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DL&A Draft
5/28/98
4,000,000 SHARES
EMMIS BROADCASTING CORPORATION
CLASS A COMMON STOCK, PAR VALUE $.01 PER SHARE
UNDERWRITING AGREEMENT
May 28, 1998
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May 28, 1998
Xxxxxx Xxxxxxx & Co. Incorporated
Credit Suisse First Boston Corporation
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
Xxxxxx Brothers Inc.
X. X. Xxxxxxx & Sons, Inc.
Xxxxxxx, Xxxxx & Co.
NationsBanc Xxxxxxxxxx Securities LLC
Xxxxxxxx & Co. Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. International Limited
Credit Suisse First Boston (Europe) Limited
Xxxxxxxxx, Xxxxxx & Xxxxxxxx International
Xxxxxx Brothers International (Europe)
X.X. Xxxxxxx & Sons, Inc.
Xxxxxxx Xxxxx International
X. Xxxxx Xxxxxxxx & Co. Limited
NationsBanc Xxxxxxxxxx Securities LLC
c/o Morgan Xxxxxxx & Co. International Limited
00 Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Xxxxxxx
Dear Sirs and Mesdames:
EMMIS BROADCASTING CORPORATION, an Indiana corporation (the "COMPANY"),
proposes to issue and sell to the several Underwriters (as defined below) an
aggregate of 4,000,000 shares of Class A Common stock, par value $.01 per share
(the "FIRM SHARES").
It is understood that, subject to the conditions hereinafter stated,
3,200,000 Firm Shares (the "U.S. FIRM SHARES") will be sold to the several U.S.
Underwriters named in Schedule I hereto (the "U.S. UNDERWRITERS") in connection
with the offering and sale of
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such U.S. Firm Shares in the United States and Canada to United States and
Canadian Persons (as such terms are defined in the Agreement Between U.S. and
International Underwriters of even date herewith), and 800,000 Firm Shares (the
"INTERNATIONAL SHARES") will be sold to the several International Underwriters
named in Schedule II hereto (the "INTERNATIONAL UNDERWRITERS") in connection
with the offering and sale of such International Shares outside the United
States and Canada to persons other than United States and Canadian Persons.
Xxxxxx Xxxxxxx & Co. Incorporated, Credit Suisse First Boston Corporation,
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation, Xxxxxx Brothers Inc., X. X.
Xxxxxxx & Sons, Inc., Xxxxxxx, Xxxxx & Co., NationsBanc Xxxxxxxxxx Securities
LLC and Xxxxxxxx & Co. Inc. shall act as representatives (the "U.S.
REPRESENTATIVES") of the several U.S. Underwriters, and Xxxxxx Xxxxxxx & Co.
International Limited, Credit Suisse First Boston (Europe) Limited, Xxxxxxxxx,
Xxxxxx & Xxxxxxxx International, Xxxxxx Brothers International (Europe), X.X.
Xxxxxxx & Sons, Inc., Xxxxxxx Xxxxx International, X. Xxxxx Xxxxxxxx & Co.
Limited and NationsBanc Xxxxxxxxxx Securities LLC shall act as representatives
(the "INTERNATIONAL REPRESENTATIVES" and, together with the U.S.
Representatives, the "REPRESENTATIVES") of the several International
Underwriters. The U.S. Underwriters and the International Underwriters are
hereinafter collectively referred to as the "UNDERWRITERS."
The Company also proposes to issue and sell to the several U.S.
Underwriters not more than an additional 600,000 shares of its Class A Common
Stock, par value $.01 per share (the "ADDITIONAL SHARES"), if and to the extent
that the U.S. Representative shall have determined to exercise, on behalf of the
U.S. Underwriters, the right to purchase such shares of common stock granted to
the U.S. Underwriters in Section 2 hereof. The Firm Shares and the Additional
Shares are hereinafter collectively referred to as the "SHARES". The shares of
Class A Common Stock, par value $.01 per share, of the Company to be outstanding
after giving effect to the sales contemplated hereby are hereinafter referred to
as the "COMMON STOCK".
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement relating to the Shares. Two prospectuses
will be used in connection with the offering and sale of the Shares: the U.S.
prospectus (which is contained in the Registration Statement), to be used in
connection with the offering and sale of Shares in the United States and Canada
to United States and Canadian Persons, and the international prospectus, to be
used in connection with the offering and sale of Shares outside the United
States and Canada to persons other than United States and Canadian Persons. The
international prospectus is identical to the U.S. prospectus except for the
outside front cover page. The registration statement as amended at the time it
becomes effective and as amended pursuant to any post-effective amendment,
including the information (if any) deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430A under the
Securities Act of 1933, as amended (the "SECURITIES ACT"), is hereinafter
referred to as the "REGISTRATION STATEMENT"; the U.S. prospectus and the
international prospectus in the respective forms first used to confirm sales of
Shares are hereinafter collectively referred to as the "Prospectus". If the
Company has filed an abbreviated registration statement to
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register additional shares of Common Stock pursuant to Rule 462(b) under the
Securities Act (the "RULE 462 REGISTRATION STATEMENT"), then any reference
herein to the term "REGISTRATION STATEMENT" shall be deemed to include such Rule
462 Registration Statement (including, in the case of all references to the
Registration Statement and the Prospectus, documents incorporated therein by
reference).
1. Representations and Warranties. The Company represents and warrants
to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and
no proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and
incorporated by reference in the Prospectus complied or will comply when so
filed in all material respects with the Exchange Act and the applicable
rules and regulations of the Commission thereunder, (ii) the Registration
Statement, when it became effective, did not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, (iii) the
Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder and (iv) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties set
forth in this paragraph do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information relating to
any Underwriter furnished to the Company in writing by such Underwriter
through you expressly for use therein.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and
to conduct its business as described in the Prospectus and is duly qualified
to transact business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to be so qualified
or be in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
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(d) Each subsidiary of the Company has been duly formed, is validly
existing as a corporation, partnership or limited liability company in good
standing under the laws of the jurisdiction of its organization, has the
corporate, partnership or limited liability company power and authority to
own its property and to conduct its business as described in the Prospectus
and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole; all of the issued equity interests of each subsidiary of the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable and, except as set forth in Schedule III hereto, are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims.
