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EXHIBIT 1
5,000,000 SHARES
EMMIS BROADCASTING CORPORATION
CLASS A COMMON STOCK, PAR VALUE $.01 PER SHARE
UNDERWRITING AGREEMENT
May ___, 1998
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May ___, 1998
Xxxxxx Xxxxxxx & Co. Incorporated
Credit Suisse First Boston Corporation
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
Xxxxxx Brothers Inc.
X. X. Xxxxxxx & Sons, Inc.
Xxxxxxx, Sachs & Co.
NationsBanc Xxxxxxxxxx Securities LLC
Xxxxxxxx & Co. Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. International Limited
Credit Suisse First Boston (Europe) Limited
Xxxxxxxxx, Lufkin & Xxxxxxxx International
Xxxxxx Brothers International (Europe)
X.X. Xxxxxxx & Sons, Inc.
Xxxxxxx Sachs International
J. Xxxxx Xxxxxxxx & Co. Limited
NationsBanc Xxxxxxxxxx Securities LLC
x/x Xxxxxx Xxxxxxx & Xx. Xxxxxxxxxxxxx Limited
00 Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
England
Dear Sirs and Mesdames:
EMMIS BROADCASTING CORPORATION, an Indiana corporation (the "COMPANY"),
proposes to issue and sell to the several Underwriters (as defined below) an
aggregate of 4,625,000 shares of Class A Common stock, par value $.01 per share
(the "COMPANY SHARES"), and Xxxxxxx X. Xxxxxxx (the "SELLING SHAREHOLDER" and,
together with the Company, the "SELLERS") proposes to sell to the several
Underwriters an aggregate of 375,000 shares of Class A Common Stock, par value
$.01 per share ( the "SHAREHOLDER SHARES" and, together with the Company
Shares, the "FIRM SHARES").
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It is understood that, subject to the conditions hereinafter stated,
4,000,000 Firm Shares (the "U.S. FIRM SHARES") will be sold to the several U.S.
Underwriters named in Schedule I hereto (the "U.S. UNDERWRITERS") in connection
with the offering and sale of such U.S. Firm Shares in the United States and
Canada to United States and Canadian Persons (as such terms are defined in the
Agreement Between U.S. and International Underwriters of even date herewith),
and 1,000,000 Firm Shares (the "INTERNATIONAL SHARES") will be sold to the
several International Underwriters named in Schedule II hereto (the
"INTERNATIONAL UNDERWRITERS") in connection with the offering and sale of such
International Shares outside the United States and Canada to persons other than
United States and Canadian Persons. Xxxxxx Xxxxxxx & Co. Incorporated, Credit
Suisse First Boston Corporation, Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation, Xxxxxx Brothers Inc., X. X. Xxxxxxx & Sons, Inc., Xxxxxxx, Sachs &
Co., NationsBanc Xxxxxxxxxx Securities LLC and Xxxxxxxx & Co. Inc. shall act as
representatives (the "U.S. REPRESENTATIVES") of the several U.S. Underwriters,
and Xxxxxx Xxxxxxx & Co. International Limited, Credit Suisse First Boston
(Europe) Limited, Xxxxxxxxx, Lufkin & Xxxxxxxx International, Xxxxxx Brothers
International (Europe), X.X. Xxxxxxx & Sons, Inc., Xxxxxxx Sachs International,
J. Xxxxx Xxxxxxxx & Co. Limited and NationsBanc Xxxxxxxxxx Securities LLC shall
act as representatives (the "INTERNATIONAL REPRESENTATIVES" and, together with
the U.S. Representatives, the "REPRESENTATIVES") of the several International
Underwriters. The U.S. Underwriters and the International Underwriters are
hereinafter collectively referred to as the "UNDERWRITERS."
The Company also proposes to issue and sell to the several U.S.
Underwriters not more than an additional 750,000 shares of its Class A Common
Stock, par value $.01 per share (the "ADDITIONAL SHARES"), if and to the extent
that the U.S. Representative shall have determined to exercise, on behalf of
the U.S. Underwriters, the right to purchase such shares of common stock
granted to the U.S. Underwriters in Section 2 hereof. The Firm Shares and the
Additional Shares are hereinafter collectively referred to as the "SHARES".
The shares of Class A Common Stock, par value $.01 per share, of the Company to
be outstanding after giving effect to the sales contemplated hereby are
hereinafter referred to as the "COMMON STOCK".
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement relating to the Shares. Two
prospectuses will be used in connection with the offering and sale of the
Shares: the U.S. prospectus (which is contained in the Registration
Statement), to be used in connection with the offering and sale of Shares in
the United States and Canada to United States and Canadian Persons, and the
international prospectus (which is identical to the U.S. prospectus, except for
the cover page thereof), to be used in connection with the offering and sale of
Shares outside the United States and Canada to persons other than United States
and Canadian Persons. The international prospectus is identical to the U.S.
prospectus except for the outside front cover page. The registration statement
as amended at the time it becomes effective, including the information (if any)
deemed to be part of the registration statement at the time of effectiveness
pursuant to Rule 430A under the Securities Act of 1933, as amended (the
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"SECURITIES ACT"), is hereinafter referred to as the "REGISTRATION STATEMENT";
the U.S. prospectus and the international prospectus in the respective forms
first used to confirm sales of Shares are hereinafter collectively referred to
as the "PROSPECTUS". If the Company has filed an abbreviated registration
statement to register additional shares of Common Stock pursuant to Rule 462(b)
under the Securities Act (the "RULE 462 REGISTRATION STATEMENT"), then any
reference herein to the term "REGISTRATION STATEMENT" shall be deemed to
include such Rule 462 Registration Statement (including, in the case of all
references to the Registration Statement and the Prospectus, documents
incorporated therein by reference).
1. Representations and Warranties. The Company represents and warrants
to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by
the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and
incorporated by reference in the Prospectus complied or will comply when
so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) the
Registration Statement, when it became effective, did not contain and, as
amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading, (iii) the Registration Statement and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iv) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph do not apply
to statements or omissions in the Registration Statement or the
Prospectus based upon information relating to any Underwriter furnished
to the Company in writing by such Underwriter through you expressly for
use therein.
(c) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power
and authority to own its property and to conduct its business
as described in the Prospectus and is duly qualified to
transact business and is in good standing in each
jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such
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qualification, except to the extent that the failure to be so qualified
or be in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly formed, is validly
existing as a corporation, partnership or limited liability company in
good standing under the laws of the jurisdiction of its organization, has
the corporate, partnership or limited liability company power and
authority to own its property and to conduct its business as described in
the Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to
the extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole; all of the issued equity interests of
each subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and, except as set forth in
Schedule III hereto, are owned directly by the Company, free and clear of
all liens, encumbrances, equities or claims.
(e) This Agreement has been duly authorized, executed and delivered
by the Company.
(f) The authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus.
