Exhibit 1(a)
HERITAGE MEDIA CORPORATION
STANDARD PROVISIONS
(SUBORDINATED DEBT SECURITIES)
UNDERWRITING AGREEMENT
________________, 199_
From time to time, Heritage Media Corporation, an Iowa
corporation (the "Company"), may enter into one or more
underwritten pricing agreements that provide for the sale of
designated securities to the several underwriters named therein.
The standard provisions set forth herein may be incorporated by
reference in any such underwritten pricing agreement (an
"Underwriting Agreement"). The Underwriting Agreement, including
the provisions incorporated therein by reference, is herein
sometimes referred to as this Agreement. Terms defined in the
Underwriting Agreement are used herein as therein defined.
1. REGISTRATION STATEMENT AND PROSPECTUS. The Company
has prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement, including
a prospectus, in accordance with the provisions of the Securities
Act of 1933, as amended and the rules and regulations of the
Commission thereunder (collectively called the "Securities Act")
relating to the Subordinated Debt Securities (the "Debt
Securities") and has filed with, or transmitted for filing to, or
shall promptly hereafter file with or transmit for filing to, the
Commission a prospectus supplement (the "Prospectus Supplement")
specifically relating to the Offered Securities pursuant to Rule
424 under the Securities Act. The term "Registration Statement"
means the registration statement, including the exhibits
thereto, as amended to the date of this Agreement. The term
"Basic Prospectus" means the prospectus included in the
Registration Statement. The term "Prospectus" means the Basic
Prospectus together with the Prospectus Supplement. The term
"preliminary prospectus" means a preliminary prospectus
supplement specifically relating to the Offered Securities
together with the Basic Prospectus. As used herein, the terms
"Basic Prospectus," "Prospectus" and "preliminary prospectus"
shall include in each case the documents, if any, incorporated by
reference therein. The terms "supplement,"
"amendment" and "amend" as used herein shall include all
documents (collectively called the "Incorporated Documents")
deemed to be incorporated by reference in the Prospectus that
are filed subsequent to the date of the Basic Prospectus by
the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
The term "Contract Securities" means the Offered
Securities to be purchased pursuant to the delayed delivery
contracts substantially in the form of Schedule I hereto, with
such changes therein as the Company may approve (the "Delayed
Delivery Contracts"). The term "Underwriters' Securities" means
the Offered Securities other than Contract Securities.
2. TERMS OF PUBLIC OFFERING. The Company is advised
by the Manager that the Underwriters propose to make a public
offering of their respective portions of the Underwriters'
Securities as soon after this Agreement has been entered into as
in the Manager's judgment is advisable. The terms of the public
offering of the Underwriters' Securities are set forth in the
Prospectus.
3. PAYMENT AND DELIVERY. Except as otherwise provided
in Section 6, payment for the Underwriters' Securities shall be
made by certified or official bank check or checks payable to the
order of the Company in New York Clearing House funds at the time
and place set forth in the Underwriting Agreement, upon delivery
to the Manager for the respective accounts of the several
Underwriters of the Underwriters' Securities registered in such
names and in such denominations as the Manager shall request in
writing not less than two full business days prior to the date of
delivery, with any transfer taxes payable in connection with the
transfer of the Underwriters' Securities to the Underwriters duly
paid.
4. AGREEMENTS OF THE COMPANY. The Company agrees with
each Underwriter as follows:
(a) To furnish the Manager, without charge, one signed
copy of the Registration Statement (including exhibits
thereto) and for delivery to each other Underwriter a
conformed copy of the Registration Statement (without
exhibits thereto) and, during the period mentioned in
paragraph (c) below, as many copies of the Prospectus, the
Incorporated Documents and any supplements and amendments
thereto or to the Registration Statement as the Manager may
reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Offered
Securities, to furnish to the Manager a copy of each such
proposed amendment or supplement and not to file any such
proposed amendment or supplement to which the Manager
reasonably objects.
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(c) If, during such period after the first date of the
public offering of the Offered Securities as in the opinion
of counsel for the Underwriters the Prospectus is required
by law to be delivered in connection with sales by an
Underwriter or dealer, any event shall occur or condition
exist as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or
if, in the opinion of counsel for the Underwriters, it is
necessary to amend or supplement the Prospectus to comply
with applicable law, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the
Underwriters and to the dealers (whose names and addresses
the Manager will furnish to the Company) to which Offered
Securities may have been sold by the Manager on behalf of
the Underwriters and to any other dealers upon request,
either amendments or supplements to the Prospectus so that
the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances
when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or
supplemented, will comply with law.
(d) To endeavor to qualify the Offered Securities for
offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Manager shall reasonably request and to
maintain such qualification for as long as the Manager shall
reasonably request.
(e) To mail and make generally available to the
Company's security holders and to the Manager as soon as
practicable an earning statement covering a twelve month
period beginning on the first day of the first full fiscal
quarter after the date of this Agreement, which earning
statement shall satisfy the provisions of Section 11(a) of
the Securities Act and the rules and regulations of the
Commission thereunder.
(f) During the period beginning on the date of the
Underwriting Agreement and continuing to and including the
Closing Date, not to offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company
substantially similar to the Offered Securities, (other than
(i) the Offered Securities and (ii) commercial paper issued
in the ordinary course of business), without the prior
written consent of the Manager.
