EXHIBIT 1.02
1,700,000 Shares
INFINITY BROADCASTING CORPORATION
(a Delaware corporation)
Class A Common Stock
(Par Value $.002 Per Share)
International Purchase Agreement
--------------------------------
October __, 1995
Xxxxxxx Xxxxx International Limited
Xxxxxxx Sachs International
Alex. Xxxxx & Sons Incorporated
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
Xxxxx Xxxxxx Inc.
as Lead Managers of the several
International Managers
c/o Merrill Xxxxx International Limited
Ropemaker Place
00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Dear Sirs:
Infinity Broadcasting Corporation, a Delaware corporation (the
"Company"), confirms its agreement with Xxxxxxx Xxxxx International Limited
("Xxxxxxx Xxxxx") and each of the other International Managers named in Schedule
A hereto (collectively, the "International Managers", which term shall also
include any manager substituted as hereinafter provided in Section 10 hereof),
for whom Xxxxxxx Xxxxx, Xxxxxxx Xxxxx International, Alex. Xxxxx & Sons
Incorporated, Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation and Xxxxx
Xxxxxx Inc. are acting as lead managers (in such capacity, Xxxxxxx Xxxxx,
Xxxxxxx Xxxxx International, Alex. Xxxxx & Sons Incorporated, Xxxxxxxxx, Lufkin
& Xxxxxxxx Securities Corporation and Xxxxx Xxxxxx Inc. shall hereinafter be
referred to as the "Lead Managers"), with respect to the sale by the Company and
the purchase by the International Managers, acting severally and not jointly, of
the respective numbers of shares of Class A Common Stock, par value $.002 per
share, of the Company ("Class A Common Stock") set forth in said Schedule A, and
with respect to the grant by the Company to the International Managers, acting
severally and not jointly, of the option described in Section 2(b) hereof to
purchase all or any part of 255,000 additional shares of Class A Common Stock to
cover over-allotments, if any. The aforesaid 1,700,000 shares of Class A Common
Stock (the "Initial International Securities") to be purchased by the
International Managers and all or any part of the 255,000 shares of Class A
Common Stock subject to the option described in Section 2(b) hereof (the
"International Option Securities") are hereinafter called, collectively, the
"International Securities".
It is understood that the Company is concurrently entering into an
agreement dated the date hereof (the "U.S. Purchase Agreement") providing for
the offering by the Company of an aggregate of 6,800,000 shares of Class A
Common Stock (the "Initial U.S. Securities") through arrangements with certain
underwriters within the United States and Canada (the "U.S. Underwriters") for
which Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxxx, Sachs & Co.,
Alex. Xxxxx & Sons Incorporated, Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation and Xxxxx Xxxxxx Inc. are acting as representatives (the "U.S.
Representatives") and the grant by the Company to the U.S. Underwriters, acting
severally and not jointly, of an option to purchase all or any part of the U.S.
Underwriters' pro rata portion of up to 1,020,000 additional shares of Class A
Common Stock solely to cover over-allotments, if any (the "U.S. Option
Securities" and, together with the International Option Securities, the "Option
Securities"). The Initial U.S. Securities and the U.S. Option Securities are
hereinafter called the "U.S. Securities". It is understood that the Company is
not obligated to sell and the International Managers are not obligated to
purchase, any Initial International Securities unless all of the Initial U.S.
Securities are contemporaneously purchased by the U.S. Underwriters.
The International Managers and the U.S. Underwriters are hereinafter
collectively called the "Underwriters", the Initial International Securities and
the Initial U.S. Securities are hereinafter collectively called the "Initial
Securities", and the International Securities and the U.S. 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 & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated (in such capacity, the "Global Coordinator").
Prior to the purchase and public offering of the International
Securities by the several International Managers, the Company and the Lead
Managers, acting on behalf of the several International Managers, shall enter
into an agreement substantially in the form of Exhibit A hereto (the
"International Pricing Agreement"). The International Pricing Agreement may
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take the form of an exchange of any standard form of written telecommunication
between the Company and the Lead Managers and shall specify such applicable
information as is indicated in Exhibit A hereto. The offering of the
International Securities will be governed by this Agreement, as supplemented by
the International Pricing Agreement. From and after the date of the execution
and delivery of the International Pricing Agreement, this Agreement shall be
deemed to incorporate the International Pricing Agreement. The initial public
offering price and the purchase price with respect to the U.S. Securities shall
be set forth in a separate instrument (the "U.S. Pricing Agreement"), the form
of which is attached to the U.S. Purchase Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 33-62711), which
includes a related preliminary prospectus, for the registration of the
Securities under the Securities Act of 1933, as amended (the "1933 Act"), has
filed such amendments thereto, if any, including such amended preliminary
prospectuses, as may have been required to the date hereof, and will file such
additional amendments thereto, including such amended prospectuses, as may
hereafter be required. Two forms of prospectus are to be used in connection
with the offering and sale of the Securities: one relating to the International
Securities (the "International Prospectus") and one relating to the U.S.
Securities (the "U.S. Prospectus"). Such registration statement (as amended, if
applicable) and the International Prospectus and the U.S. Prospectus
constituting a part thereof (including in each case all documents incorporated
or deemed to be incorporated by reference therein and the information, if any,
deemed to be part thereof pursuant to Rule 430A(b) of the rules and regulations
of the Commission under the 1933 Act (the "1933 Act Regulations")), as from time
to time amended or supplemented pursuant to the 1933 Act, the Securities
Exchange Act of 1934, as amended (the "1934 Act"), or otherwise, are hereinafter
referred to as the "Registration Statement", the "International Prospectus" and
the "U.S. Prospectus", respectively, and the International and U.S. Prospectuses
are hereinafter together called "Prospectuses" and, each individually, a
"Prospectus", except that if any revised prospectus shall be provided to the
International Managers or the U.S. Underwriters by the Company for use in
connection with the offering of the Securities which differs from the
Prospectuses on file at the Commission at the time the Registration Statement
becomes effective (whether or not such revised prospectus is required to be
filed by the Company pursuant to Rule 424(b) of the 1933 Act Regulations), the
terms "International Prospectus" and "U.S. Prospectus" shall refer to each such
revised prospectus from and after the time it is first provided to the
International Managers or the U.S. Underwriters, as the case may be, for such
use. All references in this Agreement to financial statements and schedules and
other information which is "contained", "included" or "stated" in the
Registration Statement or the Prospectuses (and all other references of like
import) shall be
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deemed to mean and include all such financial statements and schedules and other
information which is or is deemed to be incorporated by reference in the
Registration Statement or the Prospectuses, as the case may be; and all
references in this Agreement to amendments or supplements to the Registration
Statement or the Prospectuses shall be deemed to mean and include the filing of
any document under the 1934 Act which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectuses, as the case may be.
The Company understands that the International Managers propose to
make a public offering of the International Securities as soon as the Lead
Managers deem advisable after the Registration Statement becomes effective and
the International Pricing Agreement has been executed and delivered. The price
per share for the U.S. Securities to be purchased by the U.S. Underwriters
pursuant to the U.S. Purchase Agreement shall be identical to the price per
share for the International Securities to be purchased by the International
Managers hereunder.
SECTION 1. Representations and Warranties.
------------------------------
(a) The Company represents and warrants to each International Manager
as of the date hereof and as of the date of the International Pricing Agreement
(such latter date being hereinafter referred to as the "Representation Date") as
follows:
(i) The Company meets the requirements for use of Form S-3 under the
1933 Act, and at the respective times the Registration Statement and any
post-effective amendments thereto become effective, the Registration
Statement will comply in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations 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. Each preliminary prospectus, as of its date, and the
International Prospectus, at the Representation Date (unless the term
"International Prospectus" refers to a prospectus which has been provided
to the International Managers by the Company for use in connection with the
offering of the International Securities which differs from the
International Prospectus on file at the Commission at the time the
Registration Statement first becomes effective, in which case at the time
such prospectus is first provided to the International Managers for such
use) and at Closing Time and each Date of Delivery referred to in Section
2, will not include an untrue statement of a material fact or 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;
provided, however, that the representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or the International Prospectus made
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in reliance upon and in conformity with information furnished to the
Company in writing by any International Manager through the Lead Managers
expressly for use in the Registration Statement or Prospectus. For
purposes of this Section 1(a), all references to the Registration
Statement, any post-effective amendments thereto and the Prospectuses shall
be deemed to include, without limitation, any electronically transmitted
copies thereof, including, without limitation, any copy thereof filed with
the Commission pursuant to its Electronic Data Gathering, Analysis, and
Retrieval system ("XXXXX").