(g) The shares of Common Stock outstanding prior to the issuance of
the Shares have been duly authorized and are validly issued, fully paid
and non-assessable.
(h) The Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable, and the issuance of such Shares
will not be subject to any preemptive or similar rights.
(i) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement will
not contravene any provision of applicable law or the articles of
incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company or any subsidiary, and no consent,
approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, except
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such as may be required by the securities or Blue Sky laws of the various
states in connection with the offer and sale of the Shares.
(j) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement).
(k) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or
to which any of the properties of the Company or any of its subsidiaries
is subject that are required to be described in the Registration
Statement or the Prospectus and are not so described or any statutes,
regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed
as exhibits to the Registration Statement that are not described or filed
as required.
(l) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or
filed pursuant to Rule 424 under the Securities Act, complied when so
filed in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder.
(m) The Company is not and, after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company" as such
term is defined in the Investment Company Act of 1940, as amended.
(n) Except for real property owned by 1050 Limited Partnership
(which the Company and its subsidiaries do not control) and except for
activities, conditions, circumstances or matters that would not, singly
or in the aggregate, have a material adverse effect on the Company and
its subsidiaries, taken as a whole:
(A) excluding such customary amounts as may be lawfully generated,
stored, used, treated, disposed of, or otherwise handled or
located at a property, neither the Company nor its
subsidiaries has caused or suffered to occur any release of
any substance, pollutant or waste listed in the United States
Department of Transportation Optional Hazardous Material
Table, 49 C.F.R. Section 172.101, as the same may now or
hereafter be amended, or in the United States Environmental
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Protection Agency (the "EPA") List of Hazardous Substances and
Reportable Quantities, 40 C.F.R. Part 3202, as the same may
now or hereafter be amended (a "Hazardous Substance") on, in,
under or from any real property owned or leased by the
Company or its subsidiaries (each, a "Property"), and no
condition exists on, in, under or from any Property, to the
knowledge of the Company, that could result in the incurrence
of liabilities or any violations of any Environmental Law (as
defined below) or cause or constitute a health, safety or
environmental hazard to any property, person or entity;
(B) neither the Company nor its subsidiaries has received any
notice of a claim under or pursuant to any Environmental Law
or under common law pertaining to Hazardous Substances on or
originating from any Property;
(C) neither the Company nor its subsidiaries has received any
notice from any governmental authority having the duty or
authority to promulgate, implement or enforce any
Environmental Law claiming any violation of any Environmental
Law; and
(D) no Property is included or, to the knowledge of the Company,
proposed for inclusion on the National Priorities List issued
pursuant to CERCLA (as defined below) by the EPA or on the
Comprehensive Environmental Response, Compensation, and
Liability Information System database maintained by the EPA,
and has not otherwise been identified by the EPA as a
potential CERCLA removal, remedial or response site or
included or, to the knowledge of the Company, proposed for
inclusion on, any similar list of potentially contaminated
sites pursuant to any other Environmental Law.
The representations set forth in paragraphs (A) through (D) above
are true and correct to the knowledge of the Company after due inquiry
with respect to real property owned by 1050 Limited Partnership.
As used in this paragraph, "Environmental Law" means the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended (42 U.S.C. Section 9601 et seq.) ("CERCLA"), the
Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C.
Section 6901, et seq.), the Clean Air Act, as amended (42 U.S.C. Section
7401, et seq.), the Clean Water Act, as amended (33 U.S.C. Section 1251,
et seq.), the Toxic Substances Control Act, as amended (15 U.S.C. Section
2601, et seq.), the Occupational Safety and Health Act of 1970, as
amended (29
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U.S.C. Section 651, et seq.), the Hazardous Materials Transportation Act,
as amended (49 U.S.C. Section 1801, et seq.), and all other federal,
state and local laws, ordinances, regulations, rules, orders, decisions
and permits relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants.
(o) There are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance
with Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to
third parties) which would, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(p) Except as set forth in Exhibit C, 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 or to require the Company to include such securities with the
Shares registered pursuant to the Registration Statement.
(q) The Company has complied with all provisions of Section
517.075, Florida Statutes relating to doing business with the Government
of Cuba or with any person or affiliate located in Cuba.
(r) Neither the Company nor any subsidiary (other than Emmis
Meadowlands Corporation and Emmis 1380 AM Radio Corporation of St. Louis)
is or has been a "United States real property holding corporation" within
the meaning of Section 897 (c)(2) of the Internal Revenue Code of 1986,
as amended, during the applicable period specified in Section 897
(c)(1)(A).
(s) Except for such FCC consents and approvals that have already
been obtained and are currently in effect, no consent or approval of the
FCC is required under the Communications Act of 1934, as amended, and the
regulations promulgated thereunder (the "COMMUNICATIONS LAWS") for the
issuance and sale under this Agreement by the Company of the Shares. The
execution, delivery and performance of this Agreement in accordance with
the terms hereof by the Company does not violate the Communications Laws.
(t) Except as described in the Company's Annual Report on Form 10-K
for the fiscal year ended February 28, 1998, the Company and the
following subsidiaries of the Company (the "SUBSIDIARIES") hold all
necessary authorizations, approvals, consents, orders, licenses,
certificates and permits
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issued by the FCC to own and to operate their respective radio broadcast
stations (the "STATIONS") as identified below (all such held FCC
authorizations, approvals, consents, orders, licenses, certificates and
permits of the Subsidiaries collectively, "FCC LICENSES"):
Corporation Station
----------- -------
Emmis FM License Corporation of St. Louis KSHE-FM
Emmis 104.1 FM Radio License Corporation of St. Xxxxx XXXX-FM
Emmis 106.5 FM License Corporation of St. Louis WKKX-FM
Emmis FM License Corporation of Indianapolis WENS-FM
Emmis AM Radio License Corporation of Indianapolis WIBC-AM
Emmis FM Radio License Corporation of Indianapolis WNAP-FM
Emmis 105.7 FM Radio License Corporation of
Indianapolis WTLC-FM
Emmis 1310 AM Radio License Corporation of
Indianapolis WTLC-AM
Emmis FM License Corporation of Chicago WKQX-FM
Emmis License Corporation of New York WQHT-FM
Emmis Radio License Corporation of New York WRKS-FM
KPWR License, Inc. KPWR-FM
(u) Except as set forth in the Prospectus, there are no proceedings
pending or threatened in writing under the Communications Laws against
the Company, the Subsidiaries or the Stations before or by the FCC or any
court having jurisdiction over matters arising under the Communications
Laws, relating to any invalidity, revocation or modification of any FCC
Licenses, or the violation of the Communications Laws, that would
reasonably be expected to have a material adverse effect upon the
condition (financial or other), business or properties of the Company and
the Subsidiaries taken as a whole.
