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Exhibit 1.1
INFINITY BROADCASTING CORPORATION
(a Delaware corporation)
114,750,000 Shares of Class A Common Stock
(Par Value $0.01 Per Share)
U.S. PURCHASE AGREEMENT
December ,1998
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
as U.S. Representative of the several U.S. Underwriters
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Infinity Broadcasting Corporation, a Delaware corporation (the
"Company"), confirms its agreement with Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") and each of the other U.S.
Underwriters named in Schedule A hereto (collectively, the "U.S. Underwriters",
which term shall also include any underwriter substituted as hereinafter
provided in Section 10 hereof), for whom Xxxxxxx Xxxxx is acting as
representative (in such capacity, the "U.S. Representative"), with respect to
the issue and sale by the Company and the purchase by the U.S. Underwriters,
acting severally and not jointly, of the respective numbers of shares of Class A
Common Stock, par value $0.01 per share, of the Company (the "Class A Common
Stock" and, together with the Class B Common Stock, par value $0.01 per share,
of the Company (the "Class B Common Stock"), the "Common Stock") set forth in
said Schedule A, aggregating 114,750,000 shares of Class A Common Stock (the
"Initial U.S. Securities") and with respect to the grant by the Company to the
U.S. Underwriters, acting severally and not jointly, of the option described in
Section 2(b) hereof to purchase all or any part of 17,212,500 additional shares
of Class A Common Stock to cover over-allotments, if any. The Initial U.S.
Securities to be purchased by the U.S. Underwriters and all or any part of the
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additional 17,212,500 shares of Class A Common Stock subject to the option
described in Section 2(b) hereof (the "U.S. Option Securities") are hereinafter
called, collectively, the "U.S. Securities".
It is understood that the Company is concurrently entering into an
agreement dated the date hereof (the "International Purchase Agreement")
providing for the offering by the Company of an aggregate of 20,250,000 shares
of Class A Common Stock (collectively, the "Initial International Securities")
through arrangements with certain underwriters outside the United States and
Canada (the "International Managers") for which Xxxxxxx Xxxxx International is
acting as the lead manager (in such capacity, the "Lead Manager") and the grant
by the Company to the International Managers, acting severally and not jointly,
of an option to purchase all or any part of the International Managers' pro rata
portion of up to 3,037,500 additional shares of Class A Common Stock solely to
cover over-allotments, if any (the "International Option Securities" and,
together with the U.S. Option Securities, the "Option Securities"). The Initial
International Securities and the International Option Securities are hereinafter
called, collectively, the "International Securities". It is understood that the
Company is not obligated to sell, and the U.S. Underwriters are not obligated to
purchase, any Initial U.S. Securities unless all of the Initial International
Securities are contemporaneously purchased by the International Managers.
The U.S. Underwriters and the International Managers are hereinafter
collectively called the "Underwriters", the Initial U.S. Securities and the
Initial International Securities are hereinafter collectively called the
"Initial Securities", and the U.S. Securities and the International Securities
are hereinafter collectively called the "Securities".
The Underwriters will concurrently enter into an Intersyndicate
Agreement of even date herewith (the "Intersyndicate Agreement") providing for
the coordination of certain transactions among the Underwriters under the
direction of Xxxxxxx Xxxxx (in such capacity, the "Global Coordinator").
The Company understands that the U.S. Underwriters propose to make a
public offering of the U.S. Securities as soon as the U.S. Representative deems
advisable after this Agreement has been executed and delivered.
The Company and the U.S. Underwriters agree that up to 5% of the
aggregate number of shares of the Initial Securities to be purchased by the
Underwriters (the "Reserved Securities") shall be reserved for offering and sale
by the Underwriters to certain eligible directors, officers and employees of the
Company and CBS Corporation and other persons associated with the Company or
with any director, officer or employee of the Company (collectively, the
"Eligible Reserved Share Participants"), as part of the distribution of the
Securities by the Underwriters, subject to the terms of this Agreement, the
applicable rules, regulations and interpretations of the National Association of
Securities Dealers, Inc. (the "NASD") and all other applicable laws, rules and
regulations. The Reserved Securities will be sold to the Eligible Reserved Share
Participants by the U.S. Underwriters pursuant to this Agreement at the initial
public offering price set forth
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on Schedule B hereto. To the extent that such Reserved Securities are not orally
confirmed for purchase (assuming reasonable efforts to contact such persons by
the U.S. Underwriters in accordance with the procedures set forth in the
prospectus wrapper material circulated to Eligible Reserved Share Participants
in connection with the sale of the Reserved Securities) by such Eligible
Reserved Share Participants by the end of the first business day after the date
of this Agreement, such Reserved Securities may be offered to the public as part
of the public offering contemplated hereby.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (No. 333-63727) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Company will either
(i) prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of
the 1933 Act Regulations or (ii) if the Company has elected to rely upon Rule
434 ("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a
"Term Sheet") in accordance with the provisions of Rule 434 and Rule 424(b). Two
forms of prospectus are to be used in connection with the offering and sale of
the Securities: one relating to the U.S. Securities (the "Form of U.S.
Prospectus") and one relating to the International Securities (the "Form of
International Prospectus"). The Form of International Prospectus is identical to
the Form of U.S. Prospectus, except for the front cover and back cover pages and
the information set forth under the caption "Underwriting." The information
included in any such prospectus or in any such Term Sheet, as the case may be,
that was omitted from such registration statement at the time it became
effective but that is deemed to be part of such registration statement at the
time it became effective (a) pursuant to paragraph (b) of Rule 430A is referred
to as "Rule 430A Information" or (b) pursuant to paragraph (d) of Rule 434 is
referred to as "Rule 434 Information." Each Form of U.S. Prospectus and Form of
International Prospectus used before such registration statement became
effective, and any prospectus that omitted, as applicable, the Rule 430A
Information or the Rule 434 Information, that was used after such effectiveness
and prior to the execution and delivery of this Agreement, is herein called a
"preliminary prospectus." Such registration statement, including the exhibits
thereto and schedules thereto at the time it became effective and including the
Rule 430A Information or the Rule 434 Information, as applicable, is herein
called the "Registration Statement." Any registration statement filed pursuant
to Rule 462(b) of the 1933 Act Regulations is referred to herein as the "Rule
462(b) Registration Statement," and after such filing the term "Registration
Statement" shall include the Rule 462(b) Registration Statement. The final Form
of U.S. Prospectus and the final Form of International Prospectus in the forms
first furnished to the Underwriters for use in connection with the offering of
the Securities are herein called the "U.S. Prospectus" and the "International
Prospectus," respectively, and collectively, the "Prospectuses." If Rule 434 is
relied on, the terms "U.S. Prospectus" and "International Prospectus" shall
refer to the preliminary U.S. Prospectus dated November 12, 1998 (the "U.S.
Preliminary Prospectus"), and the preliminary International Prospectus dated
November 12, 1998 (the "International Preliminary Prospectus"), respectively,
each together with the applicable Term
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Sheet and all references in this Agreement to the date of such Prospectuses
shall mean the date of the applicable Term Sheet. For purposes of this
Agreement, all references to the Registration Statement, any preliminary
prospectus, the U.S. Prospectus, the International Prospectus or any Term Sheet
or any amendment or supplement to any of the foregoing shall be deemed to
include the copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("XXXXX").
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each U.S. Underwriter as of the date hereof, as of
the Closing Time referred to in Section 2(c) hereof, and as of each Date of
Delivery (if any) referred to in Section 2(b) hereof, and agrees with each U.S.
Underwriter, as follows:
(i) Compliance with Registration Requirements. Each
of the Registration Statement and any Rule 462(b) Registration
Statement has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement or any Rule
462(b) Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and
any request on the part of the Commission for additional information
has been complied with.
At the respective times the Registration Statement,
any Rule 462(b) Registration Statement and any post-effective
amendments thereto became effective and at the Closing Time (and, if
any U.S. Option Securities are purchased, at the Date of Delivery), the
Registration Statement, the Rule 462(b) Registration Statement and any
amendments and supplements thereto complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933
Act Regulations and did not and will not contain an 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, and
the Prospectuses, any preliminary prospectuses and any supplement
thereto or prospectus wrapper prepared in connection therewith, at
their respective times of issuance and at the Closing Time, complied
and will comply in all material respects with any applicable laws or
regulations of foreign jurisdictions in which the Prospectuses and such
preliminary prospectuses, as amended or supplemented, if applicable,
are distributed in connection with the offer and sale of Reserved
Securities. Neither of the Prospectuses nor any amendments or
supplements thereto (including any prospectus wrapper), at the time the
Prospectuses or any amendments or supplements thereto were issued and
at the Closing Time (and, if any U.S. Option Securities are purchased,
at the Date of Delivery), included or will include an untrue statement
of a material fact or omitted or will omit 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. If Rule 434
is used, the Company will comply with the requirements of Rule 434 and
the Prospectuses shall not
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be "materially different", as such term is used in Rule 434, from the
prospectuses included in the Registration Statement at the time it
became effective. The representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration
Statement or the U.S. Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any
U.S. Underwriter through the U.S. Representative expressly for use in
the Registration Statement or the U.S. Prospectus.
The U.S. Preliminary Prospectus and the International
Preliminary Prospectus filed as part of the Registration Statement and
each preliminary prospectus and the prospectuses filed as part of any
subsequent amendment thereto, or filed pursuant to Rule 424 under the
1933 Act, complied when so filed in all material respects with the 1933
Act Regulations and each preliminary prospectus and the Prospectuses
delivered to the Underwriters for use in connection with this offering
was identical to the electronically transmitted copies thereof filed
with the Commission pursuant to XXXXX, except to the extent permitted
by Regulation S-T.