(ii) KPMG Peat Marwick LLP, whose report appears in the Prospectuses
or are incorporated by reference therein, are independent public
accountants with respect to the Company as required by the 1933 Act and the
1933 Act Regulations. Price Waterhouse LLP, whose report appears in the
Prospectuses or is incorporated by reference therein, are independent
public accountants with respect to Alliance Broadcasting, L.P. as required
by the 1933 Act and the 1933 Act Regulations.
(iii) The financial statements included or incorporated by reference in
the Registration Statement and the Prospectuses, together with the related
schedules and notes, present fairly in all material respects the financial
position of the Company and its consolidated subsidiaries at the dates
indicated and the statement of operations, changes in stockholders' equity
and cash flows of the Company and its consolidated subsidiaries for the
periods specified; except as otherwise stated in the Registration
Statement, said financial statements have been prepared in conformity with
accounting principles generally accepted in the United States ("U.S. GAAP")
applied on a consistent basis throughout the periods involved. The
supporting schedules, if any, included in the Registration Statement
present fairly in all material respects in accordance with U.S. GAAP the
information required to be stated therein. The summary financial data and
the summary financial information 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 incorporated
by reference in the Registration Statement. The pro forma combined
financial statements and the related notes thereto included in the
Registration Statement and the Prospectuses have been prepared in
accordance with the Commission's rules and guidelines with respect to pro
forma financial statements and the assumptions used in the preparation
thereof are, in the Company's opinion, reasonable.
(iv) Except as described in or contemplated by the Registration
Statement and the Prospectuses, there has not been any change in the
capital stock or long-term debt of
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the Company or any material adverse change in, or any development which
materially and adversely affects, the business, properties, financial
condition or results of operations of the Company or of the Company and its
subsidiaries taken as a whole, from the dates as of which information is
given in the Registration Statement and the Prospectuses.
(v) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware and
has 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, the International
Pricing Agreement, the U.S. Purchase Agreement and the U.S. Pricing
Agreement; the Company is duly qualified as a foreign corporation to
transact business and is in good standing in the State of New York; 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
is required, whether by reason of the ownership or leasing of property or
the conduct of business.
(vi) Each subsidiary of the Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, 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 is required, whether by reason of
the ownership or leasing of property or the conduct of business; 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 subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, encumbrance or claim, except
for liens created under the Second Amended and Restated Security Agreement
dated as of December 22, 1994 (as amended to the date hereof, the "Security
Agreement"), by and among the Company, each of the subsidiaries of the
Company identified therein and Chemical Bank, as collateral agent. None of
the subsidiaries of the Company other than Hemisphere Broadcasting
Corporation, Sagittarius Broadcasting Corporation, Infinity Broadcasting
Corporation of California, Infinity Broadcasting Corporation of Chicago,
Infinity Broadcasting Corporation of Illinois, Infinity Broadcasting
Corporation of Los Angeles, Infinity Broadcasting Corporation of Maryland,
Infinity Broadcasting Corporation of New York and Infinity Broadcasting
Corporation of Texas is a "significant subsidiary" (as defined in Rule 405
of the 1933 Act Regulations).
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(vii) The authorized, issued and outstanding capital stock of the
Company at June 30, 1995 was as is set forth in the Prospectuses in the
column entitled "Actual" under the caption "Capitalization"; and the shares
of issued and outstanding Class A Common Stock have been duly authorized
and validly issued and are fully paid and non-assessable and conform in all
material respects to the description thereof contained in the Prospectus.
The Securities to be purchased by the International Managers and the U.S.
Underwriters from the Company have been duly authorized for issuance and
sale to the International Managers pursuant to this Agreement and to the
U.S. Underwriters pursuant to the U.S. Purchase Agreement, respectively,
and, when issued and delivered by the Company pursuant to this Agreement
and the U.S. Purchase Agreement, respectively, against payment of the
consideration set forth in the International Pricing Agreement and the U.S.
Pricing Agreement, respectively, will be validly issued and fully paid and
non-assessable; and the issuance of the Securities is not subject to
preemptive or other similar rights of any securityholder of the Company
arising by operation of law, under the charter and by-laws of the Company
or under any agreement to which the Company or any of its subsidiaries is a
party.
(viii) Neither the Company nor any of its subsidiaries is in violation
of its charter or in default in the 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, the effect of which violation or default would be
material to the Company or the Company and its subsidiaries taken as a
whole; and the execution, delivery and performance of this Agreement, the
International Pricing Agreement, the U.S. Purchase Agreement and the U.S.
Pricing Agreement, the issuance and delivery of the Securities and the
consummation of the transactions contemplated herein and therein and
compliance by the Company with its obligations hereunder and thereunder
have been duly authorized by all necessary corporate action and do not and
will not, whether with or without the giving of notice or passage of time
or both, conflict with or constitute a breach of, or constitute a 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, 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
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subsidiaries is subject, nor will such action result in any violation of
the provisions of the charter or by-laws of the Company 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 of its subsidiaries or any of
their assets or properties, the effect of which conflict, breach, default,
Repayment Event, lien, charge, encumbrance or violation, individually or in
the aggregate, is reasonably likely to have a material adverse effect on
the business, properties, financial condition or results of operations of
the Company or the Company and its subsidiaries taken as a whole. As used
herein, a "Repayment Event" means any event or condition the occurrence of
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.
(ix) Except as described in the Registration Statement and the
Prospectuses, there is no litigation or governmental proceeding or
investigation pending or, to the knowledge of the Company, threatened
against the Company or any of its subsidiaries which (individually or in
the aggregate) is reasonably likely to have a material adverse effect on
the business, properties, financial condition or results of operations of
the Company or of the Company and its subsidiaries taken as a whole or
which is required to be disclosed in the Registration Statement and the
Prospectuses.
(x) There are no contracts or documents which are required to be
described in the Registration Statement, the Prospectuses or the documents
incorporated by reference therein or to be filed as exhibits thereto by the
1933 Act, the 1933 Act Regulations, the 1934 Act or the rules and
regulations of the Commission under the 1934 Act (the "1934 Act
Regulations") which have not been so described and filed as required.
(xi) 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 of the Securities hereunder or the consummation of the
transactions contemplated by this Agreement, the International Pricing
Agreement, the U.S. Purchase Agreement and the U.S. Pricing Agreement
except such as have been already obtained or as may be required under the
1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations
or state or other securities laws.
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(xii) Each of the Company and its subsidiaries holds good and
marketable title to, or valid and enforceable leasehold interests in, all
items of real and personal property which are material to the business of
the Company or the Company and its subsidiaries taken as a whole, free and
clear of any lien, claim, encumbrance, preemptive rights or any other claim
of any third party which might materially interfere with the conduct of the
business of the Company or the Company and its subsidiaries taken as a
whole, except for liens created under the Security Agreement.
(xiii) The Company and each of its subsidiaries have all power and
authority, and, except as described in the Registration Statement, possess
all necessary authorizations, approvals, orders, licenses, franchises,
certificates and permits of and from all foreign and domestic governmental
regulatory officials and bodies (including the Federal Communications
Commission ("FCC")) to own or hold their respective properties and to
conduct the respective businesses in which they are engaged, except those
authorizations, approvals, orders, licenses, franchises, certificates and
permits which the failure to possess would not have a material adverse
effect on the business, properties, financial condition or results of
operations of the Company or the Company and its subsidiaries taken as a
whole (the "Excluded Authorizations"). Except as described in the
Registration Statement and the Prospectuses, each such authorization,
approval, order, license, franchise, certificate and permit, other than the
Excluded Authorizations, is valid and in full force and effect and there is
no proceeding pending or, to the best knowledge of the Company, threatened
which is reasonably likely to lead to the revocation, termination,
suspension or non-renewal of any such authorization, approval, order,
license, franchise, certificate or permit, other than any Excluded
Authorizations. The Company is in material compliance with all applicable
laws, rules and regulations.