(v) The consolidated financial statements of the Company and its
subsidiaries incorporated by reference in the Registration Statement and
any amendment or supplement thereto, present fairly in all material
respects the financial position, results of operations and changes in
cash flows of the Company and its subsidiaries consolidated, at the
indicated dates and for the indicated periods. Such financial statements
have been prepared in accordance with generally accepted principles of
accounting, consistently applied throughout the periods involved, and all
adjustments necessary for a fair presentation of results
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for such periods have been made. The pro forma financial information
filed as part of the Registration Statement and the Prospectus or
incorporated therein by reference and any amendment or supplement thereto
has been prepared in accordance with the Commission's rules and
guidelines with respect to pro forma financial statements and the
assumptions used in the preparation thereof are, in the Company's
opinion, reasonable. The summary financial and statistical data included
in the Registration Statement and any amendment or supplement thereto
presents fairly the information shown therein and have been compiled on a
basis consistent with such financial statements and the books and records
of the Company.
(w) Except as set forth on Exhibit C, no holder of any security of
the Company has any right, not effectively satisfied or waived, to
require inclusion of shares of common stock or any other security of the
Company in the Registration Statement.
2. Representations and Warranties of the Selling Shareholder. The
Selling Shareholder represents and warrants to and agrees with each of the
Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered
by or on behalf of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and
the performance by such Selling Shareholder of his obligations under,
this Agreement, the Custody Agreement signed by such Selling Shareholder
and Xxxxxx X. Xxxxxxx, as Custodian, relating to the deposit of the
Shares to be sold by such Selling Shareholder (the "CUSTODY AGREEMENT")
and the Power of Attorney appointing certain individuals as such Selling
Shareholder's attorneys-in-fact to the extent set forth therein, relating
to the transactions contemplated hereby and by the Registration Statement
(the "POWER OF ATTORNEY") will not contravene any provision of applicable
law or any agreement or other instrument binding upon such Selling
Shareholder or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over such Selling Shareholder, and no
consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by such
Selling Shareholder of his obligations under this Agreement or the
Custody Agreement or Power of Attorney of such Selling Shareholder,
except such as may be required by the securities or Blue Sky laws of the
various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will
have, valid title to the Shares to be sold by such Selling Shareholder
and the legal
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right and power, and all authorization and approval required by law, to
enter into this Agreement, the Custody Agreement and the Power of
Attorney and to sell, transfer and deliver the Shares to be sold by such
Selling Shareholder.
(d) The Shares to be sold by such Selling Shareholder pursuant to
this Agreement have been duly authorized and are validly issued, fully
paid and non-assessable.
(e) The Custody Agreement and the Power of Attorney have been duly
authorized, executed and delivered by such Selling Shareholder and are
valid and binding agreements of such Selling Shareholder.
(f) Delivery of the Shares to be sold by such Selling Shareholder
pursuant to this Agreement will pass title to such Shares free and clear
of any security interests, claims, liens, equities and other
encumbrances.
(g) All information furnished by or on behalf of the Selling
Shareholder for use in the Registration Statement or Prospectus is, and
on the Closing Date will be, true, correct and complete and does not, and
on the Closing date will not, contain any untrue statement of a material
fact or omit to state a material fact necessary to make such information,
in light of the circumstances under which it was provided, not
misleading.
3. Agreements to Sell and Purchase. Each Seller, severally and not
jointly, hereby agrees to sell to the several Underwriters, and each
Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees, severally
and not jointly, to purchase from such Seller the respective numbers of Firm
Shares (subject to such adjustments to eliminate fractional shares as you may
determine) that bears the same proportion to the number of Firm Shares to be
sold by such Seller as the number of Firm Shares set forth in Schedules I and
II hereto opposite the name of such Underwriter bears to the total number of
Firm shares at U.S.$_____ a share ("PURCHASE PRICE").
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the U.S. Underwriters the Additional Shares, and the U.S. Underwriters shall
have a one-time right to purchase, severally and not jointly, up to 750,000
Additional Shares at the Purchase Price. If the U.S. Representatives, on
behalf of the U.S. Underwriters, elect to exercise such option, the U.S.
Representatives shall so notify the Company in writing not later than 30 days
after the date of this Agreement, which notice shall specify the number of
Additional Shares to be purchased by the U.S. Underwriters and the date on
which such shares are to be purchased. Such date may be the same as the
Closing Date (as defined below) but not earlier than the Closing Date nor later
than ten business days after the date of such notice. Additional Shares
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may be purchased as provided in Section 4 hereof solely for the purpose of
covering over-allotments made in connection with the offering of the Firm
Shares. If any Additional Shares are to be purchased, each U.S. Underwriter
agrees, severally and not jointly, to purchase the number of Additional Shares
(subject to such adjustments to eliminate fractional shares as the U.S.
Representatives may determine) that bears the same proportion to the total
number of Additional Shares to be purchased as the number of U.S. Firm Shares
set forth in Schedule I hereto opposite the name of such U.S. Underwriter bears
to the total number of U.S. Firm Shares.
Each Seller hereby agrees that, without the prior written consent of
Xxxxxx Xxxxxxx & Co. Incorporated on behalf of the Underwriters, it will not,
during the period ending 90 days after the date of the Prospectus, (i) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, lend, or otherwise transfer or dispose of, directly or indirectly,
any shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or (ii) enter into any swap or other arrangement
that transfers to another, in whole or in part, any of the economic
consequences of ownership of the Common Stock, whether any such transaction
described in clause (i) or (ii) above is to be settled by delivery of Common
Stock or such other securities, in cash or otherwise. The foregoing sentence
shall not apply to (A) the Shares to be sold hereunder or (B) the issuance by
the Company of shares of Common Stock upon the exercise of an option or warrant
or the conversion of a security outstanding on the date hereof of which the
Underwriters have been advised in writing or (C) the grant by the Company of
options or the issuance by the Company of shares of Common Stock pursuant to
the Company's 1986 Stock Incentive Plan, 1992 Nonqualified Stock Option Plan,
1994 Equity Incentive Plan, 1995 Equity Incentive Plan, 1997 Equity Incentive
Plan or Non-Employee Director Stock Option Plan, or (D) transactions by the
Selling Shareholder in connection with a renewal or refinancing of the credit
arrangements by and among the Selling Shareholder, BankBoston, N.A. and Long
Lane Master Trust II. In addition, the Selling Shareholder agrees that,
without the prior written consent of Xxxxxx Xxxxxxx & Co. Incorporated on
behalf of the Underwriters, he will not, during the period ending 90 days after
the date of the Prospectus, make any demand for, or exercise any right with
respect to, the registration of any shares of Common Stock or any security
convertible into or exercisable or exchangeable for Common Stock.
4. Terms of Public Offering. The Sellers are advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. The Sellers are further
advised by you that the Shares are to be offered to the public initially at
U.S.$_____ a share (the "PUBLIC OFFERING PRICE") and to certain dealers
selected by you at a price that represents a concession not in excess of
U.S.$____ a share under the Public Offering
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Price, and that any Underwriter may allow, and such dealers may reallow, a
concession, not in excess of U.S.$____ a share, to any Underwriter or to
certain other dealers.