The Company has filed a registration statement
pursuant to Section 12(b) of the Securities Exchange Act of 1934, as
amended (the "1934 Act"), to register the Class A Common Stock, and
such registration statement has become effective.
(ii) Independent Accountants. The accountants who
certified (A) the combined financial statements of the Company and its
consolidated subsidiaries and supporting schedule, (B) the financial
statements of CBS Radio, Inc. (formerly American Radio Systems
Corporation) ("CBS Radio") and its consolidated subsidiaries and (C)
the financial statements of Old Infinity (as defined in the
Registration Statement) and its consolidated subsidiaries, in each case
included in the Registration Statement are, in each case, independent
public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(iii) Financial Statements. The combined financial
statements of the Company included in the Registration Statement and
the Prospectuses, together with the related schedule and notes (but not
including the information set forth in the Prospectuses under the
captions "Prospectus Summary-Summary Combined and Pro Forma Financial
Data", "Capitalization" and "Selected Combined and Pro Forma Financial
Data"), present fairly in all material respects the financial position
of the Company, its consolidated subsidiaries and the predecessor
entities to the Company at the dates indicated and the statements of
earnings, changes in stockholders' equity (deficiency) and cash flows
of the Company, its consolidated subsidiaries and the predecessor
entities to the Company for the periods specified; such financial
statements have been prepared in conformity with generally accepted
accounting principles in the United States ("GAAP") applied on a
consistent basis throughout the periods involved. The financial
statements of CBS Radio included in the Registration Statement and the
Prospectuses, together with the related
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notes, present fairly in all material respects the financial position
of CBS Radio and its consolidated subsidiaries at the dates indicated
and the statements of operations, stockholders' equity and cash flows
of CBS Radio and its consolidated subsidiaries for the periods
specified; such financial statements have been prepared in conformity
with GAAP applied on a consistent basis throughout the periods
involved. The financial statements of Old Infinity included in the
Registration Statement and the Prospectuses, together with the related
notes, present fairly in all material respects the financial position
of Old Infinity and its consolidated subsidiaries at the dates
indicated and the statements of earnings, changes in stockholders'
equity and cash flows of Old Infinity and its consolidated subsidiaries
for the periods specified; such financial statements have been prepared
in conformity with GAAP applied on a consistent basis throughout the
periods involved. The supporting schedule included in the Registration
Statement presents fairly in all material respects in conformity with
GAAP the information required to be stated therein. The selected
financial data and the summary financial information included in the
Prospectuses present fairly in all material respects the information
shown therein and have been compiled on a basis consistent with that of
the audited financial statements included in the Registration
Statement. The pro forma financial statements and the related notes
thereto included in the Registration Statement and the Prospectuses
present fairly in all material respects the information shown therein,
have been prepared in accordance with the Commission's rules and
guidelines with respect to pro forma financial statements and have been
properly compiled on the bases described therein, and the assumptions
used in the preparation thereof are reasonable and the adjustments used
therein are appropriate to give effect to the transactions and
circumstances referred to therein.
(iv) No Material Adverse Change in Business. Since
the respective dates as of which information is given in the
Registration Statement and the Prospectuses, except as otherwise stated
therein or contemplated thereby, (A) there has been no material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business (a "Material Adverse Effect"), (B)
there have been no transactions entered into by the Company or any of
its subsidiaries which are material with respect to the Company and its
subsidiaries considered as one enterprise, and (C) there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(v) Good Standing of the Company. The Company has
been duly organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware, and has the corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectuses and to enter into
and perform its obligations under this Agreement; and the Company is
duly qualified as a foreign corporation to transact business and is in
good standing in each other jurisdiction in which such qualification or
good standing is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so
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to qualify or to be in good standing would not result in a Material
Adverse Effect and except for jurisdictions not recognizing the legal
concepts of good standing or qualification.
(vi) Good Standing of Subsidiaries. Each "significant
subsidiary" of the Company (as such term is defined in Rule 1-02 of
Regulation S-X (each a "Subsidiary" and, collectively, the
"Subsidiaries") has been duly organized and is validly existing as a
corporation and, in jurisdictions where the legal concept exists, in
good standing under the laws of the jurisdiction of its incorporation
or organization, has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectuses and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification or good standing is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect and except for jurisdictions not
recognizing the legal concepts of good standing or qualification;
except as otherwise disclosed in the Registration Statement, all of the
issued and outstanding capital stock of each such Subsidiary has been
duly authorized and validly issued, is fully paid and non-assessable
and is owned by the Company, directly or through its subsidiaries
(except for directors' qualifying shares), free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity; none of the outstanding shares of capital stock of any
Subsidiary was issued in violation of any preemptive or similar rights
of any securityholder of such Subsidiary. The only subsidiaries of the
Company are the subsidiaries listed on Exhibit 21.1 to the Registration
Statement.
(vii) Capitalization. The authorized, issued and
outstanding capital stock of the Company is as set forth in the
Prospectuses in the column entitled "Actual" under the caption
"Capitalization" (except for the conversion of all the outstanding
shares of common stock, par value $1.00, of the Company, into
700,000,000 shares of Class B Common Stock or subsequent issuances, if
any, pursuant to this Agreement, or pursuant to reservations,
agreements or employee benefit plans referred to in the Prospectuses).
The shares of issued and outstanding capital stock of the Company have
been duly authorized and validly issued and are fully paid and
non-assessable; none of the outstanding shares of capital stock of the
Company was issued in violation of the preemptive or other similar
rights of any securityholder of the Company. At the Closing Time, the
Company's Restated Certificate of Incorporation will be effective.
(viii) Authorization of Agreement. This Agreement and
the International Purchase Agreement have been duly authorized,
executed and delivered by the Company.
(ix) Authorization and Description of Securities.
Assuming the Restated Certificate of Incorporation of the Company has
become effective, the U.S. Securities and the International Securities
to be purchased by the U.S. Underwriters and the International
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Managers, respectively, from the Company have been duly authorized for
issuance and sale to the U.S. Underwriters pursuant to this Agreement
and the International Managers pursuant to the International Purchase
Agreement, respectively, and, when issued and delivered by the Company
pursuant to this Agreement and in the International Purchase Agreement,
respectively, against payment of the consideration set forth herein and
in the International Purchase Agreement, respectively, will be validly
issued, fully paid and non-assessable; assuming the Restated
Certificate of Incorporation of the Company has become effective, the
Common Stock conforms to all statements relating thereto contained in
the Prospectuses under the heading "Description of Capital Stock" and
such description conforms to the rights set forth in the instruments
defining the same; no holder of the Securities will be subject to
personal liability by reason of being such a holder; and the issuance
of the Securities is not subject to the preemptive or other similar
rights of any securityholder of the Company.
(x) Absence of Defaults and Conflicts. (A) Neither
the Company nor any of its Subsidiaries is in violation of its charter
or by-laws or in default in the due performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or other agreement or instrument to which the Company or any of
its Subsidiaries is a party or by which it or any of them may be bound,
or to which any of the property or assets of the Company or any of its
Subsidiaries is subject (collectively, "Agreements and Instruments"),
except for such defaults that would not result in a Material Adverse
Effect; and (B) the execution, delivery and performance of this
Agreement and the International Purchase Agreement and the consummation
of the transactions contemplated in this Agreement, the International
Purchase Agreement and in the Registration Statement (including the
Reorganization (as defined in note (1) to the Company's combined
financial statements included in the Prospectuses)), the issuance and
sale of the Securities and the use of the proceeds from the sale of the
Securities as described in the Prospectuses under the caption "Use of
Proceeds") and compliance by the Company with its obligations under
this Agreement and the International Purchase Agreement have been duly
authorized by all necessary corporate action of the Company and do not
and assuming application of the proceeds from the sale of the
Securities by the Company as described in the Prospectuses under the
caption "Use of Proceeds" will not, whether with or without the giving
of notice or passage of time or both, conflict with or constitute a
breach of, or default or Repayment Event (as defined below) under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of its Subsidiaries
pursuant to, the Agreements and Instruments (except for such conflicts,
breaches, defaults or Repayment Events or liens, charges or
encumbrances that, individually or in the aggregate, would not result
in a Material Adverse Effect), nor will such action result in any
violation of the provisions of the charter or by-laws of the Company or
any Subsidiary or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over
the Company or any Subsidiary or any of their assets, properties or
operations. As
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used herein, a "Repayment Event" means any event or condition which
gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the right
to require the repurchase, redemption or repayment of all or a portion
of such indebtedness by the Company or any of its Subsidiaries.
(xi) Absence of Labor Dispute. No labor dispute with
the employees of the Company or any subsidiary exists or, to the
knowledge of the Company, is imminent which may reasonably be expected
to result in a Material Adverse Effect.
(xii) Absence of Proceedings. Except as disclosed in
the Registration Statement, there is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign (including, but not limited to, the
Federal Communications Commission (the "FCC")) now pending or, to the
knowledge of the Company, threatened, against or affecting the Company
or any Subsidiary, which is required to be disclosed in the
Registration Statement, or which is reasonably expected to result in a
Material Adverse Effect, or which is reasonably expected to materially
and adversely affect the consummation of the transactions contemplated
in this Agreement and the International Purchase Agreement or the
performance by the Company of its obligations hereunder or thereunder;
the aggregate of all pending legal or governmental proceedings to which
the Company or any Subsidiary is a party or of which any of their
respective properties or assets is the subject that are not described
in the Registration Statement, including ordinary routine litigation
incidental to the business, considered in the aggregate, would not
reasonably be expected to result in a Material Adverse Effect.
