Exhibit 1.1
STB DRAFT
5/07/98
________ Shares
CUMULUS MEDIA INC.
Class A Common Stock
U.S. UNDERWRITING AGREEMENT
___, 1998
XXXXXX BROTHERS INC.
BEAR, XXXXXXX & CO. INC.
BT ALEX. XXXXX INCORPORATED,
As Representatives of the several
U.S. Underwriters named in Schedule 1,
pc/x Xxxxxx Brothers Inc.
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Cumulus Media Inc., an Illinois corporation (the "Company"), and the
State of Wisconsin Investment Board (the "Selling Stockholder"), propose to sell
an aggregate of _______ shares (the "Firm Stock") of the Company's Class A
Common Stock, par value $.01 per share (the "Class A Common Stock"). Of the
______ shares of the Firm Stock, ________ are being sold by the Company and
_______ by the Selling Stockholder. In addition, the Company proposes to grant
to the Underwriters named in Schedule 1 hereto (the "U.S. Underwriters") an
option to purchase up to an additional _______ shares of the Class A Common
Stock on the terms and for the purposes set forth in Section 3 (the "Option
Stock"). The Firm Stock and the Option Stock, if purchased, are hereinafter
collectively called the "Stock." This is to confirm the agreement concerning the
purchase of the Stock from the Company by the U.S. Underwriters and the Selling
Stockholder.
It is understood by all parties that the Company and the Selling
Stockholder are concurrently entering into an agreement dated the date hereof
(the "International Underwriting Agreement"), providing for the sale by the
Company and the Selling Stockholder of an aggregate of ____________ shares of
Class A Common Stock (including the over-allotment option thereunder) (the
"International Stock") through arrangements with certain underwriters outside
the United States (the "International Managers"), for whom Xxxxxx Brothers
International (Europe), Bear Xxxxxxx International Limited, BT Alex. Xxxxx
International, division of Bankers Trust International PLC and Credit Lyonnais
Securities are acting as lead managers. The U.S. Underwriters and the
International Managers simultaneously are entering into an agreement between the
U.S. and international underwriting syndicates (the "Agreement Between U.S.
Underwriters and International Managers") which provides for, among other
things, the transfer
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of shares of Class A Common Stock between the two syndicates. Two forms of
prospectus are to be used in connection with the offering and sale of shares of
Class A Common Stock contemplated by the foregoing, one relating to the Stock
and the other relating to the International Stock. The latter form of prospectus
will be identical to the former except for certain substitute pages as included
in the registration statement and amendments thereto referred to below. Except
as used in Sections 3, 4, 5, 11 and 12 herein, and except as the context may
otherwise require, references herein to the Stock shall include all the shares
of the Class A Common Stock which may be sold pursuant to either this Agreement
or the International Underwriting Agreement, and references herein to any
prospectus whether in preliminary or final form, and whether as amended or
supplemented, shall include both the U.S. and the international versions
thereof.
It is additionally understood by all parties that the Company is
concurrently entering into an agreement (the "Debt Underwriting Agreement"),
dated the date hereof, providing for the sale by the Company of $100,000,000
principal amount of its % Senior Subordinated Notes due 2008 to Bear, Xxxxxxx &
Co. Inc. and Xxxxxx Brothers Inc., as underwriters, as well as an agreement (the
"Preferred Stock Underwriting Agreement"), dated the date hereof, providing for
the sale by the Company of $100,000,000 aggregate liquidation preference of its
__% Series A Cumulative Exchangeable Redeemable Preferred Stock due 2009 to
Bear, Xxxxxxx & Co. Inc. and Xxxxxx Brothers Inc., as underwriters.
1. Representations, Warranties and Agreements of the Company. The
Company represents, warrants and agrees that:
(a) A registration statement on Form S-1, and amendments
thereto, with respect to the Stock have (i) been prepared by the
Company in conformity with the requirements of the United States
Securities Act of 1933, as amended, (the "Securities Act") and the
rules and regulations (the "Rules and Regulations") of the United
States Securities and Exchange Commission (the "Commission")
thereunder, (ii) been filed with the Commission under the Securities
Act and (iii) become effective under the Securities Act; a second
registration statement on Form S-1 with respect to the Stock (i) may
also be prepared by the Company in conformity with the requirements
of the Securities Act and the Rules and Regulations and (ii) if to
be so prepared, will be filed with the Commission under the
Securities Act pursuant to Rule 462(b) of the Rules and Regulations
on the date hereof. Copies of the first such registration statement
and the amendments to such registration statement, together with the
form of any such second registration statement, have been delivered
by the Company to you as the representatives (the "Representatives")
of the U.S. Underwriters. As used in this Agreement, "Effective
Time" means (i) with respect to the first such registration
statement, the date and the time as of which such registration
statement, or the most recent post-effective amendment thereto, if
any, was declared effective by the Commission and (ii) with respect
to any second registration statement, the date and time as of which
such second registration statement is filed with the Commission, and
"Effective Times" is the collective reference to both Effective
Times; "Effective Date" means (i) with respect to the first such
registration statement, the date of the Effective Time of such
registration statement and (ii)
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with respect to any second registration statement, the date of the
Effective Time of such second registration statement, and "Effective
Dates" is the collective reference to both Effective Dates;
"Preliminary Prospectus" means each prospectus included in any such
registration statement, or amendments thereof, before it became
effective under the Securities Act and any prospectus filed with the
Commission by the Company with the consent of the Representatives
pursuant to Rule 424(a) of the Rules and Regulations; "Primary
Registration Statement" means the first registration statement
referred to in this Section 1(a), as amended at its Effective Time,
"Rule 462(b) Registration Statement" means the second registration
statement, if any, referred to in this Section 1(a), as filed with
the Commission, and "Registration Statements" means both the Primary
Registration Statement and any Rule 462(b) Registration Statement,
including in each case all information contained in the final
prospectus filed with the Commission pursuant to Rule 424(b) of the
Rules and Regulations in accordance with Section 6.(a) hereof and
deemed to be a part of the Registration Statements as of the
Effective Time of the Primary Registration Statement pursuant to
paragraph (b) of Rule 430A of the Rules and Regulations; and
"Prospectus" means such final prospectus, as first filed with the
Commission pursuant to paragraph (1) or (4) of Rule 424(b) of the
Rules and Regulations. The Commission has not issued any order
preventing or suspending the use of any Preliminary Prospectus.
(b) The Primary Registration Statement conforms (and the Rule
462(b) Registration Statement, if any, the Prospectus and any
further amendments or supplements to the Registration Statements or
the Prospectus, when they become effective or are filed with the
Commission, as the case may be, will conform) in all respects to the
requirements of the Securities Act and the Rules and Regulations and
do not and will not, as of the applicable effective date (as to the
Registration Statements and any amendment thereto) and as of the
applicable filing date (as to the Prospectus and any amendment or
supplement thereto) contain 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; provided
that no representation or warranty is made as to information
contained in or omitted from the Registration Statements or the
Prospectus in reliance upon and in conformity with written
information furnished to the Company through the Representatives by
or on behalf of any U.S. Underwriter specifically for inclusion
therein.
(c) The Company and each of its subsidiaries (as defined in
Section 17) have been duly incorporated and are validly existing as
corporations in good standing under the laws of their respective
jurisdictions of incorporation, are duly qualified to do business
and are in good standing as foreign corporations in each
jurisdiction in which their respective ownership or lease of
property or the conduct of their respective businesses requires such
qualification, and have all power and authority necessary to own or
hold their respective properties and to conduct the businesses in
which they are engaged; and none of the subsidiaries of the
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Company is a "significant subsidiary", as such term is defined in
Rule 405 of the Rules and Regulations.
(d) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of
the Company have been duly and validly authorized and issued, are
fully paid and non-assessable and conform to the description thereof
contained in the Prospectus; and all of the issued shares of capital
stock of each subsidiary of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable and
(except for directors' qualifying shares) are owned directly or
indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims.
(e) The unissued shares of the Stock to be issued and sold by
the Company to the U.S. Underwriters hereunder and under the
International Underwriting Agreement have been duly and validly
authorized and, when issued and delivered against payment therefor
as provided herein and in the International Underwriting Agreement,
will be duly and validly issued, fully paid and non-assessable; and
the Stock will conform to the description thereof contained in the
Prospectus.
(f) The execution, delivery and performance of this Agreement
and the International Underwriting Agreement will not conflict with
or result in a breach or violation of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the
properties or assets of the Company or any of its subsidiaries is
subject, nor will such actions result in any violation of the
provisions of the charter or by-laws of the Company or any of its
subsidiaries or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties or
assets; and except for the registration of the Stock under the
Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the United
States Securities Exchange Act of 1934, as amended, (the "Exchange
Act") and applicable state or foreign securities laws in connection
with the purchase and distribution of the Stock by the U.S.