(g) To pay all costs, expenses, fees and taxes
incident to the performance of its obligations under this
Agreement, including: (i) the preparation, printing and
filing of the Registration Statement and the Prospectus and
all amendments and supplements thereto; (ii) the
preparation, issuance and delivery of the Offered
Securities; (iii) the fees and disbursements of the
Company's counsel and accountants
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and of the Trustee and its counsel; (iv) the qualification
of the Offered Securities under state securities or Blue Sky
laws in accordance with the provisions of Section 6(d),
including filing fees and the fees and disbursements of
counsel for the Underwriters in connection therewith and
in connection with the preparation of any Blue Sky or Legal
Investment Memoranda; (v) the printing and delivery to the
Underwriters in quantities as hereinabove stated of copies of
the Registration Statement and all amendments thereto and of any
preliminary prospectus and the Prospectus and any amendments
or supplements thereto; (vi) the printing and delivery to
the Underwriters of copies of any Blue Sky or Legal
Investment Memoranda; (vii) any fees charged by rating
agencies for the rating, if any, of the Offered Securities;
(viii) the filing fees and expenses, if any, incurred with
respect to any filing with the National Association of
Securities Dealers, Inc. made in connection with the Offered
Securities; and (ix) any expenses incurred by the Company in
connection with a "road show" presentation to potential
investors.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company represents and warrants to each Underwriter that:
(a) The Registration Statement has become effective;
no stop order suspending the effectiveness of the
Registration Statement is in effect and no proceedings for
such purpose are pending before or threatened by the
Commission.
(b) (i) Each Incorporated Document, if any, filed or
to be filed pursuant to the Exchange Act complied or will
comply when so filed in all material respects with the
Exchange Act and the applicable rules and regulations of the
Commission thereunder, (ii) each part of the Registration
Statement, when such part became effective, did not contain,
and each such part, as amended or supplemented, if
applicable, will not contain any untrue statement of a
material fact or omit to state a material fact required to
be stated therein or necessary to make the statements
therein not misleading, (iii) the Registration Statement and
the Prospectus comply, and, as amended or supplemented, if
applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of
the Commission thereunder and (iv) the Prospectus does not
contain and, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading, except that the representations
and warranties set forth in this Section 5(b) do not apply
(A) to statements or omissions in the Registration Statement
or the Prospectus based upon information relating to any
Underwriter furnished to the Company in writing by such
Underwriter through the Manager expressly for use therein or
(B) to that part of the
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Registration Statement that constitutes the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"), of the Trustee.
(c) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the
Securities Act, complied when so filed in all material
respects with the Securities Act and the applicable rules
and regulations of the Commission thereunder and did not
contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein, in the light of
the circumstances under which they were made, not
misleading.
(d) Each of the Company and its subsidiaries has been
duly incorporated, is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation and has the corporate power and authority to
carry on its business as it is currently being conducted and
to own, lease and operate its properties, and each is duly
qualified and is in good standing as a foreign corporation
authorized to do business in each jurisdiction in which the
nature of its business or its ownership or leasing of
property requires such qualification, except where the
failure to be so qualified would not have a material adverse
effect on the Company and its subsidiaries, taken as a
whole.
(e) The Offered Securities have been duly authorized
and, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by
the Underwriters in accordance with the terms of the
Underwriting Agreement, in the case of the Underwriters'
Securities, or by institutional investors in accordance with
the terms of the Delayed Delivery Contracts, in the case of
the Contract Securities, will be entitled to the benefits of
the Indenture and will be valid and binding obligations of
the Company, in each case enforceable in accordance with
their respective terms except as (i) the enforceability
thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (ii) rights
of acceleration, if any, and the availability of equitable
remedies may be limited by equitable principles of general
applicability.
(f) This Agreement has been duly authorized, executed
and delivered by the Company and is a valid and binding
agreement of the Company enforceable in accordance with its
terms (except as rights to indemnity and contribution
hereunder may be limited by applicable law).
(g) The Indenture has been duly qualified under the
Trust Indenture Act and
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has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by
equitable principles of general applicability.
(h) The Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company and are
valid and binding agreements of the Company, enforceable in
accordance with their respective terms except as (i) the
enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights
generally and (ii) the availability of equitable remedies
may be limited by equitable principles of general
applicability.
(i) The Offered Securities conform as to legal matters
to the description thereof contained in the Prospectus.
(j) Neither the Company nor any of its subsidiaries is
in violation of its respective charter or by-laws or in
default in the performance of any obligation, agreement or
condition contained in any bond, debenture, note or any
other evidence of indebtedness or in any other agreement,
indenture or instrument material to the conduct of the
business of the Company and its subsidiaries, taken as a
whole, to which the Company or any of its subsidiaries is a
party or by which it or any of its subsidiaries or their
respective property is bound.
(k) The execution and delivery by the Company of, and
the performance by the Company of its obligations under,
this Agreement, the Indenture, the Delayed Delivery
Contracts and the Offered Securities will not require any
consent, approval, authorization or other order of any
court, regulatory body, administrative agency or other
governmental body (except as such may be required under the
securities or Blue Sky laws of the various states) and will
not conflict with or constitute a breach of any of the terms
or provisions of, or constitute a default under, the charter
or by-laws of the Company or any of its subsidiaries or any
agreement, indenture or other instrument to which it or any
of its subsidiaries is a party or by which it or any of its
subsidiaries or their respective property is bound, or
violate or conflict with any laws, administrative
regulations or rulings or court decrees applicable to the
Company, any of its subsidiaries or their respective
property.
