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EXHIBIT 1.1
6,850,000 SHARES
XXXXXXX BROADCAST GROUP, INC.
CLASS A COMMON STOCK, PAR VALUE $.001 PER SHARE
UNDERWRITING AGREEMENT
Dated: February __, 2000
CREDIT SUISSE FIRST BOSTON CORPORATION
BANC OF AMERICA SECURITIES LLC
XXXXXXX XXXXX BARNEY INC.
DEUTSCHE BANK SECURITIES INC.
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Ladies and Gentlemen:
1. Introductory. Xxxxxxx Broadcast Group, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell 6,850,000 shares ("Firm Securities") of
its Class A Common Stock, par value $.001 per share (the "Securities"), and also
proposes to issue and sell to the Underwriters, at the option of the
Underwriters, an aggregate of not more than 1,027,500 additional shares
("Optional Securities") of its Securities, as set forth below. The Firm
Securities and the Optional Securities are herein collectively called the
"Offered Securities." As part of the offering contemplated by this Agreement,
Credit Suisse First Boston Corporation (the "Designated Underwriter") has agreed
to reserve out of the Firm Securities purchased by it under this Agreement, up
to 342,500 shares, for sale to the Company's directors, officers, employees and
other parties associated with the Company (collectively, "Participants"), as set
forth in the Prospectus (as defined herein) under the heading "Underwriting"
(the "Directed Share Program"). The Firm Securities to be sold by the Designated
Underwriter pursuant to the Directed Share Program (the "Directed Shares") will
be sold by the Designated Underwriter pursuant to this Agreement at the public
offering price. Any Directed Shares not orally confirmed for purchase by a
Participant by the end of the business day on which this Agreement is executed
will be offered to the public by the Underwriters as set forth in the
Prospectus. The Company hereby agrees with the several Underwriters named in
Schedule A hereto (the "Underwriters") as follows:
2. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, the several Underwriters that:
(a) A registration statement (No. 333-91683) relating to the Offered
Securities, including a form of prospectus, has been filed with the
Securities and Exchange Commission (the "Commission") and either (i) has
been declared effective under the Securities Act of 1933, as amended (the
"Act") and is not proposed to be amended or (ii) is proposed to be amended
by amendment or post-effective amendment. If such registration statement
(the "initial registration statement") has been declared effective, either
(i) 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 all the
Offered Securities have been duly registered under the Act pursuant to the
initial registration statement and, if applicable, the additional
registration statement or (ii) 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 all
the Offered Securities will 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
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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 (i) 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
(ii) 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 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.
(b) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement: (i) on the Effective
Date of the Initial Registration Statement, the Initial Registration
Statement conformed in all material 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, (ii) on the Effective Date of the
Additional Registration Statement (if any), each Registration Statement
conformed or will conform, in all material 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 (iii) 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, and on each Closing Date (as hereinafter defined) each
Registration Statement and the Prospectus will conform, in all material
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 material
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.
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(c) The Company has been duly incorporated and is a validly existing
corporation in good standing under the laws of the State of Delaware, with
full power and authority (corporate and other) to own, lease or operate its
properties and conduct its business as described in the Prospectus; and the
Company is duly qualified to do business as a foreign corporation and is 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 be so qualified would not have 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").
(d) Each subsidiary of the Company has been duly incorporated or
organized, as the case may be, and is validly existing and in good standing
under the laws of the jurisdiction of its organization, with full 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, partnership,
limited liability company or business trust, as applicable, and is 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 be so qualified would not have a Material Adverse
Effect; all of the issued and outstanding capital stock or other equity
interest of each subsidiary of the Company is owned of record and
beneficially by the Company or by a subsidiary of the Company and, in the
case of capital stock, has been duly authorized and validly issued, is
fully paid and nonassessable; and the capital stock or other equity
interest of each subsidiary owned by the Company, directly or through
subsidiaries, is owned free from liens, encumbrances and defects, except as
disclosed in the Prospectus.