(xiv) Each of the Company and its subsidiaries carries insurance in
such amounts and covering such risks as, in the Company's opinion, is
adequate for the conduct of their respective businesses and the value of
their respective property, plants and equipment and such insurance is in
full force and effect.
(xv) This Agreement and the U.S. Purchase Agreement have been and, on
the Representation Date, the International Pricing Agreement and the U.S.
Pricing Agreement will have been, duly authorized, executed and delivered
by the Company.
(xvi) Other than as described in the Prospectuses, there are no holders
of securities of the Company who, by reason
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of the filing of the Registration Statement under the 1933 Act or the
execution by the Company of this Agreement, have the right to request or
demand that the Company register under the 1933 Act securities held by
them.
(xvii) The Company has complied with, and is and will be in compliance
with, the provisions of that certain Florida act relating to disclosure of
doing business with Cuba, codified as Section 517.075 of the Florida
statutes, and the rules and regulations thereunder (collectively, the "Cuba
Act"), or is exempt therefrom.
(xviii) 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 under the caption "Use of
Proceeds" 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 (the "1940 Act").
(xix) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, at the time they were or hereafter are filed
with the Commission, complied and will comply in all material respects with
the requirements of the 1934 Act and the 1934 Act Regulations.
(xx) The Company has not taken, and agrees that it will not take,
directly or indirectly, any action that might reasonably be expected to
cause or result in stabilization or manipulation of the price of any
security to facilitate the sale or resale of the Securities.
(xxi) The Company has obtained and delivered to the Global Coordinator
the agreements of the Principal Stockholders (as defined in the
Registration Statement) and Xxxx Xxxxxx to the effect that each such person
will not, for a period of 90 days from the date hereof and except as
otherwise provided therein, without the Global Coordinator's prior written
consent directly or indirectly, sell, grant any option for the sale of, or
otherwise dispose of, any shares of Class A Common Stock or any securities
convertible into or exercisable for Class A Common Stock owned by such
person or entity or with respect to which such person has the power of
disposition, or request the filing of any registration statement under the
1933 Act with respect to any of the foregoing.
(b) Any certificate signed by any officer of the Company and
delivered to the Global Coordinator, Lead Managers or to counsel for the
International Managers pursuant to Section 5 shall be deemed a representation
and warranty by the Company to each International Manager as to the matters
covered thereby.
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SECTION 2. Sale and Delivery to International Managers; Closing.
----------------------------------------------------
(a) 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 International Manager, severally and not jointly, and
each International Manager, severally and not jointly, agrees to purchase from
the Company, at the price per share set forth in the International Pricing
Agreement, the number of Initial International Securities set forth in Schedule
A opposite the name of such International Manager (except as otherwise provided
in the International Pricing Agreement), plus any additional number of Initial
International Securities which such International Manager may become obligated
to purchase pursuant to the provisions of Section 10 hereof.
(1) If the Company has elected not to rely upon Rule 430A under the
1933 Act Regulations, the initial public offering price and the purchase
price per share to be paid by the several International Managers for the
Securities have each been determined and set forth in the International
Pricing Agreement, dated the date hereof, and an amendment to the
Registration Statement, including the Prospectuses contained therein, will
be filed before the Registration Statement becomes effective.
(2) If the Company has elected to rely upon Rule 430A under the 1933
Act Regulations, the initial public offering price and the purchase price
per share to be paid by the several International Managers for the
Securities shall be determined by agreement between the Lead Managers and
the Company and, when so determined, shall be set forth in the
International Pricing Agreement. In the event that such prices have not
been agreed upon and the International Pricing Agreement has not been
executed and delivered by all parties thereto by the close of business on
the fourteenth business day following the date of this Agreement, this
Agreement shall terminate forthwith, without liability of any party to any
other party, unless otherwise agreed to by the Company and the Lead
Managers, except that Sections 6 and 7 shall remain in effect. For
purposes of this Agreement, the term "business day" means a day on which
the New York Stock Exchange is open for business and the trading of
securities thereon is permitted.
(b) 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 International Managers, severally and not
jointly, to purchase up to an additional 255,000 shares of Class A Common Stock
at the purchase price per share set forth in the International Pricing
Agreement. The option hereby granted will expire 30 days after (i) the date the
Registration Statement
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becomes effective, if the Company has elected not to rely on Rule 430A under the
1933 Act Regulations, or (ii) the Representation Date, if the Company has
elected to rely on Rule 430A under the 1933 Act Regulations, 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 International Securities upon notice by the Global
Coordinator to the Company setting forth the number of International Option
Securities as to which the several International Managers are then exercising
the option and the time and date of payment and delivery for such International
Option Securities. Any such time and date of delivery for the International
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
hereinafter defined, unless otherwise agreed by the Global Coordinator and the
Company. If the option is exercised as to all or any portion of the
International Option Securities, each of the International Managers, acting
severally and not jointly, will purchase that proportion of the total number of
International Option Securities then being purchased which the number of Initial
International Securities set forth in Schedule A opposite the name of such
International Manager bears to the total number of Initial International
Securities (except as otherwise provided in the International Pricing
Agreement), 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 of the purchase price for, and delivery of certificates
for, the Initial International Securities shall be made at the office of Xxxxxxx
Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such
other place as shall be agreed upon by the Global Coordinator and the Company,
at 10:00 A.M. on the third business day (unless postponed in accordance with the
provisions of Section 10) following the date the Registration Statement becomes
effective (or, if the Company has elected to rely upon Rule 430A of the 1933 Act
Regulations, the third business day after execution of the International Pricing
Agreement), or such other time not later than ten business 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 "Closing Time"). In addition,
in the event that any or all of the International Option Securities are
purchased by the International Managers, payment of the purchase price for, and
delivery of certificates for, such International Option Securities shall be made
at the above-mentioned offices of Xxxxxxx Xxxxxxx & Xxxxxxxx, 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 certified or official bank
check or checks drawn in next day funds payable to the order of the Company,
against delivery to the Lead Managers for the respective accounts
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of the International Managers of certificates for the Securities to be purchased
by them. Certificates for the Initial International Securities and the
International Option Securities, if any, shall be in such denominations and
registered in such names as the Lead Managers may request in writing at least
two business days before the Closing Time or the relevant Date of Delivery, as
the case may be. It is understood that each International Manager has
authorized the Lead Managers, for its account, to accept delivery of, receipt
for, and make payment of the purchase price for, the Initial International
Securities and the International Option Securities, if any, which it has agreed
to purchase. Xxxxxxx Xxxxx, individually and not as representative of the
International Managers, may (but shall not be obligated to) make payment of the
purchase price for the Initial Securities or the International Option
Securities, if any, to be purchased by any International Manager whose check has
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 International Manager from
its obligations hereunder. The certificates for the Initial Securities and the
International Option Securities, if any, will be made available for examination
and packaging by the Lead Managers in The City of New York not later than 10:00
A.M. on the last business day prior to the Closing Time or the relevant Date of
Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with each
------------------------
International Manager as follows:
(a) The Company will notify the Global Coordinator promptly (i) when
the Registration Statement, or 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 make every reasonable effort, if any stop order
is issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Company will give the Global Coordinator notice of its
intention to file any amendment to the Registration Statement (including any
post-effective amendment) or any amendment or supplement to the Prospectus,
whether pursuant to the 1933 Act, the 1934 Act or otherwise (including any
revised prospectus which the Company proposes for use by the International
Managers in connection with the offering of the
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Securities which differ from the International Prospectus on file at the
Commission at the time the Registration Statement first becomes effective,
whether or not such revised prospectus is required to be filed pursuant to Rule
424(b) of the 1933 Act Regulations), will furnish the Global Coordinator with
copies of any such amendment or supplement a reasonable amount of time prior to
such proposed filing or use, as the case may be, and will not file any such
amendment or supplement or use any such prospectus to which the Global
Coordinator or U.S. counsel for the Underwriters shall not have consented (which
consent shall not be unreasonably withheld).