(xiii) Intercompany Agreements. Each of the
Intercompany Agreement and the Tax Sharing Agreement (each as defined
in the Prospectuses) has been duly authorized, executed and delivered
by the Company and constitutes the binding agreement of the Company,
and is enforceable against the Company in accordance with its terms,
subject, as to enforcement of remedies, to bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally, general equitable principles and the discretion of courts in
granting equitable remedies and except that any rights to indemnify and
contribution may be limited by Federal and state securities laws and
public policy considerations.
(xiv) Accuracy of Exhibits. There are no contracts or
documents which are required to be described in the Registration
Statement or the Prospectuses or to be filed as exhibits thereto which
have not been so described and filed as required.
(xv) Absence of Further Requirements. No filing with,
or authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations hereunder, in connection with the offering, issuance or
sale by
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the Company of the Securities under this Agreement and the
International Purchase Agreement or the consummation of the
transactions contemplated by this Agreement and the International
Purchase Agreement, except (A) such as have been already obtained or as
may be required under the 1933 Act or the 1933 Act Regulations and
foreign or state securities or blue sky laws or by the rules and
regulations of the NASD, (B) such as have been already obtained or may
be required under the Communications Act of 1934, as amended, (C) such
as have been obtained under the laws and regulations of jurisdictions
outside the United States in which the Reserved Securities are offered
and (D) the filing prior to the Closing Time of the Restated
Certificate of Incorporation of the Company with the Secretary of State
of the State of Delaware.
(xvi) Possession of Licenses and Permits. The Company
and its Subsidiaries possess such permits, licenses, approvals,
consents and other authorizations (collectively, "Governmental
Licenses") issued by the appropriate Federal, state, local or foreign
regulatory agencies or bodies (including, without limitation, the FCC)
necessary to conduct the business now operated by them; the Company and
its Subsidiaries are in compliance with the terms and conditions of all
such Governmental Licenses, except where the failure so to comply would
not, individually or in the aggregate, have a Material Adverse Effect;
all of the Governmental Licenses are valid and in full force and
effect, for the maximum term customarily issued, with no material
conditions, restrictions or qualifications except when the invalidity
of such Governmental Licenses or the failure of such Governmental
Licenses to be in full force and effect or the restrictions would not
have a Material Adverse Effect; and neither the Company nor any of its
Subsidiaries has received any notice from the FCC of the initiation of
proceedings other than release of public notices of filings with the
FCC by interested parties relating to the revocation, modification,
non-renewal or suspension of any such Governmental Licenses which,
individually or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in a Material Adverse Effect.
(xvii) Title to Property. The Company and its
Subsidiaries have good and marketable title to all real property owned
by the Company and its Subsidiaries and good title to all other
properties owned by them, in each case, free and clear of all
mortgages, pledges, liens, security interests, claims, restrictions or
encumbrances of any kind, except such as (A) are described in the
Prospectuses or (B) would not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect. All of
the leases and subleases material to the business of the Company and
its Subsidiaries, considered as one enterprise, and under which the
Company or any of its Subsidiaries holds properties described in the
Prospectuses, are in full force and effect except where the failure to
be in full force and effect would not reasonably be expected to have a
Material Adverse Effect.
(xviii) Tax Returns and Payment of Taxes. The Company
and its Subsidiaries have timely filed all Federal, state, local and
foreign tax returns that are
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required to be filed or have duly requested extensions thereof and all
such tax returns are true, correct and complete, except to the extent
that any failure to file or request an extension, or any incorrectness
would not, individually or in the aggregate, result in a Material
Adverse Effect. The Company and its Subsidiaries have timely paid all
taxes shown as due on such filed tax returns (including any related
assessments, fines or penalties), except to the extent that any such
taxes are being contested in good faith and by appropriate proceedings,
or to the extent that any failure to pay would not, individually or in
the aggregate, result in a Material Adverse Effect; and adequate
charges, accruals and reserves have been provided for in the financial
statements referred to in Section 1(a)(iii) above in accordance with
GAAP in respect of all Federal, state, local and foreign taxes for all
periods as to which the tax liability of the Company or any of its
Subsidiaries has not been finally determined or remains open to
examination by applicable taxing authorities. The Company is not a
"United States real property holding corporation" within the meaning of
Section 897(c)(3) of the Internal Revenue Code of 1986, as amended.
(xix) Investment Company Act. The Company is not, and
upon the issuance and sale of the Securities as herein contemplated and
the application of the net proceeds therefrom as described in the
Prospectuses will not be, an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended.
(xx) Insurance. The Company and each of its
Subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are
prudent and customary in the businesses in which they are engaged; and
neither the Company nor any of its Subsidiaries has any reason to
believe that any of them will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue
its business except where the failure to renew or maintain such
coverage is not reasonably expected to result in a Material Adverse
Effect.
(xxi) Registration Rights. Except pursuant to the
Intercompany Agreement described under the caption "Relationship
between the Company and CBS -- Intercompany Agreement-Registration
Rights" in the Prospectuses, no person has registration rights or other
similar rights to have any securities of the Company registered by the
Company pursuant to the Registration Statement or otherwise registered
by the Company under the 0000 Xxx.
(xxii) No Stabilization or Manipulation. The Company
has not taken and will not take, directly or indirectly, any action
designed to, or that might be reasonably expected to, cause or result
in stabilization or manipulation of the price of the Securities in
violation of Regulation M under the 1934 Act.
12
(b) Officer's Certificates. Any certificate signed by any officer of
the Company and delivered to the Global Coordinator, the U.S. Representative or
to counsel for the U.S. Underwriters shall be deemed a representation and
warranty by the Company to each U.S. Underwriter as to the matters covered
thereby.
SECTION 2. Sale and Delivery to U.S. Underwriters; Closing.
(a) Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to each U.S. Underwriter, severally and not
jointly, and each U.S. Underwriter, severally and not jointly, agrees to
purchase from the Company, at the price per share set forth in Schedule B, the
number of Initial U.S. Securities set forth in Schedule A opposite the name of
such U.S. Underwriter, plus any additional number of Initial U.S. Securities
which such Underwriter may become obligated to purchase pursuant to the
provisions of Section 10 hereof.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company hereby grants an option to the U.S. Underwriters,
severally and not jointly, to purchase up to an additional 17,212,500 shares of
Class A Common Stock at the price per share set forth in Schedule B, less an
amount per share equal to any dividends or distributions declared by the Company
and payable on the Initial U.S. Securities but not payable on the U.S. Option
Securities. The option hereby granted will expire 30 days after the date hereof
and may be exercised in whole or in part from time to time only for the purpose
of covering over-allotments which may be made in connection with the offering
and distribution of the Initial U.S. Securities upon notice by the Global
Coordinator to the Company setting forth the number of U.S. Option Securities as
to which the several U.S. Underwriters are then exercising such option and the
time and date of payment and delivery for such U.S. Option Securities. Any such
time and date of delivery for the U.S. Option Securities (a "Date of Delivery")
shall be determined by the Global Coordinator, but shall not be later than seven
full business days after the exercise of said option, nor in any event prior to
the Closing Time (as defined in Section 2(c) below). If the option is exercised
as to all or any portion of the U.S. Option Securities, each of the U.S.
Underwriters, acting severally and not jointly, will purchase that proportion of
the total number of U.S. Option Securities then being purchased which the number
of Initial U.S. Securities set forth in Schedule A opposite the name of such
U.S. Underwriter bears to the total number of Initial U.S. Securities, subject
in each case to such adjustments as the Global Coordinator in its discretion
shall make to eliminate any sales or purchases of fractional shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of
Cravath, Swaine & Xxxxx, 825 Eighth Avenue, New York, New York, or at such other
place as shall be agreed upon by the Global Coordinator and the Company, at 9:00
A.M. (Eastern time) on the third (fourth, if the pricing occurs after 4:30 P.M.
(Eastern time) on any given day) business day after the date hereof (unless
postponed in accordance with the provisions of Section 10), or such other time
not later than ten business
13
days after such date as shall be agreed upon by the Global Coordinator and the
Company (such time and date of payment and delivery being herein called the
"Closing Time").
In addition, in the event that any or all of the U.S. Option Securities
are purchased by the U.S. Underwriters, payment of the purchase price for, and
delivery of certificates for, such U.S. Option Securities shall be made at the
above-mentioned offices, or at such other place as shall be agreed upon by the
Global Coordinator and the Company, on each Date of Delivery as specified in the
notice from the Global Coordinator to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the U.S. Representative for the respective accounts of the U.S. Underwriters of
certificates for the U.S. Securities to be purchased by them. It is understood
that each U.S. Underwriter has authorized the U.S. Representative, for its
account, to accept delivery of, receipt for and make payment of the purchase
price for, the Initial U.S. Securities and the U.S. Option Securities, if any,
which it has agreed to purchase. Xxxxxxx Xxxxx, individually and not as
representative of the U.S. Underwriters, may (but shall not be obligated to)
make payment of the purchase price for the Initial U.S. Securities or the U.S.
Option Securities, if any, to be purchased by any U.S. Underwriter whose funds
have not been received by the Closing Time or the relevant Date of Delivery, as
the case may be, but such payment shall not relieve such U.S. Underwriter from
its obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial U.S.
Securities and the U.S. Option Securities, if any, shall be in such
denominations and registered in such names as the U.S. Representative may
request in writing at least one full business day before the Closing Time or the
relevant Date of Delivery, as the case may be. The certificates for the Initial
U.S. Securities and the U.S. Option Securities, if any, will be made available
for examination and packaging by the U.S. Representative in The City of New York
not later than 10:00 A.M. (Eastern time) on the business day prior to the
Closing Time or the relevant Date of Delivery, as the case may be.