(e) The Offered Securities and all other outstanding shares of capital
stock of the Company have been duly authorized and validly issued, are
fully paid and nonassessable and conform to the description thereof
contained in the Prospectus; and the shareholders of the Company have no
preemptive rights with respect to the Offered Securities and, except as
described in the Prospectus, 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
subsidiary thereof or any security convertible into or exchangeable or
exercisable for any capital stock of the Company or any subsidiary thereof.
(f) 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.
(g) 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.
(h) The Securities have been authorized for quotation on The Nasdaq
Stock Market, Inc.'s National Market, subject to official notice of
issuance.
(i) Except as disclosed in the Prospectus, no consent, approval,
authorization, or order of, or filing with, any governmental agency or body
(including, without limitation, the Federal Communications Commission (the
"FCC")) or any court is required to be obtained or made by the Company for
the consummation by the Company of the transactions contemplated by this
Agreement in connection with the offer and sale of the Offered Securities
by the Company, except such as have been obtained and made under the Act
and such as may be required under state securities laws and except that a
copy of this Agreement is to be filed with the FCC within 30 days of its
execution.
(j) The execution, delivery and performance of this Agreement, the
issuance and sale of the Offered Securities and the consummation of the
transactions by the Company 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 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
(except where the breach, violation or default would not, individually or
in the aggregate, have a Material Adverse Effect), or the charter, by-laws
or similar organizational documents of the Company or any such subsidiary,
assuming that in connection with the consummation of such
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transactions, (i) Xxxxxx X. Xxxxxxx continues to hold in his own name and
exercise voting control of the securities of the Company representing
majority voting control of the Company; (ii) each purchaser of the Offered
Securities is qualified under the Communications Laws (as defined in
Section 6(d)(viii) of this Agreement) to hold such interest; and (iii) not
more than 25% of the capital stock of the Company in the aggregate is owned
by foreign governments, alien individuals or entities or representatives
thereof. The Company has full power and authority (corporate and other) to
authorize, issue and sell the Offered Securities pursuant to this
Agreement.
(k) This Agreement has been duly authorized, executed and delivered by
the Company.
(l) 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 or subleases with no exceptions that, individually or in the
aggregate, would materially interfere with the aggregate use of such
properties in any one radio market.
(m) The Company and its subsidiaries possess adequate certificates,
authorities or permits and hold all necessary licenses (including, without
limitation, licenses issued by the FCC) issued by appropriate governmental
agencies or bodies 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, license, authority or permit that,
if determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect.
(n) 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.
(o) 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
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.
(p) The Company and its subsidiaries have filed all necessary federal,
state, local and foreign income and franchise tax returns, except where the
failure to file such returns would not have a Material Adverse Effect, and
the Company and its subsidiaries have paid all taxes shown as due thereon;
and other than tax deficiencies that the Company or its subsidiaries are
contesting in good faith and for which adequate reserves have been
provided, there is no tax deficiency that has been asserted against the
Company or its subsidiaries that would, individually or in the aggregate,
have a Material Adverse Effect.
(q) 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.
(r) Except as disclosed in the Prospectus, there are no pending
actions, suits, proceedings, inquiries or investigations before or brought
by any court or governmental agency or body (including, without limitation,
the FCC) against or, to the knowledge of the Company, 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, 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 offer and sale of the Offered Securities by the Company;
and no such actions, suits or proceedings are threatened or, to the
Company's knowledge, contemplated.
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(s) The financial statements included in each Registration Statement
and the Prospectus present fairly the combined financial position of
Xxxxxxx XX Acquisition Corp. and Related Companies as of the dates shown
and the results of their combined operations and their combined cash flows
for the periods shown, and, except as otherwise disclosed in the
Prospectus, 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 information
included in each Registration Statement and the Prospectus 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.
(t) 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, prospects 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 or any of its subsidiaries on any class of their capital stock or
other equity interests.
(u) The statistical and market-related data included in the Prospectus
are based on or derived from sources that the Company believes to be
accurate and reliable.
(v) 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.
(w) 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.
(x) To the knowledge of the Company, KPMG, LLP, which firm has
examined the combined financial statements as set forth in its report
included in the Prospectus, is an independent public accounting firm within
the meaning of the Act and the rules and regulations thereunder.