5. Payment and Delivery. Payment for the Firm Shares to be sold by each
Seller shall be made to such Seller in Federal or other funds immediately
available in New York City against delivery of such Firm Shares for the
respective accounts of the several Underwriters at 10:00 a.m., New York City
time, on May __, 1998, or at such other time on the same or such other date,
not later than May __, 1998, as shall be designated in writing by you. The
time and date of such payment are hereinafter referred to as the "CLOSING
DATE".
Payment for any Additional Shares shall be made to the Company in Federal
or other funds immediately available in New York City against delivery of such
Additional Shares for the respective accounts of the several Underwriters at
10:00 a.m., New York City time, on the date specified in the notice described
in Section 3 or at such other time on the same or on such other date, in any
event not later than _______, 1998, as shall be designated in writing by the
U.S. Representatives. The time and date of such payment are hereinafter
referred to as the "OPTION CLOSING DATE".
Certificates for the Firm Shares and Additional Shares shall be in
definitive form and registered in such names and in such denominations as you
shall request in writing not later than one full business day prior to the
Closing Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and Additional Shares shall be delivered to you on
the Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes
payable in connection with the transfer of the Shares to the Underwriters duly
paid, against payment of the Purchase Price therefor.
6. Conditions to the Underwriters' Obligations. The obligations of the
Sellers to sell the Shares to the Underwriters and the several obligations of
the Underwriters to purchase and pay for the Shares on the Closing Date are
subject to the condition that the Registration Statement shall have become
effective not later than [_______] (New York City time) on the date hereof.
The several obligations of the Underwriters are subject to the following
further conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential
downgrading or
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of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded any of the
Company's securities by any "nationally recognized statistical
rating organization," as such term is defined for purposes of Rule
436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations
of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement)
that, in your judgment, is material and adverse and that makes it,
in your judgment, impracticable to market the Shares on the terms
and in the manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date
a certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in Section 6(a)(i) above and to
the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing Date
and that the Company has complied with all of the agreements and satisfied
all of the conditions on its part to be performed or satisfied hereunder
on or before the Closing Date.
The officer signing and delivering such certificate may rely
upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date
an opinion of Bose XxXxxxxx & Xxxxx, outside counsel for the Company,
dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken
as a whole;
(ii) each subsidiary of the Company has been duly formed, is
validly existing as a corporation, partnership or limited
liability company in good standing under the laws of the
jurisdiction of its
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organization, has the corporate, partnership or limited liability
company power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken
as a whole;
(iii) the authorized capital stock of the Company conforms
as to legal matters to the description thereof contained in the
Prospectus;
(iv) the shares of Common Stock (including the shares to be
sold by the Selling Shareholder) outstanding prior to the issuance
of the Shares have been duly authorized and are validly issued,
fully paid and non-assessable;
(v) all of the issued equity interests of each subsidiary of
the Company have been duly and validly authorized and issued, are
fully paid and non-assessable and, except as set forth in Schedule
III hereto, are owned directly by the Company, free and clear of
all liens, encumbrances, equities or claims;
(vi) the Shares to be sold by the Company have been duly
authorized and, when issued and delivered in accordance with the
terms of this Agreement, will be validly issued, fully paid and
non-assessable, and the issuance of such Shares will not be
subject to any preemptive or similar rights;
(vii) this Agreement has been duly authorized, executed and
delivered by the Company;
(viii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this
Agreement will not contravene any provision of applicable law or
the articles of incorporation or by-laws of the Company or, to the
best of such counsel's knowledge, any agreement or other
instrument binding upon the Company or any of its subsidiaries
that is material to the Company and its subsidiaries, taken as a
whole, or, to the best of such counsel's knowledge, any judgment,
order or decree of any governmental body, agency or court having
jurisdiction over the Company or any subsidiary, and no consent,
approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the
Company of its obligations under this Agreement,
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except such as may be required by the securities or Blue Sky laws
of the various states in connection with the offer and sale of the
Shares by the U.S. Underwriters;
(ix) the statements (A) in the Prospectus under the captions
"Summary -- Recent Developments," "-- SF Acquisition," "-- Wabash
Valley Acquisition," "-- WQCD Acquisition," "Business --
Television Stations," "-- Competition," "Principal and Selling
Shareholders," "Description of Capital Stock," "Certain U.S.
Federal Tax Consideration for Non-U.S. Holders of Class A Common
Stock," and "Underwriters", (B) in the Company's Annual Report on
Form 10-K for the fiscal year ended February 28, 1998 under the
captions "Business -- Pending Transactions," "-- Competition,"
"Properties," "Legal Proceedings", (C) in the description of the
Class A Common Stock contained in the Company's registration
statement on Form 8-A (file no. 0-23264), as amended, (D) in the
Company's Proxy Statement pursuant to Section 14(A) of the
Exchange Act on Schedule 14A dated May 21, 1998 under the caption
"Executive Compensation -- Employment Agreements," and (E) in the
Registration Statement in Item 15, in each case insofar as such
statements constitute summaries of the legal matters, documents or
proceedings referred to therein, fairly present the information
called for with respect to such legal matters, documents and
proceedings and fairly summarize the matters referred to therein;
(x) after due inquiry, such counsel does not know of any
legal or governmental proceedings pending or threatened to which
the Company or any of its subsidiaries is a party or to which any
of the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration
Statement or the Prospectus and are not so described or of any
statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration
Statement that are not described or filed as required;
(xi) the Company is not and, after giving effect to the
offering and sale of the Shares and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company" as such term is defined in the Investment
Company Act of 1940, as amended;
(xii) (A) each document, if any, filed pursuant to the
Exchange Act and incorporated by reference in the Registration
Statement and the Prospectus (except for financial statements and
schedules as to which
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such counsel need not express any opinion) complied when so filed
as to form in all material respects with the Exchange Act, and the
applicable rules and regulations of the Commission thereunder, (B)
the Registration Statement and Prospectus (except for financial
statements and schedules and other financial and statistical data
included therein as to which such counsel need not express any
opinion) comply as to form in all material respects with the
Securities Act and the applicable rules and regulations of the
Commission thereunder, (C) such counsel has no reason to believe
that (except for financial statements and schedules and other
financial and statistical data as to which such counsel need not
express any belief) the Registration Statement and the prospectus
included therein at the time the Registration Statement became
effective contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (D)
such counsel has no reason to believe that (except for financial
statements and schedules and other financial and statistical data
as to which such counsel need not express any belief) the
Prospectus contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading;
(xiii) neither the Company nor any subsidiary (other than
Emmis Meadowlands Corporation and Emmis 1380 AM Radio Corporation
of St. Louis) is or has been a "United States real property
holding corporation" within the meaning of Section 897 (c)(2) of
the Internal Revenue Code of 1986, as amended, during the
applicable period specified in Section 897 (c)(1)(A); and
(xiv) except as set forth on Exhibit C, no holder of any
security of the Company has any right, not effectively satisfied
or waived, to require inclusion of shares of common stock or any
other security of the Company in the Registration Statement.