Underwriters and the International Managers, no consent, approval,
authorization or order of, or filing or registration with, any such
court or governmental agency or body is required for the execution,
delivery and performance of this Agreement, or the International
Underwriting Agreement, by the Company and the consummation of the
transactions contemplated hereby and thereby.
(g) 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
Securities Act with respect to any securities of the Company owned
or to be owned by such person or to require the
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Company to include such securities in the securities registered
pursuant to the Registration Statements or in any securities being
registered pursuant to any other registration statement filed by the
Company under the Securities Act.
(h) Except as described in the Prospectus, the Company has not
sold or issued any shares of Class A Common Stock during the
six-month period preceding the date of the Prospectus, including any
sales pursuant to Rule 144A under, or Regulations D or S of, the
Securities Act, other than shares issued pursuant to employee
benefit plans, qualified stock options plans or other employee
compensation plans or pursuant to outstanding options, rights or
warrants.
(i) Neither the Company nor any of its subsidiaries has
sustained, since the date of the latest audited financial statements
included in the Prospectus, any material loss or interference with
its business from fire, explosion, flood or other calamity, whether
or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since such date, there has not
been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any material adverse change,
or any development involving a prospective material adverse change,
in or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectus.
(j) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statements
or included in the Prospectus present fairly the financial condition
and results of operations of the entities purported to be shown
thereby, at the dates and for the periods indicated, and have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved.
(k) Each of Price Waterhouse, LLP, Xxxxxxx & Xxxxxx, LLP,
McGladrey & Xxxxxx, LLP, Coopers & Xxxxxxx, LLP, and Plant & Xxxxx,
LLP, who have certified certain financial statements of the Company,
whose report appears in the Prospectus and who have delivered the
initial letter referred to in Section 9.(f) hereof, are independent
public accountants as required by the Securities Act and the Rules
and Regulations.
(l) The Company and each of its subsidiaries have good and
marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them, in each
case free and clear of all liens, encumbrances and defects except
such as are described in the Prospectus or such as do not materially
affect the value of such property and do not materially interfere
with the use made and proposed to be made of such property by the
Company and its subsidiaries; and all real property and buildings
held under lease by the Company
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and its subsidiaries are held by them under valid, subsisting and
enforceable leases, with such exceptions as are not material and do
not interfere with the use made and proposed to be made of such
property and buildings by the Company and its subsidiaries.
(m) The Company and each of its subsidiaries carry, or are
covered by, insurance in such amounts and covering such risks as is
adequate for the conduct of their respective businesses and the
value of their respective properties and as is customary for
companies engaged in similar businesses in similar industries.
(n) The Company and each of its subsidiaries own or possess
adequate rights to use all material patents, patent applications,
trademarks, service marks, trade names, trademark registrations,
service xxxx registrations, copyrights and licenses necessary for
the conduct of their respective businesses and have no reason to
believe that the conduct of their respective businesses will
conflict with, and have not received any notice of any claim of
conflict with, any such rights of others.
(o) There are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which
any property or asset of the Company or any of its subsidiaries is
the subject which, if determined adversely to the Company or any of
its subsidiaries, might have a material adverse effect on the
consolidated financial position, stockholders' equity, results of
operations, business or prospects of the Company and its
subsidiaries; and to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(p) There are no contracts or other documents which are
required to be described in the Prospectus or filed as exhibits to
either of the Registration Statements by the Securities Act or by
the Rules and Regulations which have not been described in the
Prospectus or filed as exhibits to either of the Registration
Statements.
(q) No relationship, direct or indirect, exists between or
among the Company on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company on the other
hand, which is required to be described in the Prospectus which is
not so described.
(r) No labor disturbance by the employees of the Company
exists or, to the knowledge of the Company is imminent which might
be expected to have a material adverse effect on the consolidated
financial position, stockholders' equity, results of operations,
business or prospects of the Company and its subsidiaries.
(s) The Company is in compliance in all material respects with
all presently applicable provisions of the Employee Retirement
Income Security Act of 1974, as amended, including the regulations
and published interpretations
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thereunder ("ERISA"); no "reportable event" (as defined in ERISA)
has occurred with respect to any "pension plan" (as defined in
ERISA) for which the Company would have any liability; the Company
has not incurred and does not expect to incur liability under (i)
Title IV of ERISA with respect to termination of, or withdrawal
from, any "pension plan" or (ii) Sections 412 or 4971 of the
Internal Revenue Code of 1986, as amended, including the regulations
and published interpretations thereunder (the "Code"); and each
"pension plan" for which the Company would have any liability that
is intended to be qualified under Section 401(a) of the Code is so
qualified in all material respects and nothing has occurred, whether
by action or by failure to act, which would cause the loss of such
qualification.
(t) The Company has filed all federal, state and local income
and franchise tax returns required to be filed through the date
hereof and has paid all taxes due thereon, and no tax deficiency has
been determined adversely to the Company or any of its subsidiaries
which has had (nor does the Company have any knowledge of any tax
deficiency which, if determined adversely to the Company or any of
its subsidiaries, might have) a material adverse effect on the
consolidated financial position, stockholders' equity, results of
operations, business or prospects of the Company and its
subsidiaries.
(u) Since the date as of which information is given in the
Prospectus through the date hereof, and except as may otherwise be
disclosed in the Prospectus, the Company has not (i) issued or
granted any securities, (ii) incurred any liability or obligation,
direct or contingent, other than liabilities and obligations which
were incurred in the ordinary course of business, (iii) entered into
any transaction not in the ordinary course of business or (iv)
declared or paid any dividend on its capital stock.
(v) The Company (i) makes and keeps accurate books and records
and (ii) maintains internal accounting controls which 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 accountability 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 statistical and market-related data included in the
Prospectus are based or derived from sources which the Company and
its subsidiaries believe to be reliable and accurate.
(x) Neither the Company nor any of its subsidiaries (i) is in
violation of its charter or by-laws, (ii) is in default in any
material respect, and no event has occurred which, with notice or
lapse of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition
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contained in any material indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party or
by which it is bound or to which any of its properties or assets is
subject or (iii) is in violation in any material respect of any law,
ordinance, governmental rule, regulation or court decree to which it
or its properties or assets may be subject or has failed to obtain
any material license, permit, certificate, franchise or other
governmental authorization or permit necessary to the ownership of
its properties or assets or to the conduct of its business.
(y) Each of the radio stations owned, operated, programmed, or
to which sales and marketing services are provided, by the Company
and its subsidiaries is validly licensed by the Federal
Communications Commission (the "FCC") and no administrative or
judicial proceedings are pending before or, to the knowledge of the
Company or its subsidiaries, threatened by the FCC with respect to
such licenses; the Company and its subsidiaries possess adequate
certificates, authorizations, consents, orders, approvals, licenses
or permits which are in full force and effect issued by other
appropriate governmental agencies or bodies necessary to the
ownership of their respective properties and the conduct of the
businesses now operated by them and have not received any notice of
proceedings relating to the revocation or modification of any such
certificate, authority, consent, order, approval, license or permit
and the Company and its subsidiaries are in compliance in all
material respects with the Communications Act of 1934, as amended,
and the rules, regulations and policies of the FCC.
(z) Neither the Company nor any of its subsidiaries, nor any
director, officer, agent, employee or other person associated with
or acting on behalf of the Company or any of its subsidiaries, has
used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political
activity; made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate
funds; violated or is in violation of any provision of the Foreign
Corrupt Practices Act of 1977; or made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment.
(aa) There has been no storage, disposal, generation,
manufacture, refinement, transportation, handling or treatment of
toxic wastes, medical wastes, hazardous wastes or hazardous
substances by the Company or any of its subsidiaries (or, to the
knowledge of the Company, any of their predecessors in interest) at,
upon or from any of the properties now or previously owned or leased
by the Company or its subsidiaries in violation of any applicable
law, ordinance, rule, regulation, order, judgment, decree or permit
or which would require remedial action under any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit,
except for any violation or remedial action which would not have, or
could not be reasonably likely to have, singularly or in the
aggregate with all such violations and remedial actions, a material
adverse effect on the general affairs, management, financial
position, stockholders' equity or results of operations of the
Company and its subsidiaries; there has been no
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material spill, discharge, leak, emission, injection, escape,
dumping or release of any kind onto such property or into the
environment surrounding such property of any toxic wastes, medical
wastes, solid wastes, hazardous wastes or hazardous substances due
to or caused by the Company or any of its subsidiaries or with
respect to which the Company or any of its subsidiaries have
knowledge, except for any such spill, discharge, leak, emission,
injection, escape, dumping or release which would not have or would
not be reasonably likely to have, singularly or in the aggregate
with all such spills, discharges, leaks, emissions, injections,
escapes, dumpings and releases, a material adverse effect on the
general affairs, management, financial position, stockholders'
equity or results of operations of the Company and its subsidiaries;
and the terms "hazardous wastes", "toxic wastes", "hazardous
substances" and "medical wastes" shall have the meanings specified
in any applicable local, state, federal and foreign laws or
regulations with respect to environmental protection.