(y) The [specified radio station acquisition agreement(s)], has been
duly authorized, executed and delivered by the Company and constitutes a
validly and legally binding obligation of the Company enforceable in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles.
(z) Each of the Company, its subsidiaries and their respective
stockholders and other equity holders has taken all requisite corporate and
other action to approve and adopt the corporate reorganization of Xxxxxxx
XX Acquisition Corp. and related companies in the manner described in the
Prospectus (the "Corporate Reorganization"), to be effective prior to the
execution and delivery of this Agreement. The Company has delivered to you
a true and complete copy of the Xxxxxxx Broadcast Group, Inc. Contribution
Agreement, dated as of November 23, 1999, by and among the Company and the
parties set forth on Exhibits A and B thereto, together with all related
attachments and exhibits (collectively, the "Contribution Documents"),
which provide for the Corporate Reorganization.
(aa) Each of the Company and the other entities party to the
Contribution Documents has, and did have at the time the Contribution
Documents were executed, full power and authority (corporate and other) to
enter into the Contribution Documents and perform their respective
obligations thereunder. The execution, delivery and performance of the
Contribution Documents by the Company and such entities have been duly
authorized and no corporate or other action is necessary, or was necessary
at the time the Contribution Documents were executed, to authorize such
execution, delivery and performance. The Contribution Documents have been
duly authorized,
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executed and delivered by the Company and the other parties thereto,
including natural persons signing in an individual capacity, are in full
force and effect and constitute valid and binding obligations of the
Company and each such party, enforceable against each of them in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles, and have not been amended or modified in any material respect.
(bb) Except as disclosed in the Prospectus, no consent, approval,
authorization, or order of, or filing with, any governmental agency or body
(including, without limitation, the FCC) or any court is required, or was
required at the time the Contribution Documents were executed, to be
obtained or made by the Company or any of the other parties to the
Contribution Documents for the consummation of the transactions
contemplated by the Contribution Documents, except such as have been
obtained and made under the Communications Laws [and except that a copy of
the Contribution Documents is to be filed with the FCC within 30 days of
their execution].
(cc) The execution, delivery and performance of the Contribution
Documents, and the consummation of the transactions therein contemplated,
has not and 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 or any court,
domestic or foreign, having jurisdiction over the Company or any other
party to the Contribution Documents or any of their properties, or any
agreement or instrument to which the Company or any such party to the
Contribution Documents is a party or by which the Company or any such party
to the Contribution Documents is bound or to which any of the properties of
the Company or any such party to the Contribution Documents is subject, or
the charter, by-laws or other organizational documents of the Company or
any such party to the Contribution Documents.
(dd) There are no pending actions, suits, proceedings, inquiries or
investigations before or brought by any court or governmental agency or
body (including, without limitation, the FCC) seeking to restrict or
prohibit any of the transactions contemplated by the Contribution
Documents.
(ee) The Company has not offered, or caused the Underwriters to offer,
any Offered Securities to any person pursuant to the Directed Share Program
with the specific intent to unlawfully influence (i) a customer or supplier
of the Company to alter the customer's or supplier's level or type of
business with the Company or (ii) a trade journalist or publication to
write or publish favorable information about the Company or its products.
Furthermore, the Company represents and warrants to the Underwriters
that (i) the Registration Statement, the Prospectus and any preliminary
prospectus comply, and any further amendments or supplements thereto will
comply, with any applicable laws or regulations of foreign jurisdictions in
which the Prospectus or any preliminary prospectus, as amended or supplemented,
if applicable, are distributed in connection with the Directed Share Program,
and that (ii) no authorization, approval, consent, license, order, registration
or qualification of or with any government, governmental instrumentality or
court, other than such as have been obtained, is necessary under the securities
law and regulations of foreign jurisdictions in which the Directed Shares are
offered outside the United States.
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 agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from the Company, at a purchase price of $______ per share, the number of Firm
Securities set forth opposite the name of such Underwriter in Schedule A hereto.