(e) This Agreement has been duly authorized, executed and delivered
by the Company.
(f) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus.
(g) The shares of Common Stock outstanding prior to the issuance of
the Shares have been duly authorized and are validly issued, fully paid and
non-assessable.
(h) The Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable, and the issuance of such Shares will
not be subject to any preemptive or similar rights.
(i) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement will not
contravene any provision of applicable law or the articles of incorporation
or by-laws of the Company or any agreement or other instrument binding upon
the Company or any of its subsidiaries that is material to the Company and
its subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or
any subsidiary, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, except
such as may be required by the securities or Blue Sky laws of the various
states in connection with the offer and sale of the Shares.
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(j) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement).
(k) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration Statement or
the Prospectus and are not so described or any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required.
(l) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when so filed in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
(m) The Company is not and, after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as described
in the Prospectus, will not be an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended.
(n) Except for real property owned by 1050 Limited Partnership
(which the Company and its subsidiaries do not control) and except for
activities, conditions, circumstances or matters that would not, singly or
in the aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole:
(A) excluding such customary amounts as may be lawfully generated,
stored, used, treated, disposed of, or otherwise handled or
located at a property, neither the Company nor its subsidiaries
has caused or suffered to occur any release of any substance,
pollutant or waste listed in the United States Department of
Transportation Optional Hazardous Material Table, 49 C.F.R.
Section 172.101, as the same may now or hereafter be amended, or
in the United States Environmental Protection Agency (the "EPA")
List of Hazardous Substances and Reportable Quantities, 40
C.F.R. Part 3202, as the same may now or hereafter be amended (a
"Hazardous Substance")
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on, in, under or from any real property owned or leased by the
Company or its subsidiaries (each, a "Property"), and no
condition exists on, in, under or from any Property, to the
knowledge of the Company, that could result in the incurrence of
liabilities or any violations of any Environmental Law (as
defined below) or cause or constitute a health, safety or
environmental hazard to any property, person or entity;
(B) neither the Company nor its subsidiaries has received any notice
of a claim under or pursuant to any Environmental Law or under
common law pertaining to Hazardous Substances on or originating
from any Property;
(C) neither the Company nor its subsidiaries has received any notice
from any governmental authority having the duty or authority to
promulgate, implement or enforce any Environmental Law claiming
any violation of any Environmental Law; and
(D) no Property is included or, to the knowledge of the Company,
proposed for inclusion on the National Priorities List issued
pursuant to CERCLA (as defined below) by the EPA or on the
Comprehensive Environmental Response, Compensation, and
Liability Information System database maintained by the EPA, and
has not otherwise been identified by the EPA as a potential
CERCLA removal, remedial or response site or included or, to the
knowledge of the Company, proposed for inclusion on, any similar
list of potentially contaminated sites pursuant to any other
Environmental Law.
The representations set forth in paragraphs (A) through (D) above
are true and correct to the knowledge of the Company after due inquiry with
respect to real property owned by 1050 Limited Partnership.
As used in this paragraph, "Environmental Law" means the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended (42 U.S.C. Section 9601 et seq.) ("CERCLA"), the Resource
Conservation and Recovery Act of 1976, as amended (42 U.S.C. Section 6901,
et seq.), the Clean Air Act, as amended (42 U.S.C. Section 7401, et seq.),
the Clean Water Act, as amended (33 U.S.C. Section 1251, et seq.), the Toxic
Substances Control Act, as amended (15 U.S.C. Section 2601, et seq.), the
Occupational Safety and Health Act of 1970, as amended (29 U.S.C. Section
651, et seq.), the Hazardous Materials Transportation Act, as amended (49
U.S.C. Section 1801, et seq.), and all other federal, state and local laws,
ordinances, regulations, rules, orders, decisions and permits
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relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants.
(o) There are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties) which would, singly or in the aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(p) Except as set forth in Exhibit C, there are no contracts,
agreements or understandings between the Company and any person granting
such person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities of the
Company or to require the Company to include such securities with the Shares
registered pursuant to the Registration Statement.
(q) The Company has complied with all provisions of Section 517.075,
Florida Statutes relating to doing business with the Government of Cuba or
with any person or affiliate located in Cuba.
(r) Neither the Company nor any subsidiary (other than Emmis
Meadowlands Corporation and Emmis 1380 AM Radio Corporation of St. Louis) is
or has been a "United States real property holding corporation" within the
meaning of Section 897 (c)(2) of the Internal Revenue Code of 1986, as
amended, during the applicable period specified in Section 897 (c)(1)(A).
(s) Except for such FCC consents and approvals that have already
been obtained and are currently in effect, no consent or approval of the FCC
is required under the Communications Act of 1934, as amended, and the
regulations promulgated thereunder (the "COMMUNICATIONS LAWS") for the
issuance and sale under this Agreement by the Company of the Shares. The
execution, delivery and performance of this Agreement in accordance with the
terms hereof by the Company does not violate the Communications Laws.
(t) Except as described in the Company's Annual Report on Form 10-K
for the fiscal year ended February 28, 1998, the Company and the following
subsidiaries of the Company (the "SUBSIDIARIES") hold all necessary
authorizations, approvals, consents, orders, licenses, certificates and
permits issued by the FCC to own and to operate their respective radio
broadcast stations (the "STATIONS") as identified below (all such held FCC
authorizations, approvals,
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consents, orders, licenses, certificates and permits of the Subsidiaries
collectively, "FCC LICENSES"):
Corporation Station
----------- -------
Emmis FM License Corporation of St. Louis KSHE-FM
Emmis 104.1 FM Radio License Corporation of St. Xxxxx XXXX-FM
Emmis 106.5 FM License Corporation of St. Louis WKKX-FM
Emmis FM License Corporation of Indianapolis WENS-FM
Emmis AM Radio License Corporation of Indianapolis WIBC-AM
Emmis FM Radio License Corporation of Indianapolis WNAP-FM
Emmis 105.7 FM Radio License Corporation of Indianapolis WTLC-FM
Emmis 1310 AM Radio License Corporation of Indianapolis WTLC-AM
Emmis FM License Corporation of Chicago WKQX-FM
Emmis License Corporation of New York WQHT-FM
Emmis Radio License Corporation of New York WRKS-FM
KPWR License, Inc. KPWR-FM
(u) Except as set forth in the Prospectus, there are no proceedings
pending or threatened in writing under the Communications Laws against the
Company, the Subsidiaries or the Stations before or by the FCC or any court
having jurisdiction over matters arising under the Communications Laws,
relating to any invalidity, revocation or modification of any FCC Licenses,
or the violation of the Communications Laws, that would reasonably be
expected to have a material adverse effect upon the condition (financial or
other), business or properties of the Company and the Subsidiaries taken as
a whole.