(l) There has not occurred any material adverse
change, or any development involving a prospective material
adverse change, in the condition, financial or
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otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set
forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement).
(m) There are no legal or governmental proceedings
pending or threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of
the Company or any of its subsidiaries is subject that are
required to be described in the Registration Statement or
the Prospectus and are not so described or any statutes,
regulations, contracts or other documents that are required
to be described in the Registration Statement or the
Prospectus or to be filed or incorporated by reference as
exhibits to the Registration Statement that are not
described, filed or incorporated as required.
(n) Neither the Company nor any of its subsidiaries
has violated (i) any foreign, federal, state or local law or
regulation relating to the protection of human health and
safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"),
(ii) any federal or state law relating to discrimination in
the hiring, promotion or pay of employees or any applicable
federal or state wages and hours laws or (iii) any
provisions of the Employee Retirement Income Security Act or
the rules and regulations promulgated thereunder, which in
each case might result in any material adverse change in the
business, prospects, financial condition or results of
operation of the Company and its subsidiaries, taken as a
whole.
(o) The Company and each of its subsidiaries has such
permits, licenses, franchises and authorizations of
governmental or regulatory authorities ("permits"),
including, without limitation, under any applicable
Environmental Laws, as are necessary to own, lease and
operate its respective properties and to conduct its
business; the Company and each of its subsidiaries has
fulfilled and performed all of its material obligations with
respect to such permits and no event has occurred which
allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other
material impairment of the rights of the holder of any such
permit; and, except as described in the Prospectus
(exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement), such permits
contain no restrictions that are materially burdensome to
the Company or any of its subsidiaries.
(p) Except as otherwise set forth in the Prospectus or
such as are not material to the business, prospects,
financial condition or results of operation of the Company
and its subsidiaries, taken as a whole, the Company and each
of its subsidiaries has
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good and marketable title, free and clear of all liens, claims,
encumbrances and restrictions except liens for taxes not yet
due and payable, to all property and assets described in the
Registration Statement as being owned by it. All leases to
which the Company or any of its subsidiaries is a party are
valid and binding and no default has occurred or is continuing
thereunder, which might result in any material adverse change
in the business, prospects, financial condition or results of
operation of the Company and its subsidiaries taken as a whole,
and the Company and its subsidiaries enjoy peaceful and
undisturbed possession under all such leases to which any of
them is a party as lessee with such exceptions as do not
materially interfere with the use made by the Company or such
subsidiary.
(q) The Company and each of its subsidiaries maintains
reasonably adequate insurance.
(r) KPMG Peat Marwick LLP are independent public
accountants with respect to the Company as required by the
Act.
(s) The financial statements, together with related
schedules and notes included or incorporated into the
Registration Statement and the Prospectus (and any amendment
or supplement thereto), present fairly the consolidated
financial position, results of operations and changes in
financial position of the Company and its subsidiaries on
the basis stated in the Registration Statement at the
respective dates or for the respective periods to which they
apply; such statements and related schedules and notes have
been prepared in accordance with generally accepted
accounting principles consistently applied throughout the
periods involved, except as disclosed therein; and the other
financial and statistical information and data set forth in
the Registration Statement and the Prospectus (and any
amendment or supplement thereto) is, in all material
respects, accurately presented and prepared on a basis
consistent with such financial statements and the books and
records of the Company.
(t) The fair salable value of the assets of the
Company exceeds the amount that will be required to be paid
on or in respect of the existing debts and other liabilities
(including contingent liabilities) of the Company as they
mature; the assets of the Company do not constitute
unreasonably small capital to carry out its business as
conducted or as proposed to be conducted; the Company does
not intend to, and does not believe that the Company will,
incur debts beyond its ability to pay such debts as they
mature; upon the issuance of the Debt Securities, the fair
salable value of the assets of the Company and its
subsidiaries taken as a whole, will exceed the amount that
will be required to be paid on or in respect of the existing
debts and other liabilities (including contingent
liabilities) of the Company and its subsidiaries, taken
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as a whole, as they mature; the assets of the Company and
its subsidiaries do not, and upon the issuance of the Debt
Securities will not, constitute unreasonably small capital
for the Company and its subsidiaries to carry out their
respective businesses as now conducted as proposed to be
conducted including the capital needs of the Company and its
subsidiaries, and projected capital requirements of the
business conducted by the Company and each of its
subsidiaries, and projected capital requirements and capital
availability thereof; and the Company does not intend to,
and does not intend to permit any of its subsidiaries to,
incur debts beyond their respective ability to pay such
debts as they mature.
(u) The Company is not an "investment company" or a
company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(v) The Company has complied with all provisions of
Section 517.075, Florida Statutes relating to doing business
with the Government of Cuba or with any person or affiliate
located in Cuba.