The Company 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 wire transfer to an account at a bank acceptable to
Credit Suisse First Boston Corporation ("CSFBC") drawn to the order of the
Company, at the office of CSFBC, Eleven Madison Avenue, New York, New York, at
10:00A.M., New York time, on _____________, 2000, 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." For
purposes of Rule 15c6-1 under the Securities Exchange Act of 1934, the First
Closing Date (if later than the otherwise applicable settlement date) shall be
the settlement date for payment of funds and delivery of securities for all the
Offered Securities sold pursuant to the offering. The stock 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 above office of CSFBC at least 24
hours prior to the First Closing Date.
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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 per Security 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 wire transfer to an
account at a bank acceptable to CSFBC drawn to the order of the Company, at the
above office of CSFB. The stock 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 above office of CSFB 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. The Company agrees with the several
Underwriters 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
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
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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 hereof.
(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 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, subject to the
limitations under the Act and the Securities Exchange Act of 1934, as
amended.
(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, except
issuances of Securities pursuant to the conversion or exchange of shares of
the Company's Class B Common Stock, par value $.001 per share, in
accordance with the terms thereof, or convertible or exchangeable
securities or the exercise of options, in each case outstanding on the date
hereof, grants of employee stock options or restricted stock pursuant to
the terms of a plan in effect on the date hereof, or issuances of, or any
filing of a registration statement on Form S-8 (or any successor form)
relating to, Securities pursuant to the exercise of such options or under
any employee stock purchase plan in effect on the date hereof.
(i) The Company has obtained and will deliver to CSFBC no later than
the close of business on the date hereof, a lock-up agreement from each of
its directors, executive officers and stockholders listed on Schedule B
attached hereto.
(j) The Company will pay all expenses incident to the performance of
the obligations of the Company under this Agreement, for any filing fees
and other expenses (including fees and disbursements of counsel) incurred
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 by the National Association of Securities
Dealers, Inc. (the "NASD") of the Offered Securities, for any travel
expenses of the Company's officers
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and employees and any other expenses of the Company in connection with
attending or hosting meetings with prospective purchasers of the Offered
Securities, and for expenses incurred in distributing preliminary
prospectuses and the Prospectus (including any amendments and supplements
thereto) to the Underwriters.
(k) In connection with the Directed Share Program, the Company will
ensure that the Directed Shares will be restricted to the extent required
by the NASD or the NASD rules from sale, transfer, assignment, pledge or
hypothecation for a period of three months following the date of the
effectiveness of the Registration Statement. The Designated Underwriter
will notify the Company as to which Participants will need to be so
restricted. The Company will direct the transfer agent to place stop
transfer restrictions upon such securities for such period of time.
(l) The Company will pay all fees and disbursements of counsel
incurred by the Underwriters in connection with the Directed Shares Program
and stamp duties, similar taxes or duties or other taxes, if any, incurred
by the Underwriters in connection with the Directed Share Program.
Furthermore, the Company covenants with the Underwriters that the
company will comply with all applicable securities and other applicable laws,
rules and regulations in each foreign jurisdiction in which the Directed Shares
are offered in connection with the Directed Shares Program.
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 herein, to the accuracy of the statements
of Company officers made pursuant to the provisions hereof, to the performance
by the Company of its 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 KPMG, 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;
(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 the Statement of Auditing Standards
No. 71, Interim Financial Information, on the unaudited financial
statements included in the Registration Statements;
(iii) on the basis of 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) the unaudited combined net revenues, pro forma net income
(loss), pro forma basic net income (loss) per share and pro forma
diluted net income (loss) per share for the nine months ended
September 30, 1998 included in the Prospectus do not agree with the
amounts set forth in the unaudited combined financial statements for
such period or were not determined on a basis substantially consistent
with that of the corresponding amounts in the audited combined
statements of operations;
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(C) 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 subsidiaries or, at the date
of the latest available balance sheet read by such accountants, there
was any decrease in total assets, as compared with amounts shown on
the latest balance sheet included in the Prospectus; or
(D) 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 corresponding length ended the date of the
latest income statement included in the Prospectus, in [combined net
revenue or pro forma net income (loss) or in the per share amounts of
pro forma net income (loss)];
except in all cases set forth in clauses (C) and (D) above for changes,
increases or decreases which the Prospectus discloses have occurred 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 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.