The opinion of Bose XxXxxxxx & Xxxxx described in this Section 6(c)
above shall be rendered to the Underwriters at the request of the Company
and shall so state therein.
(d) The Underwriters shall have received on the Closing Date an
opinion of Bose XxXxxxxx & Xxxxx, counsel for the Selling Shareholder,
dated the Closing Date, to the effect that:
(i) this Agreement has been duly authorized, executed and
delivered by or on behalf of the Selling Shareholder;
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(ii) the execution and delivery by the Selling Shareholder
of, and the performance by such Selling Shareholder of its
obligations under, this Agreement and the Custody Agreement and
Power of Attorney of such Selling Shareholder will not contravene
any provision of applicable law, or, to the best of such counsel's
knowledge, any agreement or other instrument binding upon such
Selling Shareholder or, to the best of such counsel's knowledge,
any judgment, order or decree of any governmental body, agency or
court having jurisdiction over such Selling Shareholder, and no
consent, approval, authorization or order of, or qualification
with, any governmental body or agency is required for the
performance by such Selling Shareholder of its obligations under
this Agreement or the Custody Agreement or Power of Attorney of
such Selling Shareholder, except such as may be required by the
securities or Blue Sky laws of the various states in connection
with offer and sale of the Shares;
(iii) the Selling Shareholder has valid title to the Shares
to be sold by such Selling Shareholder and the legal right and
power, and all authorization and approval required by law, to
enter into this Agreement and the Custody Agreement and Power of
Attorney of such Selling Shareholder and to sell, transfer and
deliver the Shares to be sold by such Selling Shareholder;
(iv) the Custody Agreement and the Power of Attorney of the
Selling Shareholder have been duly authorized, executed and
delivered by such Selling Shareholder and are valid and binding
agreements of such Selling Shareholder;
(v) delivery of the Shares to be sold by the Selling
Shareholder pursuant to this Agreement will pass title to such
Shares free and clear of any security interests, claims, liens,
equities and other encumbrances; and
(vi) such counsel (A) is of the opinion that the
Registration Statement and Prospectus (except for financial
statements and schedules and other financial and statistical data
included therein as to which such counsel need not express any
opinion) comply as to form in all material respects with the
Securities Act and the applicable rules and regulations of the
Commission thereunder, (B) has no reason to believe that (except
for financial statements and schedules and other financial and
statistical data as to which such counsel need not express any
belief) the Registration Statement and the prospectus included
therein at the time the Registration Statement became effective
contained any untrue
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statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading and (C) has no reason to believe that
(except for financial statements and schedules and other financial
and statistical data as to which such counsel need not express any
belief) the Prospectus contains any untrue statement of a material
fact or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading.
(e) The Underwriters shall have received an opinion, dated such
Closing Date, of Xxxxxxx, Carton & Xxxxxxx, FCC counsel for the Company,
to the effect that:
(i) Except for such FCC consents and approvals that have already
been obtained and are currently in effect, no consent or approval
of the FCC is required under the Communications Act of 1934, as
amended, and the regulations promulgated thereunder (the
"COMMUNICATIONS LAWS") for the issuance and sale under this
Agreement by the Company of the Shares. The execution, delivery
and performance of this Agreement in accordance with the terms
hereof by the Company does not violate the Communications Laws;
(ii) Except as described in the Company's Annual Report on Form
10-K for the fiscal year ended February 28, 1998, the Company and
the following subsidiaries of the Company (the "SUBSIDIARIES")
hold all necessary authorizations, approvals, consents, orders,
licenses, certificates and permits issued by the FCC to own and to
operate their respective radio broadcast stations (the "STATIONS")
as identified below (all such held FCC authorizations, approvals,
consents, orders, licenses, certificates and permits of the
Subsidiaries collectively, "FCC LICENSES"):
Corporation Station
----------- -------
Emmis FM License Corporation of St. Louis KSHE-FM
Emmis 104.1 FM Radio License Corporation of St. Xxxxx XXXX-FM
Emmis 106.5 FM License Corporation of St. Louis WKKX-FM
Emmis FM License Corporation of Indianapolis WENS-FM
Emmis AM Radio License Corporation of Indianapolis WIBC-AM
Emmis FM Radio License Corporation of Indianapolis WNAP-FM
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Emmis 105.7 FM Radio License Corporation of Indianapolis WTLC-FM
Emmis 1310 AM Radio License Corporation of Indianapolis WTLC-AM
Emmis FM License Corporation of Chicago WKQX-FM
Emmis License Corporation of New York WQHT-FM
Emmis Radio License Corporation of New York WRKS-FM
KPWR License, Inc. KPWR-FM
(iii) Except as set forth, or incorporated by reference, in the
Prospectus, such counsel knows of no proceedings pending or
threatened in writing under the Communications Laws against the
Company, the Subsidiaries or the Stations before or by the FCC or
any court having jurisdiction over matters arising under the
Communications Laws, relating to any invalidity, revocation or
modification of any FCC Licenses, or the violation of the
Communications Laws, that would reasonably be expected to have a
material adverse effect upon the condition (financial or other),
business or properties of the Company and the Subsidiaries taken as
a whole;
(iv) The statements set forth in the Registration Statement under
the captions "Risk Factors -- New Technologies" and " -- Broadcast
Industry Subject to Federal Regulation"; "Recent Developments --
SF Acquisition," and "-- Wabash Valley Acquisition" ; and Business
Strategy -- Competition"; and in the Company's Annual Report on
Form 10-K (file no. 0-23264) for the fiscal year ended February 28,
1998, incorporated by reference in the Registration Statement,
under the captions "Item 1. Business. -- Competition," and "--
Federal Regulation," insofar as such statements constitute a
summary of Communications Laws and material proceedings thereunder,
fairly present such information contained under such captions in
light of the circumstances under which such statements are made.
The statements set forth in the Registration Statement under the
captions "Risk Factors -- New Technologies" and " -- Broadcast
Industry Subject to Federal Regulation"; "Recent Developments -- SF
Acquisition," and " -- Wabash Valley Acquisition" ; and Business
Strategy -- Competition"; and in the Company's Annual Report on
Form 10-K (file no. 0-23264), incorporated by reference in the
Registration Statement, under the captions "Item 1. Business. --
Competition," and "-- Federal Regulation," insofar as such
statements constitute a summary with respect to FCC matters and
legal
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conclusions with respect to FCC matters, fairly and in all
material respects accurately present such information contained
under such captions in light of the circumstances under which such
statements are made;
(v) Such counsel has no reason to believe that any part of the
Registration Statement or any amendment thereto, as of its
effective date or as of such Closing Date, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus or any amendment or
supplement thereto, as of its issue date or as of such Closing
Date, contained any untrue statement of a material fact or omitted
to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided that, in rendering the
opinion in this subparagraph (v), counsel may qualify its opinion
based on the scope of its engagement as FCC counsel for the
Company.