6. DELAYED DELIVERY CONTRACTS. If the Prospectus
provides for sales of Offered Securities pursuant to Delayed
Delivery Contracts, the Company hereby authorizes the
Underwriters to solicit offers to purchase Contract Securities on
the terms and subject to the conditions set forth in the
Prospectus pursuant to Delayed Delivery Contracts. Delayed
Delivery Contracts may be entered into only with institutional
investors approved by the Company of the types set forth in the
Prospectus. On the Closing Date, the Company will pay to the
Manager as compensation for the accounts of the Underwriters the
commission set forth in the Underwriting Agreement in respect of
the Contract Securities. The Underwriters will not have any
responsibility in respect of the validity or the performance of
any Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery
Contracts with institutional investors, the aggregate amount of
Offered Securities to be purchased by the several Underwriters
shall be reduced by the aggregate amount of Contract Securities;
such reduction shall be applied to the commitment of each
Underwriter pro rata in proportion to the amount of Offered
Securities set forth opposite such Underwriter's name in the
Underwriting Agreement, except to the extent that the Manager
determines that such reduction shall be applied in other
proportions and so advises the Company; provided, however, that
the total amount of Offered Securities to be purchased by all
Underwriters shall be the aggregate amount set forth above, less
the aggregate amount of Contract Securities.
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7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company
agrees to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning
of either Section 15 of the Securities Act or Section 20 of the
Exchange Act from and against any and all losses, claims, damages
and liabilities (including, without limitation, any legal or
other expenses reasonably incurred by any Underwriter or any such
controlling person in connection with defending or investigating
any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements
thereto), 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, except
insofar as such losses, claims, damages or liabilities are caused
by any such untrue statement or omission or alleged untrue
statement or omission based upon information relating to any
Underwriter furnished to the Company in writing by such
Underwriter through the Manager expressly for use therein.
(b) Each Underwriter agrees, severally and not
jointly, to indemnify and hold harmless the Company, its
directors, its officers who sign the Registration Statement
and each person, if any, who controls the Company within the
meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to such Underwriter,
but only with reference to information relating to such
Underwriter furnished to the Company in writing by such
Underwriter through the Manager expressly for use in the
Registration Statement, any preliminary prospectus, the
Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in
respect of which indemnity may be sought pursuant to either
paragraph (a) or (b) of this Section 7, such person (the
"indemnified party") shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying
party") in writing and the indemnifying party, upon request
of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified
party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the
indemnifying party and the indemnified party and
representation of both
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parties by the same counsel would be inappropriate due to
actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in
respect of the legal expenses of any indemnified party
in connection with any proceeding or related proceedings
in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified
parties and that all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be
designated in writing by the Manager, in the case of parties
indemnified pursuant to paragraph (a) above, and by the
Company, in the case of parties indemnified pursuant to
paragraph (b) above. The indemnifying party shall not be
liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by
the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not
have reimbursed the indemnified party in accordance with
such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and
indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all
liability on claims that are the subject matter of such
proceeding.
(d) To the extent the indemnification provided for in
paragraph (a) or (b) of this Section 7 is unavailable to an
indemnified party or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or
liabilities (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 hand from the
offering of the Offered 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 of the Underwriters on the other hand in connection with
the statements or omissions that
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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 hand in connection with
the offering of the Offered Securities shall be deemed to
be in the same respective proportions as the net proceeds
from the offering of such Offered Securities (before
deducting expenses) received by the Company and the total
underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the
cover of the Prospectus Supplement, bear to the aggregate
public offering price of the Offered Securities. The
relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by
reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact
relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent
such statement or omission. The Underwriters' respective
obligations to contribute pursuant to this Section 7 are
several in proportion to the respective principal amounts of
Offered Securities they have purchased hereunder, and not
joint.
(e) The Company and the Underwriters agree that it
would not be just or equitable if contribution pursuant to
this Section 7 were determined by pro rata allocation (even
if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in
paragraph (d) of this Section 7. The amount paid or payable
by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the
Offered Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any
damages that 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 Securities Act) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in
this Section 7 are not exclusive and shall not limit any
rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
(f) The indemnity and contribution provisions
contained in this Section 7 and
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the representations, warranties and other statements of the
Company contained in this Agreement shall remain operative
and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter
or the Company, its officers or directors or any person controlling
the Company and (iii) acceptance of and payment for any of
the Offered Securities.
8. CONDITIONS TO THE UNDERWRITERS' OBLIGATIONS. The
several obligations of the Underwriters are subject to the
satisfaction of the following conditions:
(a) All the representations and warranties of the
Company contained in this Agreement shall be true and
correct on the Closing Date with the same force and effect
as if made on and as of the Closing Date.
(b) At the Closing Date no stop order suspending the
effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been
commenced or shall be pending before or contemplated by the
Commission.
(c) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date, there shall not
have been any downgrading, nor shall any notice have been
given of any intended or potential downgrading or of any
review for a possible change that does not indicate the
direction of the possible change, in the rating accorded any
of the Company's securities by any "nationally recognized
statistical rating organization," as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act.
(d) Since the date of the latest balance sheet
included or incorporated by reference in the Registration
Statement and the Prospectus, there shall not have been any
material adverse change, or any development involving a
prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, affairs or
business prospects, whether or not arising in the ordinary
course of business, of the Company; since the date of the
latest balance sheet included or incorporated by reference
in the Registration Statement and the Prospectus there shall
not have been any change, or any development involving a
prospective material adverse change, in the capital stock or
in the long-term debt of the Company from that set forth in
the Registration Statement and Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of
this Agreement); and the Company and its subsidiaries shall
have no liability or obligation, direct or contingent, which
is material to the Company and its subsidiaries, taken as a
whole, other than those
13
reflected in the Registration Statement and the Prospectus
(exclusive of any amendments or supplements thereto subsequent
to the date of this Agreement).