For purposes of this subsection, (i) if the Effective Time of the Initial
Registration Statement 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 Statement 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 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 or preferred stock of
the Company by any "nationally recognized statistical rating organization"
(as defined for purposes of Rule 436(g) under the Act), or any public
announcement that any such organization has under surveillance or review
its rating of any debt securities or preferred stock 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
material suspension or material limitation of trading in securities
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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, New York or
Florida 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 Xxxxxx & Xxxxxxx, counsel for the Company, to the
effect that:
(i) Each of the Company and Xxxxxxx Mezzanine Holdings, LLC
("Xxxxxxx Mezzanine") has been duly organized and is an existing
corporation or limited liability company, as the case may be, in good
standing under the laws of the State of Delaware, with corporate or
limited liability company power and authority to own its properties
and conduct its business as described in the Prospectus; and each of
the Company and Xxxxxxx Mezzanine is duly qualified to do business as
a foreign corporation or limited liability company in good standing in
those jurisdictions set forth on Schedule A in the opinion;
(ii) [Based soley on certificates from public officials],
each of the Company's subsidiaries (other than Xxxxxxx Mezzanine) has
been duly organized and is an entity validly existing and in good
standing under the laws of the state of its organization, with full
power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus; and each
subsidiary is duly qualified to do business as a foreign corporation,
limited liability company, partnership or business trust, as
applicable, and in good standing in those jurisdictions set forth on
Schedule A in the opinion;
(iii) All of the outstanding shares of capital stock of, or
other ownership interests in, each of the subsidiaries of the Company
is owned of record and beneficially by the Company or by a subsidiary
of the Company, was not issued in violation of any preemptive rights,
rights of first refusal or other similar rights (in each case created
by statute or under any subsidiary's certificate of incorporation,
bylaws or other organizational documents or any agreement to which any
subsidiary is a party of which such counsel has knowledge), and, in
the case of capital stock, has been duly authorized and validly
issued, is fully paid and nonassessable; to such counsel's knowledge,
all such shares and interests are owned by the Company, free and clear
of any security interest, claim, lien, encumbrance or adverse interest
of any nature, except as disclosed in the Prospectus;
(iv) The Offered Securities delivered on such Closing Date
and all other outstanding shares of capital stock of the Company have
been duly authorized and will be, when issued and paid for in
accordance with this Agreement, 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;
(v) Except as described in the Prospectus, 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;
(vi) Except as described in the Prospectus, to such
counsel's knowledge, 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 the Registration
Statement or in any securities being registered pursuant to any other
registration statement filed by the Company under the Act;
(vii) No consent, approval, authorization or order of, or
filing with, any governmental agency or body (including, without
limitation, the FCC) or any court is required to be obtained or made
by the Company for the consummation of the transactions contemplated
by this Agreement in connection with the offer and sale of the Offered
Securities by the Company, except such as have been obtained and made
under the Act and such as may be
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required under state securities laws and except that a copy of this
Agreement is to be filed with the FCC within 30 days of its execution,
and assuming that, in connection with the consummation of such
transactions, (i) Xxxxxx X. Xxxxxxx continues to hold in his own name
and exercise voting control of the voting securities of the Company
representing majority voting control of the Company; (ii) each
purchaser of the Offered Securities is qualified under the
Communications Laws to hold such interest; and (iii) not more than 25%
of the capital stock of the Company in the aggregate will be owned by
foreign governments, alien individuals or entities, or representatives
thereof;
(viii) The execution, delivery and performance of this
Agreement by the Company, the issuance and sale of the Offered
Securities and the consummation of the transactions herein by the
Company or therein 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 (including, without
limitation, the Communications Act of 1934, as amended, and the
regulations promulgated thereunder (the "Communications Laws")), or,
to such counsel's knowledge, any order of any governmental agency or
body (including, without limitation, the FCC) or any court having
jurisdiction over the Company or any subsidiary of the Company or, to
such counsel's knowledge, any of their properties, or any agreement or
instrument filed as an exhibit to the Registration Statement 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, by-laws
