Exhibit 1.2
STB DRAFT
5/08/98
________ Shares
CUMULUS MEDIA INC.
Class A Common Stock
INTERNATIONAL UNDERWRITING AGREEMENT
___, 1998
XXXXXX BROTHERS INTERNATIONAL (EUROPE)
BEAR, XXXXXXX INTERNATIONAL LIMITED
BT ALEX. XXXXX INTERNATIONAL,
DIVISION OF BANKERS TRUST INTERNATIONAL PLC
CREDIT LYONNAIS SECURITIES
As Lead Managers of the several
International Managers named in Schedule 1,
c/x Xxxxxx Brothers Inc.
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Cumulus Media Inc., an Illinois corporation (the "Company"), and the
State of Wisconsin Investment Board (the "Selling Stockholder"), propose to sell
an aggregate of _______ shares (the "Firm Stock") of the Company's Class A
Common Stock, par value $.01 per share (the "Class A Common Stock"). Of the
______ shares of the Firm Stock, ________ are being sold by the Company and
_______ by the Selling Stockholder. In addition, the Company proposes to grant
to the International Managers named in Schedule 1 hereto (the "International
Managers") an option to purchase up to an additional _______ shares of the Class
A Common Stock on the terms and for the purposes set forth in Section 3 (the
"Option Stock"). The Firm Stock and the Option Stock, if purchased, are
hereinafter collectively called the "Stock." This is to confirm the agreement
concerning the purchase of the Stock from the Company and the Selling
Stockholder by the International Managers.
It is understood by all parties that the Company and the Selling
Stockholder are concurrently entering into an agreement dated the date hereof
(the "U.S. Underwriting Agreement"), providing for the sale by the Company and
the Selling Stockholder of an aggregate of ____________ shares of Class A Common
Stock (including the over-allotment option thereunder) (the "U.S. Stock")
through arrangements with certain underwriters in the United States and Canada
(the "U.S. Underwriters"), for whom Xxxxxx Brothers Inc., Bear Xxxxxxx & Co.,
Inc. and BT Alex. Xxxxx Incorporated are acting as representatives. The U.S.
Underwriters and the International Managers simultaneously are entering into an
agreement between the U.S. and international underwriting syndicates (the
"Agreement Between U.S. Underwriters and
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International Managers") which provides for, among other things, the transfer of
shares of Class A Common Stock between the two syndicates. Two forms of
prospectus are to be used in connection with the offering and sale of shares of
Class A Common Stock contemplated by the foregoing, one relating to the Stock
and the other relating to the U.S. Stock. The latter form of prospectus will be
identical to the former except for certain substitute pages as included in the
registration statement and amendments thereto referred to below. Except as used
in Sections 3, 4, 5, 11 and 12 herein, and except as the context may otherwise
require, references herein to the Stock shall include all the shares of the
Class A Common Stock which may be sold pursuant to either this Agreement or the
U.S. Underwriting Agreement, and references herein to any prospectus whether in
preliminary or final form, and whether as amended or supplemented, shall include
both the international and the U.S. versions thereof.
It is additionally understood by all parties that the Company is
concurrently entering into an agreement (the "Debt Underwriting Agreement"),
dated the date hereof, providing for the sale by the Company of $100,000,000
principal amount of its % Senior Subordinated Notes due 2008 to Bear, Xxxxxxx &
Co. Inc. and Xxxxxx Brothers Inc., as underwriters, as well as an agreement (the
"Preferred Stock Underwriting Agreement"), dated the date hereof, providing for
the sale by the Company of $100,000,000 aggregate liquidation preference of its
__% Series A Cumulative Exchangeable Redeemable Preferred Stock due 2009 to
Bear, Xxxxxxx & Co. Inc. and Xxxxxx Brothers Inc., as underwriters.
1. Representations, Warranties and Agreements of the Company. The
Company represents, warrants and agrees that:
(a) A registration statement on Form S-1, and amendments
thereto, with respect to the Stock have (i) been prepared by the
Company in conformity with the requirements of the United States
Securities Act of 1933, as amended, (the "Securities Act") and the
rules and regulations (the "Rules and Regulations") of the United
States Securities and Exchange Commission (the "Commission")
thereunder, (ii) been filed with the Commission under the Securities
Act and (iii) become effective under the Securities Act; a second
registration statement on Form S-1 with respect to the Stock (i) may
also be prepared by the Company in conformity with the requirements
of the Securities Act and the Rules and Regulations and (ii) if to
be so prepared, will be filed with the Commission under the
Securities Act pursuant to Rule 462(b) of the Rules and Regulations
on the date hereof. Copies of the first such registration statement
and the amendments to such registration statement, together with the
form of any such second registration statement, have been delivered
by the Company to you as the Lead Managers of the International
Managers (the "Lead Managers"). As used in this Agreement,
"Effective Time" means (i) with respect to the first such
registration statement, the date and the time as of which such
registration statement, or the most recent post-effective amendment
thereto, if any, was declared effective by the Commission and (ii)
with respect to any second registration statement, the date and time
as of which such second registration statement is filed with the
Commission, and "Effective Times" is the collective reference to
both Effective Times; "Effective Date" means (i) with respect to the
first such registration
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statement, the date of the Effective Time of such registration
statement and (ii) with respect to any second registration
statement, the date of the Effective Time of such second
registration statement, and "Effective Dates" is the collective
reference to both Effective Dates; "Preliminary Prospectus" means
each prospectus included in any such registration statement, or
amendments thereof, before it became effective under the Securities
Act and any prospectus filed with the Commission by the Company with
the consent of the Lead Managers pursuant to Rule 424(a) of the
Rules and Regulations; "Primary Registration Statement" means the
first registration statement referred to in this Section 1(a), as
amended at its Effective Time, "Rule 462(b) Registration Statement"
means the second registration statement, if any, referred to in this
Section 1(a), as filed with the Commission, and "Registration
Statements" means both the Primary Registration Statement and any
Rule 462(b) Registration Statement, including in each case all
information contained in the final prospectus filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations in
accordance with Section 6.(a) hereof and deemed to be a part of the
Registration Statements as of the Effective Time of the Primary
Registration Statement pursuant to paragraph (b) of Rule 430A of the
Rules and Regulations; and "Prospectus" means such final prospectus,
as first filed with the Commission pursuant to paragraph (1) or (4)
of Rule 424(b) of the Rules and Regulations. The Commission has not
issued any order preventing or suspending the use of any Preliminary
Prospectus.
(b) The Primary Registration Statement conforms (and the Rule
462(b) Registration Statement, if any, the Prospectus and any
further amendments or supplements to the Registration Statements or
the Prospectus, when they become effective or are filed with the
Commission, as the case may be, will conform) in all respects to the
requirements of the Securities Act and the Rules and Regulations and
do not and will not, as of the applicable effective date (as to the
Registration Statements and any amendment thereto) and as of the
applicable filing date (as to the Prospectus and any amendment or
supplement thereto) contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading; provided
that no representation or warranty is made as to information
contained in or omitted from the Registration Statements or the
Prospectus in reliance upon and in conformity with written
information furnished to the Company through the Lead Managers by or
on behalf of any International Manager specifically for inclusion
therein.
(c) The Company and each of its subsidiaries (as defined in
Section 17) have been duly incorporated and are validly existing as
corporations in good standing under the laws of their respective
jurisdictions of incorporation, are duly qualified to do business
and are in good standing as foreign corporations in each
jurisdiction in which their respective ownership or lease of
property or the conduct of their respective businesses requires such
qualification, and have all power and authority necessary to own or
hold their respective properties and to conduct the businesses in
which they are engaged; and none of the subsidiaries of the
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Company is a "significant subsidiary", as such term is defined in
Rule 405 of the Rules and Regulations.
(d) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of
the Company have been duly and validly authorized and issued, are
fully paid and non-assessable and conform to the description thereof
contained in the Prospectus; and all of the issued shares of capital
stock of each subsidiary of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable and
(except for directors' qualifying shares) are owned directly or
indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims.
(e) The unissued shares of the Stock to be issued and sold by
the Company to the International Managers hereunder and under the
U.S. Underwriting Agreement have been duly and validly authorized
and, when issued and delivered against payment therefor as provided
herein and in the U.S. Underwriting Agreement, will be duly and
validly issued, fully paid and non-assessable; and the Stock will
conform to the description thereof contained in the Prospectus.