(v) The consolidated financial statements of the Company and its
subsidiaries incorporated by reference in the Registration Statement and any
amendment or supplement thereto, present fairly in all material respects the
financial position, results of operations and changes in cash flows of the
Company and its subsidiaries consolidated, at the indicated dates and for
the indicated periods. Such financial statements have been prepared in
accordance with generally accepted principles of accounting, consistently
applied throughout the periods involved, and all adjustments necessary for a
fair presentation of results for such periods have been made. The pro forma
financial information filed as part of the Registration Statement and the
Prospectus or incorporated therein by
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reference and any amendment or supplement thereto has been prepared in
accordance with the Commission's rules and guidelines with respect to pro
forma financial statements and the assumptions used in the preparation
thereof are, in the Company's opinion, reasonable. The summary financial and
statistical data included in the Registration Statement and any amendment or
supplement thereto presents fairly the information shown therein and have
been compiled on a basis consistent with such financial statements and the
books and records of the Company.
(w) Except as set forth on Exhibit C, no holder of any security of
the Company has any right, not effectively satisfied or waived, to require
inclusion of shares of common stock or any other security of the Company in
the Registration Statement.
2. Agreements to Sell and Purchase. The Company hereby agrees to
sell to the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Company the respective numbers of Firm Shares (subject to such adjustments to
eliminate fractional shares as you may determine) that bears the same proportion
to the number of Firm Shares as the number of Firm Shares set forth in Schedules
I and II hereto opposite the name of such Underwriter bears to the total number
of Firm shares at U.S.$39.90 a share ("PURCHASE PRICE").
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the U.S. Underwriters the Additional Shares, and the U.S. Underwriters shall
have a one-time right to purchase, severally and not jointly, up to 600,000
Additional Shares at the Purchase Price. If the U.S. Representatives, on behalf
of the U.S. Underwriters, elect to exercise such option, the U.S.
Representatives shall so notify the Company in writing not later than 30 days
after the date of this Agreement, which notice shall specify the number of
Additional Shares to be purchased by the U.S. Underwriters and the date on which
such shares are to be purchased. Such date may be the same as the Closing Date
(as defined below) but not earlier than the Closing Date nor later than ten
business days after the date of such notice. Additional Shares may be purchased
as provided in Section 4 hereof solely for the purpose of covering
over-allotments made in connection with the offering of the Firm Shares. If any
Additional Shares are to be purchased, each U.S. Underwriter agrees, severally
and not jointly, to purchase the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as the U.S. Representatives may
determine) that bears the same proportion to the total number of Additional
Shares to be purchased as the number of U.S. Firm Shares set forth in Schedule I
hereto opposite the name of such U.S. Underwriter bears to the total number of
U.S. Firm Shares.
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The Company hereby agrees that, without the prior written consent of
Xxxxxx Xxxxxxx & Co. Incorporated on behalf of the Underwriters, it will not,
during the period ending 90 days after the date of the Prospectus, (i) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or (ii) enter into any swap or other arrangement
that transfers to another, in whole or in part, any of the economic consequences
of ownership of the Common Stock, whether any such transaction described in
clause (i) or (ii) above is to be settled by delivery of Common Stock or such
other securities, in cash or otherwise. The foregoing sentence shall not apply
to (A) the Shares to be sold hereunder or (B) the issuance by the Company of
shares of Common Stock upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof of which the
Underwriters have been advised in writing, including, without limitation, the
grant by the Company of options or the issuance by the Company of shares of
Common Stock pursuant to the Company's 1986 Stock Incentive Plan, 1992
Nonqualified Stock Option Plan, 1994 Equity Incentive Plan, 1995 Equity
Incentive Plan, 1997 Equity Incentive Plan or Non-Employee Director Stock Option
Plan.
3. Terms of Public Offering. The Company is advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. The Company is further
advised by you that the Shares are to be offered to the public initially at
U.S.$42.00 a share (the "PUBLIC OFFERING PRICE") and to certain dealers selected
by you at a price that represents a concession not in excess of U.S.$1.25 a
share under the Public Offering Price, and that any Underwriter may allow, and
such dealers may reallow, a concession, not in excess of U.S.$.10 a share, to
any Underwriter or to certain other dealers.
4. Payment and Delivery. Payment for the Firm Shares to be sold by
the Company shall be made to such Seller in Federal or other funds immediately
available in New York City against delivery of such Firm Shares for the
respective accounts of the several Underwriters at 10:00 a.m., New York City
time, on June 4, 1998, or at such other time on the same or such other date, not
later than July 11, 1998, as shall be designated in writing by you. The time and
date of such payment are hereinafter referred to as the "CLOSING DATE".
Payment for any Additional Shares shall be made to the Company in
Federal or other funds immediately available in New York City against delivery
of such Additional Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on the date specified in the
notice described in Section 2 or at such other time on the same or on such other
date, in any event not
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later than July 6, 1998, as shall be designated in writing by the U.S.
Representatives. The time and date of such payment are hereinafter referred to
as the "OPTION CLOSING DATE".
Certificates for the Firm Shares and Additional Shares shall be in
definitive form and registered in such names and in such denominations as you
shall request in writing not later than one full business day prior to the
Closing Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and Additional Shares shall be delivered to you on
the Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the Purchase Price therefor.
5. Conditions to the Underwriters' Obligations. The obligations of
the Company to sell the Shares to the Underwriters and the several obligations
of the Underwriters to purchase and pay for the Shares on the Closing Date are
subject to the condition that the Registration Statement, including
Post-Effective Amendment No. 1 thereto, shall have become effective not later
than 11:30 a.m. (New York City time) on May 29, 1998.