(f) The Underwriters shall have received on the Closing Date an
opinion of Dow, Xxxxxx & Xxxxxxxxx, PLLC, counsel for the Underwriters,
dated the Closing Date, covering the matters referred to in Section
6(c)(ix) (but only as to the statements in the Prospectus under
"Underwriters") and clauses (B), (C) and (D) of 6(c)(xiii) above.
With respect to Section 6(c)(xiii) and 6(d)(vi) above, Bose XxXxxxxx
& Xxxxx may state that its opinion and belief are based upon its
participation in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto and documents
incorporated by reference and review and discussion of the contents
thereof, but are without independent check or verification, except as
specified. With respect to clauses (B), (C) and (D) of paragraph
6(c)(xiii) above, Dow, Xxxxxx & Xxxxxxxxx, PLLC may state that its
opinion and belief are based upon its participation in the preparation of
the Registration Statement and Prospectus and any amendments or
supplements thereto (other than the documents incorporated by reference)
and upon review and discussion of the contents thereof (including
documents incorporated by reference), but are without independent check
or verification except as specified.
(g) The Underwriters shall have received, on each of the date
hereof and the Closing Date, a letter dated the date hereof or the
Closing Date, as the case may be, in form and substance satisfactory to
the Underwriters, from Xxxxxx Xxxxxxxx LLP, independent public
accountants, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect
to the financial statements and certain financial information contained
in the Registration Statement and the
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Prospectus or incorporated by reference therein; provided that the letter
delivered on the Closing Date shall use a "cut-off date" not earlier than
the date hereof.
(h) The "lock-up" agreements, each substantially in the form of
Exhibit A hereto, between you and certain shareholders, officers and
directors of the Company relating to sales and certain other dispositions
of shares of Common Stock or certain other securities, delivered to you
on or before the date hereof, shall be in full force and effect on the
Closing Date.
(i) The Underwriters shall have received on the Closing Date a
waiver, substantially in the form of Exhibit B hereto, from each
executive officer, director and beneficial owner of more than five
percent of the issued and outstanding Common Stock of the Company and
each person, which, to the knowledge of the Company, is an "affiliate"
(as defined for purposes of Rule 144 under the Securities Act) of the
Company, in each case which possesses registration rights, claims, causes
of action or objections under any registration rights agreement entered
into by the Company and currently in effect.
The several obligations of the U.S. Underwriters to purchase Additional
Shares hereunder are subject to the delivery to the U.S. Representatives on the
Option Closing Date of such documents as they may reasonably request with
respect to the good standing of the Company, the due authorization and issuance
of the Additional Shares and other matters related to the issuance of the
Additional Shares.
7. Covenants of the Company. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish to you, without charge, 15 signed copies of the
Registration Statement (including exhibits thereto and documents
incorporated by reference) and for delivery to each other Underwriter a
conformed copy of the Registration Statement (without exhibits thereto,
but including documents incorporated by reference) and to furnish to you
in New York City, without charge, prior to 10:00 a.m. New York City time
on the business day next succeeding the date of this Agreement and during
the period mentioned in Section 6(c) below, as many copies of the
Prospectus, any documents incorporated by reference and any supplements
and amendments thereto or to the Registration Statement as you may
reasonably request. The terms "supplement" and "amendment" or "amend" as
used in this Agreement shall include all documents subsequently filed by
the Company with the Commission pursuant to the Exchange Act that are
deemed to be incorporated by reference in the Prospectus.
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(b) Before amending or supplementing the Registration Statement or
the Prospectus, to furnish to you a copy of each such proposed amendment
or supplement and not to file any such proposed amendment or supplement
to which you reasonably object, and to file with the Commission within
the applicable period specified in Rule 424(b) under the Securities Act
any prospectus required to be filed pursuant to such Rule.
(c) If, during such period after the first date of the public
offering of the Shares as in the opinion of counsel for the Underwriters
the Prospectus is required by law to be delivered in connection with
sales by an Underwriter or dealer, any event shall occur or condition
exist as a result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if, in the opinion of counsel for the Underwriters, it is
necessary to amend or supplement the Prospectus to comply with applicable
law, forthwith to prepare, file with the Commission and furnish, at its
own expense, to the Underwriters and to the dealers (whose names and
addresses you will furnish to the Company) to which Shares may have been
sold by you on behalf of the Underwriters and to any other dealers upon
request, either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus, as amended or
supplemented, will comply with law.
(d) To endeavor to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request.
(e) To make generally available to the Company's security holders
and to you as soon as practicable an earning statement covering the
twelve-month period ending May 31, 1999 that satisfies the provisions of
Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
8. Expenses. Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Sellers agree to
pay or cause to be paid all expenses incident to the performance of their
obligations under this Agreement, including: (i) the fees, disbursements and
expenses of the Company's counsel, the Company's accountants and counsel for
the Selling Shareholder in connection with the registration and delivery of the
Shares under the Securities Act and all other fees or expenses in connection
with the preparation and filing of the Registration Statement, any preliminary
prospectus, the Prospectus and amendments and supplements to any of the
foregoing, including all printing costs associated therewith, and the mailing
and delivering of copies thereof to the
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Underwriters and dealers, in the quantities hereinabove specified, (ii) all
costs and expenses related to the transfer and delivery of the Shares to
the Underwriters, including any transfer or other taxes payable thereon, (iii)
the cost of printing or producing any Blue Sky or Legal Investment memorandum in
connection with the offer and sale of the Shares under state securities laws and
all expenses in connection with the qualification of the Shares for offer and
sale under state securities laws as provided in Section 7(d) hereof, including
filing fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky or Legal Investment memorandum, (iv) all filing fees and the reasonable
fees and disbursements of counsel to the Underwriters incurred in connection
with the review and qualification of the offering of the Shares by the National
Association of Securities Dealers, Inc., (v) the cost of printing certificates
representing the Shares, (vi) the costs and charges of any transfer agent,
registrar or depositary, (vii) the costs and expenses of the Company relating to
investor presentations on any "road show" undertaken in connection with the
marketing of the offering of the Shares, including, without limitation, expenses
associated with the production of road show slides and graphics, fees and
expenses of any consultants engaged in connection with the road show
presentations with the prior approval of the Company, travel and lodging
expenses of the representatives and officers of the Company and any such
consultants, and the cost of any aircraft chartered in connection with the road
show, (viii) all expenses in connection with any offer and sale of the Shares
outside of the United States, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection with offers and
sales outside of the United States, and (ix) all other costs and expenses
incident to the performance of the obligations of the Company hereunder for
which provision is not otherwise made in this Section. It is understood,
however, that except as provided in this Section, Section 9 entitled "Indemnity
and Contribution", and the last paragraph of Section 11 below, the Underwriters
will pay all of their costs and expenses, including fees and disbursements of
their counsel, stock transfer taxes payable on resale of any of the Shares by
them and any advertising expenses connected with any offers they may make.