(e) The Underwriters shall have received on the
Closing Date a certificate dated the Closing Date, signed by
an executive officer of the Company, confirming the matters
set forth in paragraphs (a), (b), (c) and (d) of this
Section 8. The officer signing and delivering such
certificate may rely upon the best of his or her knowledge
as to proceedings threatened.
(f) The Underwriters shall have received on the
Closing Date an opinion of Xxxxxx & Xxxxxxx, outside counsel
for the Company, dated the Closing Date, to the effect that:
(i) the Company and each of its subsidiaries
has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the
jurisdiction of its incorporation and has the corporate
power and authority required to carry on its business
as it is currently being conducted and to own, lease
and operate its properties;
(ii) the Company and each of its
subsidiaries is duly qualified and is in good standing
to do business in each jurisdiction in which the
conduct of its business or its ownership or leasing of
property requires such qualification, except to the
extent that the failure to be so qualified or be in
good standing would not have a material adverse effect
on the Company and its subsidiaries, taken as a whole;
(iii) the Offered Securities have been duly
authorized and, when executed and authenticated in
accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters in
accordance with the terms of the Underwriting
Agreement, in the case of Underwriters' Securities, or
by institutional investors in accordance with the terms
of the Delayed Delivery Contracts, in the case of the
Contract Securities, will be entitled to the benefits
of the Indenture and will be valid and binding
obligations of the Company, in each case enforceable in
accordance with their respective terms except as (a)
the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (b) rights of
acceleration, if any, and the availability of equitable
remedies may be limited by equitable principles of
general applicability;
(iv) this Agreement has been duly
authorized, executed and delivered
14
by the Company and is a valid and binding agreement of
the Company enforceable in accordance with its terms
(except as rights to indemnity and contribution hereunder
may be limited by applicable law);
(v) the Indenture has been duly qualified
under the Trust Indenture Act and has been duly
authorized, executed and delivered by the Company and
is a valid and binding agreement of the Company,
enforceable in accordance with its terms except as (A)
the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (B) rights of
acceleration and the availability of equitable remedies
may be limited by equitable principles of general
applicability;
(vi) the Delayed Delivery Contracts have been
duly authorized, executed and delivered by the Company
and are valid and binding agreements of the Company,
enforceable in accordance with their respective terms
except as (A) the enforceability thereof may be limited
by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (B) the availability of
equitable remedies may be limited by equitable
principles of general applicability;
(vii) the statements (A) in the Prospectus
under the captions "Description of Debt Securities,"
"Plan of Distribution" and "_______," (B) in the
Registration Statement under Item 15, (C) in "Item 3 -
Legal Proceedings" of the Company's most recent annual
report on Form 10-K incorporated by reference in the
Prospectus and (D) in "Item 1 - Legal Proceedings" of
Part II of the Company's quarterly reports on Form 10-
Q, if any, filed since such annual report, in each case
insofar as such statements constitute summaries of the
legal matters, documents or proceedings referred to
therein, fairly present the information called for with
respect to such legal matters, documents and
proceedings and fairly summarize the matters referred
to therein;
(viii) the execution and delivery by the
Company of, and the performance by the Company of its
obligations under, this Agreement, the Indenture and
the Offered Securities will not require any consent,
approval, authorization or other order of any court,
regulatory body, administrative agency or other
governmental body (except as such may be required under
the securities or Blue Sky laws of the various states)
and will not conflict with or constitute a breach of
any of the terms or provisions of, or constitute a
default under, the charter or by-laws of the Company or
any of its subsidiaries or any agreement, indenture or
other instrument known to such counsel, after due
15
inquiry, to which the Company or any of its
subsidiaries is a party or by which the Company or any
of its subsidiaries or their respective properties is
bound, or violate or conflict with any laws,
administrative regulations or rulings or court decrees
applicable to the Company or any of its subsidiaries or
their respective properties;
(ix) after due inquiry, such counsel does
not know of any legal or governmental proceedings
pending or threatened to which the Company or any of
its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is
subject that are required to be described in the
Registration Statement or the Prospectus and are not so
described or of any statutes, regulations, contracts or
other documents that are required to be described in
the Registration Statement or the Prospectus or to be
filed or incorporated by reference as exhibits to the
Registration Statement that are not described, filed or
incorporated as required;
(x) the Company is not an "investment
company" or an entity "controlled" by an "investment
company," as such terms are defined in the Investment
Company Act of 1940, as amended; and
(xi) such counsel (A) is of the opinion that
each Incorporated Document, if any, filed pursuant to
the Exchange Act (except for financial statements and
schedules included therein as to which such counsel
need not express any opinion) complied when so filed as
to form in all material respects with the Exchange Act
and the applicable rules and regulations of the
Commission thereunder, (B) has no reason to believe
that (except for financial statements and schedules as
to which such counsel need not express any belief and
except for that part of the Registration Statement that
constitutes the Form T-1 heretofore referred to) each
part of the Registration Statement, when such part
became effective, contained and, as of the date such
opinion is delivered, contains any untrue statement of
a material fact or omitted or omits to state a material
fact required to be stated therein or necessary to make
the statements therein not misleading, (C) is of the
opinion that the Registration Statement and Prospectus
(except for financial statements and schedules included
therein as to which such counsel need not express any
opinion) comply as to form in all material respects
with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (D) has no
reason to believe that (except for financial statements
and schedules as to which such counsel need not express
any belief) the Prospectus as of the date such opinion
is delivered contains any untrue statement of a
material fact or omits to state a
16
material fact necessary in order to make the statements
therein, in the light of the circumstances under which
they were made, not misleading.