(f) The execution, delivery and performance of this Agreement
and the U.S. Underwriting Agreement will not conflict with or result
in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company
or any of its 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, nor
will such actions result in any violation of the provisions of the
charter or by-laws of the Company or any of its subsidiaries or any
statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or
any of its subsidiaries or any of their properties or assets; and
except for the registration of the Stock under the Securities Act
and such consents, approvals, authorizations, registrations or
qualifications as may be required under the United States Securities
Exchange Act of 1934, as amended, (the "Exchange Act") and
applicable state or foreign securities laws in connection with the
purchase and distribution of the Stock by the International Managers
and the U.S. Underwriters, no consent, approval, authorization or
order of, or filing or registration with, any such court or
governmental agency or body is required for the execution, delivery
and performance of this Agreement, or the U.S. Underwriting
Agreement, by the Company and the consummation of the transactions
contemplated hereby and thereby.
(g) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company owned
or to be owned by such person or to require the
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Company to include such securities in the securities registered
pursuant to the Registration Statements or in any securities being
registered pursuant to any other registration statement filed by the
Company under the Securities Act.
(h) Except as described in the Prospectus, the Company has not
sold or issued any shares of Class A Common Stock during the
six-month period preceding the date of the Prospectus, including any
sales pursuant to Rule 144A under, or Regulations D or S of, the
Securities Act, other than shares issued pursuant to employee
benefit plans, qualified stock options plans or other employee
compensation plans or pursuant to outstanding options, rights or
warrants.
(i) Neither the Company nor any of its subsidiaries has
sustained, since the date of the latest audited financial statements
included in the Prospectus, any material 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 Prospectus; and, since such date, there has not
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 material adverse change,
in or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectus.
(j) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statements
or included in the Prospectus present fairly the financial condition
and results of operations of the entities purported to be shown
thereby, at the dates and for the periods indicated, and have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved.
(k) Each of Price Waterhouse, LLP, Xxxxxxx & Xxxxxx, LLP,
McGladrey & Xxxxxx, LLP, Coopers & Xxxxxxx, LLP, and Plant & Xxxxx,
LLP, who have certified certain financial statements of the Company,
whose report appears in the Prospectus and who have delivered the
initial letter referred to in Section 9.(f) hereof, are independent
public accountants as required by the Securities Act and the Rules
and Regulations.
(l) The Company and each of its subsidiaries have good and
marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them, in each
case free and clear of all liens, encumbrances and defects except
such as are described in the Prospectus or such as do not materially
affect the value of such property and do not materially interfere
with the use made and proposed to be made of such property by the
Company and its subsidiaries; and all real property and buildings
held under lease by the Company
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and its subsidiaries are held by them under valid, subsisting and
enforceable leases, with such exceptions as are not material and do
not interfere with the use made and proposed to be made of such
property and buildings by the Company and its subsidiaries.
(m) The Company and each of its subsidiaries carry, or are
covered by, insurance in such amounts and covering such risks as is
adequate for the conduct of their respective businesses and the
value of their respective properties and as is customary for
companies engaged in similar businesses in similar industries.
(n) The Company and each of its subsidiaries own or possess
adequate rights to use all material patents, patent applications,
trademarks, service marks, trade names, trademark registrations,
service xxxx registrations, copyrights and licenses necessary for
the conduct of their respective businesses and have no reason to
believe that the conduct of their respective businesses will
conflict with, and have not received any notice of any claim of
conflict with, any such rights of others.
(o) There are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a party
or of which any property or asset of the Company or any of its
subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, might have a material adverse
effect on the consolidated financial position, stockholders' equity,
results of operations, business or prospects of the Company and its
subsidiaries; and to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(p) There are no contracts or other documents which are
required to be described in the Prospectus or filed as exhibits to
either of the Registration Statements by the Securities Act or by
the Rules and Regulations which have not been described in the
Prospectus or filed as exhibits to either of the Registration
Statements.
(q) No relationship, direct or indirect, exists between or
among the Company on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company on the other
hand, which is required to be described in the Prospectus which is
not so described.
(r) No labor disturbance by the employees of the Company
exists or, to the knowledge of the Company is imminent which might
be expected to have a material adverse effect on the consolidated
financial position, stockholders' equity, results of operations,
business or prospects of the Company and its subsidiaries.
(s) The Company is in compliance in all material respects with
all presently applicable provisions of the Employee Retirement
Income Security Act of 1974, as amended, including the regulations
and published interpretations
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thereunder ("ERISA"); no "reportable event" (as defined in ERISA)
has occurred with respect to any "pension plan" (as defined in
ERISA) for which the Company would have any liability; the Company
has not incurred and does not expect to incur liability under (i)
Title IV of ERISA with respect to termination of, or withdrawal
from, any "pension plan" or (ii) Sections 412 or 4971 of the
Internal Revenue Code of 1986, as amended, including the regulations
and published interpretations thereunder (the "Code"); and each
"pension plan" for which the Company would have any liability that
is intended to be qualified under Section 401(a) of the Code is so
qualified in all material respects and nothing has occurred, whether
by action or by failure to act, which would cause the loss of such
qualification.
(t) The Company has filed all federal, state and local income
and franchise tax returns required to be filed through the date
hereof and has paid all taxes due thereon, and no tax deficiency has
been determined adversely to the Company or any of its subsidiaries
which has had (nor does the Company have any knowledge of any tax
deficiency which, if determined adversely to the Company or any of
its subsidiaries, might have) a material adverse effect on the
consolidated financial position, stockholders' equity, results of
operations, business or prospects of the Company and its
subsidiaries.
(u) Since the date as of which information is given in the
Prospectus through the date hereof, and except as may otherwise be
disclosed in the Prospectus, the Company has not (i) issued or
granted any securities, (ii) incurred any liability or obligation,
direct or contingent, other than liabilities and obligations which
were incurred in the ordinary course of business, (iii) entered into
any transaction not in the ordinary course of business or (iv)
declared or paid any dividend on its capital stock.
(v) The Company (i) makes and keeps accurate books and records
and (ii) maintains internal accounting controls which provide
reasonable assurance that (A) transactions are executed in
accordance with management's authorization, (B) transactions are
recorded as necessary to permit preparation of its financial
statements and to maintain accountability for its assets, (C) access
to its assets is permitted only in accordance with management's
authorization and (D) the reported accountability for its assets is
compared with existing assets at reasonable intervals.
(w) The statistical and market-related data included in the
Prospectus are based or derived from sources which the Company and
its subsidiaries believe to be reliable and accurate.
(x) Neither the Company nor any of its subsidiaries (i) is in
violation of its charter or by-laws, (ii) is in default in any
material respect, and no event has occurred which, with notice or
lapse of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition
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contained in any material indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party or
by which it is bound or to which any of its properties or assets is
subject or (iii) is in violation in any material respect of any law,
ordinance, governmental rule, regulation or court decree to which it
or its properties or assets may be subject or has failed to obtain
any material license, permit, certificate, franchise or other
governmental authorization or permit necessary to the ownership of
its properties or assets or to the conduct of its business.
(y) Each of the radio stations owned, operated, programmed, or
to which sales and marketing services are provided, by the Company
and its subsidiaries is validly licensed by the Federal
Communications Commission (the "FCC") and no administrative or
judicial proceedings are pending before or, to the knowledge of the
Company or its subsidiaries, threatened by the FCC with respect to
such licenses; the Company and its subsidiaries possess adequate
certificates, authorizations, consents, orders, approvals, licenses
or permits which are in full force and effect issued by other
appropriate governmental agencies or bodies necessary to the
ownership of their respective properties and the conduct of the
businesses now operated by them and have not received any notice of
proceedings relating to the revocation or modification of any such
certificate, authority, consent, order, approval, license or permit
and the Company and its subsidiaries are in compliance in all
material respects with the Communications Act of 1934, as amended,
and the rules, regulations and policies of the FCC.
(z) Neither the Company nor any of its subsidiaries, nor any
director, officer, agent, employee or other person associated with
or acting on behalf of the Company or any of its subsidiaries, has
used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political
activity; made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate
funds; violated or is in violation of any provision of the Foreign
Corrupt Practices Act of 1977; or made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment.
(aa) There has been no storage, disposal, generation,
manufacture, refinement, transportation, handling or treatment of
toxic wastes, medical wastes, hazardous wastes or hazardous
substances by the Company or any of its subsidiaries (or, to the
knowledge of the Company, any of their predecessors in interest) at,
upon or from any of the properties now or previously owned or leased
by the Company or its subsidiaries in violation of any applicable
law, ordinance, rule, regulation, order, judgment, decree or permit
or which would require remedial action under any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit,
except for any violation or remedial action which would not have, or
could not be reasonably likely to have, singularly or in the
aggregate with all such violations and remedial actions, a material
adverse effect on the general affairs, management, financial
position, stockholders' equity or results of operations of the
Company and its subsidiaries; there has been no
9
material spill, discharge, leak, emission, injection, escape,
dumping or release of any kind onto such property or into the
environment surrounding such property of any toxic wastes, medical
wastes, solid wastes, hazardous wastes or hazardous substances due
to or caused by the Company or any of its subsidiaries or with
respect to which the Company or any of its subsidiaries have
knowledge, except for any such spill, discharge, leak, emission,
injection, escape, dumping or release which would not have or would
not be reasonably likely to have, singularly or in the aggregate
with all such spills, discharges, leaks, emissions, injections,
escapes, dumpings and releases, a material adverse effect on the
general affairs, management, financial position, stockholders'
equity or results of operations of the Company and its subsidiaries;
and the terms "hazardous wastes", "toxic wastes", "hazardous
substances" and "medical wastes" shall have the meanings specified
in any applicable local, state, federal and foreign laws or
regulations with respect to environmental protection.
(bb) Neither the Company nor any subsidiary is an "investment
company" within the meaning of such term under the United States
Investment Company Act of 1940, as amended, and the rules and
regulations of the Commission thereunder.
(cc) The Company has no reason to believe that, after giving
effect to the Pending Acquisitions (as defined in the Registration
Statement), any of the representations, warranties and agreements
contained in this Section 1 would not be true and correct.
2. Representations, Warranties and Agreements of the Selling
Stockholder. The Selling Stockholder represents, warrants and agrees that:
(a) The Selling Stockholder has, and immediately prior to the
First Delivery Date (as defined in Section 5 hereof) the Selling
Stockholder will have good and valid title to the shares of Stock to
be sold by the Selling Stockholder hereunder and under the U.S.
Underwriting Agreement on such date, free and clear of all liens,
encumbrances, equities or claims; and upon delivery of such shares
and payment therefor pursuant hereto and thereto, good and valid
title to such shares, free and clear of all liens, encumbrances,
equities or claims, will pass to the several International Managers
and the Underwriters.
[(b) The Selling Stockholder has placed in custody under a
custody agreement (the "Custody Agreement" and, together with all
other similar agreements executed by the other Selling Stockholders,
the "Custody Agreements") with [insert name of custodian], as
custodian (the "Custodian"), for delivery under this Agreement,
certificates in negotiable form (with signature guaranteed by a
commercial bank or trust company having an office or correspondent
in the United States or a member firm of the New York or American
Stock Exchanges) representing the shares of Stock to be sold by the
Selling Stockholder hereunder.
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(c) The Selling Stockholder has duly and irrevocably executed
and delivered a power of attorney (the "Power of Attorney"
appointing the Custodian and one or more other persons, as
attorneys-in-fact, with full power of substitution, and with full
authority (exercisable by any one or more of them) to execute and
deliver this Agreement and to take such other action as may be
necessary or desirable to carry out the provisions hereof on behalf
of the Selling Stockholder.]
(d) The Selling Stockholder has full right, power and
authority to enter into this Agreement and the U.S. Underwriting
Agreement, [the Power of Attorney and the Custody Agreement]; the
execution, delivery and performance of this Agreement and the U.S.
Underwriting Agreement[, the Power of Attorney and the Custody
Agreement] by the Selling Stockholder and the consummation by the
Selling Stockholder of the transactions contemplated hereby and
thereby will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Selling Stockholder is a party
or by which the Selling Stockholder is bound or to which any of the
property or assets of the Selling Stockholder is subject, nor will
such actions result in any violation of any statute or any order,
rule or regulation of any court or governmental agency or body
having jurisdiction over the Selling Stockholder or the property or
assets of the Selling Stockholder; and, except for the registration
of the Stock under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under the Exchange Act and applicable state or foreign securities
laws in connection with the purchase and distribution of the Stock
by the International Managers and the Underwriters, no consent,
approval, authorization or order of, or filing or registration with,
any such court or governmental agency or body is required for the
execution, delivery and performance of this Agreement or the U.S.
Underwriting Agreement[, the Power of Attorney or the Custody
Agreement] by the Selling Stockholder and the consummation by the
Selling Stockholder of the transactions contemplated hereby and
thereby.
(e) The Registration Statement and the Prospectus and any
further amendments or supplements thereto will, when they become
effective or are filed with the Commission, as the case may be, not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided that no representation
or warranty is made as to information contained in or omitted from
the Registration Statement or the Prospectus in reliance upon and in
conformity with written information furnished to the Company through
the Lead Managers by or on behalf of any International Manager
specifically for inclusion therein.
(f) The Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result
in the stabilization or
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manipulation of the price of any security of the Company to
facilitate the sale or resale of the shares of the Stock.
3. Purchase of the Stock by the International Managers
On the basis of the representations and warranties contained in, and
subject to the terms and conditions of, this Agreement, the Company agrees to
sell _______ shares of the Firm Stock and the Selling Stockholder hereby agrees
to sell _____ shares of the Firm Stock to the several International Managers and
each of the International Managers, severally and not jointly, agrees to
purchase the number of shares of the Firm Stock set opposite that International
Manager's name in Schedule 1 hereto. The respective purchase obligations of the
International Managers with respect to the Firm Stock shall be rounded among the
International Managers to avoid fractional shares, as the Lead Managers may
determine.
In addition, the Company grants to the International Managers an
option to purchase up to _______ shares of Option Stock. Such option is granted
solely for the purpose of covering over-allotments in the sale of Firm Stock and
is exercisable as provided in Section 5 hereof. Shares of Option Stock shall be
purchased severally for the account of the International Managers in proportion
to the number of shares of Firm Stock set opposite the name of such
International Managers in Schedule 1 hereto. The respective purchase obligations
of each International Managers with respect to the Option Stock shall be
adjusted by the Lead Managers so that no International Managers shall be
obligated to purchase Option Stock other than in 100 share amounts.
The price of both the Firm Stock and any Option Stock shall be
$_____ per share.
The Company shall not be obligated to deliver any of the Stock to be
delivered on the First Delivery Date or the Second Delivery Date (as hereinafter
defined), as the case may be, except upon payment for all the Stock to be
purchased on such Delivery Date as provided herein.
4. Offering of Stock by the International Managers.
Upon authorization by the Lead Managers of the release of the Firm
Stock, the several International Managers propose to offer the Firm Stock for
sale upon the terms and conditions set forth in the Prospectus; provided,
however, that no Stock registered pursuant to the Rule 462(b) Registration
Statement, if any, shall be offered prior to the Effective Time thereof.
5. Delivery of and Payment for the Stock. Delivery of and payment
for the Firm Stock shall be made at the office of Xxxxxx Brothers Inc. at Three
World Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 A.M., New York City
time, on the [third][fourth] full business day following the date of this
Agreement or at such other date or place as shall be determined by agreement
between the Lead Managers and the Company. This date and time are sometimes
referred to as the "First Delivery Date." On the First Delivery Date, the
Company shall deliver or cause to be delivered certificates representing the
Firm Stock to the Lead Managers for the account of each International Manager
against payment to or upon the order of the Company of
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the purchase price by certified or official bank check or checks payable in New
York Clearing House (next-day) funds. Time shall be of the essence, and delivery
at the time and place specified pursuant to this Agreement is a further
condition of the obligation of each International Manager hereunder. Upon
delivery, the Firm Stock shall be registered in such names and in such
denominations as the Lead Managers shall request in writing not less than two
full business days prior to the First Delivery Date. For the purpose of
expediting the checking and packaging of the certificates for the Firm Stock,
the Company shall make the certificates representing the Firm Stock available
for inspection by the Lead Managers in New York, New York, not later than 2:00
P.M., New York City time, on the business day prior to the First Delivery Date.
At any time on or before the thirtieth day after the date of this
Agreement the option granted in Section 3 may be exercised by written notice
being given to the Company by the Lead Managers. Such notice shall set forth the
aggregate number of shares of Option Stock as to which the option is being
exercised, the names in which the shares of Option Stock are to be registered,
the denominations in which the shares of Option Stock are to be issued and the
date and time, as determined by the Lead Managers, when the shares of Option
Stock are to be delivered; provided, however, that this date and time shall not
be earlier than the First Delivery Date nor earlier than the second business day
after the date on which the option shall have been exercised nor later than the
fifth business day after the date on which the option shall have been exercised.
The date and time the shares of Option Stock are delivered are sometimes
referred to as the "Second Delivery Date" and the First Delivery Date and the
Second Delivery Date are sometimes each referred to as a "Delivery Date".
Delivery of and payment for the Option Stock shall be made at the
place specified in the first sentence of the first paragraph of this Section 5
(or at such other place as shall be determined by agreement between the Lead
Managers and the Company) at 10:00 A.M., New York City time, on the Second
Delivery Date. On the Second Delivery Date, the Company shall deliver or cause
to be delivered the certificates representing the Option Stock to the Lead
Managers for the account of each International Manager against payment to or
upon the order of the Company and the Selling Stockholder of the purchase price
by certified or official bank check or checks payable in New York Clearing House
(next-day) funds. Time shall be of the essence, and delivery at the time and
place specified pursuant to this Agreement is a further condition of the
obligation of each International Manager hereunder. Upon delivery, the Option
Stock shall be registered in such names and in such denominations as the Lead
Managers shall request in the aforesaid written notice. For the purpose of
expediting the checking and packaging of the certificates for the Option Stock,
the Company and the Selling Stockholder shall make the certificates representing
the Option Stock available for inspection by the Lead Managers in New York, New
York, not later than 2:00 P.M., New York City time, on the business day prior to
the Second Delivery Date.
6. Further Agreements of the Company. The Company agrees:
(a) To prepare the Rule 462(b) Registration Statement, if
necessary, in a form approved by the Lead Managers and to file such
Rule 462(b) Registration Statement with the Commission on the date
hereof; to prepare the Prospectus in a form approved by the Lead
Managers and to file such Prospectus pursuant to
13
Rule 424(b) under the Securities Act not later than 10:00 A.M., New
York City time, on the day following the execution and delivery of
this Agreement; to make no further amendment or any supplement to
the Registration Statements or to the Prospectus prior to the Second
Delivery Date except as permitted herein; to advise the Lead
Managers, promptly after it receives notice thereof, of the time
when any amendment to either Registration Statement has been filed
or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed and to furnish the Lead Managers
with copies thereof; to advise the Lead Managers, promptly after it
receives notice thereof, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus, of the suspension of the
qualification of the Stock for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statements or the Prospectus or
for additional information; and, in the event of the issuance of any
stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its
withdrawal;
(b) To furnish promptly to each of the Lead Managers and to
counsel for the International Managers a signed copy of each of the
Registration Statements as originally filed with the Commission, and
each amendment thereto filed with the Commission, including all
consents and exhibits filed therewith;
(c) To deliver promptly to the Lead Managers in New York City
such number of the following documents as the Lead Managers shall
request: conformed copies of the Registration Statements as
originally filed with the Commission and each amendment thereto (in
each case excluding exhibits other than this Agreement and the
computation of per share earnings) and each Preliminary Prospectus,
the Prospectus (not later than 10:00 A.M., New York City time, of
the day following the execution and delivery of this Agreement) and
any amended or supplemented Prospectus (not later than 10:00 A.M.,
New York City time, on the day following the date of such amendment
or supplement); and, if the delivery of a prospectus is required at
any time after the Effective Time of the Primary Registration
Statement in connection with the offering or sale of the Stock (or
any other securities relating thereto) and if at such time any event
shall have occurred as a result of which the Prospectus as then
amended or supplemented would include 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 when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary to
amend or supplement the Prospectus in order to comply with the
Securities Act, to notify the Lead Managers and, upon their request,
to prepare and furnish without charge to each International Manager
and to any dealer in securities as many copies as the Lead Managers
may from time to time request of an amended
14
or supplemented Prospectus which will correct such statement or
omission or effect such compliance;
(d) To file promptly with the Commission any amendment to the
Registration Statements or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the Lead
Managers, be required by the Securities Act or requested by the
Commission;
(e) Prior to filing with the Commission any Preliminary
Prospectus, any amendment to either of the Registration Statements
or supplement to the Prospectus or any Prospectus pursuant to Rule
424 of the Rules and Regulations, to furnish a copy thereof to the
Lead Managers and counsel for the International Managers and obtain
the consent of the Lead Managers to the filing;
(f) As soon as practicable after the Effective Date of the
Primary Registration Statement, to make generally available to the
Company's security holders and to deliver to the Lead Managers an
earnings statement of the Company and its subsidiaries (which need
not be audited) complying with Section 11(a) of the Securities Act
and the Rules and Regulations (including, at the option of the
Company, Rule 158);
(g) For a period of five years following the Effective Date of
the Primary Registration Statement, to furnish to the Lead Managers
copies of all materials furnished by the Company to its shareholders
and all public reports and all reports and financial statements
furnished by the Company to the principal national securities
exchange or automatic quotation system upon which the Class A Common
Stock may be listed or quoted pursuant to requirements of or
agreements with such exchange or system or to the Commission
pursuant to the Exchange Act or any rule or regulation of the
Commission thereunder;
(h) Promptly from time to time to take such action as the Lead
Managers may reasonably request to qualify the Stock for offering
and sale under the securities laws of such jurisdictions as the Lead
Managers may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions
for as long as may be necessary to complete the distribution of the
Stock;
(i) For a period of 180 days from the date of the Prospectus,
not to, directly or indirectly, (1) offer for sale, sell, pledge or
otherwise dispose of (or enter into any transaction or device which
is designed to, or could be expected to, result in the disposition
or purchase by any person at any time in the future of) any shares
of Class A Common Stock or securities convertible into or
exchangeable for Class A Common Stock (other than the shares of
Class A Common Stock and shares issued pursuant to employee benefit
plans, qualified stock option plans or other employee compensation
plans existing on the date hereof or pursuant to currently
outstanding options, warrants or rights), or sell or
15
grant options, rights or warrants with respect to any shares of
Class A Common Stock or securities convertible into or exchangeable
for Class A Common Stock (other than the grant of options pursuant
to option plans existing on the date hereof), or (2) enter into any
swap or other derivatives transaction that transfers to another, in
whole or in part, any of the economic benefits or risks of ownership
of such shares of Class A Common Stock, whether any such transaction
described in clause (1) or (2) above is to be settled by delivery of
Class A Common Stock or other securities, in cash or otherwise, in
each case without the prior written consent of the Lead Managers;
and to cause each officer, director and stockholder of the Company
to furnish to the Lead Managers, prior to the First Delivery Date, a
letter or letters, in form and substance satisfactory to counsel for
the International Managers pursuant to which each such person shall
agree not to, directly or indirectly, (1) offer for sale, sell,
pledge or otherwise dispose of (or enter into any transaction or
device which is designed to, or could be expected to, result in the
disposition or purchase by any person at any time in the future of)
any shares of Class A Common Stock or securities convertible into or
exchangeable for Class A Common Stock or (2) enter into any swap or
other derivatives transaction that transfers to another, in whole or
in part, any of the economic benefits or risks or ownership of such
shares of Class A Common Stock, whether any such transaction
described in clause (1) or (2) above is to be settled by delivery of
Class A Common Stock or other securities, in cash or otherwise, in
each case for a period of 180 days from the date of the Prospectus,
without the prior written consent of the Lead Managers;
(j) Prior to filing with the Commission any reports pursuant
to Rule 463 of the Rules and Regulations, to furnish a copy thereof
to the counsel for the International Managers and receive and
consider its comments thereon, and to deliver promptly to the Lead
Managers a signed copy of each such report filed by it with the
Commission;
(k) To apply the net proceeds from the sale of the Stock being
sold by the Company as set forth in the Prospectus;
(l) To take such steps as shall be necessary to ensure that
neither the Company nor any subsidiary shall become an "investment
company" within the meaning of such term under the United States
Investment Company Act of 1940, as amended, and the rules and
regulations of the Commission thereunder.
7. Further Agreements of the Selling Stockholder. The Selling
Stockholder agrees:
(a) For a period of 180 days from the date of the Prospectus,
not to, directly or indirectly, (1) offer for sale, sell, pledge or
otherwise dispose of (or enter into any transaction or device which
is designated to, or could be expected to, result in the disposition
or purchase by any person at any time in the future of) any shares
of Class A Common Stock or securities convertible into or
exchangeable for Class A Common Stock (other than the Stock), or (2)
enter into
16
any swap or other derivatives transaction that transfers to another,
in whole or in part, any of the economic benefits or risks of
ownership of such shares of Class A Common Stock, whether any such
transaction described in clause (1) or (2) above is to be settled by
delivery of Class A Common Stock or other securities, in cash or
otherwise, in each case without the prior written consent of the
Lead Managers.
(b) That the Stock to be sold by the Selling Stockholder
hereunder, [which is represented by the certificates held in custody
for the Selling Stockholder], is subject to the interest of the
International Managers, [that the arrangements made by the Selling
Stockholder for such custody are to that extent irrevocable,] and
that the obligations of the Selling Stockholder hereunder shall not
be terminated by any act of the Selling Stockholder, by operation of
law or the occurrence of any other event.
(c) To deliver to the Lead Managers prior to the First
Delivery Date a properly contemplated and executed United States
Treasury Department or Form W-9.
(8) Expenses. The Company agrees to pay the costs incident to the
authorization, issuance, sale and delivery of the Stock and any taxes payable in
that connection; the costs incident to the preparation, printing and filing
under the Securities Act of the Registration Statements and any amendments and
exhibits thereto; the costs of distributing the Registration Statements as
originally filed and each amendment thereto and any post-effective amendments
thereof (including, in each case, exhibits), any Preliminary Prospectus, the
Prospectus and any amendment or supplement to the Prospectus, all as provided in
this Agreement; the costs of reproducing and distributing this Agreement and the
Agreement Between U.S. Underwriters and International Managers; the costs of
distributing the terms of agreement relating to the organization of the domestic
underwriting syndicate and selling group to the members thereof by mail, telex
or other means of communication; the filing fees incident to securing any
required review by the National Association of Securities Dealers, Inc. of the
terms of sale of the Stock; any applicable listing or other fees; the fees and
expenses of qualifying the Stock under the securities laws of the several
jurisdictions as provided in Section 6.(h) and of preparing, printing and
distributing a Blue Sky Memorandum (including related fees and expenses of
counsel to the International Managers); and all other costs and expenses
incident to the performance of the obligations of the Company under this
Agreement; provided that, except as provided in this Section 8 and in Section
13, the International Managers shall pay their own costs and expenses, including
the costs and expenses of their counsel, any transfer taxes on the Stock which
they may sell and the expenses of advertising any offering of the Stock made by
the International Managers.
9. Conditions of International Managers' Obligations. The respective
obligations of the International Managers hereunder are subject to the accuracy,
when made and on each Delivery Date, of the representations and warranties of
the Company contained herein, to the performance by the Company of its
obligations hereunder, and to each of the following additional terms and
conditions:
17
(a) The Rule 462(b) Registration Statement, if any, and the
Prospectus shall have been timely filed with the Commission in
accordance with Section 6.(a); no stop order suspending the
effectiveness of either of the Registration Statements or any part
thereof shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; and any
request of the Commission for inclusion of additional information in
either of the Registration Statements or the Prospectus or otherwise
shall have been complied with.
(b) No International Manager shall have discovered and
disclosed to the Company on or prior to such Delivery Date that
either of the Registration Statements or the Prospectus or any
amendment or supplement thereto contains any untrue statement of a
fact which, in the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel
for the International Managers, is material or omits to state any
fact which, in the opinion of such counsel, is material and is
required to be stated therein or is necessary to made the statements
therein not misleading.
(c) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the U.S.
Underwriting Agreement, the Stock, the Registration Statements and
the Prospectus, and all other legal matters relating to this
Agreement and the U.S. Underwriting Agreements, and the transactions
contemplated hereby and thereby shall be satisfactory in all
respects to counsel for the International Managers, and the Company
shall have furnished to such counsel all documents and information
that they may reasonably request to enable them to pass upon such
matters.
(d) Paul, Hastings, Xxxxxxxx & Xxxxxx LLP shall have furnished
to the Lead Managers its written opinion, as counsel to the Company,
addressed to the International Managers and dated such Delivery
Date, in form and substance satisfactory to the Lead Managers, to
the effect that:
(i) The Company and each of its subsidiaries have been
duly incorporated and are validly existing as corporations in
good standing under the laws of their respective jurisdictions
of incorporation, are duly qualified to do business and are in
good standing as foreign corporations in each jurisdiction in
which their respective ownership or lease of property or the
conduct of their respective businesses requires such
qualification and have all power and authority necessary to
own or hold their respective properties and conduct the
businesses in which they are engaged;
(ii) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of
capital stock of the Company (including the shares of Stock
being delivered on such Delivery Date) have been duly and
validly authorized and issued, are fully paid and
non-assessable and conform to the description thereof
contained in the
18
Prospectus; and all of the issued shares of capital stock of
each subsidiary of the Company have been duly and validly
authorized and issued and are fully paid, non-assessable and
(except for directors' qualifying shares) are owned directly
or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims;
(iii) 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 Stock pursuant to the
Company's charter or by-laws or any agreement or other
instrument known to such counsel;
(iv) The Company and each of its subsidiaries have good
and marketable title in fee simple to all real property owned
by them and good and marketable title to all personal property
owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in the
Prospectus or such as do not materially affect the value of
such property and do not materially interfere with the use
made and proposed to be made of such property by the Company
and its subsidiaries; and all real property and buildings held
under lease by the Company and its subsidiaries are held by
them under valid, subsisting and enforceable leases, with such
exceptions as are not material and do not interfere with the
use made and proposed to be made of such property and
buildings by the Company and its subsidiaries;
(v) To the best of such counsel's knowledge and other
than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property or
asset of the Company or any of its subsidiaries is the subject
which, if determined adversely to the Company or any of its
subsidiaries, might have a material adverse effect on the
consolidated financial position, stockholders' equity, results
of operations, business or prospects of the Company and its
subsidiaries; and, to the best of such counsel's knowledge, no
such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(vi) The Primary Registration Statement was declared
effective under the Securities Act as of the date and time
specified in such opinion, the Rule 462(b) Registration
Statement, if any, was filed with the Commission on the date
specified therein, the Prospectus was filed with the
Commission pursuant to the subparagraph of Rule 424(b) of the
Rules and Regulations specified in such opinion on the date
specified therein and no stop order suspending the
effectiveness of either of the Registration Statements has
been issued and, to the knowledge of such counsel, no
proceeding for that purpose is pending or threatened by the
Commission;
19
(vii) The Registration Statements, as of their
respective Effective Dates, and the Prospectus, as of its
date, and any further amendments or supplements thereto, as of
their respective dates, made by the Company prior to such
Delivery Date (other than the financial statements and other
financial data contained therein, as to which such counsel
need express no opinion) complied as to form in all material
respects with the requirements of the Securities Act and the
Rules and Regulations;
(viii) The statements contained in the Prospectus under
the captions "Risk Factors Governmental Regulation of
Broadcast Industry," "Business Federal Regulation of Radio
Broadcasting" and "Certain Federal Income Tax Consequences",
insofar as they describe federal statutes, rules and
regulations, constitute a fair summary thereof;
(ix) To the best of such counsel's knowledge, there are
no contracts or other documents which are required to be
described in the Prospectus or filed as exhibits to the
Registration Statements by the Securities Act or by the Rules
and Regulations which have not been described or filed as
exhibits to the Registration Statements;
(x) This Agreement and the U.S. Underwriting Agreement
have each been duly authorized, executed and delivered by the
Company;
(xi) The issue and sale of the shares of Stock being
delivered on such Delivery Date by the Company and the
compliance by the Company with all of the provisions of this
Agreement and the U.S. Underwriting Agreement and the
consummation of the transactions contemplated hereby and
thereby will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such
counsel to which the Company or any of its 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, nor will such
actions result in any violation of the provisions of the
charter or by-laws of the Company or any of its subsidiaries
or any statute or any order, rule or regulation known to such
counsel of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or
any of their properties or assets; and, except for the
registration of the Stock under the Securities Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and
applicable state or foreign securities laws in connection with
the purchase and distribution of the Stock by the
International Managers and the U.S. Underwriters, no consent,
approval, authorization or order of, or filing or registration
with, any such court or governmental agency or body is
required for the execution, delivery and performance of this
Agreement and the U.S.
20
Underwriting Agreement by the Company and the consummation of
the transactions contemplated hereby and thereby; and
(xii) To the best of such counsel's knowledge, there are
no contracts, agreements or understandings between the Company
and any person granting such person the right to require the
Company to file a registration statement under the Securities
Act with respect to any securities of the Company owned or to
be owned by such person or to require the Company to include
such securities in the securities registered pursuant to the
Registration Statements or in any securities being registered
pursuant to any other registration statement filed by the
Company under the Securities Act.
(xiii) Each of the radio stations owned, operated,
programmed or marketed by the Company and its subsidiaries is
validly licensed by the FCC and no administrative or judicial
proceedings are pending before or, to the knowledge of such
counsel, threatened by the FCC with respect to such licenses;
the Company and its subsidiaries possess adequate
certificates, authorizations, consents, orders, approvals,
licenses or permits which are in full force and effect issued
by other appropriate governmental agencies or bodies necessary
to the ownership of their respective properties and the
conduct of the businesses now operated by them and have not
received any notice of proceedings relating to the revocation
or modification of any such certificate, authority or permit.
In rendering such opinion, such counsel may (i) state that its
opinion is limited to matters governed by the Federal laws of the
United States of America, the laws of the State of New York and the
Illinois Business Corporation Act and that such counsel is not
admitted in the State of Illinois; (ii) rely (to the extent such
counsel deems proper and specifies in its opinion), as to matters
involving the application of the laws of the State of Illinois upon
the opinion of other counsel of good standing, provided that such
other counsel is satisfactory to counsel for the International
Managers and furnishes a copy of its opinion to the Lead Managers;
and (iii) in giving the opinion referred to in Section 9.(d)(iv),
state that no examination of record titles for the purpose of such
opinion has been made, and that it is relying upon a general review
of the titles of the Company and its subsidiaries, upon opinions of
local counsel and abstracts, reports and policies of title companies
rendered or issued at or subsequent to the time of acquisition of
such property by the Company or its subsidiaries, upon opinions of
counsel to the lessors of such property and, in respect of matters
of fact, upon certificates of officers of the Company or its
subsidiaries, provided that such counsel shall state that it
believes that both the International Managers and it are justified
in relying upon such opinions, abstracts, reports, policies and
certificates. Such counsel shall also have furnished to the Lead
Managers a written statement, addressed to the International
Managers and dated such Delivery Date, in form and substance
satisfactory to the Lead Managers, to the effect that (x) such
counsel has acted as
21
counsel to the Company in connection with the preparation of the
Registration Statements, and (y) based on the foregoing, no facts
have come to the attention of such counsel which lead it to believe
that the Registration Statements, as of their respective Effective
Dates, 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 Prospectus contains any untrue statement of a material fact
or omits to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The
foregoing opinion and statement may be qualified by a statement to
the effect that such counsel does not assume any responsibility for
the accuracy, completeness or fairness of the statements contained
in the Registration Statements or the Prospectus except for the
statements made in the Prospectus under the captions "Description of
Capital Stock," "Risk Factors - Governmental Regulation of
Broadcasting Industry," "Business - Federal Regulation of
Broadcasting Industry" and "Certain Federal Income Tax
Consequences", insofar as such statements relate to the Stock and
concern legal matters.
(e) The counsel for Selling Stockholder shall have furnished
to the Lead Managers its written opinion, as counsel to the Selling
Stockholder, addressed to the International Managers and dated the
First Delivery Date, in form and substance satisfactory to the Lead
Managers, to the effect that:
(i) The Selling Stockholder has full right, power and
authority to enter into this Agreement and the U.S.
Underwriting Agreement, [the Power of Attorney and the Custody
Agreement,] the execution, delivery and performance of this
Agreement and the U.S. Underwriting Agreement [, the Power of
Attorney and the Custody Agreement] by the Selling Stockholder
and the consummation by the Selling Stockholder of the
transactions contemplated hereby and thereby will not conflict
with or result in a breach of violation of any of the terms or
provisions of, or constitute a default under, any statute, any
indenture, mortgage deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the
Selling Stockholder is a party or by which the Selling
Stockholder is bound or to which any of the property or assets
of the Selling Stockholder is subject, nor will such actions
result in any violation of any statute or any order, rule or
regulation known to such counsel of any court or governmental
agency or body having jurisdiction over the Selling
Stockholder or the property or assets of the Selling
Stockholder; and, except for the registration of the Stock
under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be
required under the Exchange Act and applicable state or
foreign securities laws in connection with the purchase and
distribution of the Stock by the International Managers and
the Underwriters, no consent, approval, authorization or order
of, or filing or registration with, any such court or
governmental agency or body is required for the execution,
22
delivery and performance of this Agreement or the U.S.
Underwriting Agreement[, the Power of Attorney or the Custody
Agreement] by the Selling Stockholder and the consummation by
the Selling Stockholder of the transactions contemplated
hereby and thereby;
(ii) This Agreement and the U.S. Underwriting Agreement
have been duly executed and delivered by or on behalf of the
Selling Stockholder;
[(iii) A Power of Attorney and a Custody Agreement have
been duly authorized, executed and delivered by the Selling
Stockholder and constitute valid and binding agreements of the
Selling Stockholder;] and
(iv) Upon payment for, and delivery of, the shares of
Stock to be sold by the Selling Stockholder under this
Agreement and the U.S. Underwriting Agreement in accordance
with the terms hereof and thereof, the International Managers
and the Underwriters will acquire all of the rights of the
Selling Stockholder in such Shares free of any adverse claim
(within the meaning of the Uniform Commercial Code).
In rendering such opinion, such counsel may (i) state that its
opinion is limited to matters governed by the Federal laws of the
United States of America, the laws of the State of New York and the
General Corporation Law of the State of Wisconsin and (ii) rendering
the opinion in Section above, rely upon a certificate of the Selling
Stockholder in respect of matters of fact as to ownership of, and
the absence of adverse claims regarding, the shares of Stock sold by
the Selling Stockholder, provided that such counsel shall furnish
copies thereof to the Lead Managers and state that it believes that
both the International Managers and it are justified in relying upon
such certificate. Such counsel shall also have furnished to the Lead
Managers a written statement, addressed to the International
Managers and dated the First Delivery Date, in form and substance
satisfactory to the Lead Managers, to the effect that (x) such
counsel has acted as counsel to the Selling Stockholder on a regular
basis and has acted as counsel to the Selling Stockholder in
connection with the preparation of the Registration Statement and
(y) based on the foregoing, no facts have come to the attention of
such counsel which lead it to believe that the Registration
Statement, as of the Effective Date contained any untrue statement
of a material fact relating to the Selling Stockholder or omitted to
state such a material fact required to be stated therein or
necessary in order to make the statements therein not misleading, or
that the Prospectus contains any untrue statement of a material fact
relating to the Selling Stockholder or omits to state such a
material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under
which they were made, not misleading. The foregoing opinion and
statement may be qualified by a statement to the effect that such
counsel does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Prospectus.
23
(f) With respect to the letter of each of Price Waterhouse,
LLP, Xxxxxxx & Xxxxxx, LLP, McGladrey & Xxxxxx, LLP, Coopers &
Xxxxxxx, LLP and Plant & Xxxxx, LLP delivered to the Lead Managers
concurrently with the execution of this Agreement (each, an "initial
letter"), the Company shall have furnished to the Lead Managers a
letter (each, a "bring-down letter") of such accountants, addressed
to the International Managers and dated such Delivery Date (i)
confirming that they are independent public accountants within the
meaning of the Securities 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, (ii) stating,
as of the date of the bring-down letter (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 the
bring-down letter), the conclusions and findings of such firm with
respect to the financial information and other matters covered by
the initial letter and (iii) confirming in all material respects the
conclusions and findings set forth in the initial letter.
(g) The Company shall have furnished to the Lead Managers a
certificate, dated such Delivery Date, of its Chairman of the Board,
its President or a Vice President and its chief financial officer
stating that:
(i) The representations, warranties and agreements of
the Company in Section 1 are true and correct as of such
Delivery Date; the Company has complied with all its
agreements contained herein; and the conditions set forth in
Section 7(a) have been fulfilled;
(ii) (A) Neither the Company nor any of its subsidiaries
has sustained since the date of the latest audited financial
statements included in the Prospectus 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
Prospectus or (B) since such date there has not been any
change in the capital stock or long-term debt of the Company
or any of its subsidiaries or any change, or any development
involving a prospective change, in or affecting the general
affairs, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries,
otherwise than as set forth or contemplated in the Prospectus;
and
(iii) They have carefully examined the Registration
Statements and the Prospectus and, in their opinion (A) the
Registration Statements, as of their respective Effective
Dates, and the Prospectus, as of each of the Effective Dates,
did not include any untrue statement of a material fact and
did not omit to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading, and (B) since the Effective Date of the Primary
Registration Statement, no event has
24
occurred which should have been set forth in a supplement or
amendment to either of the Registration Statements or the
Prospectus.
(h) The Selling Stockholder [(or the Custodian or one or more
attorneys in fact on behalf of the Selling Stockholders)] shall have
furnished to the Lead Managers on the First Delivery Date a
certificate, dated the First Delivery Date, signed by, or on behalf
of, the Selling Stockholder [(or the Custodian or one or more
attorneys in fact)] stating that the representations, warranties and
agreements of the Selling Stockholder contained herein are true and
correct as of the First Delivery Date and that the Selling
Stockholder has complied with all agreements contained herein to be
performed by the Selling Stockholder at or prior to the First
Delivery Date.
(i) (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 Prospectus
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
Prospectus or since such date 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 change, or any development involving a
prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in any such
case described in clause (i) or (ii), is, in the judgment of the
Lead Managers, so material and adverse as to make it impracticable
or inadvisable to proceed with the public offering or the delivery
of the Stock being delivered on such Delivery Date on the terms and
in the manner contemplated in the Prospectus.
(j) Subsequent to the execution and delivery of this Agreement
no downgrading shall have occurred in the rating accorded the
Company's debt securities or preferred stock by any "nationally
recognized statistical rating organization", as that term is defined
by the Commission for purposes of Rule 436(g)(2) of the Rules and
Regulations and no such organization shall have publicly announced
that it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities or
preferred stock.
(k) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: trading in
securities generally on the New York Stock Exchange or the American
Stock Exchange or in the over-the-counter market, or trading in any
securities of the Company on any exchange or in the over-the-counter
market, shall have been suspended or minimum prices shall have been
established on any such exchange or such market by the Commission,
by such exchange or by any other regulatory body or governmental
authority having jurisdiction, a banking moratorium shall have been
declared by Federal
25
or state authorities, the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities
involving the United States or there shall have been a declaration
of a national emergency or war by the United States or there shall
have occurred such a material adverse change in general economic,
political or financial conditions (or the effect of international
conditions on the financial markets in the United States shall be
such) as to make it, in the judgment of a majority in interest of
the several International Managers, impracticable or inadvisable to
proceed with the public offering or delivery of the Stock being
delivered on such Delivery Date on the terms and in the manner
contemplated in the Prospectus.
(l) The Stock has been duly authorized for quotation on the
National Association of Securities Dealers Automated Quotation
("Nasdaq") National Market System, subject only to official notice
of issuance.
(m) The closing under the U.S. Underwriting Agreement shall
have occurred concurrently with the closing hereunder on the First
Delivery Date.
(n) The closing under the Debt Underwriting Agreement shall
have occurred concurrently with the closing hereunder on the First
Delivery Date.
(o) The closing under the Preferred Stock Underwriting
Agreement shall have occurred concurrently with the closing
hereunder on the First Delivery Date.
(p) The Reorganization (as defined in the Registration
Statement) shall have been consummated prior to the First Delivery
Date.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance satisfactory to counsel
for the International Managers.
10. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each International
Manager, its officers and employees and each person, if any, who controls any
International Manager within the meaning of the Securities Act, from and against
any loss, claim, damage or liability, joint or several, or any action in respect
thereof (including, but not limited to, any loss, claim, damage, liability or
action relating to purchases and sales of Stock), to which that International
Manager, officer, employee or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged untrue
statement of a material fact contained (A) in any Preliminary Prospectus, either
of the Registration Statements or the Prospectus, or in any amendment or
supplement thereto, or (B) in any blue sky application or other document
prepared or executed by the Company (or based upon any written information
furnished by the Company) specifically for the purpose of qualifying any or all
of the Stock under the securities laws of any state or other jurisdiction (any
such application, document or information being
26
hereinafter called a "Blue Sky Application"), the omission or alleged omission
to state in any Preliminary Prospectus, either of the Registration Statements or
the Prospectus, or in any amendment or supplement thereto, or in any Blue Sky
Application any material fact required to be stated therein or necessary to make
the statements therein not misleading or (iii) any act or failure to act, or any
alleged act or failure to act, by any International Manager in connection with,
or relating in any manner to, the Stock or the offering contemplated hereby, and
which is included as part of or referred to in any loss, claim, damage,
liability or action arising out of or based upon matters covered by clause (i)
or (ii) above (provided that the Company shall not be liable in the case of any
matter covered by this clause (iii) to the extent that it is determined in a
final judgement by a court of competent jurisdiction that such loss, claim,
damage, liability or action resulted directly from any such act or failure to
act undertaken or omitted to be taken by such International Manager through its
gross negligence or wilful misconduct), and shall reimburse each International
Manager and each such officer, employee and controlling person promptly upon
demand for any legal or other expenses reasonably incurred by that International
Manager, officer, employee or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company shall not be liable in any such case to the extent that any
such loss, claim, damage, liability or action arises out of, or is based upon,
any untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or in any such amendment or supplement, or in any Blue Sky
Application in reliance upon and in conformity with the written information
furnished to the Company through the Lead Managers by or on behalf of any
International Manager specifically for inclusion therein and described in
Section 10.(f). The foregoing indemnity agreement is in addition to any
liability which the Company may otherwise have to any International Manager or
to any officer, employee or controlling person of that International Manager.
(b) The Selling Stockholder shall indemnify and hold harmless each
International Manager, its officers and employees and each person, if any, who
controls any International Manager within the meaning of the Securities Act,
from and against any loss, claim, damage or liability, joint or several, or any
actin in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to purchases and sales of stock), to which
that International Manager, officer, employee or controlling person may become
subject, under the Securities act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or in any
amendment or supplement thereto, or (ii) the omission or alleged omission to
state in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or in any amendment or supplement thereto, any material fact
required to be stated therein or necessary to make the statements therein not
misleading, and shall reimburse each International Manager, its officers and
employees and each such controlling person for any legal or other expenses
reasonably incurred by that International Manager, its officers, employees or
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Selling Stockholder shall not
be liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or
27
alleged omission made in any Preliminary Prospectus, the Registration Statement
or the Prospectus or in any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company through the Lead
Manager by or on behalf of any International Manager, specifically for inclusion
therein. The foregoing indemnity agreement is in addition to any liability which
the Selling Stockholder may otherwise have to any International Manager or any
officer, employee or controlling person of that International Manager.
(c) Each International Manager, severally and not jointly, shall
indemnify and hold harmless the Company, its officers and employees, each of its
directors and each person, if any, who controls the Company within the meaning
of the Securities Act, from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof, to which the Company or any
such director, officer or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged untrue
statement of a material fact contained (A) in any Preliminary Prospectus, either
of the Registration Statements or the Prospectus, or in any amendment or
supplement thereto, or (B) in any Blue Sky Application or the omission or
alleged omission to state in any Preliminary Prospectus, either of the
Registration Statements or the Prospectus, or in any amendment or supplement
thereto, or in any Blue Sky Application any material fact required to be stated
therein or necessary to make the statements therein not misleading, but in each
case only to the extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
the written information furnished to the Company through the Lead Managers by or
on behalf of that International Manager specifically for inclusion therein and
described in Section 10.(f), and shall reimburse the Company and any such
director, officer or controlling person for any legal or other expenses
reasonably incurred by the Company or any such director, officer or controlling
person in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such expenses are
incurred. The foregoing indemnity agreement is in addition to any liability
which any International Manager may otherwise have to the Company or any such
director, officer or controlling person.
(d) Promptly after receipt by an indemnified party under this
Section 10 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 10, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 10 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 10.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel 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 10 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,
28
however, that the Lead Managers shall have the right to employ counsel to
represent jointly the Lead Managers and those other International Managers and
their respective officers, employees and controlling persons who may be subject
to liability arising out of any claim in respect of which indemnity may be
sought by the International Managers against the Company. No indemnifying party
shall (i) without the prior written consent of the indemnified parties (which
consent shall not be unreasonably withheld), settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding, or (ii) be
liable for any settlement of any such action effected without its written
consent (which consent shall not be unreasonably withheld), but if settled with
its written consent or if there be a final judgment of the plaintiff in any such
action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss of liability by reason of such
settlement or judgment.
(e) If the indemnification provided for in this Section 10 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 10.(a) or 10.(b), 10.(c) in respect of any loss, claim,
damage or liability, or any action in respect thereof, referred to therein, then
each indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, in such
proportion as shall be appropriate to reflect the relative benefits received by
the Company and the Selling Stockholder on the one hand and the International
Managers on the other from the offering of the Stock or if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and the International Managers on the other with respect to the statements
or omissions which resulted in such loss, claim, damage or liability, or action
in respect thereof, as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Selling Stockholder on the one
hand and the International Managers on the other with respect to such offering
shall be deemed to be in the same proportion as the total net proceeds from the
offering of the Stock purchased under this Agreement (before deducting expenses)
received by the Company and the Selling Stockholder, on the one hand, and the
total underwriting discounts and commissions received by the International
Managers with respect to the shares of the Stock purchased under this Agreement,
on the other hand, bear to the total gross proceeds from the offering of the
shares of the Stock under this Agreement, in each case as set forth in the table
on the cover page of the Prospectus. The relative fault shall be determined by
reference to whether the untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company, the Selling Stockholder or the International Managers,
the intent of the parties and their relative knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company
and the International Managers agree that it would not be just and equitable if
contributions pursuant to this Section 10.(e) were to be determined by pro rata
allocation (even if the International Managers were treated as one entity for
such purpose) or by any other method of allocation which does not take into
account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party
29
as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 10.(e) shall be deemed to include,
for purposes of this Section 10.(e), any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this Section 10.(e),
no International Manager shall be required to contribute any amount in excess of
the amount by which the total price at which the Stock underwritten by it and
distributed to the public was offered to the public exceeds the amount of any
damages which such International Manager has otherwise paid or become liable to
pay by reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
International Managers' obligations to contribute as provided in this Section
10.(e) are several in proportion to their respective underwriting obligations
and not joint.
(f) The International Managers severally confirm that the statements
with respect to the public offering of the Stock set forth on the cover page of,
and under the caption "Underwriting" in, the Prospectus are correct and
constitute the only information furnished in writing to the Company by or on
behalf of the International Managers specifically for inclusion in the
Registration Statements and the Prospectus.
11. Defaulting International Managers.
If, on either Delivery Date, any International Manager defaults in
the performance of its obligations under this Agreement, the remaining
non-defaulting International Managers shall be obligated to purchase the Stock
which the defaulting International Manager agreed but failed to purchase on such
Delivery Date in the respective proportions which the number of shares of the
Firm Stock set opposite the name of each remaining non-defaulting International
Manager in Schedule 1 hereto bears to the total number of shares of the Firm
Stock set opposite the names of all the remaining non-defaulting International
Managers in Schedule 1 hereto; provided, however, that the remaining
non-defaulting International Managers shall not be obligated to purchase any of
the Stock on such Delivery Date if the total number of shares of the Stock which
the defaulting International Manager or International Managers agreed but failed
to purchase on such date exceeds 9.09% of the total number of shares of the
Stock to be purchased on such Delivery Date, and any remaining non-defaulting
International Manager shall not be obligated to purchase more than 110% of the
number of shares of the Stock which it agreed to purchase on such Delivery Date
pursuant to the terms of Section 4. If the foregoing maximums are exceeded, the
remaining non-defaulting International Managers, or those other underwriters
satisfactory to the Lead Managers who so agree, shall have the right, but shall
not be obligated, to purchase, in such proportion as may be agreed upon among
them, all the Stock to be purchased on such Delivery Date. If the remaining
International Managers or other underwriters satisfactory to the Lead Managers
do not elect to purchase the shares which the defaulting International Manager
or International Managers agreed but failed to purchase on such Delivery Date,
this Agreement (or, with respect to the Second Delivery Date, the obligation of
the International Managers to purchase, and of the Company to sell, the Option
Stock) shall terminate without liability on the part of any non-defaulting
International Manager or the Company, except that the Company will continue to
be liable for the payment of expenses to the extent set forth
30
in Sections 8 and 13. As used in this Agreement, the term "International
Manager" includes, for all purposes of this Agreement unless the context
requires otherwise, any party not listed in Schedule 1 hereto who, pursuant to
this Section 11, purchases Firm Stock which a defaulting International Manager
agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting International
Manager of any liability it may have to the Company and the Selling Stockholder
for damages caused by its default. If other underwriters are obligated or agree
to purchase the Stock of a defaulting or withdrawing International Manager,
either the Lead Managers or the Company may postpone the First Delivery Date for
up to seven full business days in order to effect any changes that in the
opinion of counsel for the Company or counsel for the International Managers may
be necessary in the Registration Statement, the Prospectus or in any other
document or arrangement.
12. Effective Date and Termination.
(a) This Agreement shall become effective at 11:00 A.M., New York
City time, on the first full business day following the Effective Date, or at
such earlier time after the Registration Statement becomes effective as the Lead
Managers shall release the Firm Stock for initial public offering. The Lead
Managers shall notify the Company immediately after they have taken any action
which causes this Agreement to become effective. Until this Agreement is
effective, it may be terminated by the Company by notice to the Lead Managers or
by the Lead Managers by notice to the Company. For purposes of this Agreement,
the release of the initial public offering of the Stock shall be deemed to have
been made when the Lead Managers release, by telegram or otherwise, firm offers
of the Stock to securities dealers or release for publication a newspaper
advertisement relating to the Stock, whichever occurs first.
(b) The obligations of the International Managers hereunder may be
terminated by the Lead Managers by notice given to and received by the Company
and the Selling Stockholder prior to delivery of and payment for the Firm Stock
if, prior to that time, any of the events described in Sections 9.(i), 9.(j) or
9.(k), or shall have occurred or if the International Managers shall decline to
purchase the Stock for any reason permitted under this Agreement.
13. Reimbursement of International Managers' Expenses. If the
Company shall fail to tender the Stock for delivery to the International
Managers for any reason permitted under this Agreement, or the International
Managers shall decline to purchase the Stock for any reason permitted under this
Agreement (including the termination of this Agreement pursuant to Section 10),
the Company shall reimburse the International Managers for the fees and expenses
of their counsel and for such other out-of-pocket expenses as shall have been
incurred by them in connection with this Agreement and the proposed purchase of
the Stock, and upon demand the Company and the Selling Stockholder shall pay the
full amount thereof to the Lead Managers. If this Agreement is terminated
pursuant to Section 11 by reason of the default of one or more International
Managers, neither the Company nor the Selling Stockholder shall be obligated to
reimburse any defaulting International Manager on account of those expenses.
14. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
31
(a) if to the International Managers, shall be delivered or
sent by mail, telex or facsimile transmission to Xxxxxx Brothers
International (Europe), Three World Financial Center, New York, New
York 10285, Attention: Syndicate Department (Fax: 000-000-0000);
(b) if to the Company, shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set
forth in the Primary Registration Statement, Attention: Xxxxxxx
Xxxxxxx (Fax: (000-000-0000);
(c) if to the Selling Stockholder, shall be delivered or sent
by mail, telex or facsimile transmission to the Selling Stockholder
at [____________, Attention: ______ (Fax:_________);
provided, however, that any notice to any International Manager pursuant to
Section 10.(d) shall be delivered or sent by mail, telex or facsimile
transmission to such International Manager at its address set forth in its
acceptance telex to the Lead Managers, which address will be supplied to any
other party hereto by the Lead Managers upon request. Any such statements,
requests, notices or agreements shall take effect at the time of receipt
thereof. The Company and the Selling Stockholder shall be entitled to act and
rely upon any request, consent, notice or agreement given or made on behalf of
the International Managers by Xxxxxx Brothers Inc.
15. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the International Managers, the
Company, the Selling Stockholder and their respective personal representative
and successors. This Agreement and the terms and provisions hereof are for the
sole benefit of only those persons, except that the representations, warranties,
indemnities and agreements of the Company, and the Selling Stockholder,
contained in this Agreement shall also be deemed to be for the benefit of the
officers and employees of each International Manager and the person or persons,
if any, who control each International Manager within the meaning of Section 15
of the Securities Act and for the benefit of each U.S. Underwriter (and
controlling persons thereof) who offers or sells any shares of Class A Common
Stock in accordance with the terms of the Agreement Between International
Managers and International Managers and the indemnity agreement of the
International Managers contained in Section 10.(b), 10.(c) of this Agreement
shall be deemed to be for the benefit of directors, officers and employees of
the Company and any person controlling the Company within the meaning of Section
15 of the Securities Act. Nothing in this Agreement is intended or shall be
construed to give any person, other than the persons referred to in this Section
15, any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein.
16. Survival. The respective indemnities, representations,
warranties and agreements of the Company, the Principal Subsidiary, the Selling
Stockholder and the International Managers contained in this Agreement or made
by or on behalf of them, respectively, pursuant to this Agreement, shall survive
the delivery of and payment for the Stock and shall remain in full force and
effect, regardless of any investigation made by or on behalf of any of them or
any person controlling any of them.
32
17. Definition of the Terms "Business Day" and "Subsidiary". For
purposes of this Agreement, "business day" means any day on which the New York
Stock Exchange, Inc. is open for trading and "subsidiary" has the meaning set
forth in Rule 405 of the Rules and Regulations.
18. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of New York.
19. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
20. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
33
If the foregoing correctly sets forth the agreement between the
Company and the International Managers, please indicate your acceptance in the
space provided for that purpose below.
Very truly yours,
CUMULUS MEDIA INC.
By: ________________________________
STATE OF WISCONSIN INVESTMENT BOARD
Accepted:
XXXXXX BROTHERS INTERNATIONAL (EUROPE)
BEAR, XXXXXXX INTERNATIONAL LIMITED
BT ALEX. XXXXX INTERNATIONAL,
DIVISION OF BANKERS TRUST INTERNATIONAL PLC
CREDIT LYONNAIS SECURITIES
For themselves and as Lead Managers
of the several International Managers named
in Schedule 1 hereto
By XXXXXX BROTHERS INTERNATIONAL (EUROPE)
By: _________________________________________
Authorized Representative
SCHEDULE 1
Number of
International Managers Shares
---------------------- ----------
Xxxxxx Brothers International(Europe).......................
Bear, Xxxxxxx International Limited.........................
BT Alex. Xxxxx International, division of Bankers Trust
International PLC..........................................
Credit Lyonnais Securities..................................
----------
Total............................................ ==========