(bb) Neither the Company nor any subsidiary is an "investment
company" within the meaning of such term under the United States
Investment Company Act of 1940, as amended, and the rules and
regulations of the Commission thereunder.
(cc) The Company has no reason to believe that, after giving
effect to the Pending Acquisitions (as defined in the Registration
Statement), any of the representations, warranties and agreements
contained in this Section 1 would not be true and correct.
2. Representations, Warranties and Agreements of the Selling
Stockholder. The Selling Stockholder represents, warrants and agrees that:
(a) The Selling Stockholder has, and immediately prior to the
First Delivery Date (as defined in Section 5 hereof) the Selling
Stockholder will have good and valid title to the shares of Stock to
be sold by the Selling Stockholder hereunder and under the
International Underwriting Agreement on such date, free and clear of
all liens, encumbrances, equities or claims; and upon delivery of
such shares and payment therefor pursuant hereto and thereto, good
and valid title to such shares, free and clear of all liens,
encumbrances, equities or claims, will pass to the several
Underwriters and the International Managers.
[(b) The Selling Stockholder has placed in custody under a
custody agreement (the "Custody Agreement" and, together with all
other similar agreements executed by the other Selling Stockholders,
the "Custody Agreements") with [insert name of custodian], as
custodian (the "Custodian"), for delivery under this Agreement,
certificates in negotiable form (with signature guaranteed by a
commercial bank or trust company having an office or correspondent
in the United States or a member firm of the New York or American
Stock Exchanges) representing the shares of Stock to be sold by the
Selling Stockholder hereunder.
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(c) The Selling Stockholder has duly and irrevocably executed
and delivered a power of attorney (the "Power of Attorney"
appointing the Custodian and one or more other persons, as
attorneys-in-fact, with full power of substitution, and with full
authority (exercisable by any one or more of them) to execute and
deliver this Agreement and to take such other action as may be
necessary or desirable to carry out the provisions hereof on behalf
of the Selling Stockholder.]
(d) The Selling Stockholder has full right, power and
authority to enter into this Agreement and the International
Underwriting Agreement, [the Power of Attorney and the Custody
Agreement]; the execution, delivery and performance of this
Agreement and the International Underwriting Agreement[, the Power
of Attorney and the Custody Agreement] by the Selling Stockholder
and the consummation by the Selling Stockholder of the transactions
contemplated hereby and thereby will not conflict with or result in
a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Selling
Stockholder is a party or by which the Selling Stockholder is bound
or to which any of the property or assets of the Selling Stockholder
is subject, nor will such actions result in any violation of any
statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Selling
Stockholder or the property or assets of the Selling Stockholder;
and, except for the registration of the Stock under the Securities
Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and
applicable state or foreign securities laws in connection with the
purchase and distribution of the Stock by the Underwriters and the
International Managers, no consent, approval, authorization or order
of, or filing or registration with, any such court or governmental
agency or body is required for the execution, delivery and
performance of this Agreement or the International Underwriting
Agreement[, the Power of Attorney or the Custody Agreement] by the
Selling Stockholder and the consummation by the Selling Stockholder
of the transactions contemplated hereby and thereby.
(e) The Registration Statement and the Prospectus and any
further amendments or supplements thereto will, when they become
effective or are filed with the Commission, as the case may be, not
contain 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; provided that no representation
or warranty is made as to information contained in or omitted from
the Registration Statement or the Prospectus in reliance upon and in
conformity with written information furnished to the Company through
the Representatives by or on behalf of any Underwriter specifically
for inclusion therein.
(f) The Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result
in the stabilization or
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manipulation of the price of any security of the Company to
facilitate the sale or resale of the shares of the Stock.
3. Purchase of the Stock by the U.S. Underwriters.
On the basis of the representations and warranties contained in, and
subject to the terms and conditions of, this Agreement, the Company agrees to
sell _______ shares of the Firm Stock and the Selling Stockholder hereby agrees
to sell _____ shares of the Firm Stock to the several U.S. Underwriters and each
of the U.S. Underwriters, severally and not jointly, agrees to purchase the
number of shares of the Firm Stock set opposite that U.S. Underwriter's name in
Schedule 1 hereto. The respective purchase obligations of the U.S. Underwriters
with respect to the Firm Stock shall be rounded among the U.S. Underwriters to
avoid fractional shares, as the Representatives may determine.
In addition, the Company grants to the U.S. Underwriters an option
to purchase up to _______ shares of Option Stock. Such option is granted solely
for the purpose of covering over-allotments in the sale of Firm Stock and is
exercisable as provided in Section 5 hereof. Shares of Option Stock shall be
purchased severally for the account of the U.S. Underwriters in proportion to
the number of shares of Firm Stock set opposite the name of such U.S.
Underwriters in Schedule 1 hereto. The respective purchase obligations of each
U.S. Underwriter with respect to the Option Stock shall be adjusted by the
Representatives so that no U.S. Underwriter shall be obligated to purchase
Option Stock other than in 100 share amounts.
The price of both the Firm Stock and any Option Stock shall be
$_____ per share.
The Company shall not be obligated to deliver any of the Stock to be
delivered on the First Delivery Date or the Second Delivery Date (as hereinafter
defined), as the case may be, except upon payment for all the Stock to be
purchased on such Delivery Date as provided herein.
4. Offering of Stock by the U.S. Underwriters.
Upon authorization by the Representatives of the release of the Firm
Stock, the several U.S. Underwriters propose to offer the Firm Stock for sale
upon the terms and conditions set forth in the Prospectus; provided, however,
that no Stock registered pursuant to the Rule 462(b) Registration Statement, if
any, shall be offered prior to the Effective Time thereof.
5. Delivery of and Payment for the Stock. Delivery of and payment
for the Firm Stock shall be made at the office of Xxxxxx Brothers Inc. at Three
World Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 A.M., New York City
time, on the [third][fourth] full business day following the date of this
Agreement or at such other date or place as shall be determined by agreement
between the Representatives and the Company. This date and time are sometimes
referred to as the "First Delivery Date." On the First Delivery Date, the
Company shall deliver or cause to be delivered certificates representing the
Firm Stock to the Representatives for the account of each U.S. Underwriter
against payment to or upon the order of the Company of the purchase price by
certified or official bank check or checks payable in New York Clearing House
12
(next-day) funds. Time shall be of the essence, and delivery at the time and
place specified pursuant to this Agreement is a further condition of the
obligation of each U.S. Underwriter hereunder. Upon delivery, the Firm Stock
shall be registered in such names and in such denominations as the
Representatives shall request in writing not less than two full business days
prior to the First Delivery Date. For the purpose of expediting the checking and
packaging of the certificates for the Firm Stock, the Company shall make the
certificates representing the Firm Stock available for inspection by the
Representatives in New York, New York, not later than 2:00 P.M., New York City
time, on the business day prior to the First Delivery Date.
At any time on or before the thirtieth day after the date of this
Agreement the option granted in Section 3 may be exercised by written notice
being given to the Company by the Representatives. Such notice shall set forth
the aggregate number of shares of Option Stock as to which the option is being
exercised, the names in which the shares of Option Stock are to be registered,
the denominations in which the shares of Option Stock are to be issued and the
date and time, as determined by the Representatives, when the shares of Option
Stock are to be delivered; provided, however, that this date and time shall not
be earlier than the First Delivery Date nor earlier than the second business day
after the date on which the option shall have been exercised nor later than the
fifth business day after the date on which the option shall have been exercised.
The date and time the shares of Option Stock are delivered are sometimes
referred to as the "Second Delivery Date" and the First Delivery Date and the
Second Delivery Date are sometimes each referred to as a "Delivery Date".