(e) Appointment of Qualified Independent Underwriter. The Company
hereby confirms its engagement of Xxxxxxx Xxxxx as, and Xxxxxxx Xxxxx hereby
confirms its agreement with the Company to render services as, a "qualified
independent underwriter" within the meaning of Rule 2720 of the Conduct Rules of
the NASD with respect to the offering and sale of the U.S. Securities. Xxxxxxx
Xxxxx, solely in its capacity as qualified independent underwriter and not
otherwise, is referred to herein as the "Independent Underwriter".
SECTION 3. Covenants of the Company. The Company covenants with each
U.S. Underwriter as follows:
(a) Compliance with Securities Regulations and
Commission Requests. Subject to Section 3(b), the Company will comply
with the requirements of Rule 430A or Rule 434, as applicable, and will
notify the Global Coordinator immediately, and
14
confirm the notice in writing, (i) when any post-effective amendment to
the Registration Statement shall become effective, or any supplement to
the Prospectuses or any amended Prospectuses shall have been filed,
(ii) of the receipt of any comments from the Commission, (iii) of any
request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectuses or for
additional information, and (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any
preliminary prospectus, or of the suspension of the qualification of
the Securities for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceedings for any of such purposes.
The Company will promptly effect the filings necessary pursuant to Rule
424(b) and will take such steps as it deems necessary to ascertain
promptly whether the form of prospectus transmitted for filing under
Rule 424(b) was received for filing by the Commission and, in the event
that it was not, it will promptly file such prospectus. The Company
will make every reasonable effort to prevent the issuance of any stop
order and, if any stop order is issued, to obtain the lifting thereof
at the earliest possible moment.
(b) Filing of Amendments. The Company will give the
Global Coordinator notice of its intention to file or prepare any
amendment to the Registration Statement (including any filing under
Rule 462(b)), any Term Sheet or any amendment, supplement or revision
to either the prospectus included in the Registration Statement at the
time it became effective or to the Prospectuses, will furnish the
Global Coordinator with copies of any such documents a reasonable
period of time prior to such proposed filing or use, as the case may
be, and will not file or use any such document to which the Global
Coordinator or counsel for the U.S. Underwriters shall reasonably
object.
(c) Delivery of Registration Statements. The Company
has furnished or will deliver to the U.S. Representative and counsel
for the U.S. Underwriters, without charge, one signed copy of the
Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by
reference therein) and one signed copy of all consents and certificates
of experts, and will also deliver to the U.S. Representative, without
charge, a conformed copy of the Registration Statement as originally
filed and of each amendment thereto (without exhibits) for each of the
U.S. Underwriters. The copies of the Registration Statement and each
amendment thereto furnished to the U.S. Underwriters will be identical
to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(d) Delivery of Prospectuses. The Company has
delivered to each U.S. Underwriter, without charge, as many copies of
each preliminary prospectus as such U.S. Underwriter reasonably
requested, and the Company hereby consents to the use of such copies
for purposes permitted by the 1933 Act. The Company will furnish to
each U.S. Underwriter, without charge, during the period when the U.S.
Prospectus is required to
15
be delivered under the 1933 Act or the 1934 Act, such number of copies
of the U.S. Prospectus (as amended or supplemented) as such U.S.
Underwriter may reasonably request. The U.S. Prospectus and any
amendments or supplements thereto furnished to the U.S. Underwriters
will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The
Company will comply with the 1933 Act and the 1933 Act Regulations so
as to permit the completion of the distribution of the Securities as
contemplated in this Agreement, the International Purchase Agreement
and the Prospectuses. If at any time when a prospectus is required by
the 1933 Act to be delivered in connection with sales of the
Securities, any event shall occur or condition shall exist as a result
of which it is necessary, in the opinion of counsel for the U.S.
Underwriters or for the Company, to amend the Registration Statement or
amend or supplement any Prospectus in order that the Prospectuses will
not include any untrue statements of a material fact or omit to state a
material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion
of such counsel, at any such time to amend the Registration Statement
or amend or supplement any Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the Company
will promptly prepare and file with the Commission, subject to Section
3(b), such amendment or supplement as may be necessary to correct such
statement or omission or to make the Registration Statement or the
Prospectuses comply with such requirements, and the Company will
furnish to the U.S. Underwriters such number of copies of such
amendment or supplement as the U.S. Underwriters may reasonably
request.
(f) Blue Sky Qualifications. The Company will use its
commercially reasonable efforts, in cooperation with the U.S.
Underwriters, to qualify the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions
(domestic or foreign) as the Global Coordinator may designate and to
maintain such qualifications in effect for a period of not less than
one year from the later of the effective date of the Registration
Statement and any Rule 462(b) Registration Statement; provided,
however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation or
as a dealer in securities in any jurisdiction in which it is not so
qualified or to subject itself to taxation in respect of doing business
in any jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Securities have been so qualified, the
Company will file such statements and reports as may be required by the
laws of such jurisdiction to continue such qualification in effect for
a period of not less than one year from the effective date of the
Registration Statement and any Rule 462(b) Registration Statement.
16
(g) Rule 158. The Company will timely file such
reports pursuant to the 1934 Act as are necessary in order to make
generally available to its securityholders as soon as practicable an
earnings statement for the purposes of, and to provide the benefits
contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net
proceeds received by it from the sale of the Securities in the manner
specified in the Prospectuses under "Use of Proceeds".
(i) Listing. The Company will use its best efforts to
effect the listing of the Class A Common Stock (including the
Securities) on the New York Stock Exchange.
(j) Restriction on Sale of Securities. During a
period of 180 days from the date of the Prospectuses, the Company will
not, without the prior written consent of the Global Coordinator (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 for the sale of or otherwise dispose of or transfer
any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock or file any registration
statement under the 1933 Act with respect to any of the foregoing or
(ii) enter into any swap or any other agreement or any transaction that
transfers, in whole or in part, directly or indirectly, the economic
consequence of ownership of the Common Stock, whether any such swap or
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) any shares of
Common Stock transferred to an affiliate of the Company or any CBS
Party (as defined in the Restated Certificate of Incorporation of the
Company) which agrees to be bound by the provisions of this Section
3(j), (B) the Securities to be sold hereunder or under the
International Purchase Agreement, (C) any shares of Common Stock issued
or options to purchase Common Stock granted pursuant to the Company's
1998 Long-Term Incentive Plan, Executive Annual Incentive Plan and
Savings Plans referred to in the Prospectuses or (D) any shares of
Class A Common Stock issued in connection with any acquisitions to be
made by the Company in the future in consideration for shares of Class
A Common Stock.
(k) Reporting Requirements. The Company, during the
period when the Prospectuses are required to be delivered under the
1933 Act or the 1934 Act, will file all documents required to be filed
with the Commission pursuant to the 1934 Act within the time periods
required by the 1934 Act and the rules and regulations of the
Commission thereunder.
(l) Compliance with NASD Rules. The Company hereby
agrees that the Reserved Securities will be restricted as required by
the NASD under NASD Rule 2110(d) and the NASD's interpretations thereof
from sale, transfer, assignment, pledge or
17
hypothecation for a period of three months following the date of this
Agreement. The Underwriters have notified the Company as to which
persons will need to be so restricted. At the request of the Global
Coordinator, the Company will direct the transfer agent to place a stop
transfer restriction upon such Reserved Securities for such period of
time. Should the Company release, or seek to release, from such
restrictions any of the Reserved Securities that are subject to resale
restrictions in accordance with NASD rules, the Company agrees to
reimburse the Underwriters for any reasonable expenses (including,
without limitation, legal expenses) they incur in connection with such
release.
(m) Compliance with Rule 463. The Company will file
with the Commission such reports and report the use of proceeds of the
sale of the Securities as may be required pursuant to Rule 463 of the
1933 Act Regulations.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the performance of
its obligations under this Agreement, including (i) the preparation, printing
and filing of the Registration Statement (including financial statements and
exhibits) as originally filed with the Commission and of each amendment thereto,
(ii) any printing of this Agreement, any Agreement among Underwriters and such
other documents as may be required in connection with the offering, purchase,
sale, issuance or delivery of the Securities, (iii) the preparation, issuance
and delivery of the certificates for the Securities to the Underwriters,
including any stock or other transfer taxes and any stamp or other duties
payable upon the sale, issuance or delivery of the Securities to the
Underwriters and the transfer of the Securities between the U.S. Underwriters
and the International Managers, (iv) the fees and disbursements of the Company's
counsel, accountants and other advisors, (v) the qualification of the Securities
under securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation
of the Blue Sky Survey and any supplement thereto, (vi) the printing and
delivery to the Underwriters of copies of each preliminary prospectus, any Term
Sheets and of the Prospectuses and any amendments or supplements thereto, (vii)
the preparation, printing and delivery to the Underwriters of copies of the Blue
Sky Survey and any supplement thereto, (viii) the fees and expenses of any
transfer agent or registrar for the Securities, (ix) the filing fees incident
to, and the fees and disbursements of counsel to the Underwriters in connection
with, the review by the NASD of the terms of the sale of the Securities, (x) the
fees and expenses incurred in connection with the listing of the Securities on
the New York Stock Exchange, Inc. and (xi) all reasonable costs and expenses of
the Underwriters, including the reasonable fees and disbursements of counsel for
the Underwriters, in connection with matters related to the Reserved Securities.
(b) Termination of Agreement. If this Agreement is terminated by the
U.S. Representative in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the
18
Company shall reimburse the U.S. Underwriters for all of their out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for the
U.S. Underwriters.