or similar organizational documents of the Company or any such
subsidiary, assuming that, in connection with the consummation of such
transactions, (i) Xxxxxx X. Xxxxxxx continues to hold in his own name
and exercise voting control of the voting securities of the Company
representing majority voting control of the Company; (ii) each
purchaser of the Offered Securities is qualified under the
Communications Laws to hold such interest; and (iii) not more than 25%
of the capital stock of the Company in the aggregate will be owned by
foreign governments, alien individuals or entities, or representatives
thereof. The Company has corporate full power and authority to
authorize, issue and sell the Offered Securities as contemplated by
this Agreement;
(ix) The entities listed on Exhibit A attached to such
opinion (the "Licensees") hold the respective FCC Licenses listed
thereon. Such FCC Licenses are in full force and effect, except as
noted on Exhibit A. As used herein, "full force and effect" means
that, to the knowledge of such counsel, the orders issuing the FCC
Licenses have become effective, no stay of the effectiveness of such
orders has been issued by the FCC, and the FCC Licenses have not been
invalidated by any subsequent published FCC action;
(x) To the knowledge of such counsel, except for those
disclosed in this Agreement, the Registration Statement or on Exhibit
B attached to such opinion, and except for proceedings affecting the
radio broadcasting industry generally, there are no proceedings
pending or threatened in writing under the Communications Laws against
the Company, the Licensees or the stations by or before the FCC or
before any court having jurisdiction of matters under the
Communications Laws which seek the revocation, non-renewal, or
material adverse modification of any of the FCC Licenses;
(xi) The FCC Statements (which include the statements of the
Company in the Registration Statements under the captions "Risk
Factors - If we are not able to obtain regulatory approval for our
acquisitions, our future growth may be impaired," "Risk Factors - A
denial in the renewal of any of our federally-issued operating
licenses could negatively affect our results of operations," "Recently
Completed and Pending Radio Broadcasting Transactions Pending
Acquisitions," "Corporate Reorganization," "Business - Competition;
Changes in Broadcasting Industry," "Business - Federal Regulation of
Radio Broadcasting" and "Description of Capital Stock - Foreign
Ownership"), insofar as they constitute summaries of the
Communications Laws and material proceedings thereunder, are accurate
and fairly present the information set forth therein in all material
respects;
(xii) The FCC has granted its consent (the "FCC Consent") to
the acquisition by an affiliate owned and controlled by the Company of
the FCC Licenses for Stations [specify stations by call letters and
location]. The FCC Consent is not subject to any material adverse
conditions imposed by the FCC. Without limiting the other
qualifications set forth in such opinion, in providing the foregoing
opinion such counsel may assume that all standard conditions set forth
on the FCC forms evidencing the FCC Consent, those set forth in the
FCC orders granting the FCC Licenses or any renewal thereof, and those
set forth in the Communications Laws imposed upon licensees generally
or radio broadcasting licenses specifically, are conditions in the
ordinary course, and such counsel need not express any view on such
matters;
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(xiii) To such counsel's knowledge, no petition for
reconsideration or review of the FCC Consent has been filed with the
FCC and the FCC has not rescinded or revoked the FCC Consent or given
public notice of review of the FCC Consent on its own motion and the
time under applicable FCC rules within which any formal request for
such reconsideration or review may be filed, or initiated by the FCC
on its own motion, has lapsed and no such reconsideration or review
has been taken or instituted;
(xiv) The [specified radio station acquisition
agreement(s)], has been duly authorized, executed and delivered by the
Company and constitutes a validly and legally binding obligation of
the Company enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles;
(xv) The Contribution Documents have been duly authorized,
executed and delivered by the Company and the other parties thereto,
including natural persons signing in an individual capacity, and
constitute valid and binding obligations of the Company and each such
party, enforceable against each of them in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
(xvi) No consent, approval, authorization or order of, or
filing with, any governmental agency or body (including, without
limitation, the FCC) or any court is required , or was required at the
time the Contribution Documents were executed, to be obtained or made
by the Company or any of the other parties to the Contribution
Documents for the consummation of the transactions contemplated by the
Contribution Documents, except such as have been obtained and made;
(xvii) The execution, delivery and performance of the
Contribution Documents, and the consummation of the transactions
therein contemplated, has not and 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 (including, without
limitation, the Communications Laws) or, to such counsel's knowledge,
order of any governmental agency or body or any court having
jurisdiction over the Company or any other party to the Contribution
Documents or, to such counsel's knowledge, any of their properties, or
any agreement or instrument filed as an exhibit to the Registration
Statement to which the Company or any such party to the Contribution
Documents is a party or by which the Company or any such party to the
Contribution Documents is bound or to which any of the properties of
the Company or any such party to the Contribution Documents is
subject, or the charter, by-laws or similar organizational documents
of the Company or any such party to the Contribution Documents;
(xviii) Assuming that the representations contained in the
Contribution Agreement are true, correct and complete, it is not
necessary to register under the Act the shares of the Company's Class
A common stock, par value $.001 per share, and Class B common stock,
par value $.001 per share, in connection with the offer, sale and
delivery of such shares to the Stockholders (as defined in the
Contribution Agreement) pursuant to the Contribution Agreement;
(xix) To the knowledge of such counsel, there are no pending
actions, suits, proceedings, inquiries or investigations before or
brought by any court or governmental agency or body (including,
without limitation, the FCC) seeking to restrict or prohibit any of
the transactions contemplated by the Contribution Documents;
(xx) The Initial Registration Statement was declared
effective under the Act as of the date and time specified in such
opinion, the Additional Registration Statement (if any) was filed and
became effective under the Act as of the date and time (if
determinable) specified in such opinion, 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), and, to the best of the
knowledge of such counsel, no stop order suspending the effectiveness
of a Registration Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act, and each Registration Statement 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; 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
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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 (in the case of the Prospectus, in light of the circumstances
under which they were made) 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 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; and
(xxi) This Agreement has been duly authorized, executed and
delivered by the Company.
With respect to the information contained in opinions (ii), (iii), (xiv) and
(xv), such counsel may state that he has relied upon legal opinions rendered to
him in connection with the Offering by counsel familiar with the capital
structure of the Company's subsidiaries or with the agreements in question, as
the case may be. The foregoing opinions may be limited to the federal securities
laws of the United States of America, the laws of the State of New York and the
Delaware General Corporation Law, and counsel rendering the foregoing opinion
may rely as to questions of fact upon the representations of the Company set
forth in this Agreement and upon certificates of officers of the Company and of
government officials. In addition, counsel may state that it has made no special
inquiry or investigation in respect of opinions that are rendered to the
knowledge of such counsel. Such counsel may also include in its opinion standard
and customary qualifications and limitations.
(e) The Representatives shall have received from Weil, Gotshal &
Xxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated
such Closing Date, with respect to the Registration Statements, the
Prospectus and other related matters as the Representatives may reasonably
require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters.
(f) The Company and the other parties to the Contribution Documents
shall have consummated the Corporate Reorganization in compliance with the
terms and conditions of the Contribution Documents and as described in the
Prospectus.
(g) The Representatives shall have received a certificate, dated such
Closing Date, of the President or any Vice President and a principal
financial or accounting 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 as though made on such Closing Date; 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.
(h) The Representatives shall have received a letter, dated such
Closing Date, of KPMG, 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.
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
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compliance with any conditions to the obligations of the Underwriters hereunder,
whether in respect of an Optional Closing Date or otherwise.
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 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 for any legal or other expenses reasonably incurred by such
Underwriter 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 (b) below, and provided, further,
that with respect to any untrue statement or alleged untrue statement in or
omission or alleged omission from any preliminary prospectus, the indemnity
agreement contained in this subsection (a) shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages or
liabilities purchased the Offered Securities concerned, to the extent that a
prospectus relating to such Offered Securities was required to be delivered by
such Underwriter under the Act in connection with such purchase and any such
loss, claim, damage or liability of such Underwriter results from the fact that
there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Offered Securities to such person, a copy of
the Prospectus if the Company has previously furnished such quantity of copies
thereof to such Underwriter.