9. Indemnity and Contribution. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any
amendment thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such
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losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through you expressly for use therein.
(b) The Selling Shareholder agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act and the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but only with reference to information relating to such
Selling Shareholder furnished in writing by or on behalf of such Selling
Shareholder expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto.
(c) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Selling Shareholder, the Company, its directors, its officers
who sign the Registration Statement and each person, if any, who controls the
Company or the Selling Shareholder within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to such Underwriter, but only with
reference to information relating to such Underwriter furnished to the Company
in writing by such Underwriter through you expressly for use in the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto.
(d) In case any proceeding (including any governmental investigation
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 9(a), 9(b) or 9(c), such person (the "INDEMNIFIED
PARTY") shall promptly notify the person against whom such indemnity may be
sought (the "INDEMNIFYING PARTY") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be
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at the expense of such indemnified party unless (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for (i) the fees and expenses
of more than one separate firm (in addition to any local counsel) for all
Underwriters and all persons, if any, who control any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, (ii) the fees and expenses of more than one separate firm (in
addition to any local counsel) for the Company, its directors, its officers who
sign the Registration Statement and each person, if any, who controls the
Company within the meaning of either such Section and (iii) the fees and
expenses of more than one separate firm (in addition to any local counsel) for
the Selling Shareholder and that all such fees and expenses shall be reimbursed
as they are incurred. In the case of any such separate firm for the
Underwriters and such control persons of any Underwriters, such firm shall be
designated in writing by Xxxxxx Xxxxxxx & Co. Incorporated. In the case of any
such separate firm for the Selling Shareholder, such firm shall be designated
in writing by the Selling Shareholder. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the
second and third sentences of this paragraph, the indemnifying party agrees
that it shall be liable for any settlement of any proceeding effected without
its written consent if (i) such settlement is entered into more than 30 days
after receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
(e) To the extent the indemnification provided for in Section 9(a), 9(b)
or 9(c) is unavailable to an indemnified party or insufficient in respect of
any losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such
26
27
losses, claims, damages or liabilities (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company and the Selling
Shareholder on the one hand and the Underwriters on the other hand from the
offering of the Shares or (ii) if the allocation provided by clause 9(e)(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 9(e)(i) above
but also the relative fault of the Company and the Selling Shareholder on the
one hand and the Underwriters on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Selling Shareholder on the
one hand and the Underwriters on the other hand in connection with the offering
of the Shares shall be deemed to be in the same respective proportions as the
net proceeds from the offering of the Shares (before deducting expenses)
received by each of the Company and the Selling Shareholder and the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover of the Prospectus, bear to the
aggregate Public Offering Price of the Shares. The relative fault of the
Company and the Selling Shareholder on the one hand and the Underwriters on the
other hand shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Underwriters' respective obligations to contribute pursuant to
this Section 9 are several in proportion to the respective number of Shares
they have purchased hereunder, and not joint.
(f) The Sellers and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 9 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in Section 9(e). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 9, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 9 are not
exclusive and shall not limit any rights or
27
28
remedies which may otherwise be available to any indemnified party at law or in
equity.
(g) The indemnity and contribution provisions contained in this Section 9
and the representations, warranties and other statements of the Company and the
Selling Shareholder contained in this Agreement shall remain operative and in
full force and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter or by or on behalf of the Company and the Selling
Shareholder, the Company's officers and directors or any person controlling the
Company and (iii) acceptance of and payment for any of the Shares.
10. Termination. This Agreement shall be subject to termination by
notice given by you to the Company, if (a) after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange, the National Association
of Securities Dealers, Inc., the Chicago Board Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse and (b) in the case of any of
the events specified in clauses 10(a)(i) through 10(a)(iv), such event, singly
or together with any other such event, makes it, in your judgment,
impracticable to market the Shares on the terms and in the manner contemplated
in the Prospectus.
11. Effectiveness; Defaulting Underwriters. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or the Option Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase Shares
that it has or they have agreed to purchase hereunder on such date, and the
aggregate number of Shares which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate number of the Shares to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the number of
Firm Shares set forth opposite their respective names in Schedule I or Schedule
II bears to the aggregate number of Firm Shares set forth opposite the names of
all such non-defaulting Underwriters, or in such other proportions as you may
specify, to purchase the Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the number of Shares that any Underwriter
28
29
has agreed to purchase pursuant to this Agreement be increased pursuant to this
Section 9 by an amount in excess of one-ninth of such number of Shares without
the written consent of such Underwriter. If, on the Closing Date, any
Underwriter or Underwriters shall fail or refuse to purchase Firm Shares and
the aggregate number of Firm Shares with respect to which such default occurs
is more than one-tenth of the aggregate number of Firm Shares to be purchased,
and arrangements satisfactory to you and the Company for the purchase of such
Firm Shares are not made within 36 hours after such default, this Agreement
shall terminate without liability on the part of any non-defaulting Underwriter
or the Company. In any such case either you or the Company shall have the
right to postpone the Closing Date, but in no event for longer than seven days,
in order that the required changes, if any, in the Registration Statement and
in the Prospectus or in any other documents or arrangements may be effected.
If, on the Option Closing Date, any Underwriter or Underwriters shall fail or
refuse to purchase Additional Shares and the aggregate number of Additional
Shares with respect to which such default occurs is more than one-tenth of the
aggregate number of Additional Shares to be purchased, the non-defaulting
Underwriters shall have the option to (i) terminate their obligation hereunder
to purchase Additional Shares or (ii) purchase not less than the number of
Additional Shares that such non-defaulting Underwriters would have been
obligated to purchase in the absence of such default. Any action taken under
this paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for
all out-of-pocket expenses (including the fees and disbursements of their
counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering contemplated hereunder.
12. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
14. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
29
30
Very truly yours,
EMMIS BROADCASTING CORPORATION
By:_______________________
Name:
Title:
__________________________
Xxxxxxx X. Xxxxxxx
Accepted as of the date hereof
XXXXXX XXXXXXX & CO. INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXXXX, LUFKIN & XXXXXXXX SECURITIES CORPORATION
XXXXXX BROTHERS INC.
X. X. XXXXXXX & SONS, INC.
XXXXXXX, SACHS & CO.
NATIONSBANC XXXXXXXXXX SECURITIES LLC
XXXXXXXX & CO. INC.
Acting severally on behalf of themselves
and the several U.S. Underwriters
named in Schedule I hereto.
By: Xxxxxx Xxxxxxx & Co. Incorporated
By:___________________________
Name:
Title:
30
31
XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
XXXXXXXXX, LUFKIN & XXXXXXXX SECURITIES INTERNATIONAL
XXXXXX BROTHERS INTERNATIONAL (EUROPE)
X. X. XXXXXXX & SONS, INC.
XXXXXXX SACHS INTERNATIONAL
J. XXXXX XXXXXXXX & CO. LIMITED
NATIONSBANC XXXXXXXXXX SECURITIES LLC
Acting severally on behalf of themselves
and the several International Underwriters
named in Schedule II hereto.
By: Xxxxxx Xxxxxxx & Co. International Limited
By: ____________________________
Name:
Title:
31
32
SCHEDULE I
U.S. UNDERWRITERS
NUMBER OF
FIRM SHARES
UNDERWRITER TO BE PURCHASED
Xxxxxx Xxxxxxx & Co. Incorporated
Credit Suisse First Boston Corporation
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
Xxxxxx Brothers Inc.
X. X. Xxxxxxx & Sons, Inc.
Xxxxxxx, Sachs & Co.
NationsBanc Xxxxxxxxxx Securities LLC
Xxxxxxxx & Co. Inc.
_________
Total U.S. Firm Shares ..............
=========
33
SCHEDULE II
INTERNATIONAL UNDERWRITERS
NUMBER OF
FIRM SHARES
UNDERWRITER TO BE PURCHASED
Xxxxxx Xxxxxxx & Co. International Limited
Credit Suisse First Boston (Europe) Limited
Xxxxxxxxx, Lufkin & Xxxxxxxx International
Xxxxxx Brothers International (Europe)
X.X. Xxxxxxx & Sons, Inc.
Xxxxxxx Sachs International
J. Xxxxx Xxxxxxxx & Co. Limited
NationsBanc Xxxxxxxxxx Securities LLC
_________
Total International Firm Shares ......
=========
34
SCHEDULE III
SUBSIDIARY
Xxxxxx America Radio, LLC
Emmis International Corporation
Emmis Meadowlands Corporation
35
EXHIBIT A
[FORM OF LOCK-UP LETTER]
May __, 1998
Xxxxxx Xxxxxxx & Co. Incorporated
Credit Suisse First Boston Corporation
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
Xxxxxx Brothers Inc.
X. X. Xxxxxxx & Sons, Inc.
Xxxxxxx, Sachs & Co.
NationsBanc Xxxxxxxxxx Securities LLC
Xxxxxxxx & Co. Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxxx & Co. International Limited
Credit Suisse First Boston (Europe) Limited
Xxxxxxxxx, Lufkin & Xxxxxxxx International
Xxxxxx Brothers International (Europe)
X.X. Xxxxxxx & Sons, Inc.
Xxxxxxx Sachs International
J. Xxxxx Xxxxxxxx & Co. Limited
NationsBanc Xxxxxxxxxx Securities LLC
x/x Xxxxxx Xxxxxxx & Xx. Xxxxxxxxxxxxx Limited
00 Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
England
The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated
("XXXXXX XXXXXXX") and Xxxxxx Xxxxxxx & Co. International Limited ("MSIL")
propose to enter into an Underwriting Agreement (the "UNDERWRITING AGREEMENT")
with Emmis Broadcasting Corporation, an Indiana corporation (the "COMPANY")
providing for the public offering (the "PUBLIC OFFERING") by the several
Underwriters, including Xxxxxx Xxxxxxx and MSIL (the "UNDERWRITERS") of
5,000,000 shares (the
36
"SHARES") of the Class A Common Stock, par value $.01 per share, of the Company
(the "COMMON STOCK").
To induce the Underwriters that may participate in the Public Offering to
continue their efforts in connection with the Public Offering, the undersigned
hereby agrees that, without the prior written consent of Xxxxxx Xxxxxxx on
behalf of the Underwriters, it will not, during the period commencing on the
date hereof and ending 90 days after the date of the final prospectus relating
to the Public Offering (the "PROSPECTUS"), (1) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase, lend, or otherwise
transfer or dispose of, directly or indirectly, any shares of Common Stock or
any securities convertible into or exercisable or exchangeable for Common
Stock, or (2) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of
the Common Stock, whether any such transaction described in clause (1) or (2)
above is to be settled by delivery of Common Stock or such other securities, in
cash or otherwise. The foregoing sentence shall not apply to (a) the sale of
any Shares to the Underwriters pursuant to the Underwriting Agreement or (b)
transactions relating to shares of Common Stock or other securities acquired in
open market transactions after the completion of the Public Offering. In
addition, the undersigned agrees that, without the prior written consent of
Xxxxxx Xxxxxxx on behalf of the Underwriters, it will not, during the period
commencing on the date hereof and ending 90 days after the date of the
Prospectus, make any demand for or exercise any right with respect to, the
registration of any shares of Common Stock or any security convertible into or
exercisable or exchangeable for Common Stock.
Whether or not the Public Offering actually occurs depends on a number of
factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
_________________________
(Name)
_________________________
(Address)
37
EXHIBIT B
WAIVER AND RELEASE
_________________________________________, hereby waives and releases any and
all rights, claims, causes of action or objections it may now or hereafter have
pursuant to the Registration Rights Agreements or to require inclusion of
shares of Common Stock or any other security of the Company in the Registration
Statement (as herein defined), under applicable law or otherwise, in connection
with the public offering and sale of 5,000,000 shares of Class A Common Stock
by Emmis Broadcasting Corporation, an Indiana corporation ("Emmis") and Xx.
Xxxxxxx X. Xxxxxxx which have been registered pursuant to the Securities Act of
1933, as amended, on the Registration Statement or Form S-3 (file no.
333-52029) (the "Registration Statement"). For purposes hereof, "Registration
Rights Agreements" means the Registration Rights Agreement dated as of March 1,
1994 between Emmis and Xxxxxx Xxxxxxx Group Inc., the Registration Rights
Agreement dated as of January 2, 1986 between Emmis and Xxxxxx Xxxxxxx
Leveraged Mezzanine Fund, L.P., Connecticut General Life Insurance Company and
Aetna Insurance Company, as amended, and the Registration Rights Agreement
dated as of January 2, 1986 between Emmis and Xxxxxx Xxxxxxx Leveraged Equity
Fund, L.P., et al, as amended.
By:______________________________
Name:____________________________
Title:_____________________________
38
EXHIBIT C
1. Registration Rights Agreement dated as of March 1, 1994 between the
Company and Xxxxxx Xxxxxxx Group, Inc.
2. Registration Rights Agreement dated as of January 2, 1986 between the
Company and Xxxxxx Xxxxxxx Leveraged Mezzanine Fund, L.P., Connecticut
General Life Insurance Company and Aetna Insurance Company, as amended.
3. Registration Rights Agreement dated as of January 2, 1986 between the
Company and Xxxxxx Xxxxxxx Leveraged Equity Fund, L.P., et al, as amended.
