in primary
underwritten offerings and covering matters including, but not limited
to, those set forth in the Stock Purchase Agreement; (iv) obtain opinions
of counsel to the Company and updates thereof (which counsel and opinions
(in form, scope and substance) shall be reasonably satisfactory to the
Managing Underwriters, if any) addressed to each selling Holder and the
underwriters, if any, covering such matters as are customarily covered in
opinions requested in underwritten offerings and such other matters as
may be reasonably requested by such Holders and underwriters; (v) obtain
"cold comfort" letters and updates thereof from the independent certified
public
9
accountants of the Company (and, if necessary, any other independent
certified public accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial statements and
financial data are, or are required to be, included in the Shelf
Registration Statement), addressed to each selling Holder of securities
registered thereunder and the underwriters, if any, in customary form and
covering matters of the type customarily covered in "cold comfort"
letters in connection with primary underwritten offerings; and (vi)
deliver such documents and certificates as may be reasonably requested by
the Majority Holders and the Managing Underwriters, if any, including
those to evidence compliance with Section 3(i) and with any customary
conditions contained in the underwriting agreement or other agreement
entered into by the Company. The foregoing actions set forth in clauses
(iii), (iv), (v) and (vi) of this Section 3(p) shall be performed at (A)
the effectiveness of such Shelf Registration Statement and each
post-effective amendment thereto and (B) each closing under any
underwriting or similar agreement as and to the extent required
thereunder.
4. Registration Expenses. The Estate shall bear all expenses
incurred in connection with the performance of the Company's obligations under
Sections 2 and 3 hereof. Notwithstanding the foregoing, this obligation of the
Estate shall not include bearing any costs or expenses of the Company that may
arise under Section 5 hereof.
5. Indemnification and Contribution. (a) In connection with any
Shelf Registration Statement, the Company agrees to indemnify and hold
harmless each Holder of securities covered thereby (including the Purchasers),
the directors, officers, employees and agents of each such Holder and each
person who controls any such Holder 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 Shelf Registration Statement as originally filed or in any amendment
thereof, or in any preliminary Prospectus or 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
10
make the statements therein not misleading, and agrees to reimburse each such
indemnified party, as incurred, 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 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 such Holder or underwriter or Managing Underwriter specifically
for inclusion therein, (ii) the Company shall not be liable to any indemnified
party under this indemnity agreement with respect to any Shelf Registration
Statement or Prospectus to the extent that any such loss, claim, damage or
liability of such indemnified party results solely from an untrue statement of a
material fact contained in, or the omission of a material fact from, the Shelf
Registration Statement or Prospectus which untrue statement or omission was
corrected in an amended or supplemented Shelf Registration Statement or
Prospectus, if the person alleging such loss, claim, damage or liability was not
sent or given, at or prior to the written confirmation of such sale, a copy of
the amended or supplemented Shelf Registration Statement or Prospectus if the
Company had previously furnished copies thereof to such indemnified party and if
such delivery of a prospectus is finally judicially determined to be required by
the Act and was not so made and (iii) the Company will not be liable to any
indemnified party under this indemnity agreement with respect to any Shelf
Registration Statement or Prospectus to the extent that any such loss, claim,
damage or liability of such indemnified party results (a) from the use of a
Shelf Registration Statement during a period when a stop order has been issued
in respect thereof or any proceedings for that purpose have been initiated or
(b) from the use of the Prospectus during a period when the use of the
Prospectus has been suspended in accordance with Section 2(c) hereof, provided,
in each case, that Holders received prior notice of such stop order, initiation
of proceedings or suspension. This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
(b) Each Holder of Shares covered by a Shelf Registration Statement
(including the Purchasers) severally agrees to indemnify and hold harmless (i)
the Company, (ii) each of its directors, (iii) each of its officers who signs
such Shelf Registration Statement and (iv) 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 such Holder, but
only
11
with reference to written information relating to such Holder furnished to the
Company by or on behalf of such Holder specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement
will be in addition to any liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 5 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 5, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial rights and
defenses and (ii) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying party
shall be entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party
shall not thereafter be responsible for the fees and expenses of any separate
counsel retained by the indemnified party or parties except as set forth
below); provided, however, that such counsel shall be reasonably satisfactory
to the indemnified party. Notwithstanding the indemnifying party's election to
appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees,
costs and expenses of such separate counsel (and local counsel) if (i) the use
of counsel chosen by the indemnifying party to represent the indemnified party
would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, 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, (iii) the indemnifying party shall
not have employed counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of the
institution of such action or (iv) the indemnifying party shall authorize the
indemnified party to employ separate counsel at the expense of the
indemnifying party. An indemnifying party will not,
12
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional
release of each indemnified party from all liability arising out of such
claim, action, suit or proceeding.