Delivery of and payment for the Option Stock shall be made at the
place specified in the first sentence of the first paragraph of this Section 5
(or at such other place as shall be determined by agreement between the
Representatives and the Company) at 10:00 A.M., New York City time, on the
Second Delivery Date. On the Second Delivery Date, the Company shall deliver or
cause to be delivered the certificates representing the Option Stock to the
Representatives for the account of each U.S. Underwriter against payment to or
upon the order of the Company and the Selling Stockholder of the purchase price
by certified or official bank check or checks payable in New York Clearing House
(next-day) funds. Time shall be of the essence, and delivery at the time and
place specified pursuant to this Agreement is a further condition of the
obligation of each U.S. Underwriter hereunder. Upon delivery, the Option Stock
shall be registered in such names and in such denominations as the
Representatives shall request in the aforesaid written notice. For the purpose
of expediting the checking and packaging of the certificates for the Option
Stock, the Company and the Selling Stockholder shall make the certificates
representing the Option Stock available for inspection by the Representatives in
New York, New York, not later than 2:00 P.M., New York City time, on the
business day prior to the Second Delivery Date.
6. Further Agreements of the Company. The Company agrees:
(a) To prepare the Rule 462(b) Registration Statement, if
necessary, in a form approved by the Representatives and to file
such Rule 462(b) Registration Statement with the Commission on the
date hereof; to prepare the Prospectus in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b)
under the Securities Act not later than 10:00 A.M., New York City
13
time, on the day following the execution and delivery of this
Agreement; to make no further amendment or any supplement to the
Registration Statements or to the Prospectus prior to the Second
Delivery Date except as permitted herein; to advise the
Representatives, promptly after it receives notice thereof, of the
time when any amendment to either Registration Statement has been
filed or becomes effective or any supplement to the Prospectus or
any amended Prospectus has been filed and to furnish the
Representatives with copies thereof; to advise the Representatives,
promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus,
of the suspension of the qualification of the Stock for offering or
sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission
for the amending or supplementing of the Registration Statements or
the Prospectus or for additional information; and, in the event of
the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus
or suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to
counsel for the U.S. Underwriters a signed copy of each of the
Registration Statements as originally filed with the Commission, and
each amendment thereto filed with the Commission, including all
consents and exhibits filed therewith;
(c) To deliver promptly to the Representatives in New York
City such number of the following documents as the Representatives
shall request: (i) conformed copies of the Registration Statements
as originally filed with the Commission and each amendment thereto
(in each case excluding exhibits other than this Agreement and the
computation of per share earnings) and (ii) each Preliminary
Prospectus, the Prospectus (not later than 10:00 A.M., New York City
time, of the day following the execution and delivery of this
Agreement) and any amended or supplemented Prospectus (not later
than 10:00 A.M., New York City time, on the day following the date
of such amendment or supplement); and, if the delivery of a
prospectus is required at any time after the Effective Time of the
Primary Registration Statement in connection with the offering or
sale of the Stock (or any other securities relating thereto) and if
at such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary to amend or supplement the Prospectus in order to comply
with the Securities Act, to notify the Representatives and, upon
their request, to prepare and furnish without charge to each U.S.
Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time request of an amended or
supplemented Prospectus which will correct such statement or
omission or effect such compliance;
14
(d) To file promptly with the Commission any amendment to the
Registration Statements or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the
Representatives, be required by the Securities Act or requested by
the Commission;
(e) Prior to filing with the Commission (i) any Preliminary
Prospectus, (ii) any amendment to either of the Registration
Statements or supplement to the Prospectus or (iii) any Prospectus
pursuant to Rule 424 of the Rules and Regulations, to furnish a copy
thereof to the Representatives and counsel for the U.S. Underwriters
and obtain the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective Date of the
Primary Registration Statement, to make generally available to the
Company's security holders and to deliver to the Representatives an
earnings statement of the Company and its subsidiaries (which need
not be audited) complying with Section 11(a) of the Securities Act
and the Rules and Regulations (including, at the option of the
Company, Rule 158);
(g) For a period of five years following the Effective Date of
the Primary Registration Statement, to furnish to the
Representatives copies of all materials furnished by the Company to
its shareholders and all public reports and all reports and
financial statements furnished by the Company to the principal
national securities exchange or automatic quotation system upon
which the Class A Common Stock may be listed or quoted pursuant to
requirements of or agreements with such exchange or system or to the
Commission pursuant to the Exchange Act or any rule or regulation of
the Commission thereunder;
(h) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Stock for
offering and sale under the securities laws of such jurisdictions as
the Representatives may request and to comply with such laws so as
to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of the Stock;
(i) For a period of 180 days from the date of the Prospectus,
not to, directly or indirectly, (1) offer for sale, sell, pledge or
otherwise dispose of (or enter into any transaction or device which
is designed to, or could be expected to, result in the disposition
or purchase by any person at any time in the future of) any shares
of Class A Common Stock or securities convertible into or
exchangeable for Class A Common Stock (other than the shares of
Class A Common Stock and shares issued pursuant to employee benefit
plans, qualified stock option plans or other employee compensation
plans existing on the date hereof or pursuant to currently
outstanding options, warrants or rights), or sell or grant options,
rights or warrants with respect to any shares of Class A Common
Stock or securities convertible into or exchangeable for Class A
Common Stock (other than the grant of options pursuant to option
plans existing on the date
15
hereof), or (2) enter into any swap or other derivatives transaction
that transfers to another, in whole or in part, any of the economic
benefits or risks of ownership of such shares of Class A Common
Stock, whether any such transaction described in clause (1) or (2)
above is to be settled by delivery of Class A Common Stock or other
securities, in cash or otherwise, in each case without the prior
written consent of the Representatives; and to cause each officer,
director and stockholder of the Company to furnish to the
Representatives, prior to the First Delivery Date, a letter or
letters, in form and substance satisfactory to counsel for the U.S.
Underwriters, pursuant to which each such person shall agree not to,
directly or indirectly, (1) offer for sale, sell, pledge or
otherwise dispose of (or enter into any transaction or device which
is designed to, or could be expected to, result in the disposition
or purchase by any person at any time in the future of) any shares
of Class A Common Stock or securities convertible into or
exchangeable for Class A Common Stock or (2) enter into any swap or
other derivatives transaction that transfers to another, in whole or
in part, any of the economic benefits or risks or ownership of such
shares of Class A Common Stock, whether any such transaction
described in clause (1) or (2) above is to be settled by delivery of
Class A Common Stock or other securities, in cash or otherwise, in
each case for a period of 180 days from the date of the Prospectus,
without the prior written consent of the Representatives;
(j) Prior to filing with the Commission any reports pursuant
to Rule 463 of the Rules and Regulations, to furnish a copy thereof
to the counsel for the U.S. Underwriters and receive and consider
its comments thereon, and to deliver promptly to the Representatives
a signed copy of each such report filed by it with the Commission;
(k) To apply the net proceeds from the sale of the Stock being
sold by the Company as set forth in the Prospectus;
(l) To take such steps as shall be necessary to ensure that
neither the Company nor any subsidiary shall become an "investment
company" within the meaning of such term under the United States
Investment Company Act of 1940, as amended, and the rules and
regulations of the Commission thereunder.
7. Further Agreements of the Selling Stockholder. The Selling
Stockholder agrees:
(a) For a period of 180 days from the date of the Prospectus,
not to, directly or indirectly, (1) offer for sale, sell, pledge or
otherwise dispose of (or enter into any transaction or device which
is designated to, or could be expected to, result in the disposition
or purchase by any person at any time in the future of) any shares
of Class A Common Stock or securities convertible into or
exchangeable for Class A Common Stock (other than the Stock), or (2)
enter into any swap or other derivatives transaction that transfers
to another, in whole or in part, any of the economic benefits or
risks of ownership of such shares of Class A Common Stock, whether
any such transaction described in clause (1) or (2)
16
above is to be settled by delivery of Class A Common Stock or other
securities, in cash or otherwise, in each case without the prior
written consent of the Representatives.
(b) That the Stock to be sold by the Selling Stockholder
hereunder, [which is represented by the certificates held in custody
for the Selling Stockholder], is subject to the interest of the
Underwriters, [that the arrangements made by the Selling Stockholder
for such custody are to that extent irrevocable,] and that the
obligations of the Selling Stockholder hereunder shall not be
terminated by any act of the Selling Stockholder, by operation of
law or the occurrence of any other event.
(c) To deliver to the Representative prior to the First
Delivery Date a properly contemplated and executed United States
Treasury Department or Form W-9.
