1
EXHIBIT 1.1
10,000,000 Shares
XXXXXX COMMUNICATIONS CORPORATION
Class A Common Stock
U.S. UNDERWRITING AGREEMENT
[ ], 1996
XXXXX XXXXXX INC.
PAINEWEBBER INCORPORATED
CIBC WOOD GUNDY SECURITIES CORP.
BT SECURITIES CORPORATION
As Representatives of the Several U.S. Underwriters
c/o XXXXX XXXXXX INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Xxxxxx Communications Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell an aggregate of 6,800,000 shares of its
Class A Common Stock, $0.001 par value per share, to the several Underwriters
named in Schedule II hereto (the "U.S. Underwriters") and the persons named in
Part A of Schedule I hereto (the "Selling Stockholders") propose to sell to the
several U.S. Underwriters an aggregate of 1,200,000 shares of Class A Common
Stock. The Company and the Selling Stockholders are hereinafter sometimes
referred to as the "Sellers". The Company's Class A Common Stock, $0.001 par
value per share, is hereinafter referred to as the "Class A Common Stock" and
the 6,800,000 shares of Class A Common Stock to be issued and sold to the U.S.
Underwriters by the Company and the 1,200,000 shares of Class A Common Stock to
be sold to the U.S. Underwriters by the Selling Stockholders are hereinafter
referred to as the "Firm Shares". The Company and the Selling Stockholders
listed in Part B of Schedule I hereto also propose to sell to the U.S.
Underwriters, upon the terms and conditions set forth in Section 2 hereof, up
to an additional 1,500,000 shares (the "Additional Shares") of Class A Common
Stock. The Firm Shares and the Additional Shares are hereinafter collectively
referred to as the "U.S. Shares".
It is understood that the Company is concurrently entering
into an International Underwriting Agreement, dated the date hereof (the
"International Underwriting Agreement" and,
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together with the U.S. Underwriting Agreement, the "Underwriting Agreements"),
providing for the sale of 2,000,000 shares of the Class A Common Stock (the
"International Shares") by the Company through arrangements with certain
underwriters outside the United States and Canada (the "Managers"), for whom
Xxxxx Xxxxxx Inc., PaineWebber International, CIBC Wood Gundy Securities Corp.
and Bankers Trust International PLC are acting as lead managers (the "Lead
Managers"). The International Shares and the U.S. Shares are herein
collectively called the "Shares".
The Company also understands that the U.S. Underwriters and
the Lead Managers have entered into an agreement (the "Agreement Between U.S.
Underwriters and Managers") contemplating the coordination of certain
transactions between the U.S. Underwriters and the Managers and that, pursuant
thereto and subject to the conditions set forth therein, the U.S. Underwriters
may purchase from the Managers a portion of the International Shares or sell to
the Managers a portion of the U.S. Shares. The Company understands that any
such purchases and sales between the U.S. Underwriters and the Managers shall
be governed by the Agreement Between U.S. Underwriters and Managers and shall
not be governed by the terms of this Agreement or the International
Underwriting Agreement.
The Company and the Selling Stockholders wish to confirm as
follows their respective agreements with you (the "Representatives") and the
other several U.S. Underwriters on whose behalf you are acting, in connection
with the several purchases of the U.S. Shares by the U.S. Underwriters.
1. Registration Statement and Prospectus. The Company
has prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Act") a registration statement on Form S- 1 under the Act
(the "Registration Statement"), including prospectuses subject to completion
relating to the Shares. The term "Registration Statement" as used in this
Agreement means the Registration Statement (including all financial schedules
and exhibits) and any registration statement filed pursuant to Rule 462(b)
under the Act, each as amended at the time it becomes effective, or, if the
Registration Statement became effective prior to the execution of this
Agreement, as supplemented or amended prior to the execution of this Agreement.
If it is contemplated, at the time this Agreement is executed, that a
post-effective amendment to the Registration Statement will be filed and must
be declared effective before the offering of the Shares may commence, the
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term "Registration Statement" as used in this Agreement means the Registration
Statement as amended by said post-effective amendment. The term "Prospectuses"
as used in this Agreement means the prospectuses in the forms included in the
Registration Statement (including any prospectus subject to completion meeting
the requirements of Rule 434(b) under the Act), or, if the prospectuses
included in the Registration Statement omitinformation in reliance on Rule 430A
under the Act and such information is included in the prospectuses or term
sheets(within the meaning of Rule 434 under the Act) filed with the Commission
pursuant to Rule 424(b) under the Act, the term "Prospectuses" as used in this
Agreement means the prospectuses in the form included in the Registration
Statement as supplemented by the addition of the Rule 430A information
contained in the prospectuses or term sheets (within the meaning of Rule 434
under the Act) filed with the Commission pursuant to Rule 424(b). The term
"Prepricing Prospectuses" as used in this Agreement means the prospectuses
subject to completion in the forms included in the Registration Statement at
the time of the initial filing of the Registration Statement with the
Commission or in any amendment to the Registration Statement filed with the
Commission, and as such prospectuses shall have been amended from time to time
prior to the date of the Prospectuses.
It is understood that two forms of Prepricing Prospectus and
two forms of Prospectus are to be used in connection with the offering and sale
of the Shares: a Prepricing Prospectus and a Prospectus relating to the U.S.
Shares that are to be offered and sold in the United States (as defined herein)
or Canada (as defined herein) to U.S. or Canadian Persons (as defined herein)
(the "U.S. Prepricing Prospectus" and the "U.S. Prospectus", respectively), and
a Prepricing Prospectus and a Prospectus relating to the International Shares
which are to be offered and sold outside the United States and Canada to
persons other than U.S. or Canadian Persons (the "International Prepricing
Prospectus" and the "International Prospectus", respectively). The U.S.
Prospectus and the International Prospectus are herein collectively called the
"Prospectuses", and the U.S. Prepricing Prospectus and the International
Prepricing Prospectus are herein called the "Prepricing Prospectuses". For
purposes of this Agreement: "Rules and Regulations" means the rules and
regulations adopted by the Commission under the Act; "U.S. or Canadian Person"
means any resident or national of the United States or Canada, any corporation,
partnership or other entity created or organized in or under the laws of the
United States or Canada or any estate or trust the income of which is subject
to United States or Canadian income taxation regardless of the source of its
income (other than the foreign branch of any
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U.S. or Canadian Person), and includes any United States or Canadian branch of
a person other than a U.S. or Canadian Person; "United States" means the United
States of America (including the states thereof and the District of Columbia)
and its territories, its possessions and other areas subject to its
jurisdiction; and "Canada" means Canada and its territories, its possessions
and other areas subject to its jurisdiction.
2. Agreements to Sell and Purchase. Subject to such
adjustments as you may determine in order to avoid fractional shares, the
Company hereby agrees, subject to all the terms and conditions set forth
herein, to issue and sell to each U.S. Underwriter and, upon the basis of the
representations, warranties and agreements of the Company and the Selling
Stockholders herein contained and subject to all the terms and conditions set
forth herein, each U.S. Underwriter, severally and not jointly, agrees to
purchase from the Company, at a purchase price of $[ ] per share (the
"purchase price per share"), the number of Firm Shares which bears the same
proportion to the aggregate number of Firm Shares to be issued and sold by the
Company as the number of Firm Shares set forth opposite the name of such U.S.
Underwriter in Schedule II hereto (or such number of Firm Shares increased as
set forth in Section 12 hereof) bears to the aggregate number of Firm Shares to
be sold by the Company and the Selling Stockholders.
Subject to such adjustments as you may determine in order to
avoid fractional shares, each Selling Stockholder hereby agrees, subject to all
the terms and conditions set forth herein, to sell to each U.S. Underwriter
and, upon the basis of the representations, warranties and agreements of the
Company and the Selling Stockholders herein contained and subject to all the
terms and conditions set forth herein, each U.S. Underwriter, severally and not
jointly, agrees to purchase from each Selling Stockholder, at the purchase
price per share, the number of Firm Shares which bears the same proportion to
the number of Firm Shares set forth opposite the name of such Selling
Stockholder in Schedule I hereto as the number of Firm Shares set forth
opposite the name of such U.S. Underwriter in Schedule II hereto (or such
number of Firm Shares increased as set forth in Section 12 hereof) bears to the
aggregate number of Firm Shares to be sold by the Company and the Selling
Stockholders.
The Company and the Selling Stockholders listed in Part B of
Schedule I hereto also agree, subject to all the terms and conditions set forth
herein, to sell to the U.S. Underwriters and, upon the basis of the
representations, warranties and agreements of the Company and the Selling
Stockholders herein
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contained and subject to all the terms and conditions set forth herein, the
U.S. Underwriters shall have the right to purchase from the Company and the
Selling Stockholders listed in Part B of Schedule I hereto, at the purchase
price per share, pursuant to an option (the "over-allotment option") which may
be exercised at any time and from time to time prior to 9:00 P.M., New York
City time, on the 30th day after the date of the U.S. Prospectus (or, if such
30th day shall be a Saturday or Sunday or a holiday, on the next business day
thereafter when the New York Stock Exchange is open for trading), up to an
aggregate of [ ]00,000 Additional Shares from the Company and up to an
aggregate of [ ]00,000 Additional Shares from the Selling Stockholders listed
in Part B of Schedule I hereto (the maximum number of Additional Shares which
each of them agrees to sell upon the exercise by the U.S. Underwriters of the
over-allotment option is set forth opposite their respective names in Part B of
Schedule I). Additional Shares may be purchased only for the purpose of
covering over-allotments made in connection with the offering of the Firm
Shares. The number of Additional Shares which the U.S. Underwriters elect to
purchase upon any exercise of the over-allotment option shall [be provided by
the Company and by each Selling Stockholder who has agreed to sell Additional
Shares in proportion to the respective maximum numbers of Additional Shares
each such Selling Stockholder has agreed to sell].* Upon any exercise of the
over-allotment option, each U.S. Underwriter, severally and not jointly, agrees
to purchase from the Company and each Selling Stockholder who has agreed to
sell Additional Shares the number of Additional Shares (subject to such
adjustments as you may determine in order to avoid fractional shares) which
bears the same proportion to the number of Additional Shares to be sold by the
Company and each Selling Stockholder who has agreed to sell Additional Shares
as the number of Firm Shares set forth opposite the name of such U.S.
Underwriter in Schedule II hereto (or such number of Firm Shares increased as
set forth in Section 12 hereof) bears to the aggregate number of Firm Shares to
be sold by the Company and the Selling Stockholders.
Certificates in transferable form for the U.S. Shares
(including any Additional Shares) which each of the Selling Stockholders agrees
to sell pursuant to this Agreement have been placed in custody with [
] (the "Custodian") for delivery under this Agreement pursuant to a Custody
Agreement and Power of Attorney (collectively, the "Custody Agreement")
executed by each of the Selling Stockholders appointing
____________________
* Alternatively - could be allocated all to Company first.
