EXHIBIT 1.1
FORM OF UNDERWRITING AGREEMENT
[ ] Shares
RADIO ONE, INC.
Class A Common Stock, Par Value $.01 Per Share
UNDERWRITING AGREEMENT
----------------------
May [ ], 1999
CREDIT SUISSE FIRST BOSTON CORPORATION
BEAR, XXXXXXX & CO. INC.,
BT ALEX. XXXXX INCORPORATED,
NATIONSBANC XXXXXXXXXX SECURITIES LLC, and
PRUDENTIAL SECURITIES INCORPORATED,
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. Radio One, Inc., a Delaware corporation ("Company")
proposes to issue and sell [ ] shares of its Class A Common Stock, par
value $.01 per share ("Securities") and the stockholders listed in Schedule A
hereto ("Selling Stockholders") propose severally to sell an aggregate of [
] outstanding shares of the Securities (such [ ] shares of Securities being
hereinafter referred to as the "Firm Securities"). The Company also proposes to
sell to the Underwriters, at the option of the Underwriters, an aggregate of not
more than [ ] additional shares of its Securities (such [ ]
additional shares being hereinafter referred to as the "Optional Securities").
The Firm Securities and the Optional Securities are herein collectively called
the "Offered Securities". The Company and the Selling Stockholders hereby agree
with the several Underwriters named in Schedule B hereto ("Underwriters") as
follows:
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2. Representations and Warranties of the Company and the Selling
Stockholders.
(a) The Company represents and warrants to, and agrees with, the several
Underwriters and the Selling Stockholders that:
(i) A registration statement (No. 333-74351) relating to the Offered
Securities, including a form of prospectus, has been filed with the
Securities and Exchange Commission ("Commission") and either (A) has been
declared effective under the Securities Act of 1933, as amended ("Act") and
is not proposed to be amended or (B) is proposed to be amended by amendment
or post-effective amendment. If such registration statement (the "initial
registration statement") has been declared effective, either (A) an
additional registration statement (the "additional registration statement")
relating to the Offered Securities may have been filed with the Commission
pursuant to Rule 462(b) ("Rule 462(b)") under the Act and, if so filed, has
become effective upon filing pursuant to such Rule and the Offered
Securities all have been duly registered under the Act pursuant to the
initial registration statement and, if applicable, the additional
registration statement or (B) such an additional registration statement is
proposed to be filed with the Commission pursuant to Rule 462(b) and will
become effective upon filing pursuant to such Rule and upon such filing the
Offered Securities will all have been duly registered under the Act
pursuant to the initial registration statement and such additional
registration statement. If the Company does not propose to amend the
initial registration statement or if an additional registration statement
has been filed and the Company does not propose to amend it, and if any
post-effective amendment to either such registration statement has been
filed with the Commission prior to the execution and delivery of this
Agreement, the most recent amendment (if any) to each such registration
statement has been declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c) ("Rule 462(c)") under the Act
or, in the case of the additional registration statement, Rule 462(b). For
purposes of this Agreement, "Effective Time" with respect to the initial
registration statement or, if filed prior to the execution and delivery of
this Agreement, the additional registration statement, means (A) if the
Company has advised the Representatives that it does not propose to amend
such registration statement, the date and time as of which such
registration statement, or the most recent post-effective amendment thereto
(if any) filed prior to the execution and delivery of this Agreement, was
declared effective by the Commission or has become effective upon filing
pursuant to Rule 462(c), or (B) if the Company has advised the
Representatives that it proposes to file an amendment or post-effective
amendment to such registration statement, the date and time as of which
such registration statement, as amended by such amendment or post-effective
amendment, as the case may be, is declared effective by the Commission. If
an additional registration statement has not been filed prior to the
execution and delivery of this Agreement but the Company has advised the
Representatives that it proposes to
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file one, "Effective Time" with respect to such additional registration
statement means the date and time as of which such registration statement
is filed and becomes effective pursuant to Rule 462(b). "Effective Date"
with respect to the initial registration statement or the additional
registration statement (if any) means the date of the Effective Time
thereof. The initial registration statement, as amended at its Effective
Time, including all information contained in the additional registration
statement (if any) and deemed to be a part of the initial registration
statement as of the Effective Time of the additional registration statement
pursuant to the General Instructions of the Form on which it is filed and
including all information (if any) deemed to be a part of the initial
registration statement as of its Effective Time pursuant to Rule 430A(b)
("Rule 430A(b)") under the Act, is hereinafter referred to as the "Initial
Registration Statement". The additional registration statement, as amended
at its Effective Time, including the contents of the initial registration
statement incorporated by reference therein and including all information
(if any) deemed to be a part of the additional registration statement as of
its Effective Time pursuant to Rule 430A(b), is hereinafter referred to as
the "Additional Registration Statement". The Initial Registration Statement
and the Additional Registration Statement are hereinafter referred to
collectively as the "Registration Statements" and individually as a
"Registration Statement". The form of prospectus relating to the Offered
Securities, as first filed with the Commission pursuant to and in
accordance with Rule 424(b) ("Rule 424(b)") under the Act or (if no such
filing is required) as included in a Registration Statement, is hereinafter
referred to as the "Prospectus". No document has been or will be prepared
or distributed in reliance on Rule 434 under the Act.
(ii) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement: (A) on the Effective
Date of the Initial Registration Statement, the Initial Registration
Statement conformed in all respects to the requirements of the Act and the
rules and regulations of the Commission ("Rules and Regulations") and did
not include any 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, (B) on the Effective Date of the
Additional Registration Statement (if any), each Registration Statement
conformed or will conform, in all respects to the requirements of the Act
and the Rules and Regulations and did not include, or will not include, any
untrue statement of a material fact and did not omit, or will not omit, to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading, and (C) on the date of this
Agreement, the Initial Registration Statement and, if the Effective Time of
the Additional Registration Statement is prior to the execution and
delivery of this Agreement, the Additional Registration Statement each
conforms, and at the time of filing of the Prospectus pursuant to Rule
424(b) or (if no such filing is required) at the Effective Date of the
Additional Registration Statement in which the Prospectus is included, each
Registration
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Statement and the Prospectus will conform, in all respects to the
requirements of the Act and the Rules and Regulations, and neither of such
documents includes, or will include, any untrue statement of a material
fact or omits, or will omit, to state any material fact required to be
stated therein or necessary to make the statements therein not misleading.
If the Effective Time of the Initial Registration Statement is subsequent
to the execution and delivery of this Agreement: on the Effective Date of
the Initial Registration Statement, the Initial Registration Statement and
the Prospectus will conform in all respects to the requirements of the Act
and the Rules and Regulations, neither of such documents will include any
untrue statement of a material fact or will omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, and no Additional Registration Statement has been or will
be filed. The two preceding sentences do not apply to statements in or
omissions from a Registration Statement or the Prospectus based upon
written information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and
agreed that the only such information is that described as such in Section
7(c) hereof.
(iii) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
power and authority (corporate and other) to own its properties and conduct
its business as described in the Prospectus; and the Company is duly
qualified to do business as a foreign corporation in good standing in all
other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where the
failure to so qualify would not have, individually or in the aggregate, a
material adverse effect on the condition (financial or other), business,
properties or results of operations of the Company and its subsidiaries
taken as a whole ("Material Adverse Effect").
(iv) Each subsidiary of the Company has been duly incorporated and is
an existing corporation in good standing under the laws of the jurisdiction
of its incorporation, with power and authority (corporate and other) to own
its properties and conduct its business as described in the Prospectus; and
each subsidiary of the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in which
its ownership or lease of property or the conduct of its business requires
such qualification, except where the failure to so qualify would not have a
Material Adverse Effect; all of the issued and outstanding capital stock of
each subsidiary of the Company has been duly authorized and validly issued
and is fully paid and nonassessable; and, except as described in the
Prospectus, the capital stock of each subsidiary owned by the Company,
directly or through subsidiaries, is owned free from liens, encumbrances
and defects.