8. Expenses. The Company agrees to pay (a) the costs incident to the
authorization, issuance, sale and delivery of the Stock and any taxes payable in
that connection; (b) the costs incident to the preparation, printing and filing
under the Securities Act of the Registration Statements and any amendments and
exhibits thereto; (c) the costs of distributing the Registration Statements as
originally filed and each amendment thereto and any post-effective amendments
thereof (including, in each case, exhibits), any Preliminary Prospectus, the
Prospectus and any amendment or supplement to the Prospectus, all as provided in
this Agreement; (d) the costs of reproducing and distributing this Agreement and
the Agreement Between U.S. Underwriters and International Managers; (e) the
costs of distributing the terms of agreement relating to the organization of the
domestic underwriting syndicate and selling group to the members thereof by
mail, telex or other means of communication; (f) the filing fees incident to
securing any required review by the National Association of Securities Dealers,
Inc. of the terms of sale of the Stock; (g) any applicable listing or other
fees; (h) the fees and expenses of qualifying the Stock under the securities
laws of the several jurisdictions as provided in Section 6.(h) and of preparing,
printing and distributing a Blue Sky Memorandum (including related fees and
expenses of counsel to the U.S. Underwriters); and (i) all other costs and
expenses incident to the performance of the obligations of the Company under
this Agreement; provided that, except as provided in this Section 8 and in
Section 13, the U.S. Underwriters shall pay their own costs and expenses,
including the costs and expenses of their counsel, any transfer taxes on the
Stock which they may sell and the expenses of advertising any offering of the
Stock made by the U.S. Underwriters.
9. Conditions of U.S. Underwriters' Obligations. The respective
obligations of the U.S. Underwriters hereunder are subject to the accuracy, when
made and on each Delivery Date, of the representations and warranties of the
Company contained herein, to the performance by the Company of its obligations
hereunder, and to each of the following additional terms and conditions:
(a) The Rule 462(b) Registration Statement, if any, and the
Prospectus shall have been timely filed with the Commission in
accordance with Section
17
6.(a); no stop order suspending the effectiveness of either of the
Registration Statements or any part thereof shall have been issued
and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and any request of the Commission for
inclusion of additional information in either of the Registration
Statements or the Prospectus or otherwise shall have been complied
with.
(b) No U.S. Underwriter shall have discovered and disclosed to
the Company on or prior to such Delivery Date that either of the
Registration Statements or the Prospectus or any amendment or
supplement thereto contains any untrue statement of a fact which, in
the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the U.S.
Underwriters, is material or omits to state any fact which, in the
opinion of such counsel, is material and is required to be stated
therein or is necessary to made the statements therein not
misleading.
(c) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the
International Underwriting Agreement, the Stock, the Registration
Statements and the Prospectus, and all other legal matters relating
to this Agreement and the International Underwriting Agreements, and
the transactions contemplated hereby and thereby shall be
satisfactory in all respects to counsel for the U.S. Underwriters,
and the Company shall have furnished to such counsel all documents
and information that they may reasonably request to enable them to
pass upon such matters.
(d) Paul, Hastings, Xxxxxxxx & Xxxxxx LLP shall have furnished
to the Representatives its written opinion, as counsel to the
Company, addressed to the U.S. Underwriters and dated such Delivery
Date, in form and substance satisfactory to the Representatives, to
the effect that:
(i) The Company and each of its subsidiaries have been
duly incorporated and are validly existing as corporations in
good standing under the laws of their respective jurisdictions
of incorporation, are duly qualified to do business and are in
good standing as foreign corporations in each jurisdiction in
which their respective ownership or lease of property or the
conduct of their respective businesses requires such
qualification and have all power and authority necessary to
own or hold their respective properties and conduct the
businesses in which they are engaged;
(ii) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of
capital stock of the Company (including the shares of Stock
being delivered on such Delivery Date) have been duly and
validly authorized and issued, are fully paid and
non-assessable and conform to the description thereof
contained in the Prospectus; and all of the issued shares of
capital stock of each subsidiary of the Company have been duly
and validly authorized and issued and are
18
fully paid, non-assessable and (except for directors'
qualifying shares) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities
or claims;
(iii) There are no preemptive or other rights to
subscribe for or to purchase, nor any restriction upon the
voting or transfer of, any shares of the Stock pursuant to the
Company's charter or by-laws or any agreement or other
instrument known to such counsel;
(iv) The Company and each of its subsidiaries have good
and marketable title in fee simple to all real property owned
by them and good and marketable title to all personal property
owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in the
Prospectus or such as do not materially affect the value of
such property and do not materially interfere with the use
made and proposed to be made of such property by the Company
and its subsidiaries; and all real property and buildings held
under lease by the Company and its subsidiaries are held by
them under valid, subsisting and enforceable leases, with such
exceptions as are not material and do not interfere with the
use made and proposed to be made of such property and
buildings by the Company and its subsidiaries;
(v) To the best of such counsel's knowledge and other
than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property or
asset of the Company or any of its subsidiaries is the subject
which, if determined adversely to the Company or any of its
subsidiaries, might have a material adverse effect on the
consolidated financial position, stockholders' equity, results
of operations, business or prospects of the Company and its
subsidiaries; and, to the best of such counsel's knowledge, no
such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(vi) The Primary Registration Statement was declared
effective under the Securities Act as of the date and time
specified in such opinion, the Rule 462(b) Registration
Statement, if any, was filed with the Commission on the date
specified therein, the Prospectus was filed with the
Commission pursuant to the subparagraph of Rule 424(b) of the
Rules and Regulations specified in such opinion on the date
specified therein and no stop order suspending the
effectiveness of either of the Registration Statements has
been issued and, to the knowledge of such counsel, no
proceeding for that purpose is pending or threatened by the
Commission;
(vii) The Registration Statements, as of their
respective Effective Dates, and the Prospectus, as of its
date, and any further amendments or supplements thereto, as of
their respective dates, made by the Company
19
prior to such Delivery Date (other than the financial
statements and other financial data contained therein, as to
which such counsel need express no opinion) complied as to
form in all material respects with the requirements of the
Securities Act and the Rules and Regulations;
(viii) The statements contained in the Prospectus under
the captions "Risk Factors - Governmental Regulation of
Broadcast Industry," "Business - Federal Regulation of Radio
Broadcasting" and "Certain Federal Income Tax Consequences",
insofar as they describe federal statutes, rules and
regulations, constitute a fair summary thereof;
(ix) To the best of such counsel's knowledge, there are
no contracts or other documents which are required to be
described in the Prospectus or filed as exhibits to the
Registration Statements by the Securities Act or by the Rules
and Regulations which have not been described or filed as
exhibits to the Registration Statements;
(x) This Agreement and the International Underwriting
Agreement have each been duly authorized, executed and
delivered by the Company;
(xi) The issue and sale of the shares of Stock being
delivered on such Delivery Date by the Company and the
compliance by the Company with all of the provisions of this
Agreement and the International Underwriting Agreement and the
consummation of the transactions contemplated hereby and
thereby will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such
counsel to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is
bound or to which any of the properties or assets of the
Company or any of its subsidiaries is subject, nor will such
actions result in any violation of the provisions of the
charter or by-laws of the Company or any of its subsidiaries
or any statute or any order, rule or regulation known to such
counsel of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or
any of their properties or assets; and, except for the
registration of the Stock under the Securities Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and
applicable state or foreign securities laws in connection with
the purchase and distribution of the Stock by the U.S.
Underwriters and the International Managers, no consent,
approval, authorization or order of, or filing or registration
with, any such court or governmental agency or body is
required for the execution, delivery and performance of this
Agreement and the International Underwriting Agreement by the
20
Company and the consummation of the transactions contemplated
hereby and thereby; and
(xii) To the best of 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 Securities
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 Statements or in any securities being registered
pursuant to any other registration statement filed by the
Company under the Securities Act.
(xiii) Each of the radio stations owned, operated,
programmed or marketed by the Company and its subsidiaries is
validly licensed by the FCC and no administrative or judicial
proceedings are pending before or, to the knowledge of such
counsel, threatened by the FCC with respect to such licenses;
the Company and its subsidiaries possess adequate
certificates, authorizations, consents, orders, approvals,
licenses or permits which are in full force and effect issued
by other appropriate governmental agencies or bodies necessary
to the ownership of their respective properties and the
conduct of the businesses now operated by them and have not
received any notice of proceedings relating to the revocation
or modification of any such certificate, authority or permit.
In rendering such opinion, such counsel may (i) state that its
opinion is limited to matters governed by the Federal laws of the
United States of America, the laws of the State of New York and the
Illinois Business Corporation Act and that such counsel is not
admitted in the State of Illinois; (ii) rely (to the extent such
counsel deems proper and specifies in its opinion), as to matters
involving the application of the laws of the State of Illinois upon
the opinion of other counsel of good standing, provided that such
other counsel is satisfactory to counsel for the U.S. Underwriters
and furnishes a copy of its opinion to the Representatives; and
(iii) in giving the opinion referred to in Section 9.(d)(iv), state
that no examination of record titles for the purpose of such opinion
has been made, and that it is relying upon a general review of the
titles of the Company and its subsidiaries, upon opinions of local
counsel and abstracts, reports and policies of title companies
rendered or issued at or subsequent to the time of acquisition of
such property by the Company or its subsidiaries, upon opinions of
counsel to the lessors of such property and, in respect of matters
of fact, upon certificates of officers of the Company or its
subsidiaries, provided that such counsel shall state that it
believes that both the U.S. Underwriters and it are justified in
relying upon such opinions, abstracts, reports, policies and
certificates. Such counsel shall also have furnished to the
Representatives a written statement, addressed to the U.S.
Underwriters and dated such Delivery Date, in form and substance
satisfactory to the Representatives, to the effect that (x) such
counsel has acted as counsel to the
21
Company in connection with the preparation of the Registration
Statements, and (y) based on the foregoing, no facts have come to
the attention of such counsel which lead it to believe that the
Registration Statements, as of their respective Effective Dates,
contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary
in order to make the statements therein not misleading, or that the
Prospectus contains any untrue statement of a material fact or omits
to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The
foregoing opinion and statement may be qualified by a statement to
the effect that such counsel does not assume any responsibility for
the accuracy, completeness or fairness of the statements contained
in the Registration Statements or the Prospectus except for the
statements made in the Prospectus under the captions "Description of
Capital Stock," "Risk Factors - Governmental Regulation of
Broadcasting Industry," "Business - Federal Regulation of
Broadcasting Industry" and "Certain Federal Income Tax
Consequences", insofar as such statements relate to the Stock and
concern legal matters.
(e) The counsel for Selling Stockholder shall have furnished
to the Representatives its written opinion, as counsel to the
Selling Stockholder, addressed to the Underwriters and dated the
First Delivery Date, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Selling Stockholder has full right, power and
authority to enter into this Agreement and the International
Underwriting Agreement, [the Power of Attorney and the Custody
Agreement,] the execution, delivery and performance of this
Agreement and the International Underwriting Agreement [, the
Power of Attorney and the Custody Agreement] by the Selling
Stockholder and the consummation by the Selling Stockholder of
the transactions contemplated hereby and thereby will not
conflict with or result in a breach of violation of any of the
terms or provisions of, or constitute a default under, any
statute, any indenture, mortgage deed of trust, loan agreement
or other agreement or instrument known to such counsel to
which the Selling Stockholder is a party or by which the
Selling Stockholder is bound or to which any of the property
or assets of the Selling Stockholder is subject, nor will such
actions result in any violation of any statute or any order,
rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the
Selling Stockholder or the property or assets of the Selling
Stockholder; and, except for the registration of the Stock
under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be
required under the Exchange Act and applicable state or
foreign securities laws in connection with the purchase and
distribution of the Stock by the Underwriters and the
International Managers, no consent, approval, authorization or
order of, or filing or registration with, any such court or
governmental agency or body is
22
required for the execution, delivery and performance of this
Agreement or the International Underwriting Agreement[, the
Power of Attorney or the Custody Agreement] by the Selling
Stockholder and the consummation by the Selling Stockholder of
the transactions contemplated hereby and thereby;
(ii) This Agreement and the International Underwriting
Agreement have been duly executed and delivered by or on
behalf of the Selling Stockholder;
[(iii) A Power of Attorney and a Custody Agreement have
been duly authorized, executed and delivered by the Selling
Stockholder and constitute valid and binding agreements of the
Selling Stockholder;] and
(iv) Upon payment for, and delivery of, the shares of
Stock to be sold by the Selling Stockholder under this
Agreement and the International Underwriting Agreement in
accordance with the terms hereof and thereof, the Underwriters
and the International Managers will acquire all of the rights
of the Selling Stockholder in such Shares free of any adverse
claim (within the meaning of the Uniform Commercial Code).
In rendering such opinion, such counsel may (i) state that its
opinion is limited to matters governed by the Federal laws of the
United States of America, the laws of the State of New York and the
General Corporation Law of the State of Wisconsin and (ii) rendering
the opinion in Section above, rely upon a certificate of the Selling
Stockholder in respect of matters of fact as to ownership of, and
the absence of adverse claims regarding, the shares of Stock sold by
the Selling Stockholder, provided that such counsel shall furnish
copies thereof to the Representatives and state that it believes
that both the Underwriters and it are justified in relying upon such
certificate. Such counsel shall also have furnished to the
Representatives a written statement, addressed to the Underwriters
and dated the First Delivery Date, in form and substance
satisfactory to the Representatives, to the effect that (x) such
counsel has acted as counsel to the Selling Stockholder on a regular
basis and has acted as counsel to the Selling Stockholder in
connection with the preparation of the Registration Statement and
(y) based on the foregoing, no facts have come to the attention of
such counsel which lead it to believe that the Registration
Statement, as of the Effective Date contained any untrue statement
of a material fact relating to the Selling Stockholder or omitted to
state such a material fact required to be stated therein or
necessary in order to make the statements therein not misleading, or
that the Prospectus contains any untrue statement of a material fact
relating to the Selling Stockholder or omits to state such a
material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under
which they were made, not misleading. The foregoing opinion and
statement may be qualified by a statement to the effect that such
counsel does not assume any responsibility for
23
the accuracy, completeness or fairness of the statements contained
in the Registration Statement or the Prospectus.
(f) With respect to the letter of each of Price Waterhouse,
LLP, Xxxxxxx & Xxxxxx, LLP, McGladrey & Xxxxxx, LLP, Coopers &
Xxxxxxx, LLP and Plant & Xxxxx, LLP delivered to the Representatives
concurrently with the execution of this Agreement (each, an "initial
letter"), the Company shall have furnished to the Representatives a
letter (each, a "bring-down letter") of such accountants, addressed
to the U.S. Underwriters and dated such Delivery Date (i) confirming
that they are independent public accountants within the meaning of
the Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule
2-01 of Regulation S-X of the Commission, (ii) stating, as of the
date of the bring-down letter (or, with respect to matters involving
changes or developments since the respective dates as of which
specified financial information is given in the Prospectus, as of a
date not more than five days prior to the date of the bring-down
letter), the conclusions and findings of such firm with respect to
the financial information and other matters covered by the initial
letter and (iii) confirming in all material respects the conclusions
and findings set forth in the initial letter.
(g) The Company shall have furnished to the Representatives a
certificate, dated such Delivery Date, of its Chairman of the Board,
its President or a Vice President and its chief financial officer
stating that:
(i) The representations, warranties and agreements of
the Company in Section 1 are true and correct as of such
Delivery Date; the Company has complied with all its
agreements contained herein; and the conditions set forth in
Section 7(a) have been fulfilled;
(ii) (A) Neither the Company nor any of its subsidiaries
has sustained since the date of the latest audited financial
statements included in the Prospectus any loss or interference
with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the
Prospectus or (B) since such date there has not been any
change in the capital stock or long-term debt of the Company
or any of its subsidiaries or any change, or any development
involving a prospective change, in or affecting the general
affairs, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries,
otherwise than as set forth or contemplated in the Prospectus;
and
(iii) They have carefully examined the Registration
Statements and the Prospectus and, in their opinion (A) the
Registration Statements, as of their respective Effective
Dates, and the Prospectus, as of each of the Effective Dates,
did not include any untrue statement of a material fact and
24
did not omit to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading, and (B) since the Effective Date of the Primary
Registration Statement, no event has occurred which should
have been set forth in a supplement or amendment to either of
the Registration Statements or the Prospectus.
(h) The Selling Stockholder [(or the Custodian or one or more
attorneys in fact on behalf of the Selling Stockholders)] shall have
furnished to the Representatives on the First Delivery Date a
certificate, dated the First Delivery Date, signed by, or on behalf
of, the Selling Stockholder [(or the Custodian or one or more
attorneys in fact)] stating that the representations, warranties and
agreements of the Selling Stockholder contained herein are true and
correct as of the First Delivery Date and that the Selling
Stockholder has complied with all agreements contained herein to be
performed by the Selling Stockholder at or prior to the First
Delivery Date.
(i) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus
any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the
Prospectus or (ii) since such date there shall not have been any
change in the capital stock or long-term debt of the Company or any
of its subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in any such
case described in clause (i) or (ii), is, in the judgment of the
Representatives, so material and adverse as to make it impracticable
or inadvisable to proceed with the public offering or the delivery
of the Stock being delivered on such Delivery Date on the terms and
in the manner contemplated in the Prospectus.
(j) Subsequent to the execution and delivery of this Agreement
(i) no downgrading shall have occurred in the rating accorded the
Company's debt securities or preferred stock by any "nationally
recognized statistical rating organization", as that term is defined
by the Commission for purposes of Rule 436(g)(2) of the Rules and
Regulations and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's debt
securities or preferred stock.