The several obligations of the Underwriters are subject to the
following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or
of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded any of the
Company's securities by any "nationally recognized statistical
rating organization," as such term is defined for purposes of Rule
436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company
and its subsidiaries, taken as a whole, from that set forth in the
Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement) that, in your judgment, is
material and adverse and that makes it, in your judgment,
impracticable to market the Shares on the terms and in the manner
contemplated in the Prospectus.
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(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of
the Company, to the effect set forth in Section 5(a)(i) above and to the
effect that the representations and warranties of the Company contained in
this Agreement are true and correct as of the Closing Date and that the
Company has complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied hereunder on or before
the Closing Date.
The officer signing and delivering such certificate may rely upon
the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an
opinion of Xxxx XxXxxxxx & Xxxxx, outside counsel for the Company, dated the
Closing Date, to the effect that:
(i) the Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the jurisdiction
of its incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
(ii) each subsidiary of the Company has been duly formed, is
validly existing as a corporation, partnership or limited liability
company in good standing under the laws of the jurisdiction of its
organization, has the corporate, partnership or limited liability
company power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken
as a whole; provided, however, that with respect to Radio Hungaria
Co., Ltd. d/b/a Xxxxxx Radio ("Radio Hungaria"), such counsel may
state that it is not qualified to practice law in Hungary and that
such conclusions are based solely upon its review of specified
corporate records of the Company and Radio Hungaria certified by
the Company as true and correct translations or English language
summaries thereof.
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(iii) the authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the
Prospectus;
(iv) the shares of Common Stock (including the shares to be sold
by the Selling Shareholder) outstanding prior to the issuance of the
Shares have been duly authorized and are validly issued, fully paid
and non-assessable;
(v) all of the issued equity interests of each subsidiary of the
Company have been duly and validly authorized and issued, are fully
paid and non-assessable and, except as set forth in Schedule III
hereto, are owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or claims;
(vi) the Shares to be sold by the Company have been duly
authorized and, when issued and delivered in accordance with the
terms of this Agreement, will be validly issued, fully paid and
non-assessable, and the issuance of such Shares will not be subject
to any preemptive or similar rights;
(vii) this Agreement has been duly authorized, executed and
delivered by the Company;
(viii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement
will not contravene any provision of applicable law or the articles
of incorporation or by-laws of the Company or, to the best of such
counsel's knowledge, any agreement or other instrument binding upon
the Company or any of its subsidiaries that is material to the
Company and its subsidiaries, taken as a whole, or, to the best of
such counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the
Company or any subsidiary, and no consent, approval, authorization
or order of, or qualification with, any governmental body or agency
is required for the performance by the Company of its obligations
under this Agreement, except such as may be required by the
securities or Blue Sky laws of the various states in connection with
the offer and sale of the Shares by the U.S. Underwriters;
(ix) the statements (A) in the Prospectus under the captions
"Summary -- Recent Developments," "-- SF Acquisition," "-- Wabash
Valley Acquisition," "-- WQCD Acquisition," "Business -- Television
Stations," "-- Competition," "Principal Shareholders," "Description
of Capital Stock," "Certain U.S. Federal Tax Consideration for
Non-U.S.
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Holders of Class A Common Stock," and "Underwriters", (B)
in the Company's Annual Report on Form 10-K for the fiscal year
ended February 28, 1998 under the captions "Business -- Pending
Transactions," "-- Competition," "Properties," "Legal Proceedings",
(C) in the description of the Class A Common Stock contained in the
Company's registration statement on Form 8-A (file no. 0-23264), as
amended, (D) in the Company's Proxy Statement pursuant to Section
14(A) of the Exchange Act on Schedule 14A dated May 21, 1998 under
the caption "Executive Compensation -- Employment Agreements," and
(E) in the Registration Statement in Item 15, in each case insofar
as such statements constitute summaries of the legal matters,
documents or proceedings referred to therein, fairly present the
information called for with respect to such legal matters, documents
and proceedings and fairly summarize the matters referred to
therein;
(x) after due inquiry, such counsel does not know of any legal or
governmental proceedings pending or threatened to which the Company
or any of its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is subject that
are required to be described in the Registration Statement or the
Prospectus and are not so described or of any statutes, regulations,
contracts or other documents that are required to be described in
the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described or
filed as required;
(xi) the Company is not and, after giving effect to the offering
and sale of the Shares and the application of the proceeds thereof
as described in the Prospectus, will not be an "investment company"
as such term is defined in the Investment Company Act of 1940, as
amended;
(xii) (A) each document, if any, filed pursuant to the Exchange
Act and incorporated by reference in the Registration Statement and
the Prospectus (except for financial statements and schedules as to
which such counsel need not express any opinion) complied when so
filed as to form in all material respects with the Exchange Act, and
the applicable rules and regulations of the Commission thereunder,
(B) the Registration Statement and Prospectus (except for financial
statements and schedules and other financial and statistical data
included therein as to which such counsel need not express any
opinion) comply as to form in all material respects with the
Securities Act and the applicable rules and regulations of the
Commission thereunder, (C) such counsel has no reason to believe
that (except for financial statements and schedules and other
financial and statistical data as to which such counsel need not
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express any belief) the Registration Statement and the prospectus
included therein at the time the Registration Statement became
effective contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (D) such
counsel has no reason to believe that (except for financial
statements and schedules and other financial and statistical data as
to which such counsel need not express any belief) the Prospectus
contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading;
(xiii) neither the Company nor any subsidiary (other than Emmis
Meadowlands Corporation and Emmis 1380 AM Radio Corporation of St.
Louis) is or has been a "United States real property holding
corporation" within the meaning of Section 897 (c)(2) of the
Internal Revenue Code of 1986, as amended, during the applicable
period specified in Section 897 (c)(1)(A); and
(xiv) except as set forth on Exhibit C, no holder of any security
of the Company has any right, not effectively satisfied or waived,
to require inclusion of shares of common stock or any other security
of the Company in the Registration Statement.
The opinion of Xxxx XxXxxxxx & Xxxxx described in this Section 5(c)
above shall be rendered to the Underwriters at the request of the Company
and shall so state therein.