(d) To the extent any indemnification by an indemnifying party is
prohibited or limited by law, the indemifying party agrees to make the maximum
contribution with respect to any amounts for which it would otherwise be
liable under this Section to the fullest extent permitted by law; provided,
however, that (i) no contribution shall be made under circumstances where the
maker would not have been liable for indemnification under the fault standards
set forth in this Section, (ii) no seller of Shares guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any seller of Shares who was not guilty
of such fraudulent misrepresentation, and (iii) contribution (together with
any indemnification or other obligations under this Agreement) by any seller
of Shares shall be limited in amount to the net amount of proceeds received by
such seller from the sale of such Shares.
(e) The provisions of this Section 5 will remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder or
the Company or any of the officers, directors or controlling persons referred
to in Section 5 hereof, and will survive the sale by a Holder of Shares
covered by a Shelf Registration Statement.
6. Miscellaneous.
(a) No Inconsistent Agreements. Neither the Company nor the Estate
have, as of the date hereof, entered into, nor shall we, on or after the
date hereof, enter into, any agreement with respect to the Shares that is
inconsistent with the rights granted to the Holders herein or otherwise
conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the
13
Company has obtained the written consent of the Majority Holders;
provided that, with respect to any matter that directly or indirectly
affects the rights of any Purchaser hereunder, the Company shall obtain
the written consent of such Purchaser against which such amendment,
qualification, supplement, waiver or consent is to be effective.
Notwithstanding the foregoing (except the foregoing proviso), a waiver or
consent to departure from the provisions hereof with respect to a matter
that relates exclusively to the rights of Holders whose Shares is being
sold pursuant to a Shelf Registration Statement and that does not
directly or indirectly affect the rights of other Holders may be given by
the Majority Holders, determined on the basis of Shares being sold rather
than registered under such Shelf Registration Statement.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery,
first-class mail, telecopier, or air courier guaranteeing overnight
delivery:
(1) if to a Holder, at the most current address given by such
holder to the Company in accordance with the provisions of this
Section 6(c);
(2) if to you, initially at the addresses set forth in the
Stock Purchase Agreement;
(3) if to the Company, initially at its address set forth in
the Stock Purchase Agreement; and
(4) if to the Estate, initially at the address set forth in the
Stock Purchase Agreement.
All such notices and communications shall be deemed to have been
duly given when received.
The Purchasers or the Company by notice to the other may designate
additional or different addresses for subsequent notices or
communications.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including, without the need for an express assignment or any
consent by the Company thereto, subsequent
14
Holders of the Shares. The Company hereby agrees to extend the benefits
of this Agreement to any Holder of Shares and any such Holder may
specifically enforce the provisions of this Agreement as if an original
party hereto.
(e) Counterparts. This agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(f) Headings. The headings in this agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning
hereof.
(g) Governing Law. This agreement shall be governed by and construed
in accordance with the laws of the State of New York.