The Company agrees to indemnify and hold harmless the Designated
Underwriter and each person, if any, who controls the Designated Underwriter
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act (the "Designated Entities"), from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) (i) caused by any untrue statement or
alleged untrue statement of a material fact contained in any material prepared
by or with the consent of the Company for distribution to Participants in
connection with the Directed Share Program or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; (ii) caused by the
failure of any Participant to pay for and accept delivery of Directed Shares
that the Participant agreed to purchase; or (iii) related to, arising out of, or
in connection with the Directed Share Program, other than losses, claims,
damages or liabilities (or expenses relating thereto) that are finally
judicially determined to have resulted from the bad faith or gross negligence of
the Designated Entities.
(b) 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, against any
losses, claims, damages or liabilities to which the Company 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 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," the information concerning
discretionary sales contained in the sixth paragraph under the caption
"Underwriting" and the over-allotment and stabilization information contained in
the last paragraph under the caption "Underwriting."
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(c) Promptly after receipt by an indemnified party under this Section
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) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. 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 Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. Notwithstanding anything contained herein to
the contrary, if indemnity may be sought pursuant to the last paragraph in
Section 7(a) hereof in respect of such action or proceeding, then in addition to
such separate firm for the indemnified parties, the indemnifying party shall be
liable for the reasonable fees and expenses of not more than one separate firm
(in addition to any local counsel) for the Designated Underwriter for the
defense of any losses, claims, damages and liabilities arising out of the
Directed Share Program, and all persons, if any, who control the Designated
Underwriter within the meaning of either Section 15 or Section 20 of the
Exchange Act. 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 (i) includes an unconditional release of such indemnified party from
all liability on any claims that are the subject matter of such action and (ii)
does not include a statement as to, or an admission of, fault, culpability or
failure to act by or on behalf of an indemnified party.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) 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) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the Securities
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and 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 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 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 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 (d) 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 (d). Notwithstanding the provisions of this subsection (d), 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 Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and 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.
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
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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 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 and the
Company 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 or the Company, except
as provided in Section 9 (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. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements 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, 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 shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5 and the respective
obligations of the Company and the Underwriters pursuant to Section 7 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.
10. 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 0000 Xxxxxxx Xxxxx, Xxxxx 000,
Xxxxxx, Xxxxxxx 00000, Attention: Chief Financial Officer; provided, however,
that any notice to an Underwriter pursuant to Section 7 will be mailed,
delivered or telegraphed and confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7, and no other person
will have any right or obligation hereunder.
12. Representation. The Representatives will act for the several
Underwriters in connection with this financing, and any action under this
Agreement taken by the Representatives jointly or by CSFBC will be binding upon
all the Underwriters.
13. Counterparts. This Agreement may be executed in any of counterparts,
each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same Agreement.
14. 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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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 between the
Company and the several Underwriters in accordance with its terms.
Very truly yours,
XXXXXXX BROADCAST GROUP, INC.
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date and effective time first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
BANC OF AMERICA SECURITIES LLC
XXXXXXX XXXXX BARNEY INC.
DEUTSCHE BANK SECURITIES INC.
Acting on behalf of themselves and as the
Representatives of the several
Underwriters.
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
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SCHEDULE A
TOTAL
NUMBER OF
FIRM
SECURITIES
NUMBER OF FIRM SECURITIES TO BE
UNDERWRITER TO BE SOLD PURCHASED
----------- ---------- ---------
Credit Suisse First Boston Corporation............
Banc of America Securities LLC....................
Xxxxxxx Xxxxx Xxxxxx Inc..........................
Deutsche Bank Securities Inc......................
[others]..........................................
--------- --------- ---------
Total......................................
========= ========= =========
20
SCHEDULE B
1. Xxxxxx X. Xxxxxxx
2. Xxxxxx Xxxxxxx Estate Reduction Trust
3. Xxxxxx Xxxxxxx Grantor Retained Annuity Trust
4. Xxxxx X. Xxxxxxx
5. Xxxxx X. Xxxxxxx
6. B. Xxxxxxxx Xxxxxxx
7. Xxxxxxx X. Xxxxxxx
8. Xxxxxx X. Xxxxxxx
9. Xxxxxxx X. Xxxxxxx
10. J. Xxxxxx Xxxxxxxxx
11. Xxxx Miami Holdings, Inc.