SECTION 5. Conditions of U.S. Underwriters' Obligations. The
obligations of the several U.S. Underwriters hereunder are subject to the
accuracy of the representations and warranties of the Company contained in
Section 1 hereof or in certificates of any officer of the Company or any of its
Subsidiaries delivered pursuant to the provisions hereof, to the performance by
the Company of its covenants and other obligations hereunder, and to the
following further conditions:
(a) Effectiveness of Registration Statement. The
Registration Statement, including any Rule 462(b) Registration
Statement, has become effective and at the Closing Time no stop order
suspending the effectiveness of the Registration Statement shall have
been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel to the U.S. Underwriters. A
prospectus containing the Rule 430A Information shall have been filed
with the Commission in accordance with Rule 424(b) (or a post-effective
amendment providing such information shall have been filed and declared
effective in accordance with the requirements of Rule 430A) or, if the
Company has elected to rely upon Rule 434, a Term Sheet shall have been
filed with the Commission in accordance with Rule 424(b).
(b) Opinion of Counsel for Company. At the Closing
Time, the U.S. Representative shall have received the favorable opinion
and statement, dated as of the Closing Time, of each of (i) Xxxxx X.
Xxxxxxxx, Esq., and (ii) Cravath, Swaine & Xxxxx, counsel for the
Company, together with signed or reproduced copies of such letter for
each of the other U.S. Underwriters in each case in the form set forth
in Exhibits X-0, X-0, X-0 and A-4, as applicable, hereto and to such
further effect as counsel to the U.S. Underwriters may reasonably
request.
(c) Opinion of Regulatory Counsel for Company. At the
Closing Time, the U.S. Representative shall have received the favorable
opinion, dated as of the Closing Time, of Xxxxxxxxx, Xxxxxx & Xxxxxx,
PLLC, special regulatory counsel for the Company, together with signed
or reproduced copies of such letter for each of the other U.S.
Underwriters in the form set forth in Exhibit B hereto and to such
further effect as counsel to the U.S. Underwriters may reasonably
request.
(d) Opinion of Counsel for U.S. Underwriters. At the
Closing Time, the U.S. Representative shall have received the favorable
opinion, dated as of the Closing Time, of Skadden, Arps, Slate, Xxxxxxx
& Xxxx LLP, counsel for the U.S. Underwriters, together with signed or
reproduced copies of such letter for each of the other U.S.
Underwriters in form and substance satisfactory to the U.S.
Representative. In giving such opinion such counsel may rely, as to all
matters governed by the laws of jurisdictions
19
other than the law of the State of New York, the federal law of the
United States and the General Corporation Law of the State of Delaware,
upon the opinions of counsel satisfactory to the U.S. Representative.
Such counsel may also state that, insofar as such opinion involves
factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and its Subsidiaries and
certificates of public officials.
(e) Officers' Certificate. At the Closing Time, there
shall not have been, since the date hereof or since the respective
dates as of which information is given in the Prospectuses, any
material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or not arising
in the ordinary course of business, and the U.S. Representative shall
have received a certificate of the Company, signed by any one of the
Chairman of the Board, the President, Chief Executive Officer or an
Executive Vice President of the Company and of the chief financial or
chief accounting officer of the Company, dated as of the Closing Time,
to the effect that (i) there has been no such material adverse change,
(ii) the representations and warranties in Section 1(a) hereof are true
and correct with the same force and effect as though expressly made at
and as of the Closing Time, (iii) the Company has complied with all
agreements set forth herein or in the International Purchase Agreement
or contemplated hereby or thereby and satisfied all conditions on its
part to be performed or satisfied at or prior to the Closing Time, and
(iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and, to the best of their knowledge, no
proceedings for that purpose have been instituted or are pending or are
contemplated by the Commission.
(f) Accountant's Comfort Letter. At the time of the
execution of this Agreement, the U.S. Representative shall have
received a letter dated such date, in form and substance satisfactory
to the U.S. Representative, together with signed or reproduced copies
of such letter for each of the other U.S. Underwriters containing
statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters from KPMG Peat Marwick
LLP with respect to (i) the combined financial statements of the
Company and its consolidated subsidiaries and certain financial
information contained in the Registration Statement and the
Prospectuses, (ii) the financial statements of CBS Radio and its
consolidated subsidiaries and certain financial information contained
in the Registration Statement and the Prospectuses and (iii) the
financial statements of Old Infinity and its consolidated subsidiaries
contained in the Registration Statement and the Prospectuses.
(g) Bring-down Comfort Letter. At the Closing Time,
the U.S. Representative shall have received a letter from KPMG Peat
Marwick LLP, dated as of the Closing Time, to the effect that they
reaffirm the statements made in the letter furnished by them, pursuant
to subsection (f) of this Section, except that the "specified
20
date" referred to in such letter shall be a date not more than three
business days prior to the Closing Time.
(h) Approval of Listing. At the Closing Time, the
Securities shall have been approved for listing on the New York Stock
Exchange, Inc., subject only to official notice of issuance.
(i) No Objection. The NASD has confirmed that it has
not raised any objection with respect to the fairness and
reasonableness of the underwriting terms and arrangements.
(j) Lock-up Agreements. At the date of this
Agreement, the U.S. Representative shall have received an agreement
substantially in the form of Exhibit C hereto signed by the persons
listed on Schedule C hereto.
(k) Purchase of Initial International Securities.
Contemporaneously with the purchase by the U.S. Underwriters of the
Initial U.S. Securities under this Agreement, the International
Managers shall have purchased the Initial International Securities
under the International Purchase Agreement.
(l) Reorganization. At or prior to the Closing Time,
the Company shall have effected the Reorganization (as defined and
described in note (1) to the Company's combined financial statements
included in the Prospectuses).
(m) Conditions to Purchase of U.S. Option Securities.
In the event that the U.S. Underwriters exercise their option granted
in Section 2(b) hereof to purchase all or any portion of the U.S.
Option Securities, the representations and warranties of the Company
contained herein and the statements in any certificates furnished by
the Company or any subsidiary of the Company hereunder shall be true
and correct as of each Date of Delivery and, at the relevant Date of
Delivery, the U.S. Representative shall have received:
(i) Officers' Certificate. A certificate, dated such Date of
Delivery, of the Company, signed by any one of the Chairman of
Board, the President, Chief Executive Officer or an Executive
Vice President of the Company and of the chief financial or
chief accounting officer of the Company confirming that the
certificate delivered at the Closing Time pursuant to Section
5(e) hereof remains true and correct as of such Date of
Delivery.
(ii) Opinion of Counsel for Company. The favorable opinion and
statement of each of Xxxxx X. Xxxxxxxx, Esq. and Cravath,
Swaine & Xxxxx, counsel for the Company, in each case, dated
such Date of Delivery, relating to the U.S. Option
21
Securities to be purchased on such Date of Delivery and
otherwise in the same form as the opinion and statement
required by Section 5(b) hereof.
(iii) Opinion of Regulatory Counsel for Company. The favorable
opinion of Xxxxxxxxx, Xxxxxx & Xxxxxx, PLLC, special
regulatory counsel for the Company, in form and substance
satisfactory to counsel for the U.S. Underwriters, dated such
Date of Delivery, relating to the U.S. Option Securities to be
purchased on such Date of Delivery and otherwise to the same
effect as the opinion required by Section 5(c) hereof.
(iv) Opinion of Counsel for U.S. Underwriters. The favorable
opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel
for the U.S. Underwriters, dated such Date of Delivery,
relating to the U.S. Option Securities to be purchased on such
Date of Delivery and otherwise to the same effect as the
opinion required by Section 5(d) hereof.
(v) Bring-down Comfort Letter. A letter from KPMG Peat Marwick
LLP, in form and substance satisfactory to the U.S.
Representative and dated such Date of Delivery, substantially
in the same form and substance as the letter furnished by them
to the U.S. Representative pursuant to Section 5(g) hereof,
except that the "specified date" in the letter furnished
pursuant to this paragraph shall be a date not more than five
days prior to such Date of Delivery.
(n) Additional Documents. At the Closing Time and at
each Date of Delivery, if any, counsel for the U.S. Underwriters shall
have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the U.S. Securities as herein contemplated, or in
order to evidence the accuracy of any of the representations or
warranties, or the fulfillment of any of the conditions, herein
contained; and all proceedings taken by the Company in connection with
the issuance and sale of the U.S. Securities as herein contemplated
shall be reasonably satisfactory in form and substance to the U.S.
Representative and counsel for the U.S. Underwriters.
(o) Termination of Agreement. If any condition
specified in this Section shall not have been fulfilled when and as
required to be fulfilled, this Agreement (or, in the case of any
condition to the purchase of U.S. Option Securities on a Date of
Delivery which is after the Closing Time, the obligations of the
several U.S. Underwriters to purchase the relevant U.S. Option
Securities) may be terminated by the U.S. Representative by notice to
the Company at any time at or prior to the Closing Time or such Date of
Delivery, as the case may be, and such termination shall be without
liability of any party to any other party except as provided in Section
4 and except that Sections 1, 6, 7 and 8 shall survive any such
termination and remain in full force and effect.
22
SECTION 6. Indemnification.