(k) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange or the American
Stock Exchange or in the over-the-counter market, or trading in any
securities of the Company on any exchange or in the over-the-counter
market, shall have been suspended or minimum prices shall
25
have been established on any such exchange or such market by the
Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking
moratorium shall have been declared by Federal or state authorities,
(iii) the United States shall have become engaged in hostilities,
there shall have been an escalation in hostilities involving the
United States or there shall have been a declaration of a national
emergency or war by the United States or (iv) there shall have
occurred such a material adverse change in general economic,
political or financial conditions (or the effect of international
conditions on the financial markets in the United States shall be
such) as to make it, in the judgment of a majority in interest of
the several U.S. Underwriters, impracticable or inadvisable to
proceed with the public offering or delivery of the Stock being
delivered on such Delivery Date on the terms and in the manner
contemplated in the Prospectus.
(l) The Stock has been duly authorized for quotation on the
National Association of Securities Dealers Automated Quotation
("Nasdaq") National Market System, subject only to official notice
of issuance.
(m) The closing under the International Underwriting Agreement
shall have occurred concurrently with the closing hereunder on the
First Delivery Date.
(n) The closing under the Debt Underwriting Agreement shall
have occurred concurrently with the closing hereunder on the First
Delivery Date.
(o) The closing under the Preferred Stock Underwriting
Agreement shall have occurred concurrently with the closing
hereunder on the First Delivery Date.
(p) The Reorganization (as defined in the Registration
Statement) shall have been consummated prior to the First Delivery
Date.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance satisfactory to counsel
for the U.S. Underwriters.
10. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each U.S.
Underwriter, its officers and employees and each person, if any, who controls
any U.S. Underwriter within the meaning of the Securities Act, from and against
any loss, claim, damage or liability, joint or several, or any action in respect
thereof (including, but not limited to, any loss, claim, damage, liability or
action relating to purchases and sales of Stock), to which that U.S.
Underwriter, officer, employee or controlling person may become subject, under
the Securities Act or otherwise, insofar as such loss, claim, damage, liability
or action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained (A) in any Preliminary Prospectus,
either of the Registration Statements or the Prospectus, or in any amendment or
supplement thereto, or (B) in any blue sky application or other document
prepared
26
or executed by the Company (or based upon any written information furnished by
the Company) specifically for the purpose of qualifying any or all of the Stock
under the securities laws of any state or other jurisdiction (any such
application, document or information being hereinafter called a "Blue Sky
Application"), (ii) the omission or alleged omission to state in any Preliminary
Prospectus, either of the Registration Statements or the Prospectus, or in any
amendment or supplement thereto, or in any Blue Sky Application any material
fact required to be stated therein or necessary to make the statements therein
not misleading or (iii) any act or failure to act, or any alleged act or failure
to act, by any U.S. Underwriter in connection with, or relating in any manner
to, the Stock or the offering contemplated hereby, and which is included as part
of or referred to in any loss, claim, damage, liability or action arising out of
or based upon matters covered by clause (i) or (ii) above (provided that the
Company shall not be liable in the case of any matter covered by this clause
(iii) to the extent that it is determined in a final judgement by a court of
competent jurisdiction that such loss, claim, damage, liability or action
resulted directly from any such act or failure to act undertaken or omitted to
be taken by such U.S. Underwriter through its gross negligence or wilful
misconduct), and shall reimburse each U.S. Underwriter and each such officer,
employee and controlling person promptly upon demand for any legal or other
expenses reasonably incurred by that U.S. Underwriter, officer, employee or
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary Prospectus,
the Registration Statement or the Prospectus, or in any such amendment or
supplement, or in any Blue Sky Application in reliance upon and in conformity
with the written information furnished to the Company through the
Representatives by or on behalf of any U.S. Underwriter specifically for
inclusion therein and described in Section 10.(f). The foregoing indemnity
agreement is in addition to any liability which the Company may otherwise have
to any U.S. Underwriter or to any officer, employee or controlling person of
that U.S. Underwriter.
(b) The Selling Stockholder shall indemnify and hold harmless each
Underwriter, its officers and employees and each person, if any, who controls
any Underwriter within the meaning of the Securities Act, from and against any
loss, claim, damage or liability, joint or several, or any actin in respect
thereof (including, but not limited to, any loss, claim, damage, liability or
action relating to purchases and sales of stock), to which that Underwriter,
officer, employee or controlling person may become subject, under the Securities
act or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or in any amendment or supplement
thereto, or (ii) the omission or alleged omission to state in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any amendment or
supplement thereto, any material fact required to be stated therein or necessary
to make the statements therein not misleading, and shall reimburse each
Underwriter, its officers and employees and each such controlling person for any
legal or other expenses reasonably incurred by that Underwriter, its officers,
employees or controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Selling Stockholder
shall not be liable in any such case to
27
the extent that any such loss, claim, damage, liability or action arises out of,
or is based upon, any untrue statement or alleged untrue statement or omission
or alleged omission made in any Preliminary Prospectus, the Registration
Statement or the Prospectus or in any such amendment or supplement in reliance
upon and in conformity with written information furnished to the Company through
the Representatives by or on behalf of any Underwriter specifically for
inclusion therein. The foregoing indemnity agreement is in addition to any
liability which the Selling Stockholder may otherwise have to any Underwriter or
any officer, employee or controlling person of that Underwriter.
(c) Each U.S. Underwriter, severally and not jointly, shall
indemnify and hold harmless the Company, its officers and employees, each of its
directors and each person, if any, who controls the Company within the meaning
of the Securities Act, from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof, to which the Company or any
such director, officer or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained (A) in any Preliminary Prospectus,
either of the Registration Statements or the Prospectus, or in any amendment or
supplement thereto, or (B) in any Blue Sky Application or (ii) the omission or
alleged omission to state in any Preliminary Prospectus, either of the
Registration Statements or the Prospectus, or in any amendment or supplement
thereto, or in any Blue Sky Application any material fact required to be stated
therein or necessary to make the statements therein not misleading, but in each
case only to the extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
the written information furnished to the Company through the Representatives by
or on behalf of that U.S. Underwriter specifically for inclusion therein and
described in Section 10.(f), and shall reimburse the Company and any such
director, officer or controlling person for any legal or other expenses
reasonably incurred by the Company or any such director, officer or controlling
person in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such expenses are
incurred. The foregoing indemnity agreement is in addition to any liability
which any U.S. Underwriter may otherwise have to the Company or any such
director, officer or controlling person.
(d) Promptly after receipt by an indemnified party under this
Section 10 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 10, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 10 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 10.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under
28
this Section 10 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation; provided, however, that the Representatives shall have
the right to employ counsel to represent jointly the Representatives and those
other U.S. Underwriters and their respective officers, employees and controlling
persons who may be subject to liability arising out of any claim in respect of
which indemnity may be sought by the U.S. Underwriters against the Company. No
indemnifying party shall (i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld), settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding, or (ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment of the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss of
liability by reason of such settlement or judgment.
(e) If the indemnification provided for in this Section 10 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 10.(a) or 10.(b), 10.(c) in respect of any loss, claim,
damage or liability, or any action in respect thereof, referred to therein, then
each indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company and the Selling Stockholder on the one hand and the U.S.
Underwriters on the other from the offering of the Stock 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 U.S. Underwriters on the other with respect to the
statements or omissions which resulted in such loss, claim, damage or liability,
or action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Stockholder on the one hand and the U.S. Underwriters on the other with respect
to such offering shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Stock purchased under this Agreement (before
deducting expenses) received by the Company and the Selling Stockholder, on the
one hand, and the total underwriting discounts and commissions received by the
U.S. Underwriters with respect to the shares of the Stock purchased under this
Agreement, on the other hand, bear to the total gross proceeds from the offering
of the shares of the Stock under this Agreement, in each case as set forth in
the table on the cover page of the Prospectus. The relative fault shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company, the Selling Stockholder or the U.S.
Underwriters, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the U.S. Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 10.(e) were to be determined
by pro rata allocation (even if the U.S. Underwriters were treated as one entity
for such purpose) or by
29
any other method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 10.(e) shall be deemed to include,
for purposes of this Section 10.(e), 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 10.(e),
no U.S. Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Stock underwritten by it and
distributed to the public was offered to the public exceeds the amount of any
damages which such U.S. Underwriter has otherwise paid or become liable to pay
by reason of any 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 U.S.
Underwriters' obligations to contribute as provided in this Section 10.(e) are
several in proportion to their respective underwriting obligations and not
joint.