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[ ] and [ ] as agents and attorneys-in-fact (the
"Attorneys-in-Fact"). Each Selling Stockholder agrees that (i) the U.S. Shares
represented by the certificates held in custody pursuant to the Custody
Agreement are subject to the interests of the U.S. Underwriters, the Company
and each other Selling Stockholder, (ii) the arrangements made by the Selling
Stockholders for such custody are, except as specifically provided in the
Custody Agreement, irrevocable, and (iii) the obligations of the Selling
Stockholders hereunder and under the Custody Agreement shall not be terminated
by any act of such Selling Stockholder or by operation of law, whether by the
death or incapacity of any Selling Stockholder or the occurrence of any other
event. If any Selling Stockholder shall die or be incapacitated or if any
other event shall occur before the delivery of the U.S. Shares hereunder,
certificates for the U.S. Shares of such Selling Stockholder shall be delivered
to the U.S. Underwriters by the Attorneys-in-Fact in accordance with the terms
and conditions of this Agreement and the Custody Agreement as if such death or
incapacity or other event had not occurred, regardless of whether or not the
Attorneys-in-Fact or any U.S. Underwriter shall have received notice of such
death, incapacity or other event. Each Attorney-in-Fact is authorized, on
behalf of each of the Selling Stockholders, to execute this Agreement and any
other documents necessary or desirable in connection with the sale of the U.S.
Shares to be sold hereunder by such Selling Stockholder, to make delivery of
the certificates for such U.S. Shares, to receive the proceeds of the sale of
such U.S. Shares, to give receipts for such proceeds, to pay therefrom any
expenses to be borne by such Selling Stockholder in connection with the sale of
such U.S. Shares, to distribute the balance thereof to such Selling
Stockholder, and to take such other action as may be necessary or desirable in
connection with the transactions contemplated by this Agreement. Each
Attorney-in-Fact agrees to perform his duties under the Custody Agreement.
Each U.S. Underwriter represents, warrants, covenants and
agrees that, except as contemplated under Section 2 of the Agreement Between
U.S. Underwriters and Managers dated the date hereof, (i) it is not purchasing
any Shares for the account of anyone other than a U.S. or Canadian Person, (ii)
it has not offered or sold, and will not offer, sell, resell or deliver,
directly or indirectly, any Shares or distribute any U.S. Prospectus outside
the United States or Canada or to anyone other than a U.S. or Canadian Person
and (iii) any offer of Shares in Canada will be made only pursuant to an
exemption from the requirement to file a prospectus in the relevant province of
Canada in which such offer is made.
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3. Terms of Public Offering. The Sellers have been
advised by you that the U.S. Underwriters propose to make a public offering of
their respective portions of the Shares as soon after the Registration
Statement and this Agreement have become effective as in your judgment is
advisable and initially to offer the Shares upon the terms set forth in the
U.S. Prospectus.
4. Delivery of the Shares and Payment Therefor.
Delivery to the U.S. Underwriters of and payment for the Firm Shares shall be
made at the office of Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX
00000, at 10:00 A.M., New York City time, on [ ], 1996 (the "Closing
Date"). The place of closing for the Firm Shares and the Closing Date may be
varied by agreement among you, the Company and the Attorneys-in-Fact.
Delivery to the U.S. Underwriters of and payment for any
Additional Shares to be purchased by the U.S. Underwriters shall be made at
the aforementioned office of Xxxxx Xxxxxx Inc. at such times on such dates
(each, an "Option Closing Date"), which may be the same as the Closing Date but
shall in no event be earlier than the Closing Date nor earlier than three nor
later than ten business days after the giving of the notice hereinafter
referred to, as shall be specified in a written notice from you on behalf of
the U.S. Underwriters to the Company and the Attorneys-in-Fact of the U.S.
Underwriters' determination to purchase a number, specified in such notice, of
Additional Shares. The place of closing for any Additional Shares and the
Option Closing Date for such Additional Shares may be varied by agreement among
you and the Company and the Attorneys-in-Fact.
Certificates for the Firm Shares and for any Additional Shares
to be purchased hereunder shall be registered in such names and in such
denominations as you shall request prior to 1:00 P.M., New York City time, on
the second business day preceding the Closing Date or any Option Closing Date,
as the case may be. Such certificates shall be made available to you in New
York City for inspection and packaging not later than 9:30 A.M., New York City
time, on the business day next preceding the Closing Date or the Option Closing
Date, as the case may be. The certificates evidencing the Firm Shares and any
Additional Shares to be purchased hereunder shall be delivered to you on the
Closing Date or the Option Closing Date, as the case may be, against payment of
the purchase price therefor by certified or official bank check or checks
payable in New York Clearing House (next day) funds to the order of the Company
or the Attorneys-in-Fact, as the case may be.
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5. Agreements of the Company. The Company agrees with
the several U.S. Underwriters as follows:
(a) If, at the time this Agreement is executed and
delivered, it is necessary for the Registration Statement or a
post-effective amendment thereto to be declared effective before the
offering of the Shares may commence, the Company will endeavor to
cause the Registration Statement or such post-effective amendment to
become effective as soon as possible and will advise you promptly and,
if requested by you, will confirm such advice in writing, when the
Registration Statement or such post-effective amendment has become
effective.
(b) The Company will advise you promptly and, if
requested by you, will confirm such advice in writing: (i) of any
request by the Commission for amendment of or a supplement to the
Registration Statement, any of the Prepricing Prospectuses or the
Prospectuses or for additional information; (ii) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of qualification of the
Shares for offering or sale in any jurisdiction or the initiation of
any proceeding for such purpose; and (iii) within the period of time
referred to in the first sentence of paragraph (f) of this Section 5,
of any change in the Company's or any of its subsidiaries' condition
(financial or other), business, prospects, properties, net worth or
results of operations, or of the happening of any event, which makes
any statement of a material fact made in the Registration Statement
or the Prospectuses (as then amended or supplemented) untrue or which
requires the making of any additions to or changes in the Registration
Statement or the Prospectuses (as then amended or supplemented) in
order to state a material fact required by the Act or the regulations
thereunder to be stated therein or necessary in order to make the
statements therein not misleading, or of the necessity to amend or
supplement the Prospectuses (as then amended or supplemented) to
comply with the Act or any other law. If at any time the Commission
shall issue any stop order suspending the effectiveness of the
Registration Statement, the Company will use its best efforts to
obtain the withdrawal of such order at the earliest possible time.
(c) The Company will furnish to you, without charge, five
signed copies of the registration statement as originally filed with
the Commission and of each amendment thereto, including financial
statements and all exhibits
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thereto, and will also furnish to you, without charge, such number of
conformed copies of the registration statement as originally filed and
of each amendment thereto, but without exhibits, as you may request.
(d) The Company will not (i) file any amendment to the
Registration Statement or make any amendment or supplement to the
Prospectuses (including by way of issuance and filing under the Act of
any term sheet within the meaning of Rule 434 under the Act) of which
you shall not previously have been advised or to which you shall
object after being so advised or (ii) during such period as, in the
opinion of counsel for the U.S. Underwriters, a prospectus is
required to be delivered in connection with sales by any U.S.
Underwriter or dealer, file any information, documents or reports
pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), without delivering a copy of such information,
documents or reports to you, as Representatives of the U.S.
Underwriters, prior to or concurrently with such filing.
(e) Prior to the execution and delivery of this
Agreement, the Company has delivered to you, without charge, in such
quantities as you have requested, copies of each form of the U.S.
Prepricing Prospectus. The Company consents to the use, in accordance
with the provisions of the Act and with the securities or Blue Sky
laws of the jurisdictions in which the Shares are offered by the
several U.S. Underwriters and by dealers, prior to the date of the
U.S. Prospectus, of each U.S. Prepricing Prospectus so furnished by
the Company.
(f) As soon after the execution and delivery of this
Agreement as possible and thereafter from time to time for such period
as in the opinion of counsel for the U.S. Underwriters a prospectus is
required by the Act to be delivered in connection with sales of Shares
by any U.S. Underwriter or dealer, the Company will expeditiously
deliver to each U.S. Underwriter and each dealer, without charge, as
many copies of the U.S. Prospectus (and of any amendment or
supplement thereto) as you may request. The Company consents to the
use of the U.S. Prospectus (and of any amendment or supplement
thereto) in accordance with the provisions of the Act and with the
securities or Blue Sky laws of the jurisdictions in which the Shares
are offered by the several U.S. Underwriters and by all dealers to
whom Shares may be sold, both in connection with the offering and sale
of the Shares and for such period of time thereafter as
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the U.S. Prospectus is required by the Act to be delivered in
connection with sales by any U.S. Underwriter or dealer. If during
such period of time any event shall occur that in the judgment of the
Company or in the opinion of counsel for the U.S. Underwriters is
required to be set forth in the U.S. Prospectus (as then amended or
supplemented) or should be set forth therein in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, or if it is necessary to supplement or
amend the U.S. Prospectus in order to comply with the Act or any other
law, the Company will forthwith prepare and, subject to the provisions
of paragraph (d) above, file with the Commission an appropriate
supplement or amendment thereto, and will expeditiously furnish to the
U.S. Underwriters and dealers as many copies thereof as they may
request. In the event that the Company and you, as Representatives of
the several U.S. Underwriters, agree that the U.S. Prospectus should
be amended or supplemented, the Company, if requested by you, will
promptly issue a press release announcing or disclosing the matters to
be covered by the proposed amendment or supplement.
(g) The Company will cooperate with you and with counsel
for the U.S. Underwriters in connection with the registration or
qualification of the Shares for offering and sale by the several U.S.
Underwriters and by dealers under the securities or Blue Sky laws of
such jurisdictions as you may designate and will file such consents to
service of process or other documents necessary or appropriate in
order to effect such registration or qualification; provided that in
no event shall the Company be obligated to qualify to do business in
any jurisdiction where it is not now so qualified or to take any
action which would subject it to service of process in suits, other
than those arising out of the offering or sale of the Shares, in any
jurisdiction where it is not now so subject.
(h) The Company will make generally available to its
security holders a consolidated earning statement, which need not be
audited, covering a twelve-month period commencing after the effective
date of the Registration Statement and ending not later than 15 months
thereafter, as soon as practicable after the end of such period, which
consolidated earning statement shall satisfy the provisions of Section
11(a) of the Act and Rule 158 promulgated thereunder.
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(i) During the period of five years hereafter, the
Company will furnish to you (i) as soon as available, a copy of each
report of the Company mailed to stockholders or filed with the
Commission or the American Stock Exchange, and (ii) from time to time
such other information concerning the Company and its subsidiaries as
you may request.
(j) If this Agreement shall terminate or shall be
terminated after execution pursuant to any provisions hereof
(otherwise than pursuant to the second paragraph of Section 12 hereof
or by notice given by you terminating this Agreement pursuant to
Section 12 or Section 13 hereof) or if this Agreement shall be
terminated by the U.S. Underwriters because of any failure or refusal
on the part of the Company or the Selling Stockholders to comply with
the terms or fulfill any of the conditions of this Agreement, the
Company agrees to reimburse the Representatives for all out-of-pocket
expenses (including fees and expenses of counsel for the U.S.
Underwriters) incurred by you in connection herewith.
(k) The Company will apply the net proceeds from the sale
of the Shares to be sold by it hereunder substantially in accordance
with the description set forth in the Prospectuses.
(l) If Rule 430A of the Act is employed, the Company will
timely file the Prospectuses pursuant to Rule 424(b) under the Act and
will advise you of the time and manner of such filing.
(m) Except as provided in this Agreement and the
International Underwriting Agreement, the Company will not sell, offer
to sell, solicit an offer to buy, contract to sell, grant any option
to purchase or otherwise transfer or dispose of any Class A Common
Stock or other capital stock of the Company (collectively, the
"Capital Stock") or any securities convertible into or exercisable or
exchangeable for Capital Stock, for a period of 180 days after the
date of the Prospectuses, without the prior written consent of Xxxxx
Xxxxxx Inc.
(n) The Company has furnished or, prior to the Closing
Date, will furnish to you "lock-up" letters, in form and substance
satisfactory to you, signed by each of its current officers and
directors and each of its stockholders designated by you.
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(o) Except as stated in this Agreement and in the
International Underwriting Agreement and in the Prepricing
Prospectuses and Prospectuses, the Company has not taken, nor will it
take, directly or indirectly, any action designed to or that might
reasonably be expected to cause or result in stabilization or
manipulation of the price of any Capital Stock to facilitate the sale
or resale of the Shares.
(p) The Company will use its best efforts to have the
Shares listed, subject to issuance, on the American Stock Exchange on
or before the Closing Date.
6. Agreements of the Selling Stockholders. Each of the
Selling Stockholders agrees with the several U.S. Underwriters as follows:
(a) Such Selling Stockholder will cooperate to the extent
necessary to cause the Registration Statement or any post-effective
amendment thereto to become effective at the earliest possible time.
(b) Such Selling Stockholder will pay all Federal and
other taxes, if any, on the transfer or sale of the Shares being sold
by the Selling Stockholder to the U.S. Underwriters.
(c) Such Selling Stockholder will do or perform all
things required to be done or performed by the Selling Stockholder
prior to the Closing Date or any Option Closing Date, as the case may
be, to satisfy all conditions precedent to the purchase of the Shares
pursuant to this Agreement.
(d) Except as provided in this Agreement, such Selling
Stockholder will not sell, offer to sell, solicit an offer to buy,
contract to sell, grant any option to purchase or otherwise transfer
or dispose of any Capital Stock or any securities convertible into or
exercisable or exchangeable for Capital Stock, for a period of 180
days after the date of the Prospectuses, without the prior written
consent of Xxxxx Xxxxxx Inc.
(e) Except as stated in this Agreement and in the
Prepricing Prospectuses and the Prospectuses, such Selling Stockholder
will not take, directly or indirectly, any action designed to or that
might reasonably be expected to cause or result in stabilization or
manipulation of the
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price of any Capital Stock to facilitate the sale or resale of the
Shares.
(f) Such Selling Stockholder will advise you promptly,
and if requested by you, will confirm such advice in writing, within
the period of time referred to in the first sentence of paragraph (f)
of Section 5 hereof, of any change in the Company's or any of its
subsidiaries' condition (financial or other), business, prospects,
properties, net worth or results of operations or of any change in
information relating to such Selling Stockholder or the Company or any
such subsidiary or any new information relating to the Company or any
of its subsidiaries or relating to any matter stated in the
Prospectuses or any amendment or supplement thereto which comes to the
attention of such Selling Stockholder that suggests that any statement
made in the Registration Statement or the Prospectuses (as then
amended or supplemented, if amended or supplemented) is or may be
untrue in any material respect or that the Registration Statement or
Prospectuses (as then amended or supplemented, if amended or
supplemented) omit or may omit to state a material fact or a fact
necessary to be stated therein in order to make the statements therein
not misleading in any material respect, or of the necessity to amend
or supplement the Prospectuses (as then amended or supplemented, if
amended or supplemented) in order to comply with the Act or any other
law.
(g) Such Selling Stockholder agrees to deliver to you
prior to or at the Closing Date a properly completed and executed
United States Treasury Department Form W-9 (or other applicable form
or statement specified by Treasury Department regulations in lieu
thereof).
7. Representations and Warranties of the Company. The
Company represents and warrants to each U.S. Underwriter that:
(a) Each Prepricing Prospectus included as part of the
registration statement as originally filed or as part of any amendment
or supplement thereto, or filed pursuant to Rule 424 under the Act,
complied when so filed in all material respects with the provisions of
the Act. The Commission has not issued any order preventing or
suspending the use of any Prepricing Prospectus.
(b) The Registration Statement in the form in which it
became or becomes effective and also in such form as it may
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be when any post-effective amendment thereto shall become effective
and the Prospectuses and any supplement or amendment thereto when
filed with the Commission under Rule 424(b) under the Act complied or
will comply in all material respects with the provisions of the Act
and did not and will not at any such times 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, except that this representation and warranty does not
apply to statements in or omissions from the Registration Statement or
the Prospectuses made in reliance upon and in conformity with
information relating to any U.S. Underwriter or Manager furnished to
the Company in writing by or on behalf of any U.S. Underwriter or
Manager through you expressly for use therein.
(c) All the outstanding shares of Capital Stock of the
Company have been duly authorized and validly issued, are fully paid
and nonassessable and are free of any preemptive or similar rights;
the Shares to be issued and sold by the Company have been duly
authorized and, when issued and delivered to the U.S. Underwriters
and the Managers against payment therefor in accordance with the terms
hereof and in the International Underwriting Agreement, will be
validly issued, fully paid and nonassessable and free of any
preemptive or similar rights; and the Capital Stock of the Company
conforms to the descriptions thereof in the Registration Statement and
the Prospectuses.
(d) The Company is a corporation duly organized and
validly existing in good standing under the laws of the State of
Delaware with full corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and the Prospectuses, and is duly registered
and qualified to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or the
conduct of its business requires such registration or qualification,
except where the failure so to register or qualify could not have a
material adverse effect on the condition (financial or other),
business, prospects, properties, net worth or results of operations of
the Company and its subsidiaries taken as a whole (a "Material Adverse
Effect").
(e) All the Company's subsidiaries (collectively, the
"Subsidiaries") are listed in an exhibit to the Registration
Statement. Each Subsidiary is either (i) a corporation duly
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15
incorporated or organized, validly existing and in good standing in
the jurisdiction of its incorporation or organization or (ii) a
partnership duly organized and validly existing under the applicable
laws of the State of Florida and, in each case, with full corporate or
partnership power and authority, as the case may be, to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and the Prospectuses, and is duly registered
and qualified to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or the
conduct of its business requires such registration or qualification,
except where the failure so to register or qualify does not have a
Material Adverse Effect; all the outstanding shares of capital stock
of each of the Subsidiaries have been duly authorized and validly
issued, are fully paid and nonassessable, and are owned by the
Company directly, or indirectly through one of the other Subsidiaries,
and, other than as set forth in the Prospectuses, are owned free and
clear of any lien, adverse claim, security interest, equity or other
encumbrance.
(f) There are no legal or governmental proceedings
pending or, to the knowledge of the Company, threatened, against the
Company or any of the Subsidiaries or any of their respective officers
or directors, or to which the Company or any of the Subsidiaries, or
to which any of their respective properties is subject, that are
required to be described in the Registration Statement or the
Prospectuses but are not described as required, and there are no
agreements, contracts, indentures, leases or other instruments that
are required to be described in the Registration Statement or the
Prospectuses or to be filed as an exhibit to the Registration
Statement that are not described or filed as required by the Act.
(g) Neither the Company nor any of the Subsidiaries is in
violation of its certificate or articles of incorporation or by-laws,
or other organizational documents, or of any law, ordinance,
administrative or governmental rule or regulation applicable to the
Company or any of the Subsidiaries or of any decree of any court or
governmental agency or body having jurisdiction over the Company or
any of the Subsidiaries, or in default in any material respect in the
performance of any obligation, agreement or condition contained in any
bond, debenture, note or any other evidence of indebtedness or in any
material agreement, indenture, lease or other instrument to which the
Company or any of the
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16
Subsidiaries is a party or by which any of them or any of their
respective properties may be bound.
(h) Except as disclosed in the Registration Statement and
the Prospectuses, neither the issuance and sale of the Shares, the
execution, delivery or performance of this Agreement or the other
Transaction Documents (as hereinafter defined) by the Company or the
Subsidiaries (to the extent a party thereto) nor the consummation by
the Company or the Subsidiaries (to the extent a party thereto) of the
transactions contemplated hereby or thereby (i) requires any consent,
approval, authorization or other order of or registration or filing
with, any court, regulatory body, administrative agency or other
governmental body, agency or official (except (A) such as may be
required for the registration of the Shares under the Act and
compliance with the securities or Blue Sky laws of various
jurisdictions, all of which have been or will be effected in
accordance with this Agreement and (B) as would not (individually or
in the aggregate) have a Material Adverse Effect) or conflicts or will
conflict with or constitutes or will constitute a breach of, or a
default under, the certificate or articles of incorporation or
by-laws, or other organizational documents, of the Company or any of
the Subsidiaries or (ii) conflicts or will conflict with or
constitutes or will constitute a breach of, or a default under, any
agreement, indenture, lease or other instrument to which the Company
or any of the Subsidiaries is a party or by which any of them or any
of their respective properties may be bound, or violates or will
violate any statute, law, regulation or filing or judgment,
injunction, order or decree applicable to the Company or any of the
Subsidiaries or any of their respective properties, or will result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of the Subsidiaries pursuant
to the terms of any agreement or instrument to which any of them is a
party or by which any of them may be bound or to which any of the
property or assets of any of them is subject, except as would not
(individually or in the aggregate) have a Material Adverse Effect.
(i) Each of Price Waterhouse LLP and Ryals, Brimmer,
Xxxxx and Xxxxxx, who have certified or shall certify the financial
statements included in the Registration Statement and the Prospectuses
(or any amendment or supplement thereto), are independent public
accountants as required by the Act.