With respect to the subparagraph (viii) of
paragraph (f) above, Xxxxxx & Xxxxxxx may state that their
opinion and belief are based upon their participation in the
preparation of the Registration Statement and Prospectus and any
amendments or supplements thereto and Incorporated Documents and
review and discussion of the contents thereof, but are without
independent check or verification, except as specified. The
opinion of Xxxxxx & Xxxxxxx described in paragraph (f) above
shall be rendered to the Underwriters at the request of the
Company and shall so state therein. Xxxxxx & Xxxxxxx may, as to
matters of Iowa law, rely on the opinion of Xxxxx Xxxx, Esq.,
General Counsel of the Company.
(g) The Underwriters shall have received on the
Closing Date an opinion of Xxxxx Xxxx, Esq., General Counsel
for the Company, dated the Closing Date, to the effect that:
(i) neither the Company nor any of its
subsidiaries is in violation of its respective charter
or by-laws and, to the best of such counsel's knowledge
after due inquiry, neither the Company nor any of its
subsidiaries is in default in the performance of any
obligation, agreement or condition contained in any
bond, debenture, note or any other evidence of
indebtedness or in any other agreement, indenture or
instrument material to the conduct of the business of
the Company and its subsidiaries, taken as a whole, to
which the Company or any of its subsidiaries is a party
or by which it or any of its subsidiaries or their
respective property is bound;
(ii) to the best of such counsel's
knowledge, after due inquiry, neither the Company nor
any of its subsidiaries has violated (A) any
Environmental Laws, (B) any federal or state law
relating to discrimination in the hiring, promotion or
pay of employees or any applicable federal or state
wages and hours laws or (C) any provisions of the
Employee Retirement Income Security Act or the rules
and regulations promulgated thereunder, which in each
case might result in any material adverse change in the
business, prospects, financial condition or results of
operation of the Company and its subsidiaries, taken as
a whole; and
(iii) the Company and each of its
subsidiaries has such permits, licenses, franchises and
authorizations of governmental or regulatory
authorities ("permits"), including, without limitation,
under any applicable
17
Environmental Laws, as are necessary to own, lease and
operate its respective properties and to conduct its
business in the manner described in the Prospectus;
to the best of such counsel's knowledge, after due
inquiry, the Company and each of its subsidiaries has
fulfilled and performed all of its material obligations
with respect to such permits and no event has occurred
which allows, or after notice or lapse of time would
allow, revocation or termination thereof or results in
any other material impairment of the rights of the
holder of any such permit, subject in each case to such
qualification as may be set forth in the Prospectus;
and, except as described in the Prospectus, such permits
contain no restrictions that are materially burdensome
to the Company or any of its subsidiaries.
(h) The Underwriters shall have received on the
Closing Date an opinion of Akin, Gump, Strauss, Xxxxx &
Xxxx, L.L.P., special regulatory counsel for the Company,
dated the Closing Date, to the effect that:
(i) the Company and its subsidiaries have
all material licenses and authorizations from the
Federal Communications Commission (the "FCC") as are
necessary to own their radio and television broadcast
properties and to conduct their broadcasting business
in the manner described in the Prospectus and in the
Company's current annual report on Form 10K, and such
licenses and authorizations contain no materially
burdensome restrictions not adequately described in the
Company's current annual report on Form 10-K and the
Prospectus;
(ii) no authorization or approval of the FCC
is required in connection with the consummation of the
transactions contemplated by this Agreement or the
Prospectus;
(iii) the statements in the Prospectus under
the captions "Company - Television" and "- Radio" and
in the Company's current annual report on Form 10-K
under the captions "Broadcasting - Competition" and "-
Federal Regulation of Broadcasting" insofar as they
are, or relate to, statutes, regulations and
governmental proceedings or matters involving federal
communications laws and policies and the impact thereof
on the business in which the Company and its
subsidiaries operate, have been prepared or reviewed by
such counsel and are correct in all material respects
as relevant to the Company and are complete
descriptions in all material respects as relevant to
the Company and fairly represent the communications
laws and policies applicable to the Company and its
subsidiaries as disclosed in the Prospectus in
18
all material respects as relevant to the Company; and
the descriptions in the Prospectus under the captions
"Company - Television" and "- Radio" and in the
Company's current annual report on Form 10-K under the
captions "Broadcasting - Competition" and "- Federal
Regulation of Broadcasting" of all radio and television
broadcast licenses and authorizations held by the
Company and its subsidiaries are accurate in all
material respects and fairly present the information
shown and required to be shown; and
(iv) to the best of such counsel's knowledge
and other than as set forth in the Prospectus, there
are no legal, governmental or other proceedings pending
involving communications laws and policies to which the
Company or any of its subsidiaries is a party or to
which the radio and television broadcast properties or
broadcast licenses of the Company or any of its
subsidiaries is subject; and, to the best of such
counsel's knowledge, no such proceedings are threatened
or contemplated by the FCC or other governmental
authorities or threatened by others.