(h) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect
for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions hereof
shall not be in any way impaired or affected thereby, it being intended
that all of the rights and privileges of the parties shall be enforceable
to the fullest extent permitted by law.
15
Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Estate and you.
Very truly yours,
THE WASHINGTON POST COMPANY,
by /s/ Donald E. Graham
--------------------------------
Name: Donald E. Graham
Title: Chairman of the Board
THE ESTATE OF KATHARINE GRAHAM,
by /s/ William W. Graham
--------------------------------
Name: William W. Graham
Title: Executor
by /s/ George J. Gillespie III
--------------------------------
Name: George J. Gillespie III
Title: Executor
by /s/ Donald E. Graham
--------------------------------
Name: Donald E. Graham
Title: Trustee and Executor
Accepted in New York, New York
September 21, 2001
Mutual Qualified Fund
by: Franklin Mutual Advisers, LLC
by /s/ Bradley Takahashi
----------------------------------
Name: Bradley Takahashi
Title: Assistant Vice President
Mutual Beacon Fund
by: Franklin Mutual Advisers, LLC
by /s/ Bradley Takahashi
----------------------------------
Name: Bradley Takahashi
Title: Assistant Vice President
Mutual Discovery Fund
by: Franklin Mutual Advisers, LLC
by /s/ Bradley Takahashi
----------------------------------
Name: Bradley Takahashi
Title: Assistant Vice President
Mutual Shares Securities Fund
by: Franklin Mutual Advisers, LLC
by /s/ Bradley Takahashi
----------------------------------
Name: Bradley Takahashi
Title: Assistant Vice President
16
Franklin Mutual Beacon Fund
by: Franklin Mutual Advisers, LLC
by /s/ Bradley Takahashi
----------------------------------
Name: Bradley Takahashi
Title: Assistant Vice President
[Purchaser]
by /s/ Wallace R. Weitz
----------------------------------
Name: Weitz Series Fund, Inc.-Value Fund
Title: President
by /s/ Wallace R. Weitz
----------------------------------
Name: Weitz Partners, Inc.-Partners Value Fund
Title: President
by /s/ Wallace R. Weitz
----------------------------------
Name: Weitz Partners III Limited Partnership
Title: General Partner
by AXP Variable Portfolio-Management Fund,
a series of AXP Variable Portfolio Management Series, Inc.
by /s/ Timothy J. Masek
----------------------------------
Name: Timothy J. Masek
Title: Assistant Vice President
AXP Variable Portfolio Management Series, Inc.
Chilton International, L.P.
by: Chilton Investment Company, Inc., as General Partner
by /s/ Norman B. Champ III
----------------------------------
Name: Norman B. Champ III
Title: Managing Director
Chilton Investment Partners, L.P.
by: Chilton Investment Company, Inc., as General Partner
by /s/ Norman B. Champ III
----------------------------------
Name: Norman B. Champ III
Title: Managing Director
Chilton QP Investment Partners, L.P.
by: Chilton Investment Company, Inc., as General Partner
by /s/ Norman B. Champ III
----------------------------------
Name: Norman B. Champ III
Title: Managing Director
Chilton Opportunity Trust, L.P.
by: Chilton Investment Company, Inc., as General Partner
by /s/ Norman B. Champ III
----------------------------------
Name: Norman B. Champ III
Title: Managing Director
Chilton Opportunity International, L.P.
by: Chilton Investment Company, Inc., as General Partner
by /s/ Norman B. Champ III
----------------------------------
Name: Norman B. Champ III
Title: Managing Director
17
Chilton New Era Partnership, L.P.
by: Chilton Investment Company, Inc., as General Partner
by /s/ Norman B. Champ III
----------------------------------
Name: Norman B. Champ III
Title: Managing Director
Chilton New Era International, L.P.
by: Chilton Investment Company, Inc., as General Partner
by /s/ Norman B. Champ III
----------------------------------
Name: Norman B. Champ III
Title: Managing Director
Fayez Sarofim
by /s/ Fazez Sarofim
----------------------------------
Name: Fayez Sarofim
Title: Individual
[Form of Opinion of Diana M. Daniels, Vice President,
General Counsel and Secretary, The Washington Post Company]
[Letterhead of The Washington Post Company]
October 10, 2001
Dear Ladies and Gentlemen:
I am Vice President, General Counsel and Secretary of The Washington
Post Company, a Delaware corporation formed in 1947 (the "Company"), and have
acted as such in connection with the filing by the Company with the Securities
and Exchange Commission (the "Commission"), of a Registration Statement on
Form S-3 (the "Registration Statement") under the Securities Act of 1933, as
amended, (the "Act") with respect to 420,000 shares of the Company's Class B
Common Stock, par value $1.00 per share, (the "Class B Stock") to be offered,
and upon effectiveness, to be sold by each of the selling shareholders named
in the prospectus forming a part of the Registration Statement under the
heading "Selling Shareholders" (the "Selling Shareholders"). The Estate of
Katharine Graham, an affiliate of the Company, (the "Estate") sold the Class B
Stock to the Selling Shareholders pursuant to a Stock Purchase Agreement,
dated September 18, 2001, among the Estate and each of the Selling
Shareholders. The Company is registering the Class B Stock pursuant to the
Registration Rights Agreement, dated as of September 21, 2001 among the
Estate, the Company and each of the Selling Shareholders (the "Registration
Rights Agreement"). The
2
Class B Stock will be offered by the Selling Shareholders on a delayed basis
pursuant to the provisions of Rule 415 under the Securities Act.
In connection with the foregoing, I have examined originals, or copies
certified or otherwise identified to my satisfaction of such documents,
corporate records and other instruments as I have deemed necessary or
appropriate for the purposes of this opinion including: (i) the Certificate of
Incorporation of the Company; (ii) the By-laws as amended to the date hereof of
the Company; (iii) the Registration Rights Agreement to be incorporated by
reference into the Registration Statement as an exhibit; (iv) the resolutions of
the Board of Directors of the Company authorizing the registration of the Class
B Stock; and (v) the Registration Statement.
Based upon and subject to the foregoing and assuming that (i) the
Registration Statement and any amendments thereto will have become effective and
comply with all applicable laws at the time the Class B Stock is offered or
issued as contemplated by the Registration Statement; (ii) a prospectus
supplement will have been prepared and filed with the Commission describing the
Class B Stock offered thereby and will comply with all applicable laws; and
(iii) the Class B Stock will be issued and sold in compliance with applicable
federal and state securities laws and in the manner stated in the Registration
Statement and the appropriate prospectus supplement; I am of the opinion as
follows:
1. Based solely on a certificate from the Secretary of State of the
State of Delaware, the Company is a corporation validly existing and in
good standing under the laws of the State of Delaware.
2. The shares of Class B Stock to be offered, and upon effectiveness,
to be sold by the Selling Shareholders pursuant to the Registration
Statement are legally issued, fully paid and nonassessable.
I am aware that I am referred to under the heading "Legal Opinions" in
the prospectus forming a part of the Registration Statement and that I may be
referred to under a similar heading in a prospectus supplement filed after the
effective date of the Registration Statement. I hereby consent to such use of my
name therein and the filing of this opinion as Exhibit 5.1 to the Registration
Statement. In giving this consent, I do not hereby admit that I am within the
3
category of persons whose consent is required under Section 7 of the Securities
Act of the Rules and Regulations of the Commission promulgated thereunder.
Very truly yours,
Diana M. Daniels
Vice President, General
Counsel and Secretary,
The Washington Post Company
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated January 26, 2001 relating to the
financial statements and financial statement schedule, which appears in The
Washington Post Company's Annual Report on Form 10-K for the year ended
December 31, 2000. We also consent to the references to us under the heading
"Experts" in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Washington, DC
October 10, 2001