(d) The Underwriters shall have received an opinion, dated such
Closing Date, of Xxxxxxx, Carton & Xxxxxxx, FCC counsel for the Company, to
the effect that:
(i) Except for such FCC consents and approvals that have already
been obtained and are currently in effect, no consent or approval of
the FCC is required under the Communications Act of 1934, as
amended, and the regulations promulgated thereunder (the
"COMMUNICATIONS LAWS") for the issuance and sale under this
Agreement by the Company of the Shares. The execution, delivery and
performance of this Agreement in accordance with the terms hereof by
the Company does not violate the Communications Laws;
(ii)Except as described in the Company's Annual Report on Form 10-K
for the fiscal year ended February 28, 1998, the Company and the
following subsidiaries of the Company (the "SUBSIDIARIES") hold all
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necessary authorizations, approvals, consents, orders, licenses,
certificates and permits issued by the FCC to own and to operate
their respective radio broadcast stations (the "STATIONS") as
identified below (all such held FCC authorizations, approvals,
consents, orders, licenses, certificates and permits of the
Subsidiaries collectively, "FCC Licenses"):
Corporation Station
----------- -------
Emmis FM License Corporation of St. Louis KSHE-FM
Emmis 104.1 FM Radio License Corporation of St. Xxxxx XXXX-FM
Emmis 106.5 FM License Corporation of St. Louis WKKX-FM
Emmis FM License Corporation of Indianapolis WENS-FM
Emmis AM Radio License Corporation of Indianapolis WIBC-AM
Emmis FM Radio License Corporation of Indianapolis WNAP-FM
Emmis 105.7 FM Radio License Corporation of Indianapolis WTLC-FM
Emmis 1310 AM Radio License Corporation of Indianapolis WTLC-AM
Emmis FM License Corporation of Chicago WKQX-FM
Emmis License Corporation of New York WQHT-FM
Emmis Radio License Corporation of New York WRKS-FM
KPWR License, Inc. KPWR-FM
(iii) Except as set forth, or incorporated by reference, in the
Prospectus, such counsel knows of no proceedings pending or
threatened in writing under the Communications Laws against the
Company, the Subsidiaries or the Stations before or by the FCC or
any court having jurisdiction over matters arising under the
Communications Laws, relating to any invalidity, revocation or
modification of any FCC Licenses, or the violation of the
Communications Laws, that would reasonably be expected to have a
material adverse effect upon the condition (financial or other),
business or properties of the Company and the Subsidiaries taken as
a whole;
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(iv)The statements set forth in the Registration Statement under the
captions "Risk Factors -- New Technologies" and " -- Broadcast
Industry Subject to Federal Regulation"; "Recent Developments -- SF
Acquisition," and "-- Wabash Valley Acquisition" ; and Business
Strategy -- Competition"; and in the Company's Annual Report on Form
10-K (file no. 0-23264) for the fiscal year ended February 28, 1998,
incorporated by reference in the Registration Statement, under the
captions "Item 1. Business. -- Competition," and "-- Federal
Regulation," insofar as such statements constitute a summary of
Communications Laws and material proceedings thereunder, fairly
present such information contained under such captions in light of
the circumstances under which such statements are made. The
statements set forth in the Registration Statement under the
captions "Risk Factors -- New Technologies" and " -- Broadcast
Industry Subject to Federal Regulation"; "Recent Developments -- SF
Acquisition," and " -- Wabash Valley Acquisition" ; and Business
Strategy -- Competition"; and in the Company's Annual Report on Form
10-K (file no. 0-23264), incorporated by reference in the
Registration Statement, under the captions "Item 1. Business. --
Competition," and "-- Federal Regulation," insofar as such
statements constitute a summary with respect to FCC matters and
legal conclusions with respect to FCC matters, fairly and in all
material respects accurately present such information contained
under such captions in light of the circumstances under which such
statements are made;
(v) Such counsel has no reason to believe that any part of the
Registration Statement or any amendment thereto, as of its effective
date or as of such Closing Date, contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Prospectus or any amendment or supplement
thereto, as of its issue date or as of such Closing Date, contained
any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided that, in rendering the opinion in this
subparagraph (v), counsel may qualify its opinion based on the scope
of its engagement as FCC counsel for the Company.
(e) The Underwriters shall have received on the Closing Date an
opinion of Xxx, Xxxxxx & Xxxxxxxxx, PLLC, counsel for the Underwriters,
dated the Closing Date, covering the matters referred to in Section 5(c)(ix)
(but only as to the statements in the Prospectus under "Underwriters") and
clauses (B), (C) and (D) of 5(c)(xiii) above.
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With respect to Section 5(c)(xiii) and 5(d)(vi) above, Bose XxXxxxxx
& Xxxxx may state that its opinion and belief are based upon its
participation in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto and documents
incorporated by reference and review and discussion of the contents thereof,
but are without independent check or verification, except as specified. With
respect to clauses (B), (C) and (D) of paragraph 5(c)(xiii) above, Dow,
Xxxxxx & Xxxxxxxxx, PLLC may state that its opinion and belief are based
upon its participation in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto (other than the
documents incorporated by reference) and upon review and discussion of the
contents thereof (including documents incorporated by reference), but are
without independent check or verification except as specified.
(f) The Underwriters shall have received, on each of the date hereof
and the Closing Date, a letter dated the date hereof or the Closing Date, as
the case may be, in form and substance satisfactory to the Underwriters,
from Xxxxxx Xxxxxxxx LLP, independent public accountants, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements
and certain financial information contained in the Registration Statement
and the Prospectus or incorporated by reference therein; provided that the
letter delivered on the Closing Date shall use a "cut-off date" not earlier
than the date hereof.
(g) The "lock-up" agreements, each substantially in the form of
Exhibit A hereto, between you and certain shareholders, officers and
directors of the Company relating to sales and certain other dispositions of
shares of Common Stock or certain other securities, delivered to you on or
before the date hereof, shall be in full force and effect on the Closing
Date.
(h) The Underwriters shall have received on the Closing Date a
wavier, substantially in the form of Exhibit B hereto, from each executive
officer, director and beneficial owner of more than five percent of the
issued and outstanding Common Stock of the Company and each person, which,
to the knowledge of the Company, is an "affiliate" (as defined for purposes
of Rule 144 under the Securities Act) of the Company, in each case which
possesses registration rights, claims, causes of action or objections under
any registration rights agreement entered into by the Company and currently
in effect.
The several obligations of the U.S. Underwriters to purchase
Additional Shares hereunder are subject to the delivery to the U.S.
Representatives on the Option Closing Date of such documents as they may
reasonably request with respect to the
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good standing of the Company, the due authorization and issuance of the
Additional Shares and other matters related to the issuance of the Additional
Shares.
6. Covenants of the Company. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish to you, without charge, 15 signed copies of the
Registration Statement (including exhibits thereto and documents
incorporated by reference) and for delivery to each other Underwriter a
conformed copy of the Registration Statement (without exhibits thereto, but
including documents incorporated by reference) and to furnish to you in New
York City, without charge, prior to 10:00 a.m. New York City time on the
business day next succeeding the date of this Agreement and during the
period mentioned in Section 6(c) below, as many copies of the Prospectus,
any documents incorporated by reference and any supplements and amendments
thereto or to the Registration Statement as you may reasonably request. The
terms "supplement" and "amendment" or "amend" as used in this Agreement
shall include all documents subsequently filed by the Company with the
Commission pursuant to the Exchange Act that are deemed to be incorporated
by reference in the Prospectus.
(b) Before amending or supplementing the Registration Statement or
the Prospectus, to furnish to you a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to
which you reasonably object, and to file with the Commission within the
applicable period specified in Rule 424(b) under the Securities Act any
prospectus required to be filed pursuant to such Rule.
(c) If, during such period after the first date of the public
offering of the Shares as in the opinion of counsel for the Underwriters the
Prospectus is required by law to be delivered in connection with sales by an
Underwriter or dealer, any event shall occur or condition exist as a result
of which it is necessary to amend or supplement the Prospectus in order to
make the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if, in the
opinion of counsel for the Underwriters, it is necessary to amend or
supplement the Prospectus to comply with applicable law, forthwith to
prepare, file with the Commission and furnish, at its own expense, to the
Underwriters and to the dealers (whose names and addresses you will furnish
to the Company) to which Shares may have been sold by you on behalf of the
Underwriters and to any other dealers upon request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be
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21
misleading or so that the Prospectus, as amended or supplemented, will
comply with law.
(d) To endeavor to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request.
(e) To make generally available to the Company's security holders
and to you as soon as practicable an earning statement covering the
twelve-month period ending May 31, 1999 that satisfies the provisions of
Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
7. Expenses. Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Company agrees to
pay or cause to be paid all expenses incident to the performance of their
obligations under this Agreement, including: (i) the fees, disbursements and
expenses of the Company's counsel, the Company's accountants and counsel for the
Selling Shareholder in connection with the registration and delivery of the
Shares under the Securities Act and all other fees or expenses in connection
with the preparation and filing of the Registration Statement, any preliminary
prospectus, the Prospectus and amendments and supplements to any of the
foregoing, including all printing costs associated therewith, and the mailing
and delivering of copies thereof to the Underwriters and dealers, in the
quantities hereinabove specified, (ii) all costs and expenses related to the
transfer and delivery of the Shares to the Underwriters, including any transfer
or other taxes payable thereon, (iii) the cost of printing or producing any Blue
Sky or Legal Investment memorandum in connection with the offer and sale of the
Shares under state securities laws and all expenses in connection with the
qualification of the Shares for offer and sale under state securities laws as
provided in Section 6(d) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky or Legal Investment
memorandum, (iv) all filing fees and the reasonable fees and disbursements of
counsel to the Underwriters incurred in connection with the review and
qualification of the offering of the Shares by the National Association of
Securities Dealers, Inc., (v) the cost of printing certificates representing
the Shares, (vi) the costs and charges of any transfer agent, registrar or
depositary, (vii) the costs and expenses of the Company relating to investor
presentations on any "road show" undertaken in connection with the marketing of
the offering of the Shares, including, without limitation, expenses associated
with the production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations with the
prior approval of the Company, travel and lodging expenses of the
representatives and officers of the Company and any such consultants, and the
cost of any aircraft chartered in connection with the road show, (viii) all
expenses in connection with any offer and sale of the Shares outside of the
United States, including filing fees and the
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reasonable fees and disbursements of counsel for the Underwriters in
connection with offers and sales outside of the United States, and (ix) all
other costs and expenses incident to the performance of the obligations of the
Company hereunder for which provision is not otherwise made in this Section. It
is understood, however, that except as provided in this Section, Section 8
entitled "Indemnity and Contribution", and the last paragraph of Section 10
below, the Underwriters will pay all of their costs and expenses, including
fees and disbursements of their counsel, stock transfer taxes payable on resale
of any of the Shares by them and any advertising expenses connected with any
offers they may make.
8. Indemnity and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through you expressly
for use therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Selling Shareholder, the Company, its directors, its
officers who sign the Registration Statement and each person, if any, who
controls the Company or the Selling Shareholder within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Company to such Underwriter, but only
with reference to information relating to such Underwriter furnished to the
Company in writing by such Underwriter through you expressly for use in the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 8(a) or 8(b), such person (the "INDEMNIFIED PARTY")
shall promptly notify the person against whom such indemnity may be sought (the
"INDEMNIFYING PARTY") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may
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designate in such proceeding and shall pay the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i)
the indemnifying party and the indemnified party shall have mutually agreed to
the retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them.
It is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for (i) the fees and expenses
of more than one separate firm (in addition to any local counsel) for all
Underwriters and all persons, if any, who control any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, and (ii) the fees and expenses of more than one separate firm (in
addition to any local counsel) for the Company, its directors, its officers who
sign the Registration Statement and each person, if any, who controls the
Company within the meaning of either such Section. In the case of any such
separate firm for the Underwriters and such control persons of any
Underwriters, such firm shall be designated in writing by Xxxxxx Xxxxxxx & Co.