(i) The Underwriters shall have received on the
Closing Date an opinion of Xxxxx Xxxx & Xxxxxxxx, special
counsel for the Underwriters, dated the Closing Date,
covering the matters referred to in subparagraphs (iii),
(iv), (v), (vi), (vii) (but only as to the statements in the
Prospectus under "Description of Debt Securities" and "Plan
of Distribution") and clauses (B), (C) and (D) of
subparagraph (xii) of paragraph (f) above. With respect to
clauses (B), (C) and (D) of subparagraph (xii) of paragraph
(f) above, Xxxxx Xxxx & Xxxxxxxx may state that their
opinion and belief are based upon their participation in the
preparation of the Registration Statement and Prospectus and
any amendments or supplements thereto (but not including
Incorporated Documents) and review and discussion of the
contents thereof (including Incorporated Documents), but are
without independent check or verification, except as
specified. Xxxxx Xxxx & Xxxxxxxx may, as to matters of Iowa
law, rely on the opinion of Xxxxx Xxxx, Esq., General
Counsel of the Company.
(j) The Underwriters shall have received on the
Closing Date a letter, dated the Closing Date, in form and
substance satisfactory to the Underwriters, from the
Company's independent public accountants, containing
statements and information of the type ordinarily included
in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial
information contained in or incorporated by reference into
the Prospectus.
9. TERMINATION. This Agreement may be terminated at
any time prior to the Closing Date by the Manager by written
notice to the Company if any of the following has
19
occurred: (i) since the respective dates as of which information
is given in the Registration Statement and the Prospectus, any
adverse change or development involving a prospective adverse
change in the condition, financial or otherwise, of the Company
or any of its subsidiaries or the earnings, affairs, or business
prospects of the Company or any of its subsidiaries, whether or
not arising in the ordinary course of business, which would, in
the judgment of the Manager, make it impracticable to market the
Offered Securities on the terms and in the manner contemplated in
the Prospectus, (ii) any outbreak or escalation of hostilities or
other national or international calamity or crisis or change in
economic conditions or in the financial markets of the United
States or elsewhere that, in your judgment, is material and
adverse and would, in judgment of the Manager, make it
impracticable to market the Offered Securities on the terms and
in the manner contemplated in the Prospectus, (iii) the
suspension or material limitation of trading in securities on the
New York Stock Exchange, the American Stock Exchange or the
NASDAQ National Market System or limitation on prices for
securities on any such exchange or National Market System, (iv)
the enactment, publication, decree or other promulgation of any
federal or state statute, regulation, rule or order of any court
or other governmental authority which in the opinion of the
Manager materially and adversely affects, or will materially and
adversely affect, the business or operations of the Company or
any of its subsidiaries, (v) the declaration of a banking
moratorium by either federal or New York State authorities or
(vi) the taking of any action by any federal, state or local
government or agency in respect of its monetary or fiscal affairs
which in the opinion of the Manager has a material adverse effect
on the financial markets in the United States.
10. DEFAULTING UNDERWRITERS. If, on the Closing Date,
any one or more of the Underwriters shall fail or refuse to
purchase Underwriters' Securities that it has or they have agreed
to purchase hereunder on such date, and the aggregate amount of
Underwriters' Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the aggregate amount of the Underwriters'
Securities to be purchased on such date, the other Underwriters
shall be obligated severally in the proportions that the amount
of Underwriters' Securities set forth opposite their respective
names in the Underwriting Agreement bears to the aggregate amount
of Underwriters' Securities set forth opposite the names of all
such non-defaulting Underwriters, or in such other proportions as
the Manager may specify, to purchase the Underwriters' Securities
which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase on such date; provided that in no
event shall the amount of Underwriters' Securities that any
Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 10 by an amount in excess of
one-ninth of such amount of Underwriters' Securities without the
written consent of such Underwriter. If, on the Closing Date,
any Underwriter or Underwriters shall fail or refuse to purchase
Underwriters' Securities and the aggregate amount of
Underwriters' Securities with respect to which such default
occurs is more than
20
one-tenth of the aggregate amount of Underwriters' Securities to
be purchased on such date, and arrangements satisfactory to the
Manager and the Company for the purchase of such Underwriters'
Securities are not made within 36 hours after such default, this
Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either
the Manager or the Company shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement
and in the Prospectus or in any other documents or arrangements may
be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of
any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the
Underwriters, or any of them, because of any failure or refusal
on the part of the Company to comply with the terms or to fulfill
any of the conditions of this Agreement, or if for any reason the
Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to
themselves, severally, for all out-of-pocket expenses (including
the fees and disbursements of their counsel) reasonably incurred
by such Underwriters in connection with this Agreement or the
offering contemplated hereunder.
11. COUNTERPARTS. This Agreement may be signed in two
or more counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon
the same instrument.
12. APPLICABLE LAW. This Agreement shall be governed
by and construed in accordance with the internal laws of the
State of New York.
13. HEADINGS. The headings of the sections of this
Agreement have been inserted for convenience of reference only
and shall not be deemed a part of this Agreement.
21
Exhibit A
UNDERWRITING AGREEMENT
(PRICING TERMS)
___________, 199_
HERITAGE MEDIA CORPORATION
ONE GALLERIA TOWER
00000 XXXX XXXX, XXXXX 0000
XXXXXX, XXXXX 00000
Dear Sirs and Mesdames:
We (the "Manager") are acting on behalf of the
underwriter or underwriters (including ourselves) named below
(such underwriter or underwriters being herein called the
"Underwriters"), and we understand that Heritage Media
Corporation, an Iowa corporation (the "Company"), proposes to
issue and sell [Currency and Principal Amount] aggregate initial
offering price of the Subordinated Debt Securities (the "Debt
Securities"). The Debt Securities will be issued pursuant to the
provisions of an Indenture dated as of October , 1995 (the
"Indenture") between the Company and , as Trustee (the
"Trustee").