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(v) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized and validly issued,
fully paid and nonassessable and conform to the description thereof
contained in the Prospectus; and the stockholders of the Company have no
preemptive rights with respect to the Securities.
(vi) The consummation of any or all of the preferred stock
offering (as described in the Prospectus under the caption "RECENT AND
PENDING TRANSAC TIONS - Financings - Preferred Stock Offering and
Redemption") and all the other transactions described in the Prospectus
under the caption "RECENT AND PENDING TRANSACTIONS" (collectively, the
"Transactions") will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any statute, any
rule, regulation or order of, any governmental agency or body (including,
but not limited to, the Federal Communications Commission ("FCC")) or any
court, domestic or foreign, having jurisdiction over the Company or any
subsidiary of the Company or any of their properties, or any agreement or
instrument to which the Company or any such subsidiary is a party or by
which the Company or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject, or the charter
or by-laws of the Company or any such subsidiary. The agreements
(collectively, the "Transaction Agreements") to effectuate the Transactions
have been duly authorized, executed and delivered by the Company and its
affiliates which are parties thereto and constitute valid and binding
agreements of the parties, enforceable against the parties in accordance
with their terms (subject to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws now
or hereafter in effect relating to creditors' rights generally and general
principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law). No consent, approval,
authorization, or order of, or filing with, any governmental agency or body
(including, without limitation, the FCC) or any court or other person was
or is required to be obtained or made by the Company for the execution and
delivery of the Transaction Agreements and consummation of the transactions
contemplated thereby, except such as have been already obtained or may be
required under the Communications Act of 1934, as amended, and the rules,
regulations and administrative orders promulgated thereunder (collectively,
the "Federal Communica tions Laws") as described in the Prospectus.
(vii) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person that would
give rise to a valid claim against the Company or any Underwriter for a
brokerage commission, finder's fee or other like payment in connection with
this offering.
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(viii) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person granting
such person the right to require the Company to file a registration
statement under the Act with respect to any securities of the Company owned
or to be owned by such person or to require the Company to include such
securities in the securities registered pursuant to a Registration
Statement or in any securities being registered pursuant to any other
registration statement filed by the Company under the Act.
(ix) The Offered Securities have been approved for listing subject to
notice of issuance on The Nasdaq Stock Market's National Market (the
"Nasdaq National Market").
(x) No consent, approval, authorization, or order of, or filing with,
any governmental agency or body (including, without limitation, the FCC) or
any court or other person is required to be obtained or made by the Company
for the execution and delivery of this Agreement and consummation of the
transactions contemplated by this Agreement in connection with the sale of
the Offered Securities, except such as have been obtained and made under
the Act and such as may be required under state securities laws.
(xi) The execution, delivery and performance of this Agreement, and
the consummation of the transactions herein contemplated will not result in
a breach or violation of any of the terms and provisions of, or constitute
a default under, any statute, any rule, regulation or order of any
governmental agency or body (including, without limitation, the FCC) or any
court, domestic or foreign, having jurisdiction over the Company or any
subsidiary of the Company or any of their properties, or any agreement or
instrument to which the Company or any such subsidiary is a party or by
which the Company or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject, or the charter
or by-laws of the Company or any such subsidiary.
(xii) This Agreement has been duly authorized, executed and delivered
by the Company.
(xiii) Except as disclosed in the Prospectus, the Company and its
subsidiaries have good and marketable title to all real properties and all
other properties and assets owned by them, in each case free from liens,
encumbrances and defects that would materially affect the value thereof or
materially interfere with the use made or to be made thereof by them; and
except as disclosed in the Prospectus, the Company and its subsidiaries
hold any leased real or personal property under valid and enforceable
leases
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with no exceptions that would materially interfere with the use made or to
be made thereof by them.
(xiv) The Company and its subsidiaries possess adequate certificates,
authorities or permits and hold all necessary licenses issued by
appropriate governmen tal agencies or bodies (including, without
limitation, licenses issued by the FCC) necessary to conduct the business
now operated by them and have not received any notice of proceedings
relating to the revocation or modification of any such certificate,
authority, permit or license that, if determined adversely to the Company
or any of its subsidiaries, would have a Material Adverse Effect. Neither
the Company nor any of its subsidiaries is in violation of any material
requirement of any Federal Communica tions Law or any order of any court
or administrative agency or authority relating thereto. The Company and
the identified subsidiaries are the holders of the main commercial radio
station licenses issued by the FCC listed in Attachment I hereto (the "FCC
Licenses"), all of which are in full force and effect, for the maximum term
customarily issued, with no material conditions, restrictions or
qualifications other than as described in the Prospectus, and such FCC
Licenses constitute all of the commercial radio station licenses necessary
for the Company and the subsidiaries to own their properties and to conduct
their businesses in the manner and to the full extent now operated or
proposed to be operated as described in the Prospectus. Upon consumma tion
of the Transactions, (i) the Company and the identified subsidiaries will
be the holders of the main commercial radio station licenses issued by the
FCC listed in Attachment II hereto (the "Current FCC Licenses"), and (ii)
the Company has no reason to believe that all Current FCC Licenses will not
be in full force and effect, for the maximum term customarily issued, with
no material conditions, restrictions or qualifications other than as
described in the Prospectus, and such Current FCC Licenses constitute all
of the commercial radio station licenses necessary for the Company and the
subsidiaries to operate the radio stations relating to the Transactions as
described in the Prospectus.
(xv) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
might have a Material Adverse Effect.
(xvi) The Company and its subsidiaries own, possess or can acquire on
reasonable terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information and
other intellectual property (collectively, "intellectual property rights")
necessary to conduct the business now operated by them, or presently
employed by them, and have not received any notice of infringement of or
conflict with asserted rights of others with respect to any intellectual
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property rights that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(xvii) Each of the Company and its subsidiaries has filed all
necessary federal, state, local and foreign income and franchise tax
returns that are required to be filed, except where the failure to file
such returns would not have a Material Adverse Effect and each of the
Company and its subsidiaries has paid all taxes shown as due thereon,
except for any assessment, fine or penalty that is currently being
contested in good faith and for which adequate reserves have been provided
or as described in the Prospectus.
(xviii) Except as disclosed in the Prospectus, neither the Company
nor any of its subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or restoration
of the environment or human exposure to hazardous or toxic substances
(collectively, "environmental laws"), owns or operates any real property
contaminated with any substance that is subject to any environmental laws,
is liable for any off-site disposal or contamination pursuant to any
environmental laws, or is subject to any claim relating to any
environmental laws, which violation, contamination, liability or claim
would individually or in the aggregate have a Material Adverse Effect; and
the Company is not aware of any pending investigation which might lead to
such a claim.
(xix) There are no pending actions, suits, proceedings,
inquiries or investiga tions before or brought by any court or governmental
agency or body (including without limitation, the FCC) against or affecting
the Company, any of its subsidiaries or any of their respective properties
that, if determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a Material Adverse Effect,
would result in the revocation or non-renewal of any of the FCC Licenses,
or would materially and adversely affect the ability of the Company to
perform its obligations under this Agreement, or which are otherwise
material in the context of the sale of the Offered Securities; and no such
actions, suits or proceedings are threatened or, to the Company's
knowledge, contemplated.
(xx) The financial statements included in each Registration Statement
and the Prospectus present fairly the financial position of the Company and
its consolidated subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and such financial
statements have been prepared in conformity with the generally accepted
accounting principles in the United States applied on a consistent basis;
and the schedules included in each Registration Statement present fairly
the information required to be stated therein; and the assumptions used in
preparing the pro forma financial statements included in each Registration
Statement and the Prospectus
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provide a reasonable basis for presenting the significant effects directly
attributable to the transactions or events described therein, the related
pro forma adjustments give appropriate effect to those assumptions, and the
pro forma columns therein reflect the proper application of those
adjustments to the corresponding historical financial statement amounts.
(xxi) Except as disclosed in the Prospectus, since the date of the
latest audited financial statements included in the Prospectus, there has
been no material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole, and, except as disclosed in or contemplated
by the Prospectus, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock.
(xxii) The Company believes the statistical and market-related data
included in the Prospectus are accurate and are based on or derived from
reliable sources.
(xxiii) Each of the Company and its subsidiaries (i) make and keep
accurate books and records and (ii) maintain internal accounting controls
that provide reasonable assurance that (A) transactions are executed in
accordance with management's authorization, (B) transactions are recorded
as necessary to permit preparation of its financial statements and to
maintain profitability for its assets, (C) access to its assets is
permitted only in accordance with management's authorization and (D) the
reported accountability for its assets is compared with existing assets at
reasonable intervals.
(xxiv) The Company is not and, after giving effect to the offering
and sale of the Offered Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment company"
as defined in the Investment Company Act of 1940, as amended.
(xxv) The Company has not, directly or indirectly, (i) taken any
action designed to cause or to result in, or that has constituted or which
might reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Securities or (ii) since the filing of the
Registration Statement (A) sold, bid for, purchased, or paid anyone any
compensation for soliciting purchases of, the Securities or (B) paid or
agreed to pay to any person any compensation for soliciting another to
purchase any other securities of the Company (except for the sale of
Securities by the Selling Stockholders under this Agreement).
(xxvi) The Company has not distributed and, prior to the later of (i)
the Closing Date and (ii) the completion of the distribution of the
Securities, will not distribute any
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offering material in connection with the offering and sale of the
Securities other than the Registration Statement or any amendment thereto,
any Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto, or other materials, if any permitted by the Act.
(xxvii) The Company and each of its subsidiaries are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the businesses in
which they are engaged; neither the Company nor any such subsidiary has
been refused any insurance coverage sought or applied for; and neither the
Company nor any sch subsidiary has any reason to believe that it will not
be able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that would not materially and
adversely affect the condition (financial or otherwise), business
prospects, net worth or results of operations of the Company and its
subsidiaries, except as described in or contemplated by the Prospectus (or,
if the Prospectus is not in existence, the most recent Preliminary
Prospectus).
(b) Each Selling Stockholder severally represents and warrants to, and
agrees with, the several Underwriters that:
(i) Such Selling Stockholder has and on each Closing Date hereinafter
mentioned will have valid and unencumbered title to the Offered Securities
to be delivered by such Selling Stockholder on such Closing Date and full
right, power and authority to enter into this Agreement and to sell,
assign, transfer and deliver the Offered Securities to be delivered by such
Selling Stockholder on such Closing Date hereunder; and upon the delivery
of and payment for the Offered Securities on each Closing Date hereunder
the several Underwriters will acquire valid and unencumbered title to the
Offered Securities to be delivered by such Selling Stockholder on such
Closing Date.
(ii) Subject to the following sentence, (A) On the Effective Date of
the Initial Registration Statement, the Initial Registration Statement did
not include any 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, (B) on the Effective Date of the
Additional Registration Statement (if any), each Registration Statement
will not include, any untrue statement of a material fact and did not omit,
or will not omit, to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and (C) at the
time of filing of the Prospectus pursuant to Rule 424(b) or (if no such
filing is required) at the Effective Date of the Additional Registration
Statement in which the Prospectus is included, each Registration Statement
and the Prospectus do not and will not include any untrue statement of a
material fact and does not and will not omit to state any material fact
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required to be stated therein or necessary to make the statements therein
not misleading. The preceding sentence applies only to the extent that any
statements in or omissions from a Registration Statement or the Prospectus
are based on written information furnished to the Company by such Selling
Stockholders specifically for use therein.
(iii) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between such Selling Stockholder and any
person that would give rise to a valid claim against such Selling
Stockholder or any Underwriter for a brokerage commission, finder's fee or
other like payment in connection with the offering of the Offered
Securities.
(iv) The execution, delivery and performance of this Agreement, the
Power of Attorney and the Custody Agreement (each as defined below) by such
Selling Stockholder, the sale by such Selling Stockholder of the Offered
Securities to be sold by such Selling Stockholder and the consummation by
such Selling Stockholder of the transactions herein and therein
contemplated will not result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any statute, rule,
regulation or order of any governmental agency or body or any court,
domestic or foreign, having jurisdiction over such Selling Stockholder or
any of its properties, or any agreement or instrument to which such Selling
Stockholder is a party or by which it is bound or to which any of its
properties is subject, or the constituent documents, if any, of such
Selling Stockholder. Each Selling Stockholder represents and warrants that
the information set forth in the Prospectus concerning such Selling
Stockholder under the headings "Selling Stockholders" and "Principal
Stockholders" is accurate and does not omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading.
(v) No consent, approval, authorization, order or waiver of, or
filing with, any governmental agency or body or any court is required to be
obtained or made by such Selling Stockholder for the consummation of the
transactions contemplated by this Agreement, the Power of Attorney and the
Custody Agreement, including the sale of the Offered Securities to be sold
by such Selling Stockholder, except (i) such as have been obtained and made
under the Act, and (ii) such as may have been already obtained or may be
required under the Federal Communications Laws.
(vi) This Agreement, the Power of Attorney and the Custody
Agreement with respect to each Selling Stockholder have been duly
authorized, executed and delivered by such Selling Stockholder and
constitute valid and legally binding obligations of each such Selling
Stockholder enforceable in accordance with their terms, subject to
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bankruptcy, insolvency, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles.
(vii) Each Selling Stockholder which is not a natural person has been
duly organized and is an existing entity in good standing under the laws of
the jurisdiction of its organization, with power and authority (corporate
and other) to enter into this Agreement, the Custody Agreement and the
Power of Attorney and perform its obligations hereunder, and the execution,
delivery and performance of this Agreement (including the sale of the
Offered Securities), the Custody Agreement and the Power of Attorney by
each such Selling Stockholder have been duly authorized by all requisite
corporate and other action.
(viii) Such Selling Stockholder has duly executed and delivered
the power-of-attorney ("Power-of-Attorney") naming ___________ and
_________ as such Selling Stockholder's attorneys-in-fact (and by such
attorneys-in-fact's execution of this Agreement, each such attorney-in-fact
represents and warrants that he or she has been appointed as attorney-in-
fact by such Selling Stockholder) for the purpose of entering into and
carrying out this Agreement, and in connection therewith such Selling
Stockholder further represents, warrants and agrees that certificates for
securities in negotiable form convertible or exercisable (and all actions
necessary to effect such conversion or exercise in a manner consistent with
performance of this Agreement have been taken) for such Selling
Stockholder's Offered Securities have been placed validly in custody with
[American Stock Transfer] as custodian (the "Custodian"), and such Offered
Securities are validly held in custody for transfer pursuant to the terms
of this Agreement, under a Custody Agreement duly authorized, executed and
delivered by such Selling Stockholder in the form attached hereto (the
"Custody Agreement"), with the Custodian.
(ix) The Selling Stockholders have not, directly or indirectly, (i)
taken any action designed to cause or to result in, or that has constituted
or which might reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Securities or (ii) since the filing of the
Registration Statement (A) sold, bid for, purchased, or paid anyone any
compensation for soliciting purchases of, the Securities or (B) paid or
agreed to pay to any person any compensation for soliciting another to
purchase any other securities of the Company.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company and each Selling Stockholder
agree, severally and not jointly, to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the
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Company and each Selling Stockholder, at a purchase price of $[ ] per share,
that number of Firm Securities (rounded up or down, as determined by Credit
Suisse First Boston Corporation ("CSFBC") in its discretion, in order to avoid
fractions) obtained by multiplying [ ] Firm Securities, in the case of
the Company, and the number of Firm Securities set forth opposite the name of
such Selling Stockholder in Schedule A hereto, in the case of a Selling
Stockholder, in each case by a fraction the numerator of which is the number of
Firm Securities set forth opposite the name of such Underwriter in Schedule B
hereto and the denominator of which is the total number of Firm Securities.
Certificates for securities in negotiable form convertible or exercisable
(and all actions necessary to effect such conversion or exercise in a manner
consistent with performance of this Agreement have been taken) for such Offered
Securities to be sold by the Selling Stockholders hereunder have been placed in
custody, for delivery under this Agreement, under Custody Agreements made with
the Custodian. Each Selling Stockholder agrees that the shares represented by
the certificates held in custody for the Selling Stockholders under such Custody
Agreements are subject to the interests of the Underwriters hereunder, that the
arrangements made by the Selling Stockholders for such custody are to that
extent irrevocable, and that the obligations of the Selling Stockholders
hereunder shall not be terminated by operation of law, whether by the death of
any individual Selling Stockholder or the occurrence of any other event, or in
the case of a trust, by the death of any trustee or trustees or the termination
of such trust. If any individual Selling Stockholder or any such trustee or
trustees should die, or if any other such event should occur, or if any of such
trusts should terminate, before the delivery of the Offered Securities
hereunder, certificates for such Offered Securities shall be delivered by the
Custodian in accordance with the terms and conditions of this Agreement as if
such death or other event or termination had not occurred, regardless of whether
or not the Custodian shall have received notice of such death or other event or
termination.
The Company and the Custodian will deliver the Firm Securities to the
Representatives for the accounts of the Underwriters, against payment of the
purchase price in Federal (same day) funds by official bank check or checks or
wire transfer to an account at a bank acceptable to CSFBC drawn to the order of
the Company in the case of [ ] shares of Firm Securities and the
respective Selling Stockholders in the case of the number of shares of Firm
Securities set forth opposite their name on Schedule A, at the office of [
], at [ ] A.M., New York time, on [ ], or at such
other time not later than seven full business days thereafter as CSFBC and the
Company determine, such time being herein referred to as the "First Closing
Date". The certificates for the Firm Securities so to be delivered will be in
definitive form, in such denominations and registered in such names as CSFBC
requests and will be made available for checking and packaging at the office of
CSFBC at least 24 hours prior to the First Closing Date.
13
In addition, upon written notice from CSFBC given to the Company from time
to time not more than 30 days subsequent to the date of the Prospectus, the
Underwriters may purchase all or less than all of the Optional Securities at the
purchase price to be paid for the Firm Securities. The Company agrees to sell to
the Underwriters the number of shares of Optional Securities specified in such
notice and the Underwriters agree, severally and not jointly, to purchase such
Optional Securities. Such Optional Securities shall be purchased for the account
of each Underwriter in the same proportion as the number of shares of Firm
Securities set forth opposite such Underwriter's name bears to the total number
of shares of Firm Securities (subject to adjustment by CSFBC to eliminate
fractions) and may be purchased by the Underwriters only for the purpose of
covering over-allotments made in connection with the sale of the Firm
Securities. No Optional Securities shall be sold or delivered unless the Firm
Securities previously have been, or simultaneously are, sold and delivered. The
right to purchase the Optional Securities or any portion thereof may be
exercised from time to time and to the extent not previously exercised may be
surrendered and terminated at any time upon notice by CSFBC to the Company.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "Optional Closing Date", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "Closing Date"), shall be determined by CSFBC
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. The Company will deliver the
Optional Securities being purchased on each Optional Closing Date to the
Representatives for the accounts of the several Underwriters, against payment of
the purchase price therefor in Federal (same day) funds by official bank check
or checks or wire transfer to an account at a bank acceptable to CSFBC drawn to
the order of the Company, at the [above] office of [ ]. The
certificates for the Optional Securities being purchased on each Optional
Closing Date will be in definitive form, in such denominations and registered in
such names as CSFBC requests upon reasonable notice prior to such Optional
Closing Date and will be made available for checking and packaging at the office
of CSFBC at a reasonable time in advance of such Optional Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company and the Selling Stockholders. The
Company agrees with the several Underwriters and the Selling Stockholders that:
(a) If the Effective Time of the Initial Registration Statement is prior to
the execution and delivery of this Agreement, the Company will file the
Prospectus with the Commission pursuant to and in accordance with subparagraph
(1) (or, if applicable and if consented to by CSFBC, subparagraph (4)) of Rule
424(b) not later than the earlier of (A) the
14
second business day following the execution and delivery of this Agreement or
(B) the fifteenth business day after the Effective Date of the Initial
Registration Statement. The Company will advise CSFBC promptly of any such
filing pursuant to Rule 424(b). If the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this Agreement
and an additional registration statement is necessary to register a portion of
the Offered Securities under the Act but the Effective Time thereof has not
occurred as of such execution and delivery, the Company will file the additional
registration statement or, if filed, will file a post-effective amendment
thereto with the Commission pursuant to and in accordance with Rule 462(b) on or
prior to 10:00 P.M., New York time, on the date of this Agreement or, if
earlier, on or prior to the time the Prospectus is printed and distributed to
any Underwriter, or will make such filing at such later date as shall have been
consented to by CSFBC.
(b) The Company will advise CSFBC promptly of any proposal to amend or
supplement the initial or any additional registration statement as filed or the
related prospectus or the Initial Registration Statement, the Additional
Registration Statement (if any) or the Prospectus and will not effect such
amendment or supplementation without CSFBC's consent; and the Company will also
advise CSFBC promptly of the effectiveness of each Registration Statement (if
its Effective Time is subsequent to the execution and delivery of this
Agreement) and of any amendment or supplementation of a Registration Statement
or the Prospectus and of the institution by the Commission of any stop order
proceedings in respect of a Registration Statement and will use its best efforts
to prevent the issuance of any such stop order and to obtain as soon as possible
its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered Securities is
required to be delivered under the Act in connection with sales by any
Underwriter or dealer, any event occurs as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the Prospectus to comply
with the Act, the Company will promptly notify CSFBC of such event and will
promptly prepare and file with the Commission, at its own expense, an amendment
or supplement which will correct such statement or omission or an amendment
which will effect such compliance. Neither CSFBC's consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall constitute a
waiver of any of the conditions set forth in Section 6.
(d) As soon as practicable, but not later than the Availability Date (as
defined below), the Company will make generally available to its securityholders
an earnings statement covering a period of at least 12 months beginning after
the Effective Date of the Initial Registration Statement (or, if later, the
Effective Date of the Additional Registration Statement) which will satisfy the
provisions of Section 11(a) of the Act. For the purpose of the preceding
sentence, "Availability Date" means the 45th day after the end of the fourth
fiscal quarter
15
following the fiscal quarter that includes such Effective Date, except that, if
such fourth fiscal quarter is the last quarter of the Company's fiscal year,
"Availability Date" means the 90th day after the end of such fourth fiscal
quarter.
(e) The Company will furnish to the Representatives copies of each
Registration Statement (five of which will be signed and will include all
exhibits), each related preliminary prospectus, and, so long as a prospectus
relating to the Offered Securities is required to be delivered under the Act in
connection with sales by any Underwriter or dealer, the Prospectus and all
amendments and supplements to such documents, in each case in such quantities as
CSFBC requests. The Prospectus shall be so furnished on or prior to 3:00 P.M.,
New York time, on the business day following the later of the execution and
delivery of this Agreement or the Effective Time of the Initial Registration
Statement. All other such documents shall be so furnished as soon as available.
The Company will pay the expenses of printing and distributing to the
Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as CSFBC designates and
will continue such qualifications in effect so long as required for the
distribution.
(g) During the period of five years hereafter, the Company will furnish to
the Representatives and, upon request, to each of the other Underwriters, as
soon as practicable after the end of each fiscal year, a copy of its annual
report to stockholders for such year; and the Company will furnish to the
Representatives (i) as soon as available, a copy of each report and any
definitive proxy statement of the Company filed with the Commission under the
Securities Exchange Act of 1934, as amended or mailed to stockholders, and (ii)
from time to time, such other information concerning the Company as CSFBC may
reasonably request.
(h) For a period of 180 days after the date of the initial public offering
of the Offered Securities, the Company will not offer, sell, contract to sell,
pledge or otherwise dispose of, directly or indirectly, or file with the
Commission a registration statement under the Act relating to, any additional
shares of its Securities or securities convertible into or exchangeable or
exercisable for any shares of its Securities, or publicly disclose the intention
to make any such offer, sale, pledge, disposition or filing, without the prior
written consent of CSFBC.
(i) The Company and each Selling Stockholder agree with the several
Underwriters that the Company will pay all expenses incident to the performance
of the obligations of the Company and such Selling Stockholder, as the case may
be, under this Agreement, for any filing fees and other expenses (including fees
and disbursements of counsel) in connection with qualification of the Offered
Securities for sale under the laws of such jurisdictions as CSFBC designates and
the printing of memoranda relating thereto, for the filing fee incident to, and
the reasonable fees and disbursements of counsel to the Underwriters in
connection with, the review
16
by the National Association of Securities Dealers, Inc. of the Offered
Securities, for any travel expenses of the Company's officers and employees and
any other expenses of the Company in connection with attending or hosting
meetings with prospective purchasers of the Offered Securities, for any transfer
taxes on the sale by the Selling Stockholders of the Offered Securities to the
Underwriters and for expenses incurred in distributing preliminary prospectuses
and the Prospectus (including any amendments and supplements thereto) to the
Underwriters.
(j) Each Selling Stockholder agrees to deliver to CSFBC, attention:
Transactions Advisory Group, on or prior to the First 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).
(k) Each Selling Stockholder agrees, for a period of 180 days after the
date of the initial public offering of the Offered Securities, not to offer,
sell, contract to sell, pledge or otherwise dispose of, directly or indirectly,
any additional shares of the Securities of the Company or securities convertible
into or exchangeable or exercisable for any shares of Securities, or publicly
disclose the intention to make any such offer, sale, pledge or disposition,
without the prior written consent of CSFBC.
6. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Stockholders herein, to
the accuracy of the statements of Company officers made pursuant to the
provisions hereof, to the performance by the Company and the Selling
Stockholders of their obligations hereunder and to the following additional
conditions precedent:
(a) The Representatives shall have received a letter, dated the date of
delivery thereof (which, if the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, shall be on
or prior to the date of this Agreement or, if the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of this
Agreement, shall be prior to the filing of the amendment or post-effective
amendment to the registration statement to be filed shortly prior to such
Effective Time), of Xxxxxx Xxxxxxxx LLP confirming that they are independent
public accountants within the meaning of the Act and the applicable published
Rules and Regulations thereunder and stating to the effect that:
(i) in their opinion the financial statements and schedules
examined by them and included in the Registration Statements comply as to
form in all material respects with the applicable accounting requirements
of the Act and the related published Rules and Regulations;
17
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review of interim
financial information as described in Statement of Auditing Standards No.
71, Interim Financial Information, on the unaudited financial statements
included in the Registration Statements;
(iii) on the basis of the review referred to in clause (ii) above, a
reading of the latest available interim financial statements of the
Company, inquiries of officials of the Company who have responsibility for
financial and accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the unaudited financial statements included in the
Registration Statements do not comply as to form in all material
respects with the applicable accounting requirements of the Act and
the related published Rules and Regulations or any material
modifications should be made to such unaudited financial statements
for them to be in conformity with generally accepted accounting
principles;
(B) at the date of the latest available balance sheet read
by such accountants, or at a subsequent specified date not more than
three business days prior to the date of this Agreement, there was any
change in the capital stock or any increase in short-term indebtedness
or long-term debt of the Company and its consolidated subsidiaries or,
at the date of the latest available balance sheet read by such
accountants, there was any decrease in consolidated net current assets
or net assets, as compared with amounts shown on the latest balance
sheet included in the Prospectus; or
(C) for the period from the closing date of the latest
income statement included in the Prospectus to the closing date of the
latest available income statement read by such accountants there were
any decreases, as compared with the corresponding period of the
previous year and with the period of correspond ing length ended the
date of the latest income statement included in the Prospectus, in
consolidated net broadcasting revenue or net operating income in the
total or per share amounts of consolidated net income;
except in all cases set forth in clauses (B) and (C) above for changes,
increases or decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information contained
in the Registration Statements (in each case to the extent that such dollar
amounts, percentages and other
18
financial information are derived from the general accounting records of
the Company and its subsidiaries subject to the internal controls of the
Company's accounting system or are derived directly from such records by
analysis or computation) with the results obtained from inquiries, a
reading of such general accounting records and other procedures specified
in such letter and have found such dollar amounts, percentages and other
financial information to be in agreement with such results, except as
otherwise specified in such letter.
(v) they have --
(A) Read the unaudited pro forma consolidated balance sheet as of
December 31, 1999, and the unaudited pro forma consolidated statement
of operations and other data for the year ended December 31, 1998,
included in the registration statement.
(B) Inquired of certain officials of the Company and the companies
being acquired who have responsibility for financial and accounting
matters about --
(x) The basis for their determination of the pro forma
adjustments, and
(y) Whether the unaudited pro forma condensed consolidated
financial statements referred to in 7a comply as to form in
all material respects with the applicable accounting
requirements of rule 11-02 of Regulation S-X.
(C) Proved the arithmetic accuracy of the application of the pro
forma adjustments to the historical amounts in the unaudited pro forma
condensed consolidated financial statements.
The foregoing procedures by Xxxxxx Xxxxxxxx LLP are substantially
less in scope than an examination, the objective of which is the
expression of an opinion on management's assumptions, the pro forma
adjustments, and the application of those adjustments to historical
financial information. Accord ingly, they do not express such an
opinion. The foregoing procedures would not necessarily reveal
matters of significance with respect to the comments in the following
paragraph. Accordingly, they make no representation about the
sufficiency of such procedures for the Underwriters' purposes.
(vi) Nothing came to their attention as a result of the
procedures specified in paragraph (v), however, that caused them to believe
that the unaudited pro forma consolidated financial statements referred to
in (v) included in the registration statement
19
do not comply as to form in all material respects with the applicable
accounting requirements of rule 11-02 of Regulation S-X and that the pro
forma adjustments have not been properly applied to the historical amounts
in the compilation of those statements. Had they performed additional
procedures or had they made an examination of the pro forma condensed
consolidated financial statements, other matters might have come to their
attention that would have been reported to the Underwriters.
For purposes of this subsection, (i) if the Effective Time of the Initial
Registration Statements is subsequent to the execution and delivery of this
Agreement, "Registration Statements" shall mean the initial registration
statement as proposed to be amended by the amendment or post-effective amendment
to be filed shortly prior to its Effective Time, (ii) if the Effective Time of
the Initial Registration Statements is prior to the execution and delivery of
this Agreement but the Effective Time of the Additional Registration Statement
is subsequent to such execution and delivery, "Registration Statements" shall
mean the Initial Registration Statement and the additional registration
statement as proposed to be filed or as proposed to be amended by the post-
effective amendment to be filed shortly prior to its Effective Time, and (iii)
"Prospectus" shall mean the prospectus included in the Registration Statements.
(b) If the Effective Time of the Initial Registration Statement is not
prior to the execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 P.M., New York time, on the date of this
Agreement or such later date as shall have been consented to by CSFBC. If the
Effective Time of the Additional Registration Statement (if any) is not prior to
the execution and delivery of this Agreement, such Effective Time shall have
occurred not later than 10:00 P.M., New York time, on the date of this Agreement
or, if earlier, the time the Prospectus is printed and distributed to any
Underwriter, or shall have occurred at such later date as shall have been
consented to by CSFBC. If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, the
Prospectus shall have been filed with the Commission in accordance with the
Rules and Regulations and Section 5(a) of this Agreement. Prior to such Closing
Date, no stop order suspending the effectiveness of a Registration Statement
shall have been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of any Selling Stockholder, the Company or the
Representatives, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there shall
not have occurred (i) any change, or any development or event involving a
prospective change, in the condition (financial or other), business, properties
or results of operations of the Company or its subsidiaries which, in the
judgment of a majority in interest of the Underwriters including the
Representatives, is material and adverse and makes it impractical or inadvisable
to proceed with completion of the public offering or the sale of and payment for
the Offered Securities; (ii) any downgrading in the rating of any debt
securities of the Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the
20
Act), or any public announcement that any such organization has under
surveillance or review its rating of any debt securities of the Company (other
than an announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (iii) any suspension or
limitation of trading in securities generally on The New York Stock Exchange, or
any setting of minimum prices for trading on such exchange, or any suspension of
trading of any securities of the Company on any exchange or in the over-the-
counter market; (iv) any banking moratorium declared by U.S. Federal or New York
authorities; or (v) any outbreak or escalation of major hostilities in which the
United States is involved, any declaration of war by Congress or any other
substantial national or international calamity or emergency if, in the judgment
of a majority in interest of the Underwriters, including the Representatives,
the effect of any such outbreak, escalation, declaration, calamity or emergency
makes it impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Offered Securities.
(d) The Representatives shall have received an opinion, dated such Closing
Date, of Xxxxxxxx & Xxxxx, counsel for the Company, to the effect that:
(i) Each of the Company and its subsidiaries is a corporation validly
existing and in good standing under the laws of the jurisdiction of its
incorporation, the Company has the full corporate power to enter into and
perform its obligations hereunder and the Company and each of its
subsidiaries has the corporate power to own and lease its properties and to
carry on its business as it is currently being conducted.
(ii) The Company and each of its subsidiaries is duly qualified to do
business as a foreign corporation in and is in good standing in each
jurisdiction listed opposite its name on Schedule __ hereto.
(iii) All of the issued and outstanding shares of capital stock of,
or other ownership interests in, each of the subsidiaries listed on
Schedule __ have been duly authorized and validly issued and are fully paid
and nonassessable, and to such counsel's knowledge, all such shares are
owned by the Company, free and clear of any defect or lien, except as
described in the Prospectus.
(iv) All of the outstanding shares of the Common Stock (including the
Offered Securities to be sold by the Selling Stockholders) have been duly
authorized and validly issued, and are fully paid and nonassessable, and,
to such counsel's knowledge, are not subject to any preemptive or similar
rights.
(v) The Offered Securities to be issued and sold by the Company
pursuant to this Agreement have been duly authorized and when issued and
delivered against payment therefor in accordance with this Agreement, will
be validly issued, fully paid
21
and nonassessable, and, to such counsel's knowledge, are not subject to any
preemptive or similar rights.
(vi) This Agreement has been duly authorized, executed and delivered
by the Company and constitutes a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms.
(vii) The Company's authorized capital stock conforms as to legal
matters to the description thereof contained in the Prospectus.
(viii) A member of the Commission's staff has advised us by telephone
that the Commission's Division of Corporation Finance, pursuant to
authority delegated to it by the Commission, has entered an order declaring
the Registration Statement effective under the Securities Act and, to such
counsel's knowledge, no stop order suspending the effectiveness of a
Registration Statement or any part thereof has been issued and no
proceedings for that purpose are, to such counsel's knowledge, pending
before or contemplated by the Commission.
(ix) The Company is not required to obtain any consent, approval,
authorization or order of, or filing with, any governmental agency or other
person for the execution and delivery of this Agreement and consummation of
the transactions contemplated by this Agreement, including the issuance,
delivery and sale of the Offered Securities, except such as have been
obtained or made under the Act or state securities laws or regulations.
(x) The Company's execution, delivery and performance of this
Agreement and the Company's compliance with all of the provisions thereof,
including the issuance and sale of the Offered Securities, do not (i)
violate the Certificate of Incorporation or Bylaws of the Company or any of
its subsidiaries, (ii) breach or result in a default under, any existing
obligation of the Company under, or cause an acceleration of any obligation
under or result in the imposition or creation of (or the obligation to
create or impose) a lien with respect to, any of the agreements filed as
any of the agreements listed as exhibits to the Registration Statement,
(iii) to such counsel's knowledge, breach or otherwise violate any
provision in any order, writ, judgment or decree of any governmental agency
or body or any court having jurisdiction over the Company or any subsidiary
of the Company or any of their properties, or (iv) constitute a violation
by the Company of any applicable provision of any law, statute or
regulation covered by this opinion.
(xi) To such counsel's knowledge, there is no action, suit, proceeding
or investigation before or by any court or governmental agency or body,
foreign or
22
domestic, pending or actively threatened against the Company and its
subsidiaries that has caused us to conclude that such proceeding is
required by Item 103 of Regulation S-K to be described in the Prospectus
but that is not so described or adversely affects the consummation of the
Underwriting Agreement, including the issuance and sale of the Securities.
(xii) To such counsel's knowledge, after due inquiry, no holder of
any security of the Company has any rights to require the Company to
include such securities in the securities registered pursuant to a
Registration Statement or in any securities being registered pursuant to
any other registration statement filed by the Company under the Act that
has not been waived.
(xiii) To such counsel's knowledge, there are no outstanding options,
warrants or other rights calling for the issuance of, or 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 any
capital stock of the Company, except as described in the Prospectus.
(xiv) Each Registration Statement (including any Registration
Statement filed under Section 462(b) of the Act, if any) and the
Prospectus, and each amendment or supplement thereto, as of their
respective effective or issue dates, complied as to form in all material
respects with the requirements of the Act and the Rules and Regulations;
and the Prospectus either was filed with the Commission pursuant to the
subparagraph of Rule 424(b) specified in such opinion on the date specified
therein or was included in the Initial Registration Statement or the
Additional Registration Statement (as the case may be).
(xv) Such counsel have no reason to believe that any part of a
Registration Statement or any amendment thereto, as of its effective date
or as of such Closing Date, contained any untrue statement of a material
fact or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading; or that the
Prospectus or any amendment or supplement thereto, as of its issue date or
as of such Closing Date, contained any untrue statement of a material fact
or omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; the descriptions in the Registration Statements and
Prospectus of statutes, legal and governmental proceedings and contracts
and other documents are accurate and fairly present the information
required to be shown; and such counsel do not know of any legal or
governmental proceedings required to be described in a Registration
Statement or the Prospectus which are not described as required or of any
contracts or documents of a character required to be described in a
Registration Statement or the Prospectus or to be filed as
23
exhibits to a Registration Statement which are not described and filed as
required; it being understood that such counsel need express no opinion as
to the financial statements or other financial data contained in the
Registration Statements or the Prospectus.
(e) The Representatives shall have received an opinion, dated such Closing
Date, of Xxxxx Xxxxxx Xxxxxxxx LLP, FCC counsel to the Company, to the effect
that:
(i) The information in the Prospectus under the captions "Risk Factors
- Regulation" and "Business - Regulation," to the extent that such
information constitutes a summary of the Federal Communications Laws, has
been reviewed by such counsel and is correct in all material respects.
(ii) Except as previously made or obtained, or as disclosed in the
Prospectus, as the case may be, no filing or registration with, or
authorization, approval, consent, license, order, qualification or decree
of any court or administrative agency or authority is necessary or required
under the Federal Communications Laws to be obtained or made by the Company
or any subsidiary of the Company for the consummation of the Transactions
described in the Prospectus or in connection with the execution or delivery
by the Company and the Selling Stockholders of the Underwriting Agreement,
the performance by the Company and the Selling Stockholders of the
transactions contemplated thereby or the offering, issuance or sale of the
Offered Securities, or the public offering thereof by the Underwriters, as
applicable, all as of the date hereof.
(iii) To their knowledge, neither the Company nor any of its
subsidiaries is in violation of any Federal Communications Law in any
material respect or in violation of any published order of any court or
administrative agency or authority relating thereto.
(iv) The Company and the identified subsidiaries are the holders of
the FCC Licenses, all of which are in full force and effect, for the
maximum term customarily issued, with no material conditions, restrictions
or qualifications other than as described in the Prospectus, and to their
knowledge, such FCC Licenses constitute all of the commercial radio station
licenses necessary for the Company and the subsidiaries to own their
properties and to conduct their businesses in the manner and to the full
extent now operated as described in the Prospectus. To their knowledge
there are no facts or circumstances which would justify the Commission
denying the pending applications for assignment of any of the Current FCC
Licenses, or approving the assignment for less than the maximum term
customarily issued, or with material conditions, restrictions or
qualifications other than as described in the Prospectus.
24
(v) The execution, delivery and performance of this Agreement, the
issuance of the Offered Securities to be sold by the Company, the sale of
the Offered Securities by the Company and the Selling Stockholders and the
public offering thereof by the Underwriters, do not and will not violate
any of the terms or provisions of, or constitute a default under (A) the
Federal Communications Laws or (B) the FCC licenses held by the Company or
any subsidiary of the Company.
(vi) There are no published or, to their knowledge, unpublished FCC
orders, decrees or rulings outstanding against the Company or any of its
subsidiaries or any pending or threatened actions, suits or proceedings
against the Company or any of its subsidiaries by or before the FCC that
seek to revoke, or if determined adversely to the Company or any of its
subsidiaries, would have a Material Adverse Effect would result in a
revocation or non-renewal of, any of the FCC Licenses, other than as
disclosed in the Registration Statement or Prospectus.
(f) The Representatives shall have received an opinion, dated such Closing
Date, of [ ] , counsel for the Selling Stockholders, to the
effect that:
(i) Each Selling Stockholder had valid and unencumbered title to the
Offered Securities delivered by such Selling Stockholder on such Closing
Date and had full right, power and authority to sell, assign, transfer and
deliver the Offered Securities delivered by such Selling Stockholder on
such Closing Date hereunder; and the several Underwriters have acquired
valid and unencumbered title to the Offered Securities purchased by them
from the Selling Stockholders on such Closing Date hereunder.
(ii) Except as disclosed in the Prospectus, to the knowledge of such
counsel, there are no contracts, agreements or understandings between such
Selling Stockholder and any person that would give rise to a valid claim
against such Selling Stockholder or any Underwriter for a brokerage
commission, finder's fee or other like payment in connection with the
offering or sale of the Offered Securities.
(iii) The execution, delivery and performance of this Agreement, the
Power of Attorney and the Custody Agreement by the Selling Stockholders and
the consumma tion of the transactions herein and therein contemplated will
not result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any statute, rule, regulation or order of
any governmental agency or body or any court, domestic or foreign, having
jurisdiction over any Selling Stockholder or any of their properties or any
agreement or instrument to which any Selling Stockholder is a party or by
which any Selling Stockholder is bound or to which any of the properties of
any Selling Stockholder is subject, or any constituent documents, if any,
of any Selling Stockholder.
25
(iv) No consent, approval, authorization, order or waiver of, or
filing with, any governmental agency or body or any court is required to be
obtained or made by any Selling Stockholder for the consummation of the
transactions contemplated by the Custody Agreement or this Agreement in
connection with the sale of the Offered Securities sold by the Selling
Stockholders, except such as have been obtained or may be required under
the Act.
(v) This Agreement, the Power of Attorney and the Custody Agreement
with respect to each Selling Stockholder has been duly authorized, executed
and delivered by such Selling Stockholder and constitute valid and legally
binding obligations of each such Selling Stockholder enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
(vi) Each Selling Stockholder which is not a natural person has been
duly organized and is an existing entity in good standing under the laws of
the jurisdiction of its organization, with power and authority (corporate
and other) to enter into this Agreement, the Custody Agreement and the
Power of Attorney and perform its obligations hereunder, and the execution,
delivery and performance of this Agreement (including the sale of the
Offered Securities), the Custody Agreement and the Power of Attorney by
each such Selling Stockholder have been duly authorized by all requisite
corporate and other action.
(vii) The information set forth in the Prospectus under the heading
"Selling Stockholders" complies as to form with Item 507 of Regulation S-K,
and such counsel has no reason to believe that such information or the
disclosure contained in the Prospectus under the heading "Certain
Relationships and Related Transactions", as of the effective date of a
Registration Statement or any amendment thereto, or as of such Closing
Date, contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading.
(g) The Representatives shall have received from Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions,
dated as of the Closing Date, with respect to the incorporation of the Company,
the validity of the Offered Securities delivered on such Closing Date, the
Registration Statements, the Prospectus and other related matters as the
Representatives may require, and the Selling Stockholders and the Company shall
have furnished to such counsel such documents as they reasonably request for the
purpose of enabling them to pass upon such matters.
26
(h) The Representatives shall have received from each stockholder of the
Company in form and substance satisfactory to the Representatives a letter
agreement stating that such stockholder agrees, for a period of 180 days after
the date of the initial public offering of the Offered Securities, not to offer,
sell, contract to sell, pledge or otherwise dispose of, directly or indirectly,
any additional shares of the Securities of the Company or securities convertible
into or exchangeable or exercisable for any shares of Securities, or publicly
disclose the intention to make any such offer, sale, pledge or disposal, without
the prior written consent of CSFBC.
(i) The Representatives shall have received a certificate, dated as of the
Closing Date, of the Chief Executive Officer and Chief Financial Officer of the
Company in which such officers, to the best of their knowledge after reasonable
investigation, shall state that: the representations and warranties of the
Company in this Agreement are true and correct; the Company has complied with
all agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to such Closing Date; no stop order suspending
the effectiveness of any Registration Statement has been issued and no
proceedings for that purpose have been instituted or are contemplated by the
Commission; the Additional Registration Statement (if any) satisfying the
requirements of subparagraphs (1) and (3) of Rule 462(b) was filed pursuant to
Rule 462(b), including payment of the applicable filing fee in accordance with
Rule 111(a) or (b) under the Act, prior to the time the Prospectus was printed
and distributed to any Underwriter; and, subsequent to the date of the most
recent financial statements in the Prospectus, there has been no material
adverse change, nor any development or event involving a prospective material
adverse change, in the condition (financial or other), business, properties or
results of operations of the Company and its subsidiaries taken as a whole
except as set forth in or contemplated by the Prospectus or as described in such
certificate.
(j) The Representatives shall have received a letter, dated as of the
Closing Date, of Xxxxxx Xxxxxxxx LLP which meets the requirements of subsection
(a) of this Section, except that the specified date referred to in such
subsection will be a date not more than three business days prior to such
Closing Date for the purposes of this subsection.
(k) The Securities to be delivered on such Closing Date shall have been
approved for listing on the Nasdaq National Market, subject, in the case of the
Offered Securities, only to official notice of issuance.
The Selling Stockholders and the Company will furnish the Representatives
with such conformed copies of such opinions, certificates, letters and documents
as the Representatives reasonably request. CSFBC may in its sole discretion
waive on behalf of the Underwriters compliance with any conditions to the
obligations of the Underwriters hereunder, whether in respect of an Optional
Closing Date or otherwise.
27
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter, its partners, directors and officers and each
person, if any who controls such Underwriter within the meaning of Section 15 of
the Act, against any losses, claims, damages or liabilities, joint or several,
to which such Underwriter or other person may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in this Agreement or any
Registration Statement, the Prospectus, or any amendment or supplement thereto,
or any related preliminary prospectus, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse each Underwriter and other persons for any legal or other
expenses reasonably incurred by such Underwriter and other persons in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the Company will
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement in or omission or alleged omission from any of such documents
in reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such information furnished
by any Underwriter consists of the information described as such in subsection
(c) below.
(b) The Selling Stockholders, severally and not jointly, will indemnify
and hold harmless each Underwriter, its partners, directors and officers and
each person, if any who controls such Underwriter within the meaning of Section
15 of the Act, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter and other persons may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in any Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter and other persons for any legal or other expenses
reasonably incurred by such Underwriter and other persons in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Selling Stockholders
will not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to the Company by an Underwriter through the Representatives specifically for
use therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such in
subsection (c) below; and provided, further, that the Selling Stockholders shall
only be subject
28
to such liability to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission is based upon information provided by
such Selling Stockholder or contained in a representation or warranty given by
such Selling Stockholder in this Agreement or the Custody Agreement; and
provided, further, that the liability under this subsection of each Selling
Stockholder shall be limited to an amount equal to the aggregate gross proceeds
to such Selling Stockholder from the sale of Securities sold by such Selling
Stockholder hereunder.
(c) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any who
controls the Company within the meaning of Section 15 of the Act, and each
Selling Stockholder against any losses, claims, damages or liabilities to which
the Company or such Selling Stockholder may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representatives specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Company and each Selling
Stockholder in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, it being understood
and agreed that the only such information furnished by any Underwriter consists
of the following information in the Prospectus furnished on behalf of each
Underwriter: the concession and reallowance figures appearing in the fourth
paragraph under the caption "Underwriting" and the information contained in the
last paragraph under the caption "Underwriting."
(d) Promptly after receipt by an indemnified party under this Section or
Section 9 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying party
under subsection (a), (b) or (c) above or Section 9, notify the indemnifying
party of the commencement thereof; but the omission to notify the indemnifying
party will not relieve it from any liability which it may have to any
indemnified party otherwise than under subsection (a), (b) or (c) above or
Section 9. In case any such action is brought against any indemnified party and
it notifies an indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
29
Section or Section 9, as the case may be, for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action 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 any claims
that are the subject matter of such action.
(e) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a), (b) or
(c) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a), (b) or (c) above (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 Underwriters on the
other from the offering of the Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Selling Stockholders on
the one hand and the Underwriters on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities 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
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 Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company, the Selling
Stockholders or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first sentence of
this subsection (e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (e).
Notwithstanding the provisions of this subsection (e), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The
30
Underwriters' obligations in this subsection (e) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(f) The obligations of the Company and the Selling Stockholders under this
Section or Section 9 shall be in addition to any liability which the Company and
the Selling Stockholders may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any Underwriter or
the QIU (as hereinafter defined) within the meaning of the Act; the obligations
of the Underwriters under this Section shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each director of the Company, to each officer of
the Company who has signed a Registration Statement and to each person, if any,
who controls the Company within the meaning of the Act; and the obligations of
the Company under this Section or Section 9 shall be in addition to any
liability which the Company may otherwise have to the Selling Stockholders.
8. Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Offered Securities hereunder on either the First
or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, CSFBC may
make arrangements satisfactory to the Company and the Selling Stockholders for
the purchase of such Offered Securities by other persons, including any of the
Underwriters, but if no such arrangements are made by such Closing Date, the
non-defaulting Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Offered Securities that such
defaulting Underwriters agreed but failed to purchase on such Closing Date. If
any Underwriter or Underwriters so default and the aggregate number of shares of
Offered Securities with respect to which such default or defaults occur exceeds
10% of the total number of shares of Offered Securities that the Underwriters
are obligated to purchase on such Closing Date and arrangements satisfactory to
CSFBC, the Company and the Selling Stockholders for the purchase of such Offered
Securities by other persons are not made within 36 hours after such default,
this Agreement will terminate without liability on the part of any non-
defaulting Underwriter, the Company or the Selling Stockholders, except as
provided in Section 10 (provided that if such default occurs with respect to
Optional Securities after the First Closing Date, this Agreement will not
terminate as to the Firm Securities or any Optional Securities purchased prior
to such termination). As used in this Agreement, the term "Underwriter" includes
any person substituted for an Underwriter under this Section. Nothing herein
will relieve a defaulting Underwriter from liability for its default.
9. Qualified Independent Underwriter. The Company hereby confirms that at
its request BT Alex. Xxxxx Incorporated has without compensation acted as
"qualified independent underwriter" (in such capacity, the "QIU") within the
meaning of Rule 2710 of the Conduct
31
Rules of the National Association of Securities Dealers, Inc. in connection with
the offering of the Offered Securities. The Company and the Selling Stockholders
will severally and not jointly indemnify and hold harmless the QIU against any
losses, claims, damages or liabilities, joint or several, to which the QIU may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon the QIU's acting (or alleged failing to act) as such "qualified independent
underwriter" and will reimburse the QIU for any legal or other expenses
reasonably incurred by the QIU in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred.
10. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Selling Stockholders, of the Company or its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, any Selling
Stockholder, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to Section
8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company and the Selling Stockholders shall
remain responsible for the expenses to be paid or reimbursed by them pursuant to
Section 5 and the respective obligations of the Company, the Selling
Stockholders, and the Underwriters pursuant to Section 7 and the respective
obligations of the Company and the Selling Stockholders pursuant to Section 9
shall remain in effect, and if any Offered Securities have been purchased
hereunder the representations and warranties in Section 2 and all obligations
under Section 5 shall also remain in effect. If the purchase of the Offered
Securities by the Underwriters is not consummated for any reason other than
solely because of the termination of this Agreement pursuant to Section 8 or the
occurrence of any event specified in clause (iii), (iv) or (v) of Section 6(c),
the Company will reimburse the Underwriters for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Offered Securities.
11. Notices. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or telegraphed and confirmed to
the Representatives, c/o Credit Suisse First Boston Corporation, Eleven Madison
Avenue, New York, N.Y. 10010-3629, Attention: Investment Banking Department -
Transactions Advisory Group, or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at Radio One, Inc., 0000 Xxxxxxxx
Xxxxxx Xxxxxxx, Xxxxxx, XX 00000, Attention: Xxxxx X. Xxxxxx, Esq.; or, if sent
to the Selling Stockholders or any of them, will be mailed, delivered or
telegraphed and confirmed to [ ] at [ ];
provided, however, that any notice to an Underwriter pursuant to Section 7 will
be mailed, delivered or telegraphed and confirmed to such Underwriter.
32
12. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective personal representatives and
successors and the officers and directors and controlling persons referred to in
Section 7, and no other person will have any right or obligation hereunder.
13. Representation. The Representatives will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representatives jointly or by
CSFBC will be binding upon all the Underwriters. [The Attorneys] will act for
the Selling Stockholders in connection with such transactions, and any action
under or in respect of this Agreement taken by [the Attorneys] will be binding
upon all the Selling Stockholders.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
15. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to principles
of conflicts of laws.
The Company hereby submits to the non-exclusive jurisdiction of the Federal
and state courts in the Borough of Manhattan in The City of New York in any suit
or proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
33
If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement among the
Selling Stockholders, the Company and the several Underwriters in accordance
with its terms.
Very truly yours,
RADIO ONE, INC.
----------------------------------------
Name:
Title:
BancBoston INC.
----------------------------------------
Name:
Title:
FULCRUM VENTURE CAPITAL CORPORATION
----------------------------------------
Name:
Title:
OPPORTUNITY CAPITAL CORPORATION
----------------------------------------
Name:
Title:
SYNCOM CAPITAL CORPORATION
----------------------------------------
Name:
Title:
34
SYNDICATED COMMUNICATIONS VENTURE PARTNERS
----------------------------------------
Name:
Title:
ALLIED CAPITAL CORPORATION
----------------------------------------
Name:
Title:
ALLIED INVESTMENT CORPORATION
----------------------------------------
Name:
Title:
The foregoing Underwriting Agreement
is hereby confirmed and accepted as of
the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION,
BEAR, XXXXXXX & CO. INC.,
BT ALEX. XXXXX INCORPORATED,
NATIONSBANC XXXXXXXXXX SECURITIES LLC, and
PRUDENTIAL SECURITIES INCORPORATED,
Acting on behalf of themselves and as the
Representatives of the several Underwriters.
By: CREDIT SUISSE FIRST BOSTON CORPORATION
________________________________________
Name:
Title:
35