(c) The Company has furnished or will deliver to the Lead Managers
and counsel for the International Managers, without charge, signed copies of the
Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated or deemed to be incorporated by reference therein) and
signed copies of all consents and certificates of experts, and will also deliver
to the Lead Managers a conformed copy of the Registration Statement as
originally filed and of each amendment thereto (without exhibits) for each of
the International Managers.
(d) The Company will deliver to each International Manager, without
charge, from time to time until the effective date of the Registration Statement
(or, if the Company has elected to rely upon Rule 430A, until such time as the
International Pricing Agreement is executed and delivered), as many copies of
each preliminary prospectus as such International Manager may reasonably
request, and the Company hereby consents to the use of such copies for purposes
permitted by the 1933 Act. The Company will furnish to each International
Manager, without charge prior to the expiration of nine months after the
effective date of the Registration Statement and thereafter at the International
Managers' expense, from time to time during the period when the International
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the International Prospectus (as amended or supplemented) as
such International Manager may reasonably request for the purposes contemplated
by the 1933 Act or the 1934 Act or the respective applicable rules and
regulations of the Commission thereunder.
(e) If the delivery of a prospectus is required at any time that any
event shall occur or condition shall exist as a result of which it is necessary,
in the opinion of U.S. counsel for the Underwriters or for the Company, to amend
the Registration Statement or amend or supplement the International 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
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the opinion of such counsel, at any such time to amend the Registration
Statement or amend or supplement the International 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 International Prospectus
comply with such requirements, and the Company will furnish to the International
Managers such number of copies of such amendment or supplement as the
International Managers may reasonably request (but at the expense of the
International Managers at any time nine months or more after the effective date
of the Registration Statement) in connection with the offering or sale of the
International Securities.
(f) If, at the time that the Registration Statement becomes
effective, any information shall have been omitted therefrom in reliance upon
Rule 430A of the 1933 Act Regulations, then promptly following the execution of
the International Pricing Agreement, the Company will prepare, and file or
transmit for filing with the Commission in accordance with such Rule 430A and
Rule 424(b) of the 1933 Act Regulations, copies of an amended International
Prospectus, or, if required by such Rule 430A, a post-effective amendment to the
Registration Statement (including an amended International Prospectus),
containing all information so omitted and will use every reasonable effort to
cause such post-effective amendment to be declared effective as promptly as
practicable.
(g) The Company will endeavor, in cooperation with the International
Managers, to qualify the International Securities for offering and sale under
the applicable securities laws of such states as the Global Coordinator may
reasonably request and to maintain such qualifications in effect for a period of
not less than nine months from the effective date of the Registration Statement
(but in any event no later than the date the distribution of the International
Securities has been completed); 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 U.S 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 nine months from the effective date of the Registration Statement (but in
any event no later than the date the distribution of the International
Securities has been completed).
(h) The Company will make generally available to its security holders
as soon as practicable an earnings statement (in
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form complying with the provisions of Rule 158 of the 1933 Act Regulations and
which need not be audited) covering a twelve month period beginning on the
"effective date" (as defined in said Rule 158) of the Registration Statement.
(i) For a period of five years from the effective date of the
Registration Statement, the Company will furnish to the Lead Managers copies of
all public reports and all reports and financial statements furnished by the
Company to the New York Stock Exchange or any other principal national
securities exchange upon which its Class A Common Stock may be listed pursuant
to requirements of or agreements with such exchange or to the Commission
pursuant to the 1934 Act or any rule or regulation of the Commission thereunder.
(j) The Company will endeavor to effect the listing of the Securities
on the New York Stock Exchange and will endeavor to maintain the listing of the
Class A Common Stock on the New York Stock Exchange and will take such action as
may be reasonably necessary to comply with the rules and regulations of the
Exchange in respect of the Class A Common Stock.
(k) During a period of 90 days from the date of the International
Pricing Agreement, the Company (i) will not, without the prior written consent
of Xxxxxxx Xxxxx, directly or indirectly, sell, offer to sell, grant any option
for the sale of, or otherwise dispose of, any Class A Common Stock or any
securities convertible into or exchangeable or exercisable for Class A Common
Stock (except for Class A Common Stock issued or options granted pursuant to
this Agreement, pursuant to employee benefit plans, deferred share plans,
qualified stock option plans or other employee compensation plans existing on
the date hereof or pursuant to the exercise of currently outstanding convertible
securities, warrants or options) or file any registration statement under the
1933 Act with respect to any of the foregoing and (ii) will enforce its rights
against each of the Xxxxxx Investors (as defined in the Registration Statement)
under that certain letter agreement dated September 15, 1995 and will not waive
compliance by the Xxxxxx Investors with the provisions thereof without the prior
written consent of Xxxxxxx Xxxxx.
(l) The Company, during the period when a prospectus is required to
be delivered under the 1933 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 1934 Act Regulations.
SECTION 4. Payment of Expenses. The Company will pay all expenses
-------------------
incident to the performance of its obligations under this Agreement, including
(i) the printing and filing of the Registration Statement as originally filed
and of each amendment thereto, (ii) the production and copying of this
Agreement, the International Pricing Agreement, any Agreement among Underwriters
and such other documents as may be reasonably required in
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connection with the offering, purchase, sale and delivery of the International
Securities, (iii) the preparation, issuance and delivery of the certificates for
the International Securities to the International Managers, including any
capital duties, stamp duties and stock or other transfer taxes payable upon the
sale of the International Securities to the International Managers, (iv) the
fees and disbursements of the Company's counsel, accountants and other advisors,
(v) the qualification of the International Securities under state securities
laws in accordance with the provisions of Section 3(g) hereof, including filing
fees and the fees and disbursements of counsel for the International Managers 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
International Managers of copies of each preliminary prospectus and of the
International Prospectus and any amendments or supplements thereto, (vii) the
preparation, printing and delivery to the International Managers of copies of
the Blue Sky Survey and any supplement thereto, (viii) the fees and expenses of
any transfer agent or registrar for the International Securities, (ix) the
filing fees incident to the review by the National Association of Securities
Dealers, Inc. (the "NASD") of the terms of the sale of the Securities, and (x)
the fees and expenses incurred in connection with the listing of the Securities
on the New York Stock Exchange; provided that, except as provided in this
--------
Section 4 and Section 6, the International Managers shall pay their own costs
and expenses, including the fees and expenses of their counsel, any transfer or
other taxes on the Securities which they may sell and the expenses of
advertising any offering of the Securities made by the International Managers.
If this Agreement is terminated by the Global Coordinator in
accordance with the provisions of Section 5 or Section 9(a)(i) hereof, the
Company shall reimburse the International Managers for all of their reasonable
out-of-pocket expenses, including the reasonable fees and disbursements of U.S.
counsel for the Underwriters, as shall have been incurred by them in connection
with this Agreement and the proposed purchase of the International Securities.
SECTION 5. Conditions of International Managers' Obligations. The
-------------------------------------------------
obligations of the several International Managers hereunder are subject to the
accuracy of the representations and warranties of the Company herein contained,
to the performance by the Company of its obligations hereunder, and to the
following further conditions:
(a) The Registration Statement shall have become effective not later
than 5:30 P.M. on the date hereof, or with the consent of the Global
Coordinator, at a later time and date, not later, however, than 5:30 P.M. on the
first business day following the date hereof, or at such later time and date as
may be approved by a majority in interest of the several International Managers;
and at Closing Time no stop order
-17-
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 U.S.
counsel to the Underwriters. If the Company has elected to rely upon Rule 430A
of the 1933 Act Regulations, the price of the Securities and any price-related
information previously omitted from the effective Registration Statement
pursuant to such Rule 430A shall have been transmitted to the Commission for
filing in accordance with Rule 424(b) of the 1933 Act Regulations within the
prescribed time period and prior to Closing Time the Company shall have provided
evidence satisfactory to the Global Coordinator of such timely filing, or a
post-effective amendment providing such information shall have been promptly
filed and declared effective in accordance with the requirements of Rule 430A of
the 1933 Act Regulations.
(b) At Closing Time the Lead Managers shall have received:
(i) The favorable opinion, dated as of Closing Time, of Debevoise &
Xxxxxxxx, special counsel for the Company, to the effect that:
(1) The Company and each of its Significant Subsidiaries have
been duly incorporated and are validly existing and in good standing
under the laws of their respective jurisdictions of incorporation, are
duly qualified to do business and in good standing as foreign
corporations in the jurisdictions identified by such counsel; all
outstanding shares of capital stock of the subsidiaries of the Company
are owned by the Company directly, or indirectly through wholly owned
subsidiaries, subject to the lien created under the Security
Agreement; the Company and each of its Significant Subsidiaries have
all corporate power and authority necessary to own or hold their
respective properties and to conduct their respective businesses as
described in the Prospectuses;
(2) Except as described in the Prospectuses (including the
documents incorporated by reference therein), there are no preemptive
or other rights to subscribe for or to purchase, nor any restriction
upon the voting or transfer of, any shares of the Class A Common Stock
pursuant to the Company's Restated Certificate of Incorporation, as
amended, or Amended and Restated By-laws, each as in effect on the
date of such opinion, or any agreement or other outstanding instrument
to which the Company is a party known to such counsel, except for
restrictions arising under the Amended and Restated Stockholders'
Agreement dated as of February 5, 1992;
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(3) The Securities to be purchased by the International Managers
and the U.S. Underwriters from the Company have been duly authorized
for issuance and sale to the International Managers pursuant to this
Agreement and the International Pricing Agreement and to the U.S.
Underwriters pursuant to the U.S. Purchase Agreement and the U.S.
Pricing Agreement, respectively, and, when issued and delivered by the
Company and upon payment therefor by the International Managers and
the U.S. Underwriters pursuant to this Agreement and the International
Pricing Agreement and the U.S. Purchase Agreement and the U.S. Pricing
Agreement, respectively, will be validly issued and fully paid and
non-assessable; the Class A Common Stock conforms in all material
respects as to legal matters to the description of the Class A Common
Stock of the Company contained in the Prospectuses under the caption
"Description of Capital Stock"; the authorized capital stock of the
Company and, to the belief of such counsel based on the review and
other procedures referred to in the penultimate paragraph of this
Section 5(b)(i) and subject to such paragraph, the outstanding shares
of capital stock of the Company as of the respective dates set forth
in the Prospectuses were as set forth in the Prospectuses; and the
statements made in the Prospectuses under the caption "Description of
Capital Stock," insofar as they purport to summarize the terms of the
Company's capital stock (including the Class A Common Stock), fairly
present in all material respects the information called for with
respect thereto by the 1933 Act Regulations;
(4) The Registration Statement was declared effective under the
Act as of the date and time specified in such opinion, the
Prospectuses were filed with the Commission pursuant to the
subparagraph of Rule 424(b) of the 1933 Act Regulations specified in
such opinion on the date specified therein and, to the knowledge of
such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose is pending or threatened by the Commission;
(5) The Registration Statement and the Prospectuses (except that
no opinion need be expressed as to the financial statements and other
financial and statistical information contained therein) comply as to
form in all material respects with the requirements of the Act and the
1933 Act Regulations; and the documents incorporated by reference in
the Prospectuses (except that no opinion need be expressed as to the
financial statements and other financial and statistical information
contained therein), when they were filed with the Commission, complied
as to form in all
-19-
material respects with the requirements of the 1934 Act and the 1934
Act Regulations;
(6) Such counsel does not know of any litigation or any
governmental proceeding, inquiry or investigation pending or
threatened against the Company or any of its subsidiaries (other than
any litigation or governmental proceeding, inquiry or investigation
under the Communications Act of 1934, as amended (the "Communications
Act") or the rules and regulations of the FCC, as to which such
counsel need express no opinion) which (individually or in the
aggregate) is reasonably likely to have a material adverse effect on
the Company and its subsidiaries taken as a whole, or adversely affect
the consummation of this Agreement, the International Pricing
Agreement, the U.S. Purchase Agreement and the U.S. Pricing Agreement
or the performance by the Company of its obligations hereunder or
thereunder;
(7) Such counsel does not know of any contracts or other
documents which are required to be filed as exhibits to the
Registration Statement by the 1933 Act or the 1933 Act Regulations
which have not been filed as exhibits to the Registration Statement or
incorporated therein by reference as permitted by the 1933 Act
Regulations;
(8) To such counsel's knowledge, neither the Company nor any of
its Significant Subsidiaries is in violation of its corporate charter
or by-laws, or in default under any material agreement, indenture or
instrument (except, in the case of any such material agreement,
indenture or instrument, for any such violation or default which would
not have a material adverse effect on the Company and its subsidiaries
taken as a whole);
(9) The Company has all necessary corporate power and authority
to execute and deliver this Agreement and to perform its obligations
hereunder;
(10) This Agreement has been duly authorized, executed and
delivered by the Company; the execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated
hereby by the Company will not conflict with, or result in the
creation or imposition of any lien, claim, encumbrance, preemptive
rights or any claim of any third party upon any of the assets of the
Company or any of its subsidiaries pursuant to the terms of, or
constitute a material default under, any agreement, indenture or
instrument listed as an exhibit to the Registration Statement to which
the Company or any of its
-20-
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the properties or assets of
the Company or any of its subsidiaries is subject, except where such
conflict, lien, claim, encumbrance, preemptive right, third party
claim or default would not have a material adverse effect on the
Company and its subsidiaries taken as a whole, or result in a
violation of the corporate charter or by-laws of the Company or any of
its subsidiaries or, to such counsel's knowledge, any material order,
rule or regulation of any court or governmental agency having
jurisdiction over the Company, any of its subsidiaries or their
property (except that such counsel need not express any opinion as to
the provisions relating to indemnity and contribution or as to any
order, rule or regulation of the FCC); and no consent, authorization
or order of, or filing or registration with, any court or governmental
agency is required for the execution, delivery and performance of this
Agreement by the Company, except such as may be required by the 1933
Act, the 1934 Act, the Communications Act or state securities laws, or
except where the failure to obtain such consent, authorization or
order, or to effect such filing or registration, would not have a
material adverse effect on the Company and its subsidiaries taken as a
whole; and
(11) Neither the Company nor any of its subsidiaries is an
"investment company" within the meaning of the Investment Company Act
and the rules and regulations of the Commission thereunder.
Such counsel shall have stated that, while they have not themselves
checked the accuracy and completeness of or otherwise verified, and are not
passing upon and assume no responsibility for the accuracy or completeness
of, the statements contained in the Registration Statement or the
Prospectuses, except to the limited extent stated in paragraph (3) above,
in the course of their review and discussion of the contents of the
Registration Statement and Prospectuses with certain officers and employees
of the Company and its independent accountants, but without independent
check or verification, no facts have come to their attention which cause
them to believe that the Registration Statement (other than the financial
statements and other financial and statistical information contained
therein, as to which they need express no belief) 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 contained therein not
misleading, or that the Prospectuses (other than the financial statements
and other financial and statistical information contained
-21-
therein, as to which they need express no belief), as of their dates and as
of the Closing Time, contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements contained
therein, in the light of the circumstances under which they were made, not
misleading.
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent they deem proper, on certificates of officers of the
Company and public officials. In rendering the opinion set forth in
paragraph (1) above concerning the corporate power and authority of each of
the Significant Subsidiaries, such counsel may assume that the relevant
laws of jurisdictions other than New York and Delaware do not differ
materially from the corresponding laws of the State of New York or the
General Corporation Law of the State of Delaware, and in rendering the
opinion set forth in such paragraph concerning the ownership of the
outstanding shares of capital stock of the subsidiaries of the Company,
such counsel may rely exclusively upon a review of the stock transfer
records for each such subsidiary and a certificate of an officer of the
Company. In rendering the opinion set forth in paragraph (4) above, such
counsel may rely exclusively on telephone advice received from the staff of
the Commission. In rendering the opinion set forth in paragraph (6) above,
such counsel may rely exclusively upon discussions with attorneys at
Debevoise & Xxxxxxxx who work on the matters with respect to which such
firm has represented the Company and upon a certificate of an officer of
the Company. In rendering the opinion set forth in paragraph (7) above as
to the filing of all contracts or other documents which are required to be
filed by the 1933 Act or the 1933 Act Regulations, such counsel may, as to
factual matters, rely on a certificate of an officer of the Company.
(ii) Xxxxxxxxx, Xxxxxx & Xxxxxx, as special FCC counsel to the
Company, shall have furnished to the Lead Managers their opinion addressed
to the Underwriters and dated as of the Closing Time to the effect that
with respect to matters arising under the Communications Act and the rules
and regulations of the FCC:
(1) No approval is required under the Communications Act or the
rules and regulations of the FCC in connection with the issuance and
sale of the Class A Common Stock;
(2) The Company and its subsidiaries have such authorizations,
approvals, orders, licenses, franchises, certificates and permits
appropriate or necessary under the Communications Act and the rules
and regulations of the FCC to conduct their broadcasting business, and
such authorizations,
-22-
approvals, orders, licenses, franchises, certificates and permits
contain no burdensome restrictions not adequately described in the
Prospectus, and the Company's Annual Report on Form 10-K for the year
ended December 31, 1994 (the "1994 Form 10-K") and Quarterly Report on
Form 10-Q for the quarterly period ended June 30, 1995 (the "June 30
Form 10-Q"), each incorporated by reference in the Prospectus, that
would materially adversely affect the Company's broadcasting business
as presently conducted;
(3) The execution, delivery and performance of this Agreement by
the Company do not and will not violate the Communications Act or the
rules and regulations of the FCC;
(4) Such counsel does not know of any litigation, governmental
proceeding or investigation under the Communications Act or the rules
and regulations of the FCC against or involving the Company or its
subsidiaries or the radio station properties, authorizations,
approvals, orders, licenses, franchises, certificates and permits
owned or held by the Company or its subsidiaries that would materially
adversely affect the Company's broadcasting business as presently
conducted that is not disclosed in the Prospectuses, and the 1994 Form
10-K and the June 30 Form 10-Q incorporated by reference in the
Prospectuses; and
(5) The statements made under the caption "Business--General--
Federal Regulation of Radio Broadcasting" in the 1994 Form 10-K,
incorporated by reference in the Prospectuses, and under the captions
"Risk Factors -- Regulatory Matters", "The Company -- Recent
Developments -- Telecommunications Bills", "-- FCC Settlement;
Assignment Applications" and "Description of Capital Stock--Foreign
Ownership" 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 and 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
Effective Date and as of Closing Time or a Date of Delivery, as the
case may be, contain any untrue statement of a material fact or omit
to state a material fact necessary to make such statements, in light
of the circumstances under which they were made, not misleading.
In rendering the opinion set forth in paragraph (5) above concerning
the statements made under the caption
-23-
"Business--General--Federal Regulation of Radio Broadcasting" in the 1994
Form 10-K, incorporated by reference in the Prospectuses, and under the
captions "Risk Factors -- Regulatory Matters", "The Company -- Recent
Developments -- Telecommunications Bills", "-- FCC Settlement; Assignment
Applications" and "Description of Capital Stock--Foreign Ownership" in the
Prospectuses, such counsel may, as to factual matters relating to the
ownership interests of the Xxxxxx Investors, rely solely upon
representations furnished to such counsel in writing by the Xxxxxx
Investors.
(iii) The favorable opinion, dated as of Closing Time, of Xxxxxxx
Xxxxxxx & Xxxxxxxx, U.S. counsel for the Underwriters, to the effect that:
(1) The Company has been duly incorporated and is validly
existing and in good standing as a corporation under the laws of the
State of Delaware;
(2) The shares of Class A Common Stock to be sold by the Company
have been duly authorized by the Company and, upon payment and
delivery in accordance with this Agreement, the International Pricing
Agreement, the U.S. Purchase Agreement and the U.S. Pricing Agreement,
will be validly issued, fully paid and nonassessable;
(3) The statements made in the Prospectuses under the caption
"Description of Capital Stock", insofar as they purport to constitute
summaries of the terms of the Company's Class A Common Stock,
constitute accurate summaries of the terms of such Class A Common
Stock in all material respects; and
(4) The International Purchase Agreement and the U.S. Purchase
Agreement have been duly authorized, executed and delivered by the
Company.
Such counsel shall have stated that, while they have not independently
verified the accuracy, completeness or fairness of the statements made or
included in the Registration Statement, the Prospectuses or the documents
incorporated, or deemed to be incorporated, by reference therein, and take
no responsibility therefor, except as set forth in paragraph (3) above, in
the course of the preparation by the Company of the Registration Statement
and the Prospectuses, they participated in conferences with certain
officers and employees of the Company, with representatives of KPMG Peat
Marwick and with counsel to the Company. Such counsel shall, based upon
their examination of the Registration Statement, the Prospectuses and the
documents incorporated by reference therein, their investigations made in
connection with the preparation of the Registration Statement and the
Prospectuses and their
-24-
participation in the conferences referred to above, state that (i) they are
of the opinion that the Registration Statement, as of its effective date,
and the Prospectuses, as of the date thereof, complied as to form in all
material respects with the requirements of the 1933 Act and the applicable
rules and regulations of the Commission thereunder and that the documents
incorporated by reference therein complied as to form when filed in all
material respects with the requirements of the 1934 Act and the applicable
rules and regulations of the Commission thereunder (except such counsel
need express no belief as to the financial statements or other financial
data contained therein), and (ii) they have no reason to believe that the
Registration Statement, as of its effective date (including the 1934 Act
documents on file with the Commission on such effective date), contained
any untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading or that the Prospectuses (including the
documents incorporated by reference therein), as of the date of this
Agreement and as of the Closing Time, contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading.
(c) At Closing Time, (i) neither the Company nor any of its
subsidiaries shall have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectuses any loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectuses and (ii) since the respective dates as of which
information is given in the Prospectuses there shall not have been any change in
the capital stock or long-term debt of the Company or any of its subsidiaries or
any material adverse change, or any development involving a prospective change,
in or affecting the business, properties, financial condition, results of
operations or prospects of the Company or the Company and its subsidiaries taken
as a whole, otherwise than as set forth or contemplated in the Prospectuses, the
effect of which, in any such case described in clause (i) or (ii), is, in the
judgment of the Global Coordinator, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Securities at the Closing Time on the terms and in the manner
contemplated in the Prospectuses. The Lead Managers shall have received a
certificate of the President or a Vice President of the Company and of the chief
financial or chief accounting officer of the Company, dated as of Closing Time,
to the effect that (A) the representations and warranties in Section 1 hereof
are true and correct in all material respects as of the Closing Time with the
same force and effect as though expressly made at and as of
-25-
Closing Time, (B) the Company has complied in all material respects with all
agreements and satisfied in all material respects all conditions on its part to
be performed or satisfied at or prior to Closing Time, and (C) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been initiated or threatened by the
Commission. As used in this Section 5(c) the term "International Prospectus"
means the International Prospectus in the form first used by the International
Managers to confirm sales of the International Securities.
(d) The Company shall have furnished to the Lead Managers a letter of
KPMG Peat Marwick LLP and a letter of Price Waterhouse LLP addressed to the
Underwriters and dated the Closing Time, confirming that they are independent
public accountants within the meaning of the Act and are in compliance with the
applicable requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission, and stating, as of Closing Time
(or, with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in the
Prospectus, as of a date not more than five days prior to the date of such
letter), the conclusions and findings of such firm with respect to the financial
information and other matters covered by its letter delivered to the Lead
Managers concurrently with the execution of this Agreement and confirming in all
material respects the conclusions and findings set forth in such prior letter.
(e) At the Closing Time the Securities shall have been approved for
listing on the New York Stock Exchange, subject only to official notice of
issuance, and the NASD shall have approved in writing the International
Managers' participation in the distribution of the International Securities and
such approval shall not have been withdrawn or limited.
(f) At the date of this Agreement, the U.S. Representatives shall
have received an agreement substantially in the form of Exhibit B hereto signed
by the Principal Stockholders and Xxxx Xxxxxx.
(g) At Closing Time and at each Date of Delivery U.S. counsel for the
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 Securities as herein contemplated and related
proceedings, 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 Securities as herein contemplated shall be reasonably satisfactory
in form and substance to the Lead Managers and U.S. counsel for the
Underwriters.
-26-
(h) The closing under the U.S. Purchase Agreement shall have occurred
concurrently with the closing hereunder at Closing Time.
(i) In the event that the International Managers exercise their
option provided in Section 2(b) hereof to purchase all or any portion of the
International Option Securities, the representations and warranties of the
Company contained herein and the statements in any certificates furnished by the
Company hereunder shall be true and correct as of each Date of Delivery and, at
the relevant Date of Delivery, the Lead Managers shall have received:
(1) A certificate, dated such Date of Delivery, of the President or a
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(c) hereof remains true and
correct in all material respects as of such Date of Delivery.
(2) The favorable opinion of Debevoise & Xxxxxxxx, special counsel
for the Company, together with the favorable opinion of Xxxxxxxxx, Xxxxxx &
Xxxxxx, special FCC counsel for the Company, each in form and substance
reasonably satisfactory to U.S. counsel for the International Managers,
dated such Date of Delivery, relating to the International Option
Securities to be purchased on such Date of Delivery and otherwise to the
same effect as the opinions required by Sections 5(b)(1) and 5(b)(2)
hereof.
(3) The favorable opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, U.S. counsel
for the Underwriters, dated such Date of Delivery, relating to the
International Option Securities to be purchased on such Date of Delivery
and otherwise to the same effect as the opinion required by Section 5(b)(3)
hereof.
(4) A letter from KPMG Peat Marwick LLP and a letter of Price
Waterhouse LLP, in form and substance reasonably satisfactory to the Lead
Managers and dated such Date of Delivery, substantially the same in form
and substance as the letter furnished to the Lead Managers pursuant to
Section 5(d) 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.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Lead Managers by notice to the Company at any time at or prior to Closing
Time, and such termination shall be without liability of any party to any other
party except as provided in Section 4 and except that Sections 6
-27-
and 7 shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
---------------
(a) The Company agrees to indemnify and hold harmless each
International Manager and each person, if any, who controls any International
Manager 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 information deemed to be part of
the Registration Statement pursuant to Rule 430A(b) of the 1933 Act
Regulations, 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 contained in any preliminary
prospectus or prospectus, including the Prospectus (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, 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, in each case, based upon any such untrue statement or omission,
or any such alleged untrue statement or omission; provided that (subject to
Section 6(d) below) any such settlement is effected with the written
consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including,
subject to the third sentence of Section 6(c) hereof, the reasonable 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, in each case, based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or (ii)
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
-28-
statement or omission made in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any International
Manager through the Global Coordinator expressly for use in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or the
Prospectuses (or any amendment or supplement thereto).
(b) Each International Manager 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) 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) or any
preliminary prospectus or the Prospectuses (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by or on behalf of such International Manager through the Global
Coordinator expressly for use in the Registration Statement (or any amendment
thereto) or such preliminary prospectus or the Prospectuses (or any amendment or
supplement thereto).
(c) 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 which it may have otherwise than on account of this indemnity
agreement. An indemnifying party may participate at its own expense in the
defense of any such action and, to the extent that it wishes, jointly with any
other similarly notified indemnifying party, assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, if the
defendants in any such action include both an indemnified party and an
indemnifying party or another indemnified party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties that are different from or additional to those
available to the indemnifying party or such other indemnified party, all of the
indemnified parties under this Section 6 shall have the right to employ not more
than one counsel (in addition to one local counsel), respectively, to represent
them and, in that event, the fees and expenses of not more than one such
separate counsel (in addition to one such local counsel) for the Underwriters
shall be paid by the
-29-
indemnifying 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. No
indemnifying party shall, without the prior written consent of the indemnified
parties party thereto, 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 such indemnified parties are parties and
indemnification or contribution could be sought under this Section 6 or Section
7 hereof by such indemnified parties, unless such settlement, compromise or
consent (i) includes an unconditional release of each such 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 such indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel for which such indemnified party is otherwise entitled to reimbursement
pursuant to the terms of this indemnity agreement, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 60 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such 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) For purposes of this Section 6, all references to the
Registration Statement, any preliminary prospectus or the Prospectuses, or any
amendment or supplement to any of the foregoing, shall be deemed to include,
without limitation, any electronically transmitted copies thereof, including,
without limitation, any copies filed with the Commission pursuant to XXXXX.
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 International Managers on the other hand from
the offering of the
-30-
International 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
International Managers on the other hand in connection with the statements or
omissions 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 International Managers
on the other hand in connection with the offering of the International
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
International Securities pursuant to this Agreement (before deducting expenses)
received by the Company and the total underwriting discount received by the
International Managers, in each case as set forth on the cover of the
International Prospectus, bear to the aggregate initial public offering price of
the Securities as set forth on such cover. The relative fault of the Company on
the one hand and the International Managers on the other hand shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by the
International Managers and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the International Managers 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 International Managers 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 International Manager shall be required to contribute any
amount in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such International Manager has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 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: an International Manager
-31-
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 International Manager, 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 International
Managers' respective obligations to contribute pursuant to this Section 7 are
several in proportion to the number of Initial International 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 and the International Pricing Agreement, or contained in certificates
of officers of the Company submitted pursuant to Section 5 hereto, shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of any International Manager or controlling person, or by or on
behalf of the Company, and shall survive delivery of the International
Securities to the International Managers.
SECTION 9. Termination of Agreement.
------------------------
(a) The U S. Representatives may terminate this Agreement, by notice
to the Company, at any time at or prior to 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 International Prospectus, any material
adverse change in or affecting the business, properties, financial condition or
results of operations of the Company or the Company and its subsidiaries taken
as a whole, otherwise than as set forth or contemplated in the Prospectuses, or
(ii) if there has occurred any material adverse change in the financial markets
in the United States or elsewhere, 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 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 reasonable judgment of
the Lead Managers, impracticable to market the Securities or to enforce
contracts for the sale of the Securities, or (iii) if trading in any securities
of the Company has been suspended or 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 over-the-counter market has been suspended or
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 National Association of Securities Dealers,
Inc. or any other governmental authority, or (iv) if a banking moratorium has
been
-32-
declared by either Federal or New York authorities. As used in this Section
9(a), the term "International Prospectus" means the International Prospectus in
the form first used by the International Managers to confirm sales of the
International Securities.
(b) 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 6 and 7 shall
survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the International Managers. If
----------------------------------------------------
one or more of the International Managers shall fail at Closing Time or a Date
of Delivery to purchase the International Securities which it or they are
obligated to purchase under this Agreement and the International Pricing
Agreement (the "Defaulted Securities"), the Lead Managers shall have the right,
within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting International Managers, 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 Lead
Managers 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 International Securities to be purchased on such date, each of the
non-defaulting International Managers 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 International Managers, or
(b) if the number of Defaulted Securities exceeds 10% of the number
of International Securities to be purchased on such date, this Agreement shall
terminate without liability on the part of any non-defaulting International
Manager.
No action taken pursuant to this Section shall relieve any defaulting
International Manager from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Lead Managers or the Company shall
have the right to postpone Closing Time or a Date of Delivery 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 "International Manager" includes any person substituted for an
International Manager under this Section 10.
-33-
SECTION 11. Notices. All notices and other communications hereunder
-------
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
International Managers shall be directed to the Lead Managers at Ropemaker
Place, 00 Xxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX, attention of Syndicate Department;
and notices to the Company shall be directed to it at Infinity Broadcasting
Corporation, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of
President.
SECTION 12. Parties. This Agreement and the International Pricing
-------
Agreement shall each inure to the benefit of and be binding upon the
International Managers and the Company and their respective successors. Nothing
expressed or mentioned in this Agreement or the International Pricing Agreement
is intended or shall be construed to give any person, firm or corporation, other
than the International Managers and the Company and their respective successors
and the controlling persons and officers and directors referred to in Sections 6
and 7 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or the International
Pricing Agreement or any provision herein or therein contained. This Agreement
and the International Pricing Agreement and all conditions and provisions hereof
and thereof are intended to be for the sole and exclusive benefit of the
International Managers and the Company and their respective successors, and said
controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation.
No purchaser of Securities from any International Manager shall be deemed to be
a successor by reason merely of such purchase.
SECTION 13. Compliance with U.K. Law. Each International Manager
------------------------
represents and agrees that it has not offered or sold and will not offer or sell
any International Securities to persons in the United Kingdom prior to admission
of the shares of Class A Common Stock of the Company to listing in accordance
with Part IV of the Financial Services Xxx 0000 (the "Act") except to persons
whose ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and will not
result in an offer to the public in the United Kingdom within the meaning of the
Public Offers of Securities Regulations 1995 or the Act; it has complied and
will comply with all applicable provisions of the Act with respect to anything
done by it in relation to the shares of Class A Common Stock in, from or
otherwise involving the United Kingdom; and it has only issued or passed on and
will only issue or pass on in the United Kingdom any document received by it in
connection with the issue of the shares of Class A Common Stock, other than any
document which consists of or any part of listing particulars, supplementary
listing particulars or any other document required or permitted to be published
by listing rules under Part IV of the Act, to a
-34-
person who is of a kind described in Article 11(3) of the Financial Services Xxx
0000 (Investment Advertisements) (Exemptions) Order 1995 or is a person to whom
such document may otherwise lawfully be issued or passed on.
SECTION 14. Compliance with Other Laws. Each International Manager
--------------------------
acknowledges that no action has been or will be taken in any jurisdiction by
such International Manager or the Company that would permit a public offering of
the shares of Class A Common Stock, or possession or distribution of the
International Prospectus, in preliminary or final form, in any jurisdiction
when, or in any circumstances in which, action for that purpose is required,
other than in the United States. Each International Manager will comply with
all applicable laws and regulations, and make or obtain all necessary filings,
consents or approvals, in each jurisdiction in which such International Manager
purchases, offers, sells or delivers International Securities (including,
without limitation, any applicable requirements relating to the delivery of the
International Prospectus, in preliminary or final form), in each case at such
International Manager's own expense. In connection with sales of and offers to
sell International Securities made by such International Manager, such
International Manager will furnish to each person to whom any such sale or offer
is made a copy of the current International Prospectus (in preliminary or final
form and as then amended or supplemented if the Company shall have furnished any
amendments or supplements thereto).
SECTION 15. GOVERNING LAW AND TIME. THIS AGREEMENT AND THE
----------------------
INTERNATIONAL PRICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED IN SAID STATE. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
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 International Managers and the Company in accordance with its terms.
Very truly yours,
INFINITY BROADCASTING CORPORATION
By
---------------------------
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
-00-
XXXXXXX XXXXX INTERNATIONAL LIMITED
XXXXXXX SACHS INTERNATIONAL
ALEX. XXXXX & SONS INCORPORATED
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
XXXXX XXXXXX INC.
By: XXXXXXX XXXXX INTERNATIONAL LIMITED
By
----------------------------
Authorized Signatory
For themselves and as Lead Managers of the other
International Managers named in Schedule A hereto.
-36-
SCHEDULE A
Number of
Initial
Name of International Manager Securities
----------------------------- ----------
Xxxxxxx Xxxxx International Limited . . . . . . . .
Xxxxxxx Sachs International. . . . . . . . . . . .
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation . . . . . . . . . . .
Alex. Xxxxx & Sons Incorporated. . . . . . . . . .
Xxxxx Xxxxxx Inc. . . . . . . . . . . . . . . . . .
---------
Total . . . . . . . . . . . . . . . . . . . . . . . 1,700,000
=========
Exhibit A
1,700,000 Shares
INFINITY BROADCASTING CORPORATION
(a Delaware corporation)
Class A Common Stock
(Par Value $.002 Per Share)
International Pricing Agreement
-------------------------------
__________ __, 1995
Xxxxxxx Xxxxx International Limited
Xxxxxxx Sachs International
Alex. Xxxxx & Sons Incorporated
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
Xxxxx Xxxxxx Inc.
as Lead Managers of the several International Managers
named in the within-mentioned International Purchase Agreement
c/o Merrill Xxxxx International Limited
Ropemaker Place
00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Dear Sirs:
Reference is made to the International Purchase Agreement dated
__________ __, 1995 (the "International Purchase Agreement") relating to the
purchase by the several international managers named in Schedule A thereto (the
"International Managers"), for whom Xxxxxxx Xxxxx International Limited, Xxxxxxx
Sachs International, Alex. Xxxxx & Sons Incorporated, Xxxxxxxxx, Lufkin &
Xxxxxxxx Securities Corporation and Xxxxx Xxxxxx Inc. are acting as lead
managers (the "Lead Managers"), of the above shares of Class A Common Stock (the
"Securities"), of Infinity Broadcasting Corporation, a Delaware corporation (the
"Company").
Pursuant to Section 2 of the International Purchase Agreement, the
Company agrees with each International Manager as follows:
1. The initial public offering price per share for the Securities,
determined as provided in said Section 2, shall be $______.
2. The purchase price per share for the Securities to be paid by the
several International Managers shall be
$_____, being an amount equal to the initial public offering price set
forth above less $____ per share.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED IN SAID STATE.
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 International Managers and the Company in accordance with its terms.
Very truly yours,
INFINITY BROADCASTING CORPORATION
By
---------------------------
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX INTERNATIONAL LIMITED
XXXXXXX SACHS INTERNATIONAL
ALEX. XXXXX & SONS INCORPORATED
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
XXXXX XXXXXX INC.
By: XXXXXXX XXXXX INTERNATIONAL LIMITED
By
------------------------------------
Authorized Signatory
For themselves and as Lead Managers of the other
International Managers named in Schedule A hereto.
-2-
Exhibit B
"LOCK-UP" LETTER
Xxxxxxx Xxxxx International Limited
Xxxxxxx Sachs International
Alex. Xxxxx & Sons Incorporated
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
Xxxxx Xxxxxx Inc.
as Lead Managers of the several
International Managers to be named in the
within-mentioned International Purchase Agreement
c/o Merrill Xxxxx International Limited
Ropemaker Place
00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Re: Proposed Public Offering by Infinity Broadcasting
-------------------------------------------------
Corporation
-----------
Dear Sirs:
The undersigned, a stockholder of Infinity Broadcasting Corporation, a
Delaware corporation (the "Company"), understands that Xxxxxxx Xxxxx
International Limited ("Xxxxxxx Xxxxx") proposes to enter into an International
Purchase Agreement (the "International Purchase Agreement") with the Company
providing for the public offering of shares (the "Securities") of the Company's
Class A common stock, par value $.002 per share (the "Class A Common Stock"),
and a related International Pricing Agreement (the "International Pricing
Agreement") which will set forth, among other things, the initial public
offering price of the Securities. In recognition of the benefit that such an
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 International Purchase Agreement that, during a period of 90 days
from the date of the International Pricing Agreement, the undersigned will not,
without the prior written consent of Xxxxxxx Xxxxx and the other lead managers,
if any, of the several international managers named in the International
Purchase Agreement, directly or indirectly, sell, grant any option for the sale
of, or otherwise dispose of or transfer, any shares of the Company's Class A
Common Stock or any securities convertible into or exchangeable or exercisable
for Class A 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 request the filing of any registration
statement under the Securities Act of 1933, as amended, with respect to any of
the foregoing.
This letter shall become effective concurrently with the execution and
delivery of the International Purchase Agreement.
Very truly yours,
Signature:_____________________
Print Name:____________________
-2-