(a) Indemnification of U.S. Underwriters. (1) The Company agrees to
indemnify and hold harmless each U.S. Underwriter and each person, if any, who
controls any U.S. Underwriter within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), including the
Rule 430A Information and the Rule 434 Information, if applicable, or
the omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or
the Prospectuses (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of (A) the
violation of any applicable laws or regulations of foreign
jurisdictions where Reserved Securities have been offered and (B) any
untrue statement or alleged untrue statement of a material fact
included in the supplement or prospectus wrapper material distributed
in the United States, the United Kingdom or Singapore in connection
with the reservation and sale of the Reserved Securities to Eligible
Reserved Share Participants or the omission or alleged omission
therefrom of a material fact necessary to make the statements therein,
when considered in conjunction with the Prospectuses or preliminary
prospectuses, not misleading;
(iii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission or in connection with any violation of the nature referred to
in Section 6(a)(1)(ii)(A) hereof; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of
the Company; and
(iv) against any and all expense whatsoever, as
incurred (including the fees and disbursements of counsel chosen by
Xxxxxxx Xxxxx), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission or in connection with any
violation of the nature referred to in
23
Section 6(a)(1)(ii)(A) hereof, to the extent that any such expense is
not paid under (i), (ii) or (iii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through the Global Coordinator expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information, if applicable, or any preliminary prospectus or the
U.S. Prospectus (or any amendment or supplement thereto); and provided, further,
however, that the Company shall not be liable to any indemnified party with
respect to any preliminary prospectus (or supplement thereto) if the
Prospectuses corrected any such untrue statement or omission, was delivered to
such indemnified party (sufficiently in advance of the Closing Date and in
sufficient quantity to allow for distribution by the Closing Date) and such
indemnified party failed to furnish a copy of the applicable Prospectus in
contravention of a requirement of applicable law at or prior to the written
confirmation of the sale of Securities to the applicable purchaser.
(2) In addition to and without limitation of the Company's obligations
to indemnify Xxxxxxx Xxxxx as an Underwriter, the Company also agrees to
indemnify and hold harmless the Independent Underwriter and each person, if any,
who controls the Independent Underwriter within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, from and against any and all loss,
liability, claim, damage and expense whatsoever, as incurred, incurred as a
result of the Independent Underwriter's participation as a "qualified
independent underwriter" within the meaning of Rule 2720 of the Conduct Rules of
the NASD in connection with the offering of the U.S. Securities, except for any
losses, claims, damages, liabilities and judgments found in a final judgment by
a court to have resulted from the Independent Underwriter's or such controlling
person's willful misconduct or gross negligence.
(b) Indemnification of Company, Directors and Officers. Each U.S.
Underwriter severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection
(a)(1) of this Section, as incurred, but only with respect to untrue statements
or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any preliminary
prospectus or the U.S. Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such U.S. Underwriter through the U.S. Representative expressly for
use in the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the U.S. Prospectus (or any amendment or supplement thereto).
24
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a)(1) above,
counsel to the indemnified parties shall be selected by Xxxxxxx Xxxxx, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances; provided, that, if indemnity is
sought pursuant to Section 6(a)(2), then, in addition to the fees and expenses
of such counsel for the indemnified parties, the indemnifying party shall be
liable for the reasonable fees and expenses of not more than one counsel (in
addition to any local counsel) separate from its own counsel and that of the
other indemnified parties for the Independent Underwriter in its capacity as a
"qualified independent underwriter" and all persons, if any, who control the
Independent Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of 1934 Act in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances if, in the reasonable judgment of the Independent
Underwriter, there may exist a conflict of interest between the Independent
Underwriter and the other indemnified parties. Any such separate counsel for the
Independent Underwriter and such control persons of the Independent Underwriter
shall be designated in writing by the Independent Underwriter. No indemnifying
party shall, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(iii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such
25
settlement at least 30 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such indemnified party
in accordance with such request prior to the date of such settlement.
(e) Indemnification for Reserved Securities. In connection with the
offer and sale of the Reserved Securities, the Company agrees, promptly upon a
request, in writing to indemnify and hold harmless the Underwriters from and
against any and all losses, liabilities, claims, damages and expenses incurred
by them as a result of the failure of Eligible Reserved Share Participants to
pay for and accept delivery of Reserved Securities which, by the end of the
first business day following the date of this Agreement, were subject to a
properly confirmed agreement to purchase.
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the U.S. Underwriters on the other hand from the offering of the U.S.
Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the U.S.
Underwriters on the other hand in connection with the statements or omissions,
or in connection with any violation of the nature referred to in Section
6(a)(1)(ii)(A) hereof, which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
U.S. Underwriters on the other hand in connection with the offering of the U.S.
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the U.S.
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount received by the U.S.
Underwriters, in each case as set forth on the cover of the U.S. Prospectus, or,
if Rule 434 is used, the corresponding location on the Term Sheet, bear to the
aggregate initial public offering price of the Initial U.S. Securities as set
forth on such cover.
The relative fault of the Company on the one hand and the U.S.
Underwriters on the other hand shall be determined by reference to, among other
things, whether any such 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 or by the U.S. Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission or any violation of the nature referred to in Section
6(a)(1)(ii)(A) hereof.
26
The Company and the U.S. Underwriters agree that Xxxxxxx Xxxxx will not receive
any additional benefits hereunder for serving as the Independent Underwriter in
connection with the offering and sale of the U.S. Securities.
The Company and the U.S. Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the U.S. Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no U.S. Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the U.S. Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such U.S. Underwriter has otherwise been required to pay by reason of any 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 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls a
U.S. Underwriter within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as such U.S.
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company. The U.S.
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the number of Initial U.S. Securities set forth
opposite their respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company submitted pursuant
hereto, shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any U.S. Underwriter or controlling
person, or by or on behalf of the Company, and shall survive delivery of the
U.S. Securities to the U.S. Underwriters.
SECTION 9. Termination of Agreement.
27
(a) Termination; General. The U.S. Representative may terminate this
Agreement, by notice to the Company, at any time at or prior to the Closing Time
(i) if there has been, since the time of execution of this Agreement or since
the respective dates as of which information is given in the U.S. Prospectus,
any material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or the international
financial markets, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the U.S.
Representative, impracticable to market the Securities or to enforce contracts
for the sale of the Securities, or (iii) if trading in the Class A Common Stock
has been suspended or materially limited by the Commission or the New York Stock
Exchange, or if trading generally on the American Stock Exchange or the New York
Stock Exchange or in the Nasdaq National Market has been suspended or materially
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by any of said exchanges or by such system
or by order of the Commission, the NASD or any other governmental authority, or
(iv) if a banking moratorium has been declared by either Federal or New York
authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the U.S. Underwriters. If one or
more of the U.S. Underwriters shall fail at the Closing Time or a Date of
Delivery to purchase the Initial U.S. Securities or the U.S. Option Securities,
respectively, which it or they are obligated to purchase under this Agreement
(the "Defaulted Securities"), the U.S. Representative shall have the right,
within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting U.S. Underwriters, or any other underwriters, to purchase all,
but not less than all, of the Defaulted Securities in such amounts as may be
agreed upon and upon the terms herein set forth. If, however, the U.S.
Representative shall not have completed such arrangements within such 24- hour
period, then:
(a) if the number of Defaulted Securities does not
exceed 10% of the number of U.S. Securities to be purchased on such
date, each of the non-defaulting U.S. Underwriters shall be obligated,
severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder
bear to the underwriting obligations of all non-defaulting U.S.
Underwriters; or
28
(b) if the number of Defaulted Securities exceeds 10%
of the number of U.S. Securities to be purchased on such date, this
Agreement (or, with respect to any Date of Delivery which occurs after
the Closing Time, the obligation of the U.S. Underwriters to purchase
and of the Company to sell the U.S. Option Securities to be purchased
and sold on such Date of Delivery) shall, upon prior notice to the
Company of such fact, terminate without liability on the part of any
non-defaulting U.S. Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
U.S. Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement or, in the case of a Date of Delivery which is after the
Closing Time and which does not result in a termination of the obligation of the
U.S. Underwriters to purchase and the Company to sell the relevant U.S. Option
Securities, as the case may be, either the U.S. Representative or the Company
shall have the right to postpone the Closing Time or the relevant Date of
Delivery, as the case may be, for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectuses or in
any other documents or arrangements. As used herein, the term "U.S. Underwriter"
includes any person substituted for a U.S. Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed,
telecopied (which is confirmed), sent by overnight courier (providing proof of
delivery) or transmitted by any standard form of telecommunication. Notices to
the U.S. Underwriters shall be directed to the U.S. Representative(s) at North
Tower, World Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, facsimile (212)
449-1642, attention of Xxxxx Xxxxxxx, Managing Director; and notices to the
Company shall be directed to it at Infinity Broadcasting Corporation, 00 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, facsimile (000) 000-0000, attention of
Xx. Xxxxx Xxxxxxx.
SECTION 12. Parties. This Agreement shall inure to the benefit of and
be binding upon each of the U.S. Underwriters and the Company and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the U.S. Underwriters and the Company and their respective successors and
the controlling persons and officers and directors referred to in Sections 6 and
7 and their respective heirs and legal representatives, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
herein contained. This Agreement and all conditions and provisions hereof are
intended to be for the sole and exclusive benefit of the U.S. Underwriters and
the Company and their respective successors, and such controlling persons and
officers and directors and their respective heirs and legal representatives, and
for the benefit of no other person, firm or corporation. No purchaser of
Securities from any U.S. Underwriter shall be deemed to be a successor by reason
merely of such purchase.
29
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
30
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the U.S. Underwriters and the Company in accordance with its terms.
Very truly yours,
INFINITY BROADCASTING
CORPORATION
By
----------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By
--------------------------------
Authorized Signatory
For themselves and as U.S. Representative of the
other U.S. Underwriters named in Schedule A hereto.
31
SCHEDULE A
Number of
Initial U.S.
Name of U.S. Underwriter Securities
------------------------ ----------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated.................................................................
BT Alex. Xxxxx Incorporated..............................................................
Xxxxxxx, Sachs & Co......................................................................
Xxxxx & Company Incorporated.............................................................
Credit Suisse First Boston Corporation...................................................
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation......................................
Xxxxxx Brothers Inc......................................................................
Xxxxxx Xxxxxxx & Co. Incorporated........................................................
NationsBanc Xxxxxxxxxx Securities LLC....................................................
Xxxxxxx Xxxxx Xxxxxx Inc.................................................................
Bear, Xxxxxxx & Co. Inc..................................................................
Deutsche Bank Securities Inc.............................................................
ING Baring Xxxxxx Xxxx LLC...............................................................
Lazard Freres & Co. LLC..................................................................
PaineWebber Incorporated.................................................................
Xxxxxxx X. Xxxxxxxxx & Co., Inc..........................................................
Xxxxxxxx & Co. Inc.......................................................................
XX Xxxxx Securities Corporation..........................................................
ABN AMRO Incorporated....................................................................
BancBoston Xxxxxxxxx Xxxxxxxx Inc........................................................
Chase Securities Inc.....................................................................
X.X. Xxxxxx Securities Inc...............................................................
Xxxxxxxxxxx Xxxxxxx Securities, Inc......................................................
-----------
Total ................................................................................... 114,750,000
===========
32
SCHEDULE B
INFINITY BROADCASTING CORPORATION
114,750,000 Shares of Class A Common Stock
(Par Value $0.01 Per Share)
1. The initial public offering price of the Securities,
determined as provided in said Section 2, shall be $- per share of Class A
Common Stock.
2. The purchase price per share for the Securities to be paid
by the several Underwriters shall be $-, being an amount equal to the initial
public offering price set forth above less $- per share; provided that the
purchase price per share for any U.S. Option Securities purchased upon the
exercise of the over-allotment option described in Section 2(b) shall be reduced
by an amount per share equal to any dividends or distributions declared by the
Company and payable on the Initial U.S. Securities but not payable on the U.S.
Option Securities.
33
SCHEDULE C
List of persons and entities
subject to lock-up
1. CBS Corporation, a Pennsylvania corporation
2. CBS Broadcasting Inc., a New York corporation
3. Mr. Xxx Xxxxxxxx
34
Exhibit A-1
FORM OF OPINION OF XXXXX X. XXXXXXXX, ESQ.
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) Each Subsidiary is a corporation validly existing and in good
standing under the laws of its jurisdiction of incorporation or other
organization (except for jurisdictions not recognizing the legal concept of good
standing), with full corporate or other power and authority to own, lease and
operate its properties and conduct its business as described in the
Prospectuses.
(ii) Each of the Company and each Subsidiary is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which the ownership or leasing of its properties or the conduct
of its business requires such qualification, other than jurisdictions in which
the failure so to qualify would not have a Material Adverse Effect and other
than jurisdictions not recognizing the legal concepts of good standing or
qualification.
(iii) Except as disclosed in the Registration Statement, all of the
issued and outstanding shares of capital stock of, each Subsidiary have been
duly authorized and validly issued, are fully paid and nonassessable, and, are
owned, directly or through Subsidiaries (except for directors' qualifying shares
or similar interests) by the Company.
(iv) To the knowledge of such counsel, (a) there are not any pending or
threatened actions, suits, proceedings, investigations or inquiries before any
court or governmental agency or authority or any arbitrator against the Company
or any subsidiary or a character required to be disclosed in the Registration
Statement or Prospectuses which is not adequately disclosed as required, and (b)
there is not contract, indenture, mortgage, loan agreement, not, lease or other
document of a character required to be described in the Registration Statement
or Prospectuses, or to be filed as an exhibit, which is not described or filed
as required.
(v) To the knowledge of such counsel, holders of outstanding shares of
capital stock of any Subsidiary are not entitled to statutory preemptive rights
or preemptive rights under their respective charter or by-laws in connection
with the issuance of the Securities, and holders of outstanding shares of
capital stock of the Company or any Subsidiary are not entitled to any
contractual preemptive rights in connection with the issuance of the Securities.
(vi) To the knowledge of such counsel, except as disclosed in the
Registration Statement and the Prospectuses, there are no persons with
registration rights or other similar
35
rights to have any securities registered pursuant to the Registration Statement
or otherwise registered by the Company under the 0000 Xxx.
(vii) To the knowledge of such counsel, neither the Company nor any
Subsidiary is in violation of its charter or by-laws and no default by the
Company or any Subsidiary exists in the due performance or observance of any
material obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement or the
Prospectuses or filed or incorporated by reference as an exhibit to the
Registration Statement, except that such counsel expresses no opinion as to the
covenants referred to under the heading "Risk Factors- Significant Subsidiary
Debt Covenants" in the Registration Statement.
(viii) None of the issue and sale of the Securities, the consummation
of any other of the transaction contemplated by the Purchase Agreements, the
performance of the terms of the Purchase Agreements or the application of the
proceeds of the sale of the Securities with respect to the payment of the CBS
Note (A) will conflict with, result in a breach of, or constitute a default
under, the Restated Certificate of Incorporation or Restated By-laws of the
Company, or the terms of any indenture or other agreement or instrument to which
the Company or any of its Subsidiaries is a party or bound and listed as an
exhibit to the Registration Statement, or described under the heading
"Description of Indebtedness" in the Registration Statement, except that, in
connection with the offering and sale of the Securities, CBS Radio, Inc. will be
required to make an offer to repurchase all of its existing indebtedness issued
pursuant to the CBS Indentures or (B) will contravene any law, rule or
regulation of the United States, the State of New York or the General
Corporation Law of the State of Delaware applicable to the Company or any of its
Subsidiaries, or, to the knowledge of such counsel, any order or decree of any
court or government agency or instrumentality. In connection with the foregoing,
such counsel points out that certain of the agreements referred to in clause (i)
above are or may be governed by laws other than the laws of the State of New
York. For purposed of the opinion expressed in this paragraph, however, such
counsel has assumed that all such agreements are governed by and would be
interpreted in accordance with the laws of the State of New York.
36
Exhibit A-2
FORM OF STATEMENT OF XXXXX X.
XXXXXXXX, ESQ. TO BE DELIVERED
PURSUANT TO SECTION 5(b)
In that capacity, I participated in conferences with certain
officers of, and with the accountants and counsel for, the Company concerning
the preparation of (a) the Registration Statement on Form S-1 (Registration No.
333-63727) filed with the Securities and Exchange Commission (the "Commission")
on September 18, 1998, as amended by Amendment No. 1 thereto filed with the
Commission on November 2, 1998, Amendment No.2 thereto filed with the Commission
on November 12, 1998, and Amendment No. 4 thereto filed withe the Commission on
[ ], 1998 (such Registration Statement, as amended being hereinafter called the
"Registration Statement"), for registration of the Shares under the Securities
Act of 1933 (the "Securities Act"); and (b) the final U.S. Prospectus and the
final International Prospectus, each dated December [ ], 1998, relating to the
Shares, filed with the Commission pursuant to Rule 424 (b) of the General Rules
and Regulations under the Securities Act (the "Prospectus"). However, I have not
investigated the completeness or accuracy of the Registration Statement or the
Prospectus with respect to matters related to the Communications Act of 1934,
which matters have been addressed in the opinion of Xxxxxxxxx, Xxxxxx & Xxxxxx,
PLLC, special regulatory counsel to the Company.
Although I have made certain inquiries and investigations in
connection with the preparation of the Registration Statement and the
Prospectuses, I do not assume responsibility for the accuracy or completeness of
the statements made in the Registration Statement and the Prospectus. Subject to
the foregoing, I hereby advise you that my work in connection with this matter
did not disclose any information that gave us reason to believe that: (i) the
Registration Statement at the time the Registration Statement became effective,
or the Prospectuses, as of the date hereof, in each case except the financial
statements and other information of an accounting financial nature included
therein, as to which I do not express any view, was not appropriately responsive
in all material respects to the requirements of the Securities Act and the
applicable rules and regulations of the Commission thereunder, or (ii) the
Registration Statement at the time the Registration Statement became effective,
contained an 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, or that either of the Prospectuses, at the date hereof, includes
an 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 (in each case except
for the financial statements and other information of an accounting or financial
nature included therein, as to which I do not express any view).
37
Exhibit A-3
FORM OF OPINION OF COMPANY
COUNSEL TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Company has been duly organized and is a corporation validly
existing and in good standing under the laws of the State of Delaware, with full
corporate power and authority to own, lease and operate its properties and
conduct its business as described in the Prospectuses and to enter into and
perform its obligations under the Purchase Agreements. The opinion in this
paragraph (i) relating to the valid existence and good standing of the Company
is based solely on a certificate from the Secretary of State of the State of
Delaware.
(ii) The Company's authorized equity capitalization is as set forth in
the Prospectuses in the column entitled "Actual" under the caption
"Capitalization". The Securities conform in all material respects to the
description thereof contained in the Registration Statement and the
Prospectuses. The Securities have been duly and validly authorized, and, when
issued and delivered to and paid for by the Underwriters pursuant to the
Purchase Agreements, will be validly issued, fully paid and nonassessable. The
Class B Common Stock has been duly and validly authorized, and is validly
issued, fully paid and nonassessable. The certificates for the Securities are in
valid and sufficient form. Holders of outstanding shares of Class A Common Stock
and Class B Common Stock of the Company are not entitled to statutory preemptive
rights or preemptive rights under the Company's charter or by-laws in connection
with the issuance of the Securities.
(iii) Each of the Purchase Agreements has been duly authorized,
executed and delivered by the Company.
(iv) No authorization, approval or other action by, and no notice to,
consent of, order of or filing with, any United States Federal, New York or, to
the extent required under the General Corporation Law of the State of Delaware,
Delaware governmental authority or regulatory body is required for the Purchase
Agreements, except (A) such as have been obtained under the 1933 Act, the 1934
Act and such as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by the
Underwriters and (B) such as have been or may be required under the
Communications Act of 1934, as amended, and the rules, regulations and
administrative orders promulgated thereunder.
(v) None of the issue and sale of the Securities, the consummation of
any other of the transactions contemplated by the Purchase Agreements or the
performance of the terms of the Purchase Agreements or the application of the
proceeds of the sale of the Securities (A) will conflict with, result in a
breach of, or constitute a default under, the Restated Certificate of
38
Incorporation or Restate By-laws of the Company or (B) will contravene any law,
rule or regulation of the United States, the State of New York or the General
Corporation Law of the State of Delaware applicable to the Company or any of its
Subsidiaries, or, to our knowledge, any order or decree of any court or
government agency or instrumentality.
(vi) The Company is not an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in, or
subject to regulation under, the 1940 Act.
(vii) The Registration Statement became effective under the 1933 Act on
December [ ], 1998, and thereupon the offering of the Securities as contemplated
by the Prospectuses became registered under the 1933 Act and, to knowledge, no
stop order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for the purpose have been instituted or are pending or
contemplated under the 1933 Act.
(viii) Each of the Intercompany Agreement and the Tax Sharing Agreement
has been duly authorized, executed and delivered by the Company, and constitutes
the legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject as to enforcement of remedies to
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and other similar laws affecting creditors' rights generally from time
to time in effect, to general principles of equity (including, without
limitation, concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether considered in a proceeding in equity or at law)
and to the discretion of courts in granting equitable remedies, and except that
any rights to indemnity and contribution may be limited by Federal and state
securities laws and public policy considerations.
(ix) The statements made in the Prospectuses under the caption "Certain
United States Tax Consequences to Non-United States Holder", insofar as they
purport to describe the material tax consequences of an investment in the Class
A Common Stock, fairly summarize the matters therein described.
In rendering this opinion, we have assumed, without independent
investigation, the correctness of, and take no responsibility for, the opinion
dated the date hereof of Xxxxxxxxx, Xxxxxx & Xxxxxx, PLLC, special regulatory
counsel for the Company, delivered to you pursuant to Section 5(c) of each
Purchase Agreement, as to all matters of law covered therein relating to the
Communications Act of 1934, as amended, and the rules, regulations and
administrative orders promulgated thereunder, and we express no opinion with
respect to such matters.
39
Exhibit A-4
FORM OF STATEMENT OF COMPANY'S
COUNSEL TO BE DELIVERED PURSUANT TO
SECTION 5(b)
In that capacity, we participated in conferences with certain
officers of, and with the accountants and counsel for, the Company concerning
the preparation of (a) the Registration Statement on Form S-1 (Registration No.
333-63727) filed with the Securities and Exchange Commission (the "Commission")
on September 18, 1998, as amended by Amendment No. 1 thereto filed with the
Commission on November 2, 1998, Amendment No.2 thereto filed with the Commission
on November 12, 1998, and Amendment No. 4 thereto filed with the Commission on [
], 1998 (such Registration Statement, as amended being hereinafter called the
"Registration Statement"), for registration of the Shares under the Securities
Act of 1933 (the "Securities Act"); and (b) the final U.S. Prospectus and the
final International Prospectus, each dated December [ ], 1998, relating to the
Shares, filed with the Commission pursuant to Rule 424 (b) of the General Rules
and Regulations under the Securities Act (the "Prospectus"). However, we have
not investigated the completeness or accuracy of the Registration Statement or
the Prospectus with respect to matters related to the Communications Act of
1934, which matters have been addressed in the opinion of Xxxxxxxxx, Xxxxxx &
Xxxxxx, PLLC, special regulatory counsel to the Company.
Although we have made certain inquiries and investigations in
connection with the preparation of the Registration Statement and the
Prospectuses, the limitations inherent in the role of outside counsel are such
that we cannot and do not assume responsibility for the accuracy or completeness
of the statements made in the Registration Statement and Prospectuses except
insofar as such statements relate to us and except to the extent set forth in
the first two sentences of paragraph (iii), and paragraph (ix) of our opinion to
you dated the date hereof. Subject to the foregoing, we hereby advise you that
our work in connection with this matter did not disclose any information that
gave us reason to believe that: (A) the Registration Statement at the time the
Registration Statement became effective, or the Prospectuses, as of the date
hereof, in each case except the financial statements and other information of an
accounting financial nature included therein, as to which we do not express any
view, was not appropriately responsive in all material respects to the
requirements of the Securities Act and the applicable rules and regulations of
the Commission thereunder, or (B) the Registration Statement at the time the
Registration Statement became effective, contained an 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, or that either of
the Prospectuses, at the date hereof, includes an 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 (in each case except for the
40
financial statements and other information of an accounting or financial nature
included therein, as to which we do not express any view).
41
Exhibit B
FORM OF OPINION OF COMPANY'S SPECIAL REGULATORY COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(c)
(i) The information in the Prospectuses under the captions "Risk
Factors-Government Regulation" and "Business-Government Regulation", to the
extent that such information constitutes a summary of federal communications law
and the rules, regulations and administrative orders promulgated or proposed
for promulgation thereunder, has been reviewed by such counsel and is correct in
all material respects.
(ii) Except as previously made or obtained, as the case may be, no
filing with, or authorization, approval, consent, license, order, registration,
qualification or decree of any court or administrative agency or authority is
necessary or required under the Communications Act of 1934, as amended, and the
rules, regulations and administrative orders promulgated thereunder
(collectively, the "Federal Communications Laws") in connection with the
execution or delivery by the Company of the Purchase Agreements, the performance
by the Company of the transactions contemplated thereby or the offering,
issuance or sale of the Securities, as applicable.
(iii) The Company and the subsidiaries are the holders of the Licenses
issued by the FCC listed in an attachment to such opinion (the "FCC Licenses"),
all of which are in full force and effect for the maximum license term
customarily issued, with no material conditions, restrictions or qualifications
other than as set forth on the face of authorizations evidencing the FCC
Licenses or as described in the Registration Statement and the Prospectuses.
(iv) To the best knowledge of such counsel, there is no unsatisfied
adverse FCC order, decree or ruling outstanding against the Company or any of
its Subsidiaries which would have a Material Adverse Effect, except as set forth
in the Registration Statement and the Prospectuses.
(v) To the best knowledge of such counsel, there is no proceeding
(including any rulemaking proceeding), complaint or investigation against the
Company or any of its Subsidiaries or in respect of any of the FCC Licenses
pending or threatened before the FCC which we believe will result in a Material
Adverse Effect except as set forth in the Registration Statement and the
Prospectuses.
(vi) To the best knowledge of such counsel, no action, suit, proceeding
or investigation is pending or threatened, and no judgment, order, decree or
ruling has been
42
entered, against the Company or any of its Subsidiaries that gives us reason to
believe that any of the FCC Licenses will be revoked or not renewed in the
ordinary course.
The statements made under the captions "Risk Factors - Government Regulation",
"Business Competition", "Business - Government Regulation", and "Description of
Capital Stock Foreign Ownership Restrictions" in the Prospectuses, taken
together, insofar as they are, or refer to, statements of law, legal conclusions
or summaries relating to the Communications Act or the rules or regulations of
the FCC, fairly reflect the provisions purported to be summarized as material to
the Company and are in all material respects correct; and such counsel has no
reason to believe that such statements as of the time the Registration Statement
or any amendment became effective, at the time the Prospectuses were issued, at
the time any amendment or supplement thereto was issued or at the Closing Time,
contain any untrue statement of a material fact or omitted or omits to state a
material fact necessary to make such statements, in light of the circumstances
under which they were made, not misleading.
43
FORM OF LOCK-UP LETTER
Exhibit C
December , 1998
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated,
as Representative of the several
Underwriters to be named in the
within-mentioned Purchase Agreement
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: Infinity Broadcasting Corporation
Ladies and Gentlemen:
As of the closing of the Offering referred to below, the undersigned
will be the beneficial owner of - shares of Class A Common Stock, par value $.01
per share (the "Class A Common Stock") and - shares of Class B Common Stock, par
value $.01 per share (the "Class B Common Stock" and, together with the Class A
Common Stock", the "Common Stock") of Infinity Broadcasting Corporation (the
"Company"), a Delaware corporation. The undersigned understands that the Company
has filed a Registration Statement on Form S-1 (the "Registration Statement")
with the Securities and Exchange Commission for the registration of 155,250,000
shares of Class A Common Stock (the "Offering"). The undersigned further
understands that you are contemplating entering into a U.S. Purchase Agreement
and an International Purchase Agreement (together, the "Purchase Agreements")
with the Company is connection with the Offering. All terms not otherwise
defined herein shall have the same meanings as in the Purchase Agreements.
In recognition of the benefit that the Offering will confer upon the
undersigned as a stockholder of the Company, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
undersigned agrees with each underwriter to be named in the Purchase Agreements
(the "Underwriters") that, during a period of 180 days from the date of the
Purchase Agreements, the undersigned will not, without the prior written consent
of Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated directly or indirectly,
(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 for the sale of, or otherwise
44
transfer or dispose of any shares of the Company's Common Stock or any
securities convertible into or exchangeable or exercisable for Common Stock,
whether now owned or hereafter acquired by the undersigned or with respect to
which the undersigned has or hereafter acquires the power of disposition, or
file any registration statement under the Securities Act of 1933, as amended,
with respect to any of the foregoing or (ii) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Common Stock, whether
any such swap transaction is to be settled by delivery of Common Stock or other
securities, in cash or otherwise. The foregoing sentence shall not apply to any
shares of Common Stock transferred to an affiliate of the Company or any CBS
Party (as defined in the Restated Certificate of Incorporation of the Company)
which agrees to be bound by the provisions of this agreement.
The undersigned, whether or not participating in the Offering, confirms
that he, she or it understands that the Underwriters and the Company will rely
upon the representations set forth in this agreement in proceeding with the
Offering. This agreement shall be binding on the undersigned and his, her or its
respective successors, liens, personal representatives and assigns.
Very truly yours,
-----------------------------------
Name:
