EXHIBIT 1.01
6,800,000 Shares
INFINITY BROADCASTING CORPORATION
(a Delaware corporation)
Class A Common Stock
(Par Value $.002 Per Share)
U.S. PURCHASE AGREEMENT
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October __, 1995
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx, Sachs & Co.
Alex. Xxxxx & Sons Incorporated
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
Xxxxx Xxxxxx Inc.
as U.S. Representatives of the several
U.S. Underwriters
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
Infinity Broadcasting Corporation, a Delaware
corporation (the "Company"), confirms its agreement with Xxxxxxx
Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
("Xxxxxxx Xxxxx") and each of the other U.S. Underwriters named
in Schedule A hereto (collectively, the "U.S. Underwriters",
which term shall also include any underwriter substituted as
hereinafter provided in Section 10 hereof), for whom Xxxxxxx
Lynch, Goldman, Sachs & Co., Alex. Xxxxx & Sons Incorporated,
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation and Xxxxx
Xxxxxx Inc. are acting as representatives (in such capacity,
Xxxxxxx Lynch, Goldman, Sachs & Co., Alex. Xxxxx & Sons
Incorporated, Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
and Xxxxx Xxxxxx Inc. shall hereinafter be referred to as the
"U.S. Representatives"), with respect to the sale by the Company
and the purchase by the U.S. Underwriters, acting severally and
not jointly, of the respective numbers of shares of Class A
Common Stock, par value $.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 U.S. Underwriters, acting
severally and not jointly, of the option described in Section
2(b) hereof to purchase all or any part of 1,020,000 additional
shares of Class A Common Stock to cover over-allotments, if any.
The aforesaid 6,800,000 shares of Class A Common Stock (the
"Initial U.S. Securities") to be purchased by the U.S.
Underwriters and all or any part of the 1,020,000 shares of Class
A Common Stock subject to the option described in Section 2(b)
hereof (the "U.S. Option Securities") are hereinafter called,
collectively, the "U.S. Securities".
It is understood that the Company is concurrently
entering into an agreement dated the date hereof (the
"International Purchase Agreement") providing for the offering by
the Company of an aggregate of 1,700,000 shares of Class A Common
Stock (the "Initial International Securities") through
arrangements with certain underwriters outside the United States
and Canada (the "International Managers") for which 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") and the grant by the Company to the
International Managers, acting severally and not jointly, of an
option to purchase all or any part of the International Managers'
pro rata portion of up to 255,000 additional shares of Class A
Common Stock solely to cover over-allotments, if any (the
"International Option Securities" and, together with the U.S.
Option Securities, the "Option Securities"). The Initial
International Securities and the International Option Securities
are hereinafter called the "International Securities". It is
understood that the Company is not obligated to sell and the U.S.
Underwriters are not obligated to purchase, any Initial U.S.
Securities unless all of the Initial International Securities are
contemporaneously purchased by the International Managers.
The U.S. Underwriters and the International Managers
are hereinafter collectively called the "Underwriters", the
Initial U.S. Securities and the Initial International Securities
are hereinafter collectively called the "Initial Securities", and
the U.S. Securities and the International Securities are
hereinafter collectively called the "Securities".
The Underwriters will concurrently enter into an
Intersyndicate Agreement of even date herewith (the
"Intersyndicate Agreement") providing for the coordination of
certain transactions among the Underwriters under the direction
of Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated (in such capacity, the "Global Coordinator").
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Prior to the purchase and public offering of the U.S.
Securities by the several U.S. Underwriters, the Company and the
U.S. Representatives, acting on behalf of the several U.S.
Underwriters, shall enter into an agreement substantially in the
form of Exhibit A hereto (the "U.S. Pricing Agreement"). The
U.S. Pricing Agreement may take the form of an exchange of any
standard form of written telecommunication between the Company
and the U.S. Representatives and shall specify such applicable
information as is indicated in Exhibit A hereto. The offering of
the U.S. Securities will be governed by this Agreement, as
supplemented by the U.S. Pricing Agreement. From and after the
date of the execution and delivery of the U.S. Pricing Agreement,
this Agreement shall be deemed to incorporate the U.S. Pricing
Agreement. The initial public offering price and the purchase
price with respect to the International Securities shall be set
forth in a separate instrument (the "International Pricing
Agreement"), the form of which is attached to the International
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 U.S. Securities (the "U.S. Prospectus") and one relating to
the International Securities (the "International Prospectus").
Such registration statement (as amended, if applicable) and the
U.S. Prospectus and the International 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
"U.S. Prospectus" and the "International Prospectus",
respectively, and the U.S. and International Prospectuses are
hereinafter together called "Prospectuses" and, each
individually, a "Prospectus", except that if any revised
prospectus shall be provided to the U.S. Underwriters or the
International Managers 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
"U.S. Prospectus" and "International Prospectus" shall refer to
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each such revised prospectus from and after the time it is first
provided to the U.S. Underwriters or the International Managers,
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 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 U.S. Underwriters
propose to make a public offering of the U.S. Securities as soon
as the U.S. Representatives deem advisable after the Registration
Statement becomes effective and the U.S. Pricing Agreement has
been executed and delivered. The price per share for the
International Securities to be purchased by the International
Managers pursuant to the International Purchase Agreement shall
be identical to the price per share for the U.S. Securities to be
purchased by the U.S. Underwriters hereunder.
SECTION 1. Representations and Warranties.
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(a) The Company represents and warrants to each U.S.
Underwriter as of the date hereof and as of the date of the U.S.
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 U.S.
Prospectus, at the Representation Date (unless the term
"U.S. Prospectus" refers to a prospectus which has been
provided to the U.S. Underwriters by the Company for use in
connection with the offering of the U.S. Securities which
differs from the U.S. 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 U.S. Underwriters 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
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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 U.S.
Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by any U.S.
Underwriter through the U.S. Representatives 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
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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
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 U.S. Pricing Agreement, the International Purchase
Agreement and the International 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,
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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).
(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 U.S. Underwriters and the International Managers from
the Company have been duly authorized for issuance and sale
to the U.S. Underwriters pursuant to this Agreement and to
the International Managers pursuant to the International
Purchase Agreement, respectively, and, when issued and
delivered by the Company pursuant to this Agreement and the
International Purchase Agreement, respectively, against
payment of the consideration set forth in the U.S. Pricing
Agreement and the International 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 U.S. Pricing Agreement, the International
Purchase Agreement and the International 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
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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
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,
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issuance or sale of the Securities hereunder or the
consummation of the transactions contemplated by this
Agreement, the U.S. Pricing Agreement, the International
Purchase Agreement and the International 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.
(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.
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(xv) This Agreement and the International Purchase
Agreement have been and, on the Representation Date, the
U.S. Pricing Agreement and the International 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
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.
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(b) Any certificate signed by any officer of the
Company and delivered to the Global Coordinator, U.S.
Representatives or to counsel for the U.S. Underwriters pursuant
to Section 5 shall be deemed a representation and warranty by the
Company to each U.S. Underwriter as to the matters covered
thereby.
SECTION 2. Sale and Delivery to U.S. Underwriters;
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Closing.
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(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 U.S. Underwriter,
severally and not jointly, and each U.S. Underwriter, severally
and not jointly, agrees to purchase from the Company, at the
price per share set forth in the U.S. Pricing Agreement, the
number of Initial U.S. Securities set forth in Schedule A
opposite the name of such U.S. Underwriter (except as otherwise
provided in the U.S. Pricing Agreement), plus any additional
number of Initial U.S. Securities which such U.S. Underwriter 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 U.S. Underwriters for the Securities have
each been determined and set forth in the U.S. 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 U.S. Underwriters for the Securities shall be
determined by agreement between the U.S. Representatives and
the Company and, when so determined, shall be set forth in
the U.S Pricing Agreement. In the event that such prices
have not been agreed upon and the U.S. 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 U.S. Representatives, 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
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conditions herein set forth, the Company hereby grants an option
to the U.S. Underwriters, severally and not jointly, to purchase
up to an additional 1,020,000 shares of Class A Common Stock at
the purchase price per share set forth in the U.S. Pricing
Agreement. The option hereby granted will expire 30 days after
(i) the date the Registration Statement 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 U.S.
Securities upon notice by the Global Coordinator to the Company
setting forth the number of U.S. Option Securities as to which
the several U.S. Underwriters are then exercising the option and
the time and date of payment and delivery for such U.S. Option
Securities. Any such time and date of delivery for the U.S.
Option Securities (a "Date of Delivery") shall be determined by
the Global Coordinator, but shall not be later than seven full
business days after the exercise of said option, nor in any event
prior to the Closing Time, as 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 U.S.
Option Securities, each of the U.S. Underwriters, acting
severally and not jointly, will purchase that proportion of the
total number of U.S. Option Securities then being purchased which
the number of Initial U.S. Securities set forth in Schedule A
opposite the name of such U.S. Underwriter bears to the total
number of Initial U.S. Securities (except as otherwise provided
in the U.S. 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 U.S. 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 U.S. 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 U.S. Option Securities are purchased by the
U.S. Underwriters, payment of the purchase price for, and
delivery of certificates for, such U.S. Option Securities shall
be made at the above-mentioned offices 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
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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 U.S.
Representatives for the respective accounts of the U.S.
Underwriters of certificates for the Securities to be purchased
by them. Certificates for the Initial U.S. Securities and the
U.S. Option Securities, if any, shall be in such denominations
and registered in such names as the U.S. Representatives 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 U.S. Underwriter has authorized the U.S.
Representatives, for its account, to accept delivery of, receipt
for, and make payment of the purchase price for, the Initial U.S.
Securities and the U.S. Option Securities, if any, which it has
agreed to purchase. Xxxxxxx Xxxxx, individually and not as
representative of the U.S. Underwriters, may (but shall not be
obligated to) make payment of the purchase price for the Initial
Securities or the U.S. Option Securities, if any, to be purchased
by any U.S. Underwriter 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 U.S. Underwriter from
its obligations hereunder. The certificates for the Initial
Securities and the U.S. Option Securities, if any, will be made
available for examination and packaging by the U.S.
Representatives 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 U.S. Underwriter 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
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prospectus which the Company proposes for use by the U.S.
Underwriters in connection with the offering of the Securities
which differ from the U.S. 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
U.S. Representatives and counsel for the U.S. Underwriters,
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 U.S. Representatives a
conformed copy of the Registration Statement as originally filed
and of each amendment thereto (without exhibits) for each of the
U.S. Underwriters.
(d) The Company will deliver to each U.S. Underwriter,
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 U.S. Pricing Agreement is
executed and delivered), as many copies of each preliminary
prospectus as such U.S. Underwriter 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 U.S. Underwriter, without charge prior to the expiration of
nine months after the effective date of the Registration
Statement and thereafter at the U.S. Underwriters' expense, from
time to time during the period when the U.S. Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the U.S. Prospectus (as amended or
supplemented) as such U.S. Underwriter may reasonably request 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 U.S. 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
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delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the
Registration Statement or amend or supplement the U.S. 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 U.S.
Prospectus comply with such requirements, and the Company will
furnish to the U.S. Underwriters such number of copies of such
amendment or supplement as the U.S. Underwriters may reasonably
request (but at the expense of the U.S. Underwriters at any time
nine months or more after the effective date of the Registration
Statement) in connection with the offering or sale of the U.S.
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 U.S. 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
U.S. Prospectus, or, if required by such Rule 430A, a
post-effective amendment to the Registration Statement (including
an amended U.S. 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
U.S. Underwriters, to qualify the U.S. 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 U.S.
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 U.S. Securities has been completed).
(h) The Company will make generally available to its
security holders as soon as practicable an earnings statement (in
form complying with the provisions of Rule 158 of the 1933 Act
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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
U.S. Representatives 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
U.S. 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
U.S. Pricing Agreement, any Agreement among Underwriters and such
other documents as may be reasonably required in connection with
the offering, purchase, sale and delivery of the U.S. Securities,
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(iii) the preparation, issuance and delivery of the certificates
for the U.S. Securities to the U.S. Underwriters, including any
capital duties, stamp duties and stock or other transfer taxes
payable upon the sale of the U.S. Securities to the U.S.
Underwriters, (iv) the fees and disbursements of the Company's
counsel, accountants and other advisors, (v) the qualification of
the U.S. 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 U.S.
Underwriters in connection therewith and in connection with the
preparation of the Blue Sky Survey and any supplement thereto,
(vi) the printing and delivery to the U.S. Underwriters of copies
of each preliminary prospectus and of the U.S. Prospectus and
any amendments or supplements thereto, (vii) the preparation,
printing and delivery to the U.S. Underwriters of copies of the
Blue Sky Survey and any supplement thereto, (viii) the fees and
expenses of any transfer agent or registrar for the U.S.
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 U.S.
Underwriters 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 U.S.
Underwriters.
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 U.S.
Underwriters 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
U.S. Securities.
SECTION 5. Conditions of U.S. Underwriters'
--------------------------------
Obligations. The obligations of the several U.S. Underwriters
-----------
hereunder are subject to the accuracy of the representations and
warranties of the Company 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 U.S.
Underwriters; and at Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been
issued under the 1933 Act or proceedings therefor initiated or
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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 U.S. Representatives 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 U.S.
Underwriters and the International Managers from the
Company have been duly authorized for issuance and sale
to the U.S. Underwriters pursuant to this Agreement and
the U.S. Pricing Agreement and to the International
Managers pursuant to the International Purchase
Agreement and the International Pricing Agreement,
respectively, and, when issued and delivered by the
Company and upon payment therefor by the U.S.
Underwriters and the International Managers pursuant to
this Agreement and the U.S. Pricing Agreement and the
International Purchase Agreement and the International
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
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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 U.S. Pricing Agreement, the International Purchase
Agreement and the International 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
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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 U.S.
Representatives 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,
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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
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"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 U.S. Pricing Agreement, the
International Purchase Agreement and the International
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 U.S. Purchase Agreement and the
International 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
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the Registration Statement and the Prospectuses and their
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 U.S. Representatives 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
-25-
same force and effect as though expressly made at and as of
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 "U.S.
Prospectus" means the U.S. Prospectus in the form first used by
the U.S. Underwriters to confirm sales of the U.S. Securities.
(d) The Company shall have furnished to the U.S.
Representatives 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 U.S. Representatives
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 U.S. Underwriters' participation in the
distribution of the U.S. 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 U.S. Representatives and U.S. counsel for the
Underwriters.
-26-
(h) The closing under the International Purchase
Agreement shall have occurred concurrently with the closing
hereunder at Closing Time.
(i) In the event that the U.S. Underwriters exercise
their option provided in Section 2(b) hereof to purchase all or
any portion of the U.S. Option Securities, the representations
and warranties of the Company contained herein and the statements
in any certificates furnished by the Company hereunder shall be
true and correct as of each Date of Delivery and, at the relevant
Date of Delivery, the U.S. Representatives 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 U.S. Underwriters,
dated such Date of Delivery, relating to the U.S. Option
Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the 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 U.S. Option Securities to be
purchased on such Date of Delivery and otherwise to the same
effect as the opinion required by Section 5(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 U.S. Representatives and dated such Date
of Delivery, substantially the same in form and substance as
the letter furnished to the U.S. Representatives 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 U.S. Representatives 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
and 7 shall survive any such termination and remain in full force
and effect.
-27-
SECTION 6. Indemnification.
---------------
(a) The Company agrees to indemnify and hold harmless
each U.S. Underwriter and each person, if any, who controls any
U.S. Underwriter within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any
untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any
amendment thereto), including the 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
statement or omission made in reliance upon and in conformity
with written information furnished to the Company by or on behalf
of any U.S. Underwriter through the Global Coordinator expressly
-28-
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 U.S. Underwriter severally agrees to
indemnify and hold harmless the Company, its directors, each of
its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act against
any and all loss, liability, claim, damage and expense described
in the indemnity contained in subsection (a) 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 U.S. Underwriter 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
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
-29-
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 U.S.
Underwriters on the other hand from the offering of the U.S.
Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the
-30-
relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and of the U.S.
Underwriters on the other hand in connection with the statements
or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Company on
the one hand and the U.S. Underwriters on the other hand in
connection with the offering of the U.S. Securities pursuant to
this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the
U.S. Securities pursuant to this Agreement (before deducting
expenses) received by the Company and the total underwriting
discount received by the U.S. Underwriters, in each case as set
forth on the cover of the U.S. Prospectus, 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 U.S. 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 U.S. Underwriters and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the U.S. Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7
were determined by pro rata allocation (even if the U.S.
Underwriters were treated as one entity for such purpose) or by
any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7.
The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above
in this Section 7 shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or
any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon
any such untrue or alleged untrue statement or omission or
alleged omission. Notwithstanding the provisions of this Section
7, no U.S. Underwriter shall be required to contribute any amount
in excess of the amount by which the total price at which the
Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which
such U.S. Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
0000 Xxx) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. For
purposes of this Section 7, each person, if any, who controls:
a U.S. Underwriter within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to
contribution as such U.S. Underwriter, and each director of the
Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company
-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 the
Company. The U.S. Underwriters' respective obligations to
contribute pursuant to this Section 7 are several in proportion
to the number of Initial U.S. Securities set forth opposite their
respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements
------------------------------------------
to Survive Delivery. All representations, warranties and
-------------------
agreements contained in this Agreement and the U.S. 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 U.S. Underwriter or
controlling person, or by or on behalf of the Company, and shall
survive delivery of the U.S. Securities to the U.S. Underwriters.
SECTION 9. Termination of Agreement.
------------------------
(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 U.S. 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 U.S. Representatives, 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 declared by
either Federal or New York authorities. As used in this Section
9(a), the term "U.S. Prospectus" means the U.S. Prospectus in the
form first used by the U.S. Underwriters to confirm sales of the
U.S. Securities.
-32-
(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 U.S.
----------------------------------
Underwriters. If one or more of the U.S. Underwriters shall fail
------------
at Closing Time or a Date of Delivery to purchase the U.S.
Securities which it or they are obligated to purchase under this
Agreement and the U.S. Pricing Agreement (the "Defaulted
Securities"), the U.S. Representatives shall have the right,
within 24 hours thereafter, to make arrangements for one or more
of the non-defaulting U.S. Underwriters, or any other
underwriters, to purchase all, but not less than all, of the
Defaulted Securities in such amounts as may be agreed upon and
upon the terms herein set forth; if, however, the U.S.
Representatives shall not have completed such arrangements within
such 24-hour period, then:
(a) if the number of Defaulted Securities does not
exceed 10% of the number of U.S. Securities to be purchased on
such date, each of the non-defaulting U.S. Underwriters shall be
obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all
non-defaulting U.S. Underwriters, or
(b) if the number of Defaulted Securities exceeds 10%
of the number of U.S. Securities to be purchased on such date,
this Agreement shall terminate without liability on the part of
any non-defaulting U.S. Underwriter.
No action taken pursuant to this Section shall relieve
any defaulting U.S. Underwriter from liability in respect of its
default.
In the event of any such default which does not result
in a termination of this Agreement, either the U.S.
Representatives 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 "U.S. Underwriter"
includes any person substituted for a U.S. Underwriter under this
Section 10.
SECTION 11. Notices. All notices and other
-------
communications hereunder shall be in writing and shall be deemed
to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to the U.S. Underwriters
shall be directed to the U.S. Representatives at North Tower,
World Financial Center, New York, New York 10281-1209, attention
of Syndicate Department; and notices to the Company shall be
-33-
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 U.S.
-------
Pricing Agreement shall each inure to the benefit of and be
binding upon the U.S. Underwriters and the Company and their
respective successors. Nothing expressed or mentioned in this
Agreement or the U.S. Pricing Agreement is intended or shall be
construed to give any person, firm or corporation, other than the
U.S. Underwriters and the Company and their respective successors
and the controlling persons and officers and directors referred
to in Sections 6 and 7 and their heirs and legal representatives,
any legal or equitable right, remedy or claim under or in respect
of this Agreement or the U.S. Pricing Agreement or any provision
herein or therein contained. This Agreement and the U.S. Pricing
Agreement and all conditions and provisions hereof and thereof
are intended to be for the sole and exclusive benefit of the U.S.
Underwriters 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
U.S. Underwriter shall be deemed to be a successor by reason
merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT
----------------------
AND THE U.S. 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.
-34-
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to the
Company a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement between
the U.S. Underwriters and the Company in accordance with its
terms.
Very truly yours,
INFINITY BROADCASTING CORPORATION
By
---------------------------
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXXX, SACHS & CO.
ALEX. XXXXX & SONS INCORPORATED
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
XXXXX XXXXXX INC.
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By
----------------------------
Authorized Signatory
For themselves and as U.S. Representatives of the other
U.S. Underwriters named in Schedule A hereto.
-35-
SCHEDULE A
Number of
Initial
Name of U.S. Underwriter Securities
------------------------ ----------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated . . . . . . . . . . . . .
Xxxxxxx, Sachs & Co. . . . . . . . . . . . . . . .
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation . . . . . . . . . . .
Alex. Xxxxx & Sons Incorporated. . . . . . . . . .
Xxxxx Xxxxxx Inc. . . . . . . . . . . . . . . . . .
---------
Total . . . . . . . . . . . . . . . . . . . . . . . 6,800,000
=========
Exhibit A
6,800,000 Shares
INFINITY BROADCASTING CORPORATION
(a Delaware corporation)
Class A Common Stock
(Par Value $.002 Per Share)
U.S. Pricing Agreement
----------------------
__________ __, 1995
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx, Sachs & Co.
Alex. Xxxxx & Sons Incorporated
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
Xxxxx Xxxxxx Inc.
as U.S. Representatives of the several U.S. Underwriters
named in the within-mentioned U.S. Purchase Agreement
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
Reference is made to the U.S. Purchase Agreement dated
October __, 1995 (the "U.S. Purchase Agreement") relating to the
purchase by the several U.S. Underwriters named in Schedule A
thereto, for whom Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated and Xxxxxxx, Sachs & Co., Alex. Xxxxx
& Sons Incorporated, Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation and Xxxxx Xxxxxx Inc. are acting as representatives
(the "U.S. Representatives"), 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 U.S. Purchase Agreement,
the Company agrees with each U.S. Underwriter 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 U.S. Underwriters 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 U.S. Underwriters 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 LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXXX, SACHS & CO.
ALEX. XXXXX & SONS INCORPORATED
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
XXXXX XXXXXX INC.
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By
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Authorized Signatory
For themselves and as U.S. Representatives of the other
U.S. Underwriters named in Schedule A hereto.
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Exhibit B
"LOCK-UP" LETTER
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated,
Xxxxxxx, Sachs & Co.
Alex. Xxxxx & Sons Incorporated
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
Xxxxx Xxxxxx Inc.
as U.S. Representatives of the several
U.S. Underwriters to be named in the
within-mentioned U.S. Purchase Agreement
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: Proposed Public Offering by Infinity
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Broadcasting Corporation
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Dear Sirs:
The undersigned, a stockholder of Infinity Broadcasting
Corporation, a Delaware corporation (the "Company"), understands
that Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ("Xxxxxxx Xxxxx") proposes to enter into a U.S.
Purchase Agreement (the "U.S. 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 U.S.
Pricing Agreement (the "U.S. 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 U.S.
Purchase Agreement that, during a period of 90 days from the date
of the U.S. Pricing Agreement, the undersigned will not, without
the prior written consent of Xxxxxxx Xxxxx and the other
representatives, if any, of the several underwriters named in the
U.S. 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 U.S. Purchase Agreement.
Very truly yours,
Signature:__________________________
Print Name:_________________________
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