(f) The U.S. Underwriters severally confirm that the statements with
respect to the public offering of the Stock set forth on the cover page of, and
under the caption "Underwriting" in, the Prospectus are correct and constitute
the only information furnished in writing to the Company by or on behalf of the
U.S. Underwriters specifically for inclusion in the Registration Statements and
the Prospectus.
11. Defaulting U.S. Underwriters.
If, on either Delivery Date, any U.S. Underwriter defaults in the
performance of its obligations under this Agreement, the remaining
non-defaulting U.S. Underwriters shall be obligated to purchase the Stock which
the defaulting U.S. Underwriter agreed but failed to purchase on such Delivery
Date in the respective proportions which the number of shares of the Firm Stock
set opposite the name of each remaining non-defaulting U.S. Underwriter in
Schedule 1 hereto bears to the total number of shares of the Firm Stock set
opposite the names of all the remaining non-defaulting U.S. Underwriters in
Schedule 1 hereto; provided, however, that the remaining non-defaulting U.S.
Underwriters shall not be obligated to purchase any of the Stock on such
Delivery Date if the total number of shares of the Stock which the defaulting
U.S. Underwriter or U.S. Underwriters agreed but failed to purchase on such date
exceeds 9.09% of the total number of shares of the Stock to be purchased on such
Delivery Date, and any remaining non-defaulting U.S. Underwriter shall not be
obligated to purchase more than 110% of the number of shares of the Stock which
it agreed to purchase on such Delivery Date pursuant to the terms of Section 4.
If the foregoing maximums are exceeded, the remaining non-defaulting U.S.
Underwriters, or those other underwriters satisfactory to the Representatives
who so agree, shall have the right, but shall not be obligated, to purchase, in
such proportion as may be agreed upon among them, all the Stock to be purchased
on such Delivery Date. If the remaining U.S. Underwriters or other underwriters
satisfactory to the Representatives do not elect to purchase the shares which
the defaulting U.S. Underwriter or U.S. Underwriters agreed but failed to
purchase on such Delivery Date, this Agreement (or, with respect to the Second
Delivery Date, the obligation of the U.S. Underwriters to purchase, and of the
Company to sell, the Option Stock) shall terminate without liability on the part
of any non-defaulting U.S. Underwriter or the Company, except that the Company
will continue to be liable for the payment of expenses to the
30
extent set forth in Sections 8 and 13. As used in this Agreement, the term "U.S.
Underwriter" includes, for all purposes of this Agreement unless the context
requires otherwise, any party not listed in Schedule 1 hereto who, pursuant to
this Section 11, purchases Firm Stock which a defaulting U.S. Underwriter agreed
but failed to purchase.
Nothing contained herein shall relieve a defaulting U.S. Underwriter
of any liability it may have to the Company and the Selling Stockholder for
damages caused by its default. If other underwriters are obligated or agree to
purchase the Stock of a defaulting or withdrawing U.S. Underwriter, either the
Representatives or the Company may postpone the First Delivery Date for up to
seven full business days in order to effect any changes that in the opinion of
counsel for the Company or counsel for the U.S. Underwriters may be necessary in
the Registration Statement, the Prospectus or in any other document or
arrangement.
12. Effective Date and Termination.
(a) This Agreement shall become effective at 11:00 A.M., New York
City time, on the first full business day following the Effective Date, or at
such earlier time after the Registration Statement becomes effective as the
Representatives shall release the Firm Stock for initial public offering. The
Representatives shall notify the Company immediately after they have taken any
action which causes this Agreement to become effective. Until this Agreement is
effective, it may be terminated by the Company by notice to the Representatives
or by the Representatives by notice to the Company. For purposes of this
Agreement, the release of the initial public offering of the Stock shall be
deemed to have been made when the Representatives release, by telegram or
otherwise, firm offers of the Stock to securities dealers or release for
publication a newspaper advertisement relating to the Stock, whichever occurs
first.
(b) The obligations of the Underwriters hereunder may be terminated
by the Representatives by notice given to and received by the Company and the
Selling Stockholder prior to delivery of and payment for the Firm Stock if,
prior to that time, any of the events described in Sections 9.(i), 9.(j) or
9.(k) shall have occurred or if the Underwriters shall decline to purchase the
Stock for any reason permitted under this Agreement.
13. Reimbursement of U.S. Underwriters' Expenses. If (a) the Company
shall fail to tender the Stock for delivery to the U.S. Underwriters for any
reason permitted under this Agreement, or (b) the U.S. Underwriters shall
decline to purchase the Stock for any reason permitted under this Agreement
(including the termination of this Agreement pursuant to Section 10), the
Company shall reimburse the U.S. Underwriters for the fees and expenses of their
counsel and for such other out-of-pocket expenses as shall have been incurred by
them in connection with this Agreement and the proposed purchase of the Stock,
and upon demand the Company and the Selling Stockholder shall pay the full
amount thereof to the Representatives. If this Agreement is terminated pursuant
to Section 11 by reason of the default of one or more U.S. Underwriters, neither
the Company nor the Selling Stockholder shall be obligated to reimburse any
defaulting U.S. Underwriter on account of those expenses.
14. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
31
(a) if to the U.S. Underwriters, shall be delivered or sent by
mail, telex or facsimile transmission to Xxxxxx Brothers Inc., Three
World Financial Center, New York, New York 10285, Attention:
Syndicate Department (Fax: 000-000-0000);
(b) if to the Company, shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set
forth in the Primary Registration Statement, Attention: Xxxxxxx
Xxxxxxx (Fax: (000-000-0000);
(c) if to the Selling Stockholder, shall be delivered or sent
by mail, telex or facsimile transmission to the Selling Stockholder
at [____________, Attention: ______ (Fax:_________);
provided, however, that any notice to U.S. Underwriter pursuant to Section
10.(d) shall be delivered or sent by mail, telex or facsimile transmission to
such U.S. Underwriter at its address set forth in its acceptance telex to the
Representatives, which address will be supplied to any other party hereto by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Company and the
Selling Stockholder shall be entitled to act and rely upon any request, consent,
notice or agreement given or made on behalf of the U.S. Underwriters by Xxxxxx
Brothers Inc.
15. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the U.S. Underwriters, the Company,
the Selling Stockholder and their respective personal representative and
successors. This Agreement and the terms and provisions hereof are for the sole
benefit of only those persons, except that (A) the representations, warranties,
indemnities and agreements of the Company, and the Selling Stockholder,
contained in this Agreement shall also be deemed to be for the benefit of the
officers and employees of each U.S. Underwriter and the person or persons, if
any, who control each U.S. Underwriter within the meaning of Section 15 of the
Securities Act and for the benefit of each International Manager (and
controlling persons thereof) who offers or sells any shares of Class A Common
Stock in accordance with the terms of the Agreement Between U.S. Underwriters
and International Managers and (B) the indemnity agreement of the U.S.
Underwriters contained in Section 10.(b), 10.(c) of this Agreement shall be
deemed to be for the benefit of directors, officers and employees of the Company
and any person controlling the Company within the meaning of Section 15 of the
Securities Act. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this Section 15, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
16. Survival. The respective indemnities, representations,
warranties and agreements of the Company, the Principal Subsidiary, the Selling
Stockholder and the U.S. Underwriters contained in this Agreement or made by or
on behalf of them, respectively, pursuant to this Agreement, shall survive the
delivery of and payment for the Stock and shall remain in full force and effect,
regardless of any investigation made by or on behalf of any of them or any
person controlling any of them.
32
17. Definition of the Terms "Business Day" and "Subsidiary". For
purposes of this Agreement, (a) "business day" means any day on which the New
York Stock Exchange, Inc. is open for trading and (b) "subsidiary" has the
meaning set forth in Rule 405 of the Rules and Regulations.
18. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of New York.
19. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
20. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
33
If the foregoing correctly sets forth the agreement between the
Company and the U.S. Underwriters, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
CUMULUS MEDIA INC.
By:
--------------------------------
STATE OF WISCONSIN INVESTMENT BOARD
Accepted:
XXXXXX BROTHERS INC. By:
BEAR, XXXXXXX & CO. INC. --------------------------------
BT ALEX. XXXXX INC.
For themselves and as Representatives
of the several U.S. Underwriters named
in Schedule 1 hereto
By XXXXXX BROTHERS INC.
By:
----------------------------
Authorized Representative
34
SCHEDULE 1
Number of
U.S. Underwriters Shares
Xxxxxx Brothers Inc..........................................
Bear, Xxxxxxx & Co. Inc......................................
BT Alex. Xxxxx Inc...........................................
--------
Total................................................... ========