Incorporated. In the case of any such separate firm for the Selling
Shareholder, such firm shall be designated in writing by the Selling
Shareholder. The indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second and third sentences of this paragraph,
the indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
(d) To the extent the indemnification provided for in Section 8(a)
or 8(b) is unavailable to an indemnified party or insufficient in respect of any
losses,
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claims, damages or liabilities referred to therein, then each indemnifying party
under such paragraph, in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other hand from the offering of the Shares
or (ii) if the allocation provided by clause 8(d)(i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause 8(d)(i) above but also the relative
fault of the Company on the one hand and the Underwriters on the other hand in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other hand in connection with the offering of the
Shares shall be deemed to be in the same respective proportions as the net
proceeds from the offering of the Shares (before deducting expenses) received by
the Company and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate Public Offering Price of the Shares. The
relative fault of the Company on the one hand and the Underwriters on the other
hand shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Underwriters' respective obligations to contribute pursuant to this Section
8 are several in proportion to the respective number of Shares they have
purchased hereunder, and not joint.
(f) The Company and the Underwriters agree that it would not be just
or equitable if contribution pursuant to this Section 8 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in Section 8(e). The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies
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provided for in this Section 8 are not exclusive and shall not limit any rights
or remedies which may otherwise be available to any indemnified party at law or
in equity.
(f) The indemnity and contribution provisions contained in this
Section 8 and the representations, warranties and other statements of the
Company contained in this Agreement shall remain operative and in full force and
effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter or by or on behalf of the Company, the Company's officers and
directors or any person controlling the Company and (iii) acceptance of and
payment for any of the Shares.
9. Termination. This Agreement shall be subject to termination by
notice given by you to the Company, if (a) after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange, the National Association
of Securities Dealers, Inc., the Chicago Board Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse and (b) in the case of any of
the events specified in clauses 9(a)(i) through 9(a)(iv), such event, singly or
together with any other such event, makes it, in your judgment, impracticable to
market the Shares on the terms and in the manner contemplated in the Prospectus.
10. Effectiveness; Defaulting Underwriters. This Agreement shall
become effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or the Option Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase Shares
that it has or they have agreed to purchase hereunder on such date, and the
aggregate number of Shares which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate number of the Shares to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the number of
Firm Shares set forth opposite their respective names in Schedule I or Schedule
II bears to the aggregate number of Firm Shares set forth opposite the names of
all such non-defaulting Underwriters, or in such other proportions as you may
specify, to purchase the Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the number of Shares that any Underwriter
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has agreed to purchase pursuant to this Agreement be increased pursuant to this
Section 9 by an amount in excess of one-ninth of such number of Shares without
the written consent of such Underwriter. If, on the Closing Date, any
Underwriter or Underwriters shall fail or refuse to purchase Firm Shares and the
aggregate number of Firm Shares with respect to which such default occurs is
more than one-tenth of the aggregate number of Firm Shares to be purchased, and
arrangements satisfactory to you and the Company for the purchase of such Firm
Shares are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter or the
Company. In any such case either you or the Company shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be effected. If, on the
Option Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Additional Shares and the aggregate number of Additional Shares with
respect to which such default occurs is more than one-tenth of the aggregate
number of Additional Shares to be purchased, the non-defaulting Underwriters
shall have the option to (i) terminate their obligation hereunder to purchase
Additional Shares or (ii) purchase not less than the number of Additional Shares
that such non-defaulting Underwriters would have been obligated to purchase in
the absence of such default. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
11. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
12. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
13. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
26
27
Very truly yours,
EMMIS BROADCASTING
CORPORATION
By:
-----------------------
Name:
Title:
Accepted as of the date hereof
XXXXXX XXXXXXX & CO. INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION
XXXXXX BROTHERS INC.
X. X. XXXXXXX & SONS, INC.
XXXXXXX, XXXXX & CO.
NATIONSBANC XXXXXXXXXX SECURITIES LLC
XXXXXXXX & CO. INC.
Acting severally on behalf of themselves
and the several U.S. Underwriters
named in Schedule I hereto.
By: Xxxxxx Xxxxxxx & Co. Incorporated
By:
---------------------------
Name:
Title:
27
28
XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES INTERNATIONAL
XXXXXX BROTHERS INTERNATIONAL (EUROPE)
X. X. XXXXXXX & SONS, INC.
XXXXXXX XXXXX INTERNATIONAL
X. XXXXX XXXXXXXX & CO. LIMITED
NATIONSBANC XXXXXXXXXX SECURITIES LLC
Acting severally on behalf of themselves
and the several International Underwriters
named in Schedule II hereto.
By: Xxxxxx Xxxxxxx & Co. International Limited
By:
----------------------------
Name:
Title:
28
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SCHEDULE I
U.S. UNDERWRITERS
NUMBER OF
FIRM SHARES
UNDERWRITER TO BE PURCHASED
Xxxxxx Xxxxxxx & Co. Incorporated 424,000
Credit Suisse First Boston Corporation 318,000
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation 318,000
Xxxxxx Brothers Inc. 318,000
X. X. Xxxxxxx & Sons, Inc. 185,500
Xxxxxxx, Xxxxx & Co. 185,500
NationsBanc Xxxxxxxxxx Securities LLC 185,500
Xxxxxxxx & Co. Inc. 185,500
Xxxxxxx X. Xxxxxxxxx & Co., Inc. 60,000
BT Xxxx. Xxxxx Incorporated 120,000
Xxxxxx Xxxx LLC 120,000
Xxxxxx Xxxxxxxxxx Xxxxx Inc. 60,000
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated 60,000
XxXxxxxx & Company Securities, Inc. 120,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 120,000
Xxxxx Xxxxxx Incorporated 120,000
Xxxxx Xxxxxxx Inc. 60,000
UBS Securities LLC 120,000
Xxxxxxxxxxx Xxxxxxx Securities, Inc. 120,000
---------------
3,200,000
Total U.S. Firm Shares .............. ===============
30
SCHEDULE II
INTERNATIONAL UNDERWRITERS
NUMBER OF
FIRM SHARES
UNDERWRITER TO BE PURCHASED
Xxxxxx Xxxxxxx & Co. International Limited 153,010
Credit Suisse First Boston (Europe) Limited 114,750
Xxxxxxxxx, Xxxxxx & Xxxxxxxx International 114,750
Xxxxxx Brothers International (Europe) 114,750
X.X. Xxxxxxx & Sons, Inc. 66,935
Xxxxxxx Xxxxx International 66,935
NationsBanc Xxxxxxxxxx Securities LLC 66,935
X. Xxxxx Xxxxxxxx & Co. Limited 66,935
Swiss Bank Corporation 35,000
-------
800,000
Total International Firm Shares ...... =======
31
SCHEDULE III
SUBSIDIARY
Xxxxxx America Radio, LLC
Radio Hungaria Co. Ltd.
1050 Limited Partnership
Equity interests in substantially all subsidiaries are subject to
liens which secure the Company's Credit Family.
31
32
EXHIBIT A
[FORM OF LOCK-UP LETTER]
May __, 1998
Xxxxxx Xxxxxxx & Co. Incorporated
Credit Suisse First Boston Corporation
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
Xxxxxx Brothers Inc.
X. X. Xxxxxxx & Sons, Inc.
Xxxxxxx, Xxxxx & Co.
NationsBanc Xxxxxxxxxx Securities LLC
Xxxxxxxx & Co. Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxxx & Co. International Limited
Credit Suisse First Boston (Europe) Limited
Xxxxxxxxx, Xxxxxx & Xxxxxxxx International
Xxxxxx Brothers International (Europe)
X.X. Xxxxxxx & Sons, Inc.
Xxxxxxx Xxxxx International
X. Xxxxx Xxxxxxxx & Co. Limited
NationsBanc Xxxxxxxxxx Securities LLC
c/o Morgan Xxxxxxx & Co. International Limited
00 Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Xxxxxxx
The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated
("XXXXXX XXXXXXX") and Xxxxxx Xxxxxxx & Co. International Limited ("MSIL")
propose to enter into an Underwriting Agreement (the "UNDERWRITING AGREEMENT")
with Emmis Broadcasting Corporation, an Indiana corporation (the "COMPANY")
providing for the public offering (the "PUBLIC OFFERING") by the several
Underwriters, including Xxxxxx Xxxxxxx and MSIL (the "UNDERWRITERS") of
4,000,000 shares (the
33
"SHARES") of the Class A Common Stock, par value $.01 per share, of the Company
(the "COMMON STOCK").
To induce the Underwriters that may participate in the Public
Offering to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior written consent of Xxxxxx
Xxxxxxx on behalf of the Underwriters, it will not, during the period commencing
on the date hereof and ending 90 days after the date of the final prospectus
relating to the Public Offering (the "PROSPECTUS"), (1) offer, pledge1, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase, lend, or
otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock, or (2) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of
the Common Stock, whether any such transaction described in clause (1) or (2)
above is to be settled by delivery of Common Stock or such other securities, in
cash or otherwise. The foregoing sentence shall not apply to (a) the sale of any
Shares to the Underwriters pursuant to the Underwriting Agreement or (b)
transactions relating to shares of Common Stock or other securities acquired in
open market transactions after the completion of the Public Offering. In
addition, the undersigned agrees that, without the prior written consent of
Xxxxxx Xxxxxxx on behalf of the Underwriters, it will not, during the period
commencing on the date hereof and ending 90 days after the date of the
Prospectus, make any demand for or exercise any right with respect to, the
registration of any shares of Common Stock or any security convertible into or
exercisable or exchangeable for Common Stock.2
-------------------------
1 In the Lock-Up Letter to be executed by Xx. Xxxxxxx X. Xxxxxxx,
the following phrase shall be inserted after the word "pledge": "(other than any
pledge existing on the date hereof or any pledge required to renew any
obligation existing on the date hereof secured by a pledge existing on the date
hereof; provided, however, that in the aggregate all shares pledged pursuant
thereto shall have a fair market value not in excess of $30 million)".
2 In the Lock-Up Letter to be executed by Xx. Xxxxxxx X. Xxxxxxx,
the following paragraph shall also be included:
"The undersigned also agrees that, without the prior written consent of
Xxxxxx Xxxxxxx & Co. Incorporated on behalf of the Underwriters, he
will not, during the period ending 90 days after the date of the
Prospectus, make any demand for, or exercise any right with respect to,
the registration of any shares of Common Stock or any security
convertible into or exercisable or exchangeable for Common Stock."
34
Whether or not the Public Offering actually occurs depends on a
number of factors, including market conditions. Any Public Offering will only be
made pursuant to an Underwriting Agreement, the terms of which are subject to
negotiations between the Company and the Underwriters.
Very truly yours,
-------------------------
(Name)
-------------------------
(Address)
34
35
EXHIBIT B
WAIVER AND RELEASE
_________________________________________, hereby waives and releases any and
all rights, claims, causes of action or objections it may now or hereafter have
pursuant to the Registration Rights Agreements or to require inclusion of
shares of Common Stock or any other security of the Company in the Registration
Statement (as herein defined), under applicable law or otherwise, in connection
with the public offering and sale of 4,000,000 shares of Class A Common Stock
by Emmis Broadcasting Corporation, an Indiana corporation ("Emmis") which have
been registered pursuant to the Securities Act of 1933, as amended, on the
Registration Statement or Form S-3 (file no. 333-52029) (the "Registration
Statement"). For purposes hereof, "Registration Rights Agreements" means the
Registration Rights Agreement dated as of March 1, 1994 between Emmis and
Xxxxxx Xxxxxxx Group Inc., the Registration Rights Agreement dated as of
January 2, 1986 between Emmis and Xxxxxx Xxxxxxx Leveraged Mezzanine Fund,
L.P., Connecticut General Life Insurance Company and Aetna Insurance Company,
as amended, and the Registration Rights Agreement dated as of January 2, 1986
between Emmis and Xxxxxx Xxxxxxx Leveraged Equity Fund, L.P., et al, as
amended.
By:______________________________
Name:____________________________
Title:_____________________________
36
EXHIBIT C
1. Registration Rights Agreement dated as of March 1, 1994 between
the Company and Xxxxxx Xxxxxxx Group, Inc.
2. Registration Rights Agreement dated as of January 2, 1986 between
the Company and Xxxxxx Xxxxxxx Leveraged Mezzanine Fund, L.P.,
Connecticut General Life Insurance Company and Aetna Insurance
Company, as amended.
3. Registration Rights Agreement dated as of January 2, 1986 between
the Company and Xxxxxx Xxxxxxx Leveraged Equity Fund, L.P., et al,
as amended.
36