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(j) The financial statements of the Company and the
Subsidiaries, together with related schedules and notes, included in
the Registration Statement and the Prospectuses (and any amendment or
supplement thereto) present fairly the consolidated financial
position, results of operations and changes in financial position of
the Company and the Subsidiaries on the basis stated in the
Registration Statement and the Prospectuses at the respective dates or
for the respective periods to which they apply; such statements and
related schedules and notes have been prepared in accordance with
generally accepted accounting principles consistently applied
throughout the periods involved, except as disclosed therein; and the
other financial and statistical information and data included in the
Registration Statement and the Prospectuses (and any amendment or
supplement thereto) are accurately presented and prepared on a basis
consistent with such financial statements and the books and records of
the Company and the Subsidiaries.
(k) The unaudited pro forma consolidated financial
statements and other pro forma financial information (including the
notes thereto) included in the Registration Statement and the
Prospectuses (A) present fairly in all material respects the
information shown therein; (B) have been prepared in accordance with
applicable requirements of Regulation S-X promulgated under the
Exchange Act; (C) have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements; and (D) have been properly computed on the bases described
therein. The assumptions used in the preparation of the pro forma
financial statements and other pro forma condensed consolidated
financial information included in the Registration Statement and the
Prospectuses are reasonable and the adjustments used therein are
appropriate to give effect to the transactions or circumstances
referred to therein.
(l) The execution and delivery of, and the performance by
the Company of its obligations under, this Agreement have been duly
and validly authorized by the Company, and this Agreement has been
duly executed and delivered by the Company and constitutes the valid
and legally binding agreement of the Company, enforceable against the
Company in accordance with its terms except (i) that the enforcement
hereof may be subject to bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other similar laws now or
hereafter in effect relating to credi-
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tors' rights generally, and to general principles of equity and the
discretion of the court before which any proceeding therefor may be
brought and (ii) as any rights to indemnity or contribution hereunder
may be limited by federal and state securities laws and public policy
considerations.
(m) The execution and delivery of, and the performance by
the Company and the Subsidiaries (to the extent a party thereto) of
each of its obligations under, each agreement or instrument executed
or delivered in connection with Proposed Acquisitions (as defined in
the Prospectuses) and the release of the holders' put option on the
Company's Class A and Class B Common Stock Warrants (collectively,
the "Transaction Documents"), other than this Agreement, have been
duly and validly authorized by the Company and the Subsidiaries (to
the extent a party thereto), and such Transaction Documents have been
duly executed and delivered by the Company and the Subsidiaries (to
the extent a party thereto) and constitute the valid and legally
binding agreement of the Company and the Subsidiaries (to the extent a
party thereto), enforceable against them in accordance with their
terms, except that the enforcement thereof may be subject to (i)
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws now or hereafter in effect relating
to creditors' rights generally, and (ii) to general principles of
equity and the discretion of the court before which any proceeding
thereof may be brought.
(n) Except as disclosed in the Registration Statement and
the Prospectuses (or any amendment or supplement thereto), subsequent
to the respective dates as of which such information is given in the
Registration Statement and the Prospectuses (or any amendment or
supplement thereto), neither the Company nor any of the Subsidiaries
has incurred any liability or obligation, contingent or otherwise, or
entered into any transaction, not in the ordinary course of business,
that is material to the Company and the Subsidiaries taken as a whole,
and there has not been any change in the capital stock, or material
increase in the short-term debt or long-term debt, of the Company or
any of the Subsidiaries, or any material adverse change, or any
development involving or which may reasonably be expected to involve,
a prospective material adverse change, in the condition (financial or
other), business, prospects, properties, net worth or results of
operations of the Company and the Subsidiaries taken as a whole.
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19
(o) Each of the Company and the Subsidiaries has good and
marketable title to all property (real and personal) described in the
Prospectuses as being owned by it which is material to the business of
the Company and the Subsidiaries, taken as a whole, free and clear of
all liens, claims, security interests or other encumbrances except
such as are described in the Registration Statement and the
Prospectuses and all property described in the Registration Statement
and the Prospectuses as being held under lease by each of the Company
and the Subsidiaries which is material to the business of the Company
and the Subsidiaries, taken as a whole, is held by it under valid,
subsisting and enforceable leases.
(p) The Company has not distributed and, prior to the
later to occur of (i) the Closing Date and (ii) completion of the
distribution of the Shares, will not distribute any offering material
in connection with the offering and sale of the Shares other than the
Registration Statement, the Prepricing Prospectuses, the Prospectuses
or other materials, if any, permitted by the Act.
(q) The Company and each of the Subsidiaries has such
permits, licenses, franchises and authorizations of governmental or
regulatory authorities, including, without limitation, permits,
licenses, franchises and authorizations from the United States Federal
Communications Commission (the "FCC") ("Permits"), as are necessary to
own its respective properties and to conduct its business in the
manner described in the Prospectuses, subject to such qualifications
as may be set forth in the Prospectuses and, except as, individually
or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect; the Company and each of the Subsidiaries has
fulfilled and performed all of their respective obligations with
respect to such Permits and no event has occurred which allows, or
after notice or lapse of time would allow, revocation or termination
thereof or results in any other material impairment of the rights of
the holder of any such Permit, subject in each case to such
qualifications as may be set forth in the Prospectuses and, except as,
individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect; and, except as described in the
Prospectuses, none of such Permits contains any restriction that is
materially burdensome to the Company or any of the Subsidiaries.
Other than as disclosed in the Prospectuses, there are no license
renewal or rate or tariff proceedings existing, pending or, to the
best knowledge of the Company,
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20
threatened that could reasonably be expected to have a Material
Adverse Effect.
(r) Each of the Company and the Subsidiaries maintains a
system of internal accounting controls sufficient to provide
reasonable assurances that (i) transactions are executed in accordance
with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (iii) access to
assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for
assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(s) To the Company's knowledge, neither the Company nor
any of the Subsidiaries nor any officer, director, employee or agent
of the Company or any Subsidiary has made any payment of funds of the
Company or any Subsidiary or received or retained any funds in
violation of any law, rule or regulation, which payment, receipt or
retention of funds is of a character required to be disclosed in the
Prospectuses.
(t) The Company and each of the Subsidiaries have filed
all tax returns required to be filed, which returns are complete and
correct, and neither the Company nor any Subsidiary is in default in
the payment of any taxes which were payable pursuant to said returns
or any assessments with respect thereto, other than those taxes or
assessments being contested in good faith and those taxes or
assessments for which adequate reserves or accruals have been
established in accordance with generally accepted accounting
principles, except where the failure to file such tax returns or to
pay such taxes or assessments is not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect. The
Company knows of no actual or proposed additional tax assessments for
any fiscal period against the Company or any of the Subsidiaries that
would, individually or in the aggregate, be reasonably likely to have
a Material Adverse Effect.
(u) Except as disclosed in the Registration Statement or
the Prospectuses, no holder of any security of the Company has any
right to require registration of any security of the Company because
of the filing of the Registra-
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21
tion Statement or consummation of the transactions contemplated by
this Agreement.
(v) The Company and the Subsidiaries own or possess all
patents, trademarks, trademark registrations, service marks, service
xxxx registrations, trade names, copyrights, licenses, inventions,
trade secrets and rights described in the Prospectuses as being owned
by them or any of them or necessary for the conduct of their
respective businesses, the absence of which would have or could
reasonably be expected to have a Material Adverse Effect, and the
Company is not aware of any claim to the contrary or any challenge by
any other person to the rights of the Company and the Subsidiaries
with respect to the foregoing which claims or challenges, individually
or in the aggregate, would have a Material Adverse Effect.
(w) The Company has complied with all provisions of
Florida Statutes, Section 517.075, relating to issuers doing business
with Cuba.
(x) The Company is not now, and after sale of the Shares
to be sold by it hereunder and application of the net proceeds from
such sale as described in the Prospectuses under the caption "Use of
Proceeds" will not be, an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
(y) The Company has filed in a timely manner each
document or report required to be filed by it pursuant to the Exchange
Act and the rules and regulations thereunder; each such document or
report and any amendment thereto at the time it was filed conformed to
the requirements of the Exchange Act and the rules and regulations
thereunder; and none of such documents or reports contained an untrue
statement of any material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading.
(z) There are no business relationships or related-party
transactions of the nature described in Item 404 of Regulation S-K
involving the Company or any of its Subsidiaries and any persons
described in such Item that are required to be disclosed in the
Prospectuses and which have not been so disclosed.
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(aa) The Common Stock conforms in all material respects to
the description thereof in the Registration Statement and the
Prospectuses.
(ab) Neither the Company nor any of the Subsidiaries, or any
of such entities' directors, officers or controlling persons, has
taken, directly or indirectly, any action designed, or which might
reasonably be expected, to cause or result, under the Act or
otherwise, in, or which has constituted, stabilization or manipulation
of the price of any security of the Company to facilitate the sale or
resale of the Shares.
8. Representations and Warranties of the Selling
Stockholders. Each Selling Stockholder represents and warrants to each U.S.
Underwriter that:
(a) Such Selling Stockholder now has, and on the Closing
Date and the Option Closing Date will have, valid and marketable title
to the Shares to be sold by such Selling Stockholder, free and clear
of any lien, claim, security interest or other encumbrance, including,
without limitation, any restriction on transfer.
(b) Such Selling Stockholder now has, and on the Closing
Date and the Option Closing Date will have, full legal right, power
and authorization, and any approval required by law, to sell, assign,
transfer and deliver such Shares in the manner provided in this
Agreement, and upon delivery of and payment for such Shares hereunder,
the several U.S. Underwriters will acquire valid and marketable title
to such Shares free and clear of any lien, claim, security interest or
other encumbrance.
(c) This Agreement and the Custody Agreement have been
duly authorized, executed and delivered by or on behalf of such
Selling Stockholder and are the valid and binding agreements of such
Selling Stockholder enforceable against such Selling Stockholder in
accordance with their respective terms.
(d) Neither the execution and delivery of this Agreement
or the Custody Agreement by or on behalf of such Selling Stockholder
nor the consummation of the transactions herein or therein
contemplated by or on behalf of such Selling Stockholder requires any
consent, approval, authorization or order of, or filing or
registration with, any court, regulatory body, administrative agency
or other
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governmental body, agency or official (except such as may be required
under the Act or such as may be required under state securities or
Blue Sky laws governing the purchase and distribution of the Shares)
or conflicts or will conflict with or constitutes or will constitute a
breach of, or default under, or violates or will violate, any
agreement, indenture or other instrument to which such Selling
Stockholder is a party or by which such Selling Stockholder is or may
be bound or to which any of such Selling Stockholder's property or
assets is subject, or any statute, law, rule, regulation, ruling,
judgment, injunction, order or decree applicable to such Selling
Stockholder or to any property or assets of such Selling Stockholder.
(e) The Registration Statement and the Prospectuses,
insofar as they relate to such Selling Stockholder, do not and will
not contain an untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading.
(f) Such Selling Stockholder does not have any knowledge
or any reason to believe that the Registration Statement or the
Prospectuses (or any amendment or supplement thereto) contains any
untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading.
(g) The representations and warranties of such Selling
Stockholder in the Custody Agreement are, and on the Closing Date and
the Option Closing Date will be, true and correct.
(h) Such Selling Stockholder has not taken, directly or
indirectly, any action designed to or that might reasonably be
expected to cause or result in stabilization or manipulation of the
price of any Capital Stock to facilitate the sale or resale of the
Shares, except for the lock-up arrangements described in the
Prospectuses.
9. Indemnification and Contribution. (a) The Company
and each of Second Xxxxxxx Xxxxxxx, L.P. and Xxxxxx Enterprises, Inc.
(collectively, the "Indemnifying Selling Stockholders"), jointly and severally,
agree to indemnify and hold harmless each of you and each other U.S.
Underwriter and each person, if any, who controls any U.S. Underwriter within
the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act from
and against any and all losses, claims, damages,
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liabilities and expenses (including reasonable costs of investigation) arising
out of or based upon any untrue statement or alleged untrue statement of a
material fact contained in any Prepricing Prospectus or in the Registration
Statement or the Prospectus or in any amendment or supplement thereto, or
arising out of or based upon any omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or expenses arise out of or are based upon any untrue
statement or omission or alleged untrue statement or omission which has been
made therein or omitted therefrom in reliance upon and in conformity with the
information relating to such U.S. Underwriter furnished in writing to the
Company by or on behalf of any U.S. Underwriter through you expressly for use
in connection therewith; provided, however, that the indemnification contained
in this paragraph (a) with respect to any Prepricing Prospectus shall not inure
to the benefit of any U.S. Underwriter (or to the benefit of any person
controlling such U.S. Underwriter) on account of any such loss, claim, damage,
liability or expense arising from the sale of the Shares by such U.S.
Underwriter to any person if a copy of the U.S. Prospectus shall not have been
delivered or sent to such person within the time required by the Act and the
regulations thereunder, and the untrue statement or alleged untrue statement or
omission or alleged omission of a material fact contained in such U.S.
Prepricing Prospectus was corrected in the U.S. Prospectus; provided that the
Company has delivered the U.S. Prospectus to the several U.S. Underwriters in
requisite quantity on a timely basis to permit such delivery or sending. The
foregoing indemnity agreement shall be in addition to any liability which the
Company or any Indemnifying Selling Stockholder may otherwise have.
(b) If any action, suit or proceeding shall be brought
against any U.S. Underwriter or any person controlling any U.S. Underwriter in
respect of which indemnity may be sought against the Company or any
Indemnifying Selling Stockholder, such U.S. Underwriter or such controlling
person shall promptly notify the parties against whom indemnification is being
sought (the "indemnifying parties"), and such indemnifying parties shall assume
the defense thereof, including the employment of counsel and payment of all
fees and expenses. Such U.S. Underwriter or any such controlling person shall
have the right to employ separate counsel in any such action, suit or
proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such U.S. Underwriter or such
controlling person unless (i) the indemnifying parties have agreed in writing
to pay such fees and expenses, (ii) the
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indemnifying parties have failed to assume the defense and employ counsel or
(iii) the named parties to any such action, suit or proceeding (including any
impleaded parties) include both such U.S. Underwriter or such controlling
person and the indemnifying parties and such U.S. Underwriter or such
controlling person shall have been advised by its counsel that representation
of such indemnified party and any indemnifying party by the same counsel would
be inappropriate under applicable standards of professional conduct (whether or
not such representation by the same counsel has been proposed) due to actual or
potential differing interests between them (in which case the indemnifying
party shall not have the right to assume the defense of such action, suit or
proceeding on behalf of such U.S. Underwriter or such controlling person). It
is understood, however, that the indemnifying parties shall, in connection with
any one such action, suit or proceeding or separate but substantially similar
or related actions, suits or proceedings in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of only one separate firm of attorneys (in addition to any
local counsel) at any time for all such U.S. Underwriters and controlling
persons not having actual or potential differing interests with you or among
themselves, which firm shall be designated in writing by Xxxxx Xxxxxx Inc., and
that all such fees and expenses shall be reimbursed as they are incurred. The
indemnifying parties shall not be liable for any settlement of any such action,
suit or proceeding effected without their written consent, but if settled with
such written consent, or if there be a final judgment for the plaintiff in any
such action, suit or proceeding, the indemnifying parties agree to indemnify
and hold harmless any U.S. Underwriter, to the extent provided in the preceding
paragraph, and any such controlling person from and against any loss, claim,
damage, liability or expense by reason of such settlement or judgment.
(c) Each Selling Stockholder other than an Indemnifying
Selling Stockholder agrees, severally and not jointly, to indemnify and hold
harmless each of you and each other U.S. Underwriter and each person, if any,
who controls any U.S. Underwriter within the meaning of Section 15 of the Act
or Section 20(a) of the Exchange Act, the Company, its directors, its officers
who sign the Registration Statement, and any person who controls the Company
within the meaning of Section 15 of the Act or Section 20(a) of the Exchange
Act to the same extent as the foregoing indemnity from the Company and the
Indemnifying Selling Stockholders to each U.S. Underwriter, but only with
respect to the information furnished in writing by or on behalf of such Selling
Stockholder other than an Indemnifying Selling
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26
Stockholder expressly for use in the Registration Statement, the Prospectus or
any Prepricing Prospectus, or any amendment or supplement thereto. If any
action, suit or proceeding shall be brought against any U.S. Underwriter, any
such controlling person of any U.S. Underwriter, the Company, any of its
directors, any such officer, or any such controlling person of the Company,
based on the Registration Statement, the Prospectus or any Prepricing
Prospectus or any amendment or supplement thereto, and in respect of which
indemnity may be sought against any Selling Stockholder pursuant to this
paragraph (c), such Selling Stockholder shall have the rights and duties given
to the Company by paragraph (b) above (except that if the Company shall have
assumed the defense thereof such Selling Stockholder shall not be required to
do so, but may employ separate counsel therein and participate in the defense
thereof, but the fees and expenses of such counsel shall be at such Selling
Stockholder's expense), and each U.S. Underwriter, each such controlling person
of any U.S. Underwriter, the Company, its directors, any such officer, and any
such controlling person of the Company shall have the rights and duties given
to the U.S. Underwriters by paragraph (b) above. The foregoing indemnity
agreement shall be in addition to any liability which any Selling Stockholder
may otherwise have.
(d) Each U.S. Underwriter agrees, severally and not
jointly, to indemnify and hold harmless the Company, its directors, its
officers who sign the Registration Statement, each Selling Stockholder, and any
person who controls the Company within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act, to the same extent as the foregoing
indemnity from the Company and the Selling Stockholders to each U.S.
Underwriter, but only with respect to information relating to such U.S.
Underwriter furnished in writing by or on behalf of such U.S. Underwriter
through you expressly for use in the Registration Statement, the Prospectus or
any Prepricing Prospectus, or any amendment or supplement thereto. If any
action, suit or proceeding shall be brought against the Company, any of its
directors, any such officer, any Selling Stockholder, or any such controlling
person based on the Registration Statement, the Prospectus or any Prepricing
Prospectus, or any amendment or supplement thereto, and in respect of which
indemnity may be sought against any U.S. Underwriter pursuant to this paragraph
(d), such U.S. Underwriter shall have the rights and duties given to the
Company by paragraph (b) above (except that if the Company shall have assumed
the defense thereof such U.S. Underwriter shall not be required to do so, but
may employ separate counsel therein and participate in the defense thereof,
but the fees and expenses of such counsel shall be at such U.S. Underwriter's
expense), and the Company, its directors, any such officer, the
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Selling Stockholders, and any such controlling person shall have the rights and
duties given to the U.S. Underwriters by paragraph (b) above. The foregoing
indemnity agreement shall be in addition to any liability which any U.S.
Underwriter may otherwise have.
(e) If the indemnification provided for in this Section 9
is unavailable to an indemnified party under paragraphs (a), (c) or (d) hereof
in respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company and the Selling Stockholders on the one hand and the U.S.
Underwriters on the other hand from the offering of the Shares, or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Selling Stockholders on the one hand and the U.S. Underwriters on the other
in connection with the statements or omissions that resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company and
the Selling Stockholders on the one hand and the U.S. Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company and the
Selling Stockholders bear to the total underwriting discounts and commissions
received by the U.S. Underwriters, in each case as set forth in the table on
the cover page of the U.S. Prospectus; provided that, in the event that the
U.S. Underwriters shall have purchased any Additional Shares hereunder, any
determination of the relative benefits received by the Company, the Selling
Stockholders or the U.S. Underwriters from the offering of the Shares shall
include the net proceeds (before deducting expenses) received by the Company
and the Selling Stockholders, and the underwriting discounts and commissions
received by the U.S. Underwriters, from the sale of such Additional Shares, in
each case computed on the basis of the respective amounts set forth in the
notes to the table on the cover page of the U.S. Prospectus. The relative
fault of the Company and the Selling Stockholders on the one hand and the U.S.
Underwriters on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the
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Company or the Selling Stockholders on the one hand or by the U.S. Underwriters
on the other hand and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(f) The Company, the Selling Stockholders and the U.S.
Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 9 were determined by a pro rata allocation (even if
the U.S. Underwriters were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable
considerations referred to in paragraph (e) above. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages, liabilities
and expenses referred to in paragraph (e) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
any claim or defending any such action, suit or proceeding. Notwithstanding
the provisions of this Section 9, no U.S. Underwriter shall be required to
contribute any amount in excess of the amount by which the total price of the
Shares underwritten by it and distributed to the public exceeds the amount of
any damages which such U.S. Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The U.S.
Underwriters' obligations to contribute pursuant to this Section 9 are several
in proportion to the respective numbers of Firm Shares set forth opposite their
names in Schedule II hereto (or such numbers of Firm Shares increased as set
forth in Section 12 hereof) and not joint.
(g) No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action, suit or proceeding in respect of which any indemnified party
is or could have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are the
subject matter of such action, suit or proceeding.
(h) Any losses, claims, damages, liabilities or expenses
for which an indemnified party is entitled to indemnification or contribution
under this Section 9 shall be paid by the indemnifying party to the indemnified
party as such losses,
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claims, damages, liabilities or expenses are incurred. The indemnity and
contribution agreements contained in this Section 9 and the representations and
warranties of the Company and the Selling Stockholders set forth in this
Agreement shall remain operative and in full force and effect, regardless of
(i) any investigation made by or on behalf of any U.S. Underwriter or any
person controlling any U.S. Underwriter, the Company, its directors or officers
or the Selling Stockholders or any person controlling the Company, (ii)
acceptance of any Shares and payment therefor hereunder and (iii) any
termination of this Agreement. A successor to any U.S. Underwriter or any
person controlling any U.S. Underwriter, or to the Company, its directors or
officers, or any person controlling the Company, shall be entitled to the
benefits of the indemnity, contribution and reimbursement agreements contained
in this Section 9.
10. Conditions of U.S. Underwriters' Obligations. The
several obligations of the U.S. Underwriters to purchase the Firm Shares
hereunder are subject to the following conditions:
(a) If, at the time this Agreement is executed and
delivered, it is necessary for the Registration Statement or a
post-effective amendment thereto to be declared effective before the
offering of the Shares may commence, the Registration Statement or
such post-effective amendment shall have become effective not later
than 5:30 P.M. (or, in the case of a Registration Statement filed
pursuant to Rule 462(b) under the Act, not later than 10:00 P.M.), New
York City time, on the date hereof, or at such later date and time as
shall be consented to in writing by you, and all filings, if any,
required by Rules 424 and 430A under the Act shall have been timely
made; no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose
shall have been instituted or, to the knowledge of the Company, any
Selling Stockholder or any Underwriter, threatened by the Commission,
and any request of the Commission for additional information (to be
included in the Registration Statement or the Prospectuses or
otherwise) shall have been complied with to your satisfaction.
(b) Subsequent to the effective date of this Agreement,
there shall not have occurred (i) any change, or any development
involving a prospective change, in or affecting the condition
(financial or other), business, prospects, properties, net worth, or
results of operations of the Company or the Subsidiaries not
contemplated by the Prospectuses, which in your opinion, as
Representatives of
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the several U.S. Underwriters, would materially, adversely affect the
market for the Shares or (ii) any event or development relating to or
involving the Company or any officer or director of the Company or any
Selling Stockholder which makes any statement made in the Prospectuses
untrue or which, in the opinion of the Company and its counsel or the
U.S. Underwriters and their counsel, requires the making of any
addition to or change in the Prospectuses in order to state a material
fact required by the Act or any other law to be stated therein or
necessary in order to make the statements therein not misleading if
amending or supplementing the Prospectuses to reflect such event or
development would, in your opinion, as Representatives of the several
U.S. Underwriters, materially adversely affect the market for the
Shares.
(c) You shall have received on the Closing Date, an
opinion of Holland & Knight, counsel for the Company and the Selling
Stockholders, dated the Closing Date and addressed to you, as
Representatives of the several U.S. Underwriters, to the effect that:
(i) The Company is a corporation
duly incorporated and validly existing in good standing under
the laws of the State of Delaware with full corporate power
and authority to own, lease and operate its properties and to
conduct its business as described in the Registration
Statement and the Prospectuses (and any amendment or
supplement thereto), and is duly registered and qualified to
conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or
the conduct of its business requires such registration or
qualification, except where the failure so to register or
qualify does not have a Material Adverse Effect;
(ii) Each Subsidiary which is a
Florida corporation or partnership is either (i) a corporation
duly incorporated or organized, validly existing and in good
standing in Florida or (ii) a partnership duly organized and
validly existing under the applicable laws of the State of
Florida and the status of each such Subsidiary is active; to
the knowledge of such counsel, each Subsidiary has the
requisite corporate or partnership power to own and operate
its property and assets and to transact the business in which
it is engaged except where the failure to own or operate such
property or assets or transact such business would not
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have a Material Adverse Effect; each Subsidiary which is a
Delaware corporation is duly incorporated, validly existing
and in good standing under the laws of the State of Delaware;
and each Subsidiary is duly registered and qualified to
conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or
the conduct of its business requires such registration or
qualification, except where the failure so to register or
qualify does not have a Material Adverse Effect;
(iii) To the knowledge of such
counsel, the authorized and outstanding Capital Stock of the
Company is as set forth under the caption "Capitalization" in
the Prospectuses; and the authorized Capital Stock of the
Company conforms in all material respects as to legal matters
to the descriptions thereof contained in the Prospectuses
under the caption "Description of Capital Stock"; all of the
outstanding shares of capital stock of or ownership interests
in each of the Subsidiaries have been duly authorized and
validly issued, are fully paid and nonassessable and were not
issued in violation of any preemptive or similar rights;
(iv) All the shares of Capital Stock
of the Company outstanding prior to the issuance of the Shares
to be issued and sold by the Company hereunder, have been duly
authorized and validly issued, and are fully paid and
nonassessable and were not issued in violation of any
preemptive or similar rights;
(v) The Shares to be issued and
sold to the U.S. Underwriters by the Company hereunder have
been duly authorized and, when issued and delivered to the
U.S. Underwriters against payment therefor in accordance with
the terms hereof, will be validly issued, fully paid and
nonassessable and free of any preemptive or similar rights
that entitle or will entitle any person to acquire any
securities of the Company upon the issuance thereof by the
Company;
(vi) The form of certificates for
the Shares conforms to the requirements of the Delaware
General Corporation Law;
(vii) The Registration Statement and
all post-effective amendments, if any, have become effective
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under the Act and, to the best knowledge of such counsel after
reasonable inquiry, no stop order suspending the effectiveness
of the Registration Statement has been issued and no
proceedings for that purpose are pending before or
contemplated by the Commission; and any required filing of the
Prospectuses pursuant to Rule 424(b) has been made in
accordance with Rule 424(b);
(viii) The Company has corporate power
and authority to enter into this Agreement and to issue, sell
and deliver the Shares, and this Agreement has been duly
authorized, executed and delivered by the Company;
(ix) Neither the offer, sale or
delivery of the Shares, the execution, delivery or performance
of this Agreement, compliance by the Company with the
provisions hereof nor consummation by the Company of the
transactions contemplated hereby conflicts or will conflict
with or constitutes or will constitute a breach of, or a
default under, the certificate or articles of incorporation or
by-laws, or other organizational documents, of the Company or
any of the Subsidiaries or any agreement or document relating
to the Capital Stock of the Company, nor will any such action
result in any violation of any law, regulation, rule (assuming
compliance with all applicable state securities and Blue Sky
laws), judgment, ruling or court decree applicable to the
Company, the Subsidiaries or any of their respective
properties;
(x) No consent, approval,
authorization or other order of, or registration or filing
with, any court, regulatory body, administrative agency or
other governmental body, agency, or official is required on
the part of the Company (except as have been obtained under
the Act or such as may be required under state securities or
Blue Sky laws governing the purchase and distribution of the
Shares) for the valid issuance and sale of the Shares to the
U.S. Underwriters as contemplated by this Agreement;
(xi) The Registration Statement and
the Prospectuses and any supplements or amendments thereto
(except for the financial statements and the notes thereto and
the schedules and other financial and statistical data
included therein, as to which such counsel need not
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express any opinion) comply as to form in all material
respects with the requirements of the Act;
(xii) To the knowledge of such
counsel, (A) other than as described or contemplated in the
Prospectuses (or any supplement thereto), there are no legal
or governmental proceedings pending or threatened against the
Company or any of the Subsidiaries, or to which the Company or
any of the Subsidiaries, or any of their property, is subject,
which are required to be described in the Registration
Statement or Prospectuses (or any amendment or supplement
thereto) and (B) there are no agreements, contracts,
indentures, leases or other instruments that are required to
be described in the Registration Statement or the Prospectuses
(or any amendment or supplement thereto) or to be filed as an
exhibit to the Registration Statement that are not described
or filed as required, as the case may be;
(xiii) Other than with respect to
federal, state or local broadcasting, licensing or
communications law or regulatory matters, the statements in
the Registration Statement and Prospectuses, insofar as they
are descriptions of contracts, agreements or other legal
documents, or refer to statements of law or legal conclusions,
are accurate and present fairly the information required to be
shown;
(xiv) This Agreement and the Custody
Agreement have each been duly executed and delivered by or on
behalf of each of the Selling Stockholders and are valid and
binding agreements of each Selling Stockholder enforceable
against each Selling Stockholder in accordance with their
respective terms;
(xv) To the knowledge of such
counsel, each Selling Stockholder has full legal right, power
and authorization, and any approval required by law, to sell,
assign, transfer and deliver good and marketable title to the
Shares which such Selling Stockholder has agreed to sell
pursuant to this Agreement;
(xvi) The execution and delivery of
this Agreement and the Custody Agreement by the Selling
Stockholders and the consummation of the transactions
contemplated hereby and thereby will not conflict with,
violate, result in a breach of or constitute a default under
the terms or provisions of any agreement, indenture,
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mortgage or other instrument known to such counsel to which
any Selling Stockholder is a party or by which any of them or
any of their assets or property is bound, or any court order
or decree or any law, rule, or regulation applicable to any
Selling Stockholder or to any of the property or assets of any
Selling Stockholder;
(xvii) Upon delivery of the Shares
pursuant to this Agreement and payment therefor as
contemplated herein the U.S. Underwriters will acquire good
and marketable title to the Shares free and clear of any lien,
claim, security interest, or other encumbrance, restriction on
transfer or other defect in title;
(xviii) The Company is not an
"investment company" or a company "controlled by an investment
company" within the meaning of the Investment Company Act of
1940, as amended; and
(xix) Although counsel has not
undertaken, except as otherwise indicated in their opinion, to
determine independently, and does not assume any
responsibility for, the accuracy or completeness of the
statements in the Registration Statement or the Prospectuses,
such counsel has participated in the preparation of the
Registration Statement and the Prospectuses, including review
and discussion of the contents thereof, and nothing has come
to the attention of such counsel that has caused them to
believe that the Registration Statement at the time the
Registration Statement became effective, or the Prospectuses,
as of their date and as of the Closing Date or the Option
Closing Date, as the case may be, contained an untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading or that any amendment or
supplement to the Prospectuses, as of its respective date, and
as of the Closing Date or the Option Closing Date, as the case
may be, contained any untrue statement of a material fact or
omitted 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 (it being
understood that such counsel need express no opinion with
respect to the financial statements and the notes thereto and
the schedules and other financial and statistical data
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included in the Registration Statement or the Prospectuses).
(d) You shall have received on the Closing Date
an opinion of Xxxxxxx X. Xxxxxxxx, Esq., General Counsel to the Company, dated
the Closing Date and addressed to you, as Representatives of the several U.S.
Underwriters, to the effect that:
(i) The Company and each of the
Subsidiaries has full corporate or partnership power and
authority, and all necessary governmental authorizations,
approvals, orders, licenses, certificates, franchises and
permits of and from all governmental regulatory officials and
bodies (except where the failure so to have any such
authorizations, approvals, orders, licenses, certificates,
franchises or permits, individually or in the aggregate, would
not have a Material Adverse Effect), to own their respective
properties and to conduct their respective businesses as now
being conducted, as described in the Prospectuses;
(ii) Except as disclosed in the
Prospectuses, all the outstanding shares of capital stock of
each of the Subsidiaries are owned by the Company directly, or
indirectly through one of the other Subsidiaries, free and
clear of any lien, adverse claim, security interest, equity,
or other encumbrance;
(iii) This Agreement is a valid,
legal and binding agreement of the Company, enforceable
against the Company in accordance with its terms (it being
noted, without expressing any opinion with regard to the
federal securities laws and regulations, that the Commission
has expressed the view that indemnification against securities
law liabilities is against public policy) and subject to the
qualification that the enforceability of the Company's
obligations hereunder may be limited by bankruptcy, fraudulent
conveyance, insolvency, reorganization, moratorium and other
laws relating to or affecting creditors' rights generally and
by general equitable principles;
(iv) Each of the Company and the
Subsidiaries has all corporate or partnership power and
authority, as the case may be, to execute, deliver and perform
each of the Transaction Documents to which it is a party, to
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perform all of its obligations thereunder and to consummate
the transactions contemplated thereby;
(v) Neither the Company nor any of
the Subsidiaries is in violation of its certificate or
articles of incorporation or by-laws, or other organizational
documents, or to the knowledge of such counsel after
reasonable inquiry, is in default (and no event has occurred
which with notice or lapse of time, or both, would constitute
a default) in the performance of any obligation, agreement or
condition contained in any bond, debenture, note or other
evidence of indebtedness;
(vi) Except as disclosed in the
Registration Statement and the Prospectuses, to the knowledge
of such counsel, neither the offer, sale or delivery of the
Shares, the execution, delivery or performance of this
Agreement and the other Transaction Documents, compliance by
the Company or the Subsidiaries (to the extent a party
thereto) with the provisions hereof or thereof nor
consummation by the Company or the Subsidiaries (to the extent
a party thereto) of the transaction contemplated hereby or
thereby, conflict or will conflict with or constitute or will
constitute a breach of, or a default under the certificate or
articles of incorporation or by-laws, or other organizational
documents, of the Company or any of the Subsidiaries or any
agreement, indenture, lease or other instrument to which the
Company or any of the Subsidiaries is a party or by which any
of them or any of their respective properties is bound or will
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any
of the Subsidiaries which conflict, breach, default or lien
could reasonably be expected to have a Material Adverse
Effect;
(vii) To the knowledge of such
counsel, other than as described in the Prospectuses (or any
supplement thereto), there are no legal or governmental
proceedings pending or threatened against the Company or any
of the Subsidiaries, or to which the Company or any of the
Subsidiaries, or any of their property, is subject, which are
required to be described in the Registration Statement or
Prospectuses (or any amendment or supplement thereto);
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(viii) There are no agreements,
contracts, indentures, leases or other instruments that are
required to be described in the Registration Statement or the
Prospectuses (or any amendment or supplement thereto) or to be
filed as an exhibit to the Registration Statement that are not
described or filed as required, as the case may be;
(ix) To the knowledge of such
counsel after reasonable inquiry, neither the Company nor any
of the Subsidiaries is in violation of any law, ordinance,
administrative or governmental rule or regulation applicable
to the Company or any of the Subsidiaries or of any decree of
any court or governmental agency or body having jurisdiction
over the Company or any of the Subsidiaries;
(x) Except as described in the
Prospectuses, there are no outstanding options, warrants or
other rights calling for the issuance of, and such counsel
does not know of any commitment, plan or arrangement to issue,
any shares of Capital Stock of the Company or any security
convertible into or exchangeable or exercisable for Capital
Stock of the Company; and
(xi) Except as described in the
Prospectuses, there is no holder of any security of the
Company or any other person who has the right, contractual or
otherwise, to cause the Company to sell or otherwise issue to
them, or to permit them to underwrite the sale of, the Shares
or the right to have any Capital Stock or other securities of
the Company included in the Registration Statement or the
right, as a result of the filing of the Registration
Statement, to require registration under the Act of any shares
of Capital Stock or other securities of the Company.
(e) You shall have received on the Closing Date
an opinion of Dow, Xxxxxx & Xxxxxxxxx, special communications counsel for the
Company, dated the Closing Date and addressed to you, as Representatives of the
several U.S. Underwriters, to the effect that:
(i) Xxxxxxxxx Media, Inc.,
Bradenton Broadcast Television Company, Ltd. and each
subsidiary of the Company and each subsidiary of The Christian
Network, Inc. holds those broadcast licenses issued by the FCC
("FCC Licenses") identified as held by such entity.
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Each of the FCC Licenses authorizes radio or television
broadcast operations by the holder thereof using the channel
or frequency assignment and serving the community of license
that is identified for each of the FCC Licenses;
(ii) To the knowledge of such
counsel, based upon the review of the publicly available
records of the FCC and inquiry to officers of the Company,
except as may be disclosed in the Prospectuses, there is no
order, judgment, decree, notice of apparent liability, or
order of forfeiture outstanding, and no petition, objection,
notice of apparent liability, order of forfeiture,
investigation, complaint, or other proceeding pending before
the FCC or threatened by the FCC against the stations listed
(the "Stations") or the FCC Licenses that reasonably could be
expected to result in the termination, revocation, suspension,
or denial of renewal of any of the FCC Licenses, except for
rule making and other similar proceedings generally applicable
to the radio or television broadcasting industry or
substantial segments thereof;
(iii) To the knowledge of such
counsel based upon the review of the publicly available files
of the FCC and inquiry to officers of the Company, other than
as disclosed in the Prospectuses; (a) there are no license
renewal proceedings pending for any of the FCC Licenses; and
(b) except as set forth on the FCC authorization certificates
for the Stations or imposed by the generally applicable rules
of the FCC, none of the FCC Licenses is subject to any
condition imposed by the FCC that reasonably could be expected
to have a material adverse effect on the Company's ability to
conduct its broadcast operations, taken as a whole;
(iv) The issuance, sale and delivery
of the Shares pursuant to this Agreement (A) does not require
any consent or authorization from the FCC, and (B) does not
constitute a violation of the Communications Act of 1934 (the
"Communications Act") or the published rules and regulations
of the FCC promulgated thereunder;
(v) The applications for consent to
assignment or transfer of control of licenses issued by the
FCC in connection with the Proposed Acquisitions (as defined
in the Prospectuses) that are listed in the Prospectuses (the
"Acquisition Applications") have been
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filed with the FCC and, to the knowledge of such counsel based
upon the review of the publicly available files of the FCC and
inquiry to officers of the Company, no petition to deny such
applications has been filed with the FCC;
(vi) The statements in the
Prospectuses under the captions "Risk Factors -- Must Carry
Regulations," "-- Government Regulation," "-- Multiple
Ownership Rules; Time Brokerage Agreements" and "Business --
Federal Regulation of Broadcasting," insofar as they
constitute summaries of the Communications Act and the
published rules and regulations of the FCC promulgated
thereunder have been reviewed by such counsel and are accurate
in all material respects;
(vii) The execution, delivery and
performance of (x) this Agreement by the Company and (y) this
Agreement and the Custody Agreement by the Selling
Stockholders (A) do not require any consent or authorization
from the FCC, and (B) do not and will not violate the
Communications Act and the rules and regulations promulgated
thereunder;
(viii) There are no restrictions or
limitations imposed by the FCC on the ability of the Company
to pay cash dividends on its shares of Class A Common Stock
or, except as set forth in the Prospectuses, otherwise make
distributions on its shares of Capital Stock.
(f) You shall have received on the Closing Date
an opinion of Xxxxxx Xxxxxx & Xxxxxxx, counsel for the U.S. Underwriters, dated
the Closing Date and addressed to you, as Representatives of the several U.S.
Underwriters, with respect to the matters referred to in clauses (v), (vii),
(viii), (xi) and (xix) of the foregoing paragraph (c) and such other related
matters as you may request.
(g) You shall have received "cold comfort"
letters addressed to you, as Representatives of the several U.S. Underwriters,
and dated the date hereof and the Closing Date from Price Waterhouse LLP,
independent certified public accountants, substantially in the forms heretofore
approved by you.
(h)(i) No stop order suspending the effectiveness
of the Registration Statement shall have been issued and no proceedings for
that purpose shall have been taken or, to
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the knowledge of the Company, the Selling Stockholders or the Underwriters,
shall be contemplated by the Commission at or prior to the Closing Date; (ii)
there shall not have been any change in the Capital Stock of the Company nor
any material increase in the consolidated short-term or long-term debt of the
Company (other than in the ordinary course of business) from that set forth or
contemplated in the Registration Statement or the Prospectuses (or any
amendment or supplement thereto); (iii) there shall not have been, since the
respective dates as of which information is given in the Registration Statement
and the Prospectuses (or any amendment or supplement thereto), except as may
otherwise be stated in the Registration Statement and Prospectuses (or any
amendment or supplement thereto), any material adverse change in the condition
(financial or other), business, prospects, properties, net worth or results of
operations of the Company and the Subsidiaries taken as a whole; (iv) the
Company and the Subsidiaries shall not have any liabilities or obligations,
contingent or otherwise (whether or not in the ordinary course of business),
that are material to the Company and the Subsidiaries, taken as a whole, other
than those reflected in the Registration Statement or the Prospectuses (or any
amendment or supplement thereto); and (v) all the representations and
warranties of the Company contained in this Agreement shall be true and correct
on and as of the date hereof and on and as of the Closing Date as if made on
and as of the Closing Date, and you shall have received a certificate, dated
the Closing Date and signed by the chief executive officer and the chief
financial officer of the Company (or such other officers as are acceptable to
you), to the effect set forth in this Section 10(h) and in Section 10(i)
hereof.
(i) The Company shall not have failed at or
prior to the Closing Date to have performed or complied with any of its
agreements herein contained and required to be performed or complied with by it
hereunder at or prior to the Closing Date.
(j) All the representations and warranties of
the Selling Stockholders contained in this Agreement shall be true and correct
on and as of the date hereof and on and as of the Closing Date as if made on
and as of the Closing Date, and you shall have received a certificate, dated
the Closing Date and signed by or on behalf of the Selling Stockholders to the
effect set forth in this Section 10(j) and in Section 10(k) hereof.
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(k) The Selling Stockholders shall not have
failed at or prior to the Closing Date to have performed or complied with any
of their agreements herein contained and required to be performed or complied
with by them hereunder at or prior to the Closing Date.
(l) Prior to the Closing Date the Shares shall
have been listed, subject to issuance, on the American Stock Exchange.
(m) The Sellers shall have furnished or caused
to be furnished to you such further certificates and documents as you shall
have requested.
(n) The closing under the International
Underwriting Agreement shall have occurred concurrently with the closing
hereunder on the Closing Date.
(o) The Company and the Selling Stockholders
shall have furnished or caused to be furnished to you the "lock- up" letters
requested by you in form and substance satisfactory to you, and each such
"lock-up" letter shall be in full force and effect on the Closing Date.
All such opinions, certificates, letters and other documents
will be in compliance with the provisions hereof only if they are satisfactory
in form and substance to you and your counsel.
Any certificate or document signed by any officer of the
Company or any Attorney-in-Fact or any Selling Stockholder and delivered to
you, as Representatives of the U.S. Underwriters, or to counsel for the U.S.
Underwriters, shall be deemed a representation and warranty by the Company, the
Selling Stockholders or the particular Selling Stockholder, as the case may be,
to each U.S. Underwriter as to the statements made therein.
The several obligations of the U.S. Underwriters to purchase
Additional Shares hereunder are subject to the satisfaction on and as of any
Option Closing Date of the conditions set forth in this Section 10, except
that, if any Option Closing Date is other than the Closing Date, the
certificates, opinions and letters referred to in paragraphs (c) through (j)
shall be dated the Option Closing Date in question and the opinions called for
by paragraphs (c), (d), (e) and (f) shall be revised to reflect the sale of
Additional Shares.
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11. Expenses. Notwithstanding any termination
of this Agreement (pursuant to Section 12, Section 13 or otherwise), the
Company agrees to pay the following costs and expenses and all other costs and
expenses incident to the performance by the Sellers of their obligations
hereunder: (i) the preparation, printing or reproduction, and filing with the
Commission of the registration statement (including financial statements and
exhibits thereto), each of the Prepricing Prospectuses, the Prospectuses, and
each amendment or supplement to any of them; (ii) the printing (or
reproduction) and delivery (including postage, air freight charges and charges
for counting and packaging) of such copies of the registration statement, each
Prepricing Prospectus, the Prospectuses, and all amendments or supplements to
any of them as may be reasonably requested for use in connection with the
offering and sale of the Shares; (iii) the preparation, printing,
authentication, issuance and delivery of certificates for the Shares, including
any stamp taxes in connection with the original issuance and sale of the
Shares; (iv) the printing (or reproduction) and delivery of this Agreement, the
preliminary and supplemental Blue Sky Memoranda and all other agreements or
documents printed (or reproduced) and delivered in connection with the offering
of the Shares; (v) the listing of the Shares on the American Stock Exchange;
(vi) the registration or qualification of the Shares for offer and sale under
the securities or Blue Sky laws of the several states as provided in Section
5(g) hereof (including the reasonable fees, expenses and disbursements of
counsel for the U.S. Underwriters relating to the preparation, printing or
reproduction, and delivery of the preliminary and supplemental Blue Sky
Memoranda and such registration and qualification); (vii) the filing fees and
the fees and expenses of counsel for the U.S. Underwriters in connection with
any filings required to be made with the National Association of Securities
Dealers, Inc.; (viii) the transportation and other expenses incurred by or on
behalf of Company representatives in connection with presentations to
prospective purchasers of the Shares; and (ix) the fees and expenses of the
Company's accountants and the fees and expenses of counsel (including local and
special counsel) for the Company and the Selling Stockholders.
12. Effective Date of Agreement. This
Agreement shall become effective: (i) upon the execution and delivery hereof
by the parties hereto; or (ii) if, at the time this Agreement is executed and
delivered, it is necessary for the Registration Statement or a post-effective
amendment thereto to be declared effective before the offering of the Shares
may commence, when notification of the effectiveness of the registration
statement or such post- effective amendment has been released by the
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Commission. Until such time as this Agreement shall have become effective, it
may be terminated by the Company, by notifying you, or by you, as
Representatives of the several U.S. Underwriters, by notifying the Company and
the Selling Stockholders.
If any one or more of the U.S. Underwriters shall fail or
refuse to purchase Shares which it or they are obligated to purchase hereunder
on the Closing Date, and the aggregate number of Shares which such defaulting
U.S. Underwriter or U.S. Underwriters are obligated but fail or refuse to
purchase is not more than one-tenth of the aggregate number of Shares which the
U.S. Underwriters are obligated to purchase on the Closing Date, each non-
defaulting U.S. Underwriter shall be obligated, severally, in the proportion
which the number of Firm Shares set forth opposite its name in Schedule II
hereto bears to the aggregate number of Firm Shares set forth opposite the
names of all non-defaulting U.S. Underwriters or in such other proportion as
you may specify in accordance with Section 20 of the Master Agreement Among
Underwriters of Xxxxx Xxxxxx Inc., to purchase the Firm Shares which such
defaulting U.S. Underwriter or U.S. Underwriters are obligated, but fail or
refuse, to purchase. If any one or more of the U.S. Underwriters shall fail
or refuse to purchase Shares which it or they are obligated to purchase on the
Closing Date and the aggregate number of Shares with respect to which such
default occurs is more than one-tenth of the aggregate number of Shares which
the U.S. Underwriters are obligated to purchase on the Closing Date and
arrangements satisfactory to you and the Company for the purchase of such
Shares by one or more non-defaulting U.S. Underwriters or other party or
parties approved by you and the Company are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting U.S. Underwriter or the Company. In any such case which does
not result in termination of this Agreement, either you or the Company shall
have the right to postpone the Closing Date, but in no event for longer than
seven days, in order that the required changes, if any, in the Registration
Statement and the Prospectuses or any other documents or arrangements may be
effected. Any action taken under this paragraph shall not relieve any
defaulting U.S. Underwriter from liability in respect of any such default of
any such U.S. Underwriter under this Agreement. The term "U.S. Underwriter"
as used in this Agreement includes, for all purposes of this Agreement, any
party not listed in Schedule II hereto who, with your approval and the approval
of the Company, purchases Shares which a defaulting U.S. Underwriter is
obligated, but fails or refuses, to purchase.
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Any notice under this Section 12 may be given by telegram,
telecopy or telephone but shall be subsequently confirmed by letter.
13. Termination of Agreement. This Agreement
shall be subject to termination in your absolute discretion, without liability
on the part of any U.S. Underwriter to the Company or any Selling Stockholder,
by notice to the Company, if prior to the Closing Date or any Option Closing
Date (if different from the Closing Date and then only as to the Additional
Shares), as the case may be, (i) trading in securities generally on the New
York Stock Exchange, the American Stock Exchange or the Nasdaq National Market
shall have been suspended or materially limited, (ii) a general moratorium on
commercial banking activities in New York or Florida shall have been declared
by either federal or state authorities, or (iii) there shall have occurred any
outbreak or escalation of hostilities or other international or domestic
calamity, crisis or change in political, financial or economic conditions, the
effect of which on the financial markets of the United States is such as to
make it, in your judgment, impracticable or inadvisable to commence or continue
the offering of the Shares at the offering price to the public set forth on the
cover page of the Prospectuses or to enforce contracts for the resale of the
Shares by the U.S. Underwriters. Notice of such termination may be given to
the Company and the Selling Stockholders by telegram, telecopy or telephone and
shall be subsequently confirmed by letter.
14. Information Furnished by the Underwriters.
The statements set forth in the last paragraph on the cover page, the
stabilization legend on the inside cover page, and the statements in the first,
fourth, eighth, ninth, tenth and fourteenth paragraphs under the caption
"Underwriting" in any U.S. Prepricing Prospectus and in the U.S. Prospectus
constitute the only information furnished by or on behalf of the U.S.
Underwriters through you as such information is referred to in Sections 7(b)
and 9 hereof.
15. Miscellaneous. Except as otherwise
provided in Sections 5, 12 and 13 hereof, notice given pursuant to any
provision of this Agreement shall be in writing and shall be delivered (i) if
to the Company, at the office of the Company at 000 Xxxxxxxxxx Xxxx Xxxx, Xxxx
Xxxx Xxxxx, Xxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxxxx, Esq., Vice
President and General Counsel; or (ii) if to the Selling Stockholders, at
[ ], Attention: [ ]; or (iii) if to you, as Representatives
of the several U.S. Underwriters, care of Xxxxx Xxxxxx Inc., 388
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Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Manager, Investment
Banking Division.
This Agreement has been and is made solely for the benefit of
the several U.S. Underwriters, the Company, its directors and officers, the
other controlling persons referred to in Section 9 hereof and the Selling
Stockholders and their respective successors and assigns, to the extent
provided herein, and no other person shall acquire or have any right under or
by virtue of this Agreement. Neither the term "successor" nor the term
"successors and assigns" as used in this Agreement shall include a purchaser
from any U.S. Underwriter of any of the Shares in his status as such purchaser.
16. Applicable Law; Counterparts. This
Agreement shall be governed by and construed in accordance with the laws of
the State of New York applicable to contracts made and to be performed within
the State of New York.
This Agreement may be signed in various counterparts which
together constitute one and the same instrument. If signed in counterparts,
this Agreement shall not become effective unless at least one counterpart
hereof shall have been executed and delivered on behalf of each party hereto.
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Please confirm that the foregoing correctly sets forth the
agreement among the Company, the Selling Stockholders and the several U.S.
Underwriters.
Very truly yours,
XXXXXX COMMUNICATIONS CORPORATION
By
-----------------------------
Name:
Title:
Each of the Selling
Stockholders named in
Schedule I hereto
By
-----------------------------
Name:
Title: Attorney-in-Fact
By
-----------------------------
Name:
Title: Attorney-in-Fact
Confirmed as of the date first
above mentioned on behalf of
themselves and the other several
U.S. Underwriters named in Schedule II
hereto.
XXXXX XXXXXX INC.
PAINEWEBBER INCORPORATED
CIBC WOOD GUNDY SECURITIES CORP.
BT SECURITIES CORPORATION
As Representatives of the Several U.S. Underwriters
By XXXXX XXXXXX INC.
By
--------------------------------
Name:
Title:
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SCHEDULE I
XXXXXX COMMUNICATIONS CORPORATION
Part A - Firm Shares
Number of
Selling Stockholders Firm Shares
-------------------- -----------
--------------
Total........
==============
Part B - Additional Shares
--------------------------
Number of
Selling Stockholders Additional Shares
-------------------- -----------------
--------------
Total........
==============
48
SCHEDULE II
XXXXXX COMMUNICATIONS CORPORATION
Number of
Underwriter Firm Shares
----------- -----------
Xxxxx Xxxxxx Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
PaineWebber Incorporated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
CIBC Wood Gundy Securities Corp. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
BT Securities Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
-----------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
===========