Subject to the terms and conditions set forth or
incorporated by reference herein, the Company hereby agrees to
sell to the several Underwriters, and each Underwriter agrees,
severally and not jointly, to purchase from the Company the
respective principal amounts of Debt Securities set forth below
opposite their names at a purchase price of ____% of the
principal amount of Debt Securities [, plus accrued interest, if
any, from [Date of Underwriters' Securities] to the date of
payment and delivery]:
Principal Amount of
Name Debt Securities
---- ---------------
Total . . . . . .
The Underwriters will pay for the Debt Securities upon
delivery thereof at [office] at ______ a.m. (New York time) on
___________, 199_, or at such other time, not later than 5:00
p.m. (New York time) on __________, 199_, as shall be designated
by the Manager. The time and date of such payment and delivery
are hereinafter referred to as the Closing Date.
The Debt Securities shall have the terms set forth in
the Prospectus dated ___________, 199_, and the Prospectus
Supplement dated ____________, 199_, including the following:
Terms of Debt Securities
Maturity Date:
Interest Rate:
Redemption Provisions:
Interest Payment Dates: ____________ __ and
____________ __ commencing
____________ __, ____
[(Interest accrues from
____________ __, ____)]
Form and Denomination:
[Other Terms:]
2
All provisions contained in the document entitled Heritage
Media Corporation Underwriting Agreement Standard Provisions
(Subordinated Debt Securities) dated October , 1995, a copy of
which is attached hereto, are herein incorporated by reference in
their entirety and shall be deemed to be a part of this Agreement
to the same extent as if such provisions had been set forth in
full herein, except that (i) if any term defined in such document
is otherwise defined herein, the definition set forth herein
shall control, (ii) all references in such document to a type of
security that is not an Offered Security shall not be deemed to
be a part of this Agreement, (iii) all references in such
document to a type of agreement that has not been entered into in
connection with the transactions contemplated hereby shall not be
deemed to be a part of this Agreement.
Please confirm your agreement by having an authorized
officer sign a copy of this Agreement in the space set forth
below.
Very truly yours,
[Manager(s)]
Acting severally on behalf of themselves
and the several Underwriters named herein
By:
By: _______________________________
Name:
Title:
Accepted:
Heritage Media Corporation
By: _________________________
Name:
Title:
3
Schedule I
DELAYED DELIVERY CONTRACT
________, 199_
Dear Sirs and Mesdames:
The undersigned hereby agrees to purchase from Heritage
Media Corporation, an Iowa corporation (the "Company"), and the
Company agrees to sell to the undersigned the Company's
securities described in Schedule A annexed hereto (the
"Securities"), offered by the Company's Prospectus dated
__________________, 19__ and Prospectus Supplement dated
__________________, 19__, receipt of copies of which are hereby
acknowledged, at a purchase price stated in Schedule A and on the
further terms and conditions set forth in this Agreement. The
undersigned does not contemplate selling Securities prior to
making payment therefor.
The undersigned will purchase from the Company
Securities in the principal amount and numbers on the delivery
dates set forth in Schedule A. Each such date on which
Securities are to be purchased hereunder is hereinafter referred
to as a "Delivery Date."
Payment for the Securities which the undersigned has
agreed to purchase on each Delivery Date shall be made to the
Company or its order by certified or official bank check in New
York Clearing House funds at the office of ___________________,
New York, N.Y., at 10:00 A.M. (New York time) on the Delivery Date,
upon delivery to the undersigned of the Securities to be
purchased by the undersigned on the Delivery Date, in such
denominations and registered in such names as the undersigned
may designate by written or telegraphic communication addressed
to the Company not less than five full business days prior to
the Delivery Date.
The obligation of the undersigned to take delivery of
and make payment for the Securities on the Delivery Date shall be
subject to the conditions that (1) the purchase of Securities to
be made by the undersigned shall not at the time of delivery be
prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company shall have sold, and
delivery shall have taken place to the underwriters (the
"Underwriters") named in the Prospectus Supplement referred to
above of, such part of the Securities as is to be sold to them.
Promptly after completion of sale and delivery to the
Underwriters, the Company will mail or deliver to the undersigned
at its address set forth below notice to such effect, accompanied
by a copy of the opinion of counsel for the Company delivered to
the Underwriters in connection therewith.
Failure to take delivery of and make payment for
Securities by any purchaser under any other Delayed Delivery
Contract shall not relieve the undersigned of its obligations
under this agreement.
This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors,
but will not be assignable by either party hereto without the
written consent of the other.
If this Agreement is acceptable to the Company, it is
requested that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned
at its address set forth below. This will become a binding
agreement, as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or
delivered.
2
This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
Yours very truly,
___________________________
(Purchaser
By ________________________
___________________________
(Title)
___________________________
___________________________
(Address)
Accepted:
HERITAGE MEDIA CORPORATION
By ________________________
3
PURCHASER --- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the
representative of the Purchaser with whom details of delivery on
the Delivery Date may be discussed is as follows: (Please
print.)
Telephone No.
Name (Including Area Code) Department
________________ _______________ _________________
4
SCHEDULE A
Securities:
Principal Amounts:
Purchase Price:
Delivery:
