Exhibit 1.1
7,000,000
CLASS A COMMON SHARES
(PAR VALUE $0.01 PER SHARE)
THE ▇.▇. ▇▇▇▇▇▇▇ COMPANY
UNDERWRITING AGREEMENT
April 24, 2003
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs and Mesdames:
The ▇▇▇▇▇▇ ▇. Scripps Trust (the "SELLING SHAREHOLDER") proposes to issue
and sell to the Underwriters named in Schedule I hereto (the "UNDERWRITERS") an
aggregate of 7,000,000 Class A Common Shares (par value $0.01 per share) (the
"SHARES") of The ▇.▇. ▇▇▇▇▇▇▇ Company (the "COMPANY"). The Class A Common Shares
(par value $0.01 per share) of the Company to be outstanding after giving effect
to the sales contemplated hereby are hereinafter referred to as the "COMMON
SHARES."
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement on Form S-3 (File No. 333-104008),
including a prospectus, relating to the Shares. The registration statement as
amended at the time it became effective, including the information (if any)
deemed to be part of the registration statement at the time of effectiveness
pursuant to Rule 430A under the Securities Act of 1933, as amended (the
"SECURITIES ACT"), is hereinafter referred to as the "REGISTRATION STATEMENT";
the prospectus in the form first used to confirm sales of Shares is hereinafter
referred to as the "PROSPECTUS." If the Company has filed an abbreviated
registration statement to register additional Common Shares pursuant to Rule
462(b) under the Securities Act (the "RULE 462 REGISTRATION STATEMENT"), then
any reference herein to the term "REGISTRATION STATEMENT" shall be deemed to
include such Rule 462 Registration Statement.
1. Representations and Warranties of the Company. The Company represents
and warrants to and agrees with each of the Underwriters that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act. The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or, to the
best of the Company's knowledge, threatened by the Commission.
(b) (i) The Registration Statement, when it became effective, did
not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) the Registration Statement and the
Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder and (iii) the
Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this paragraph
do not apply to statements or omissions in the Registration Statement or
the Prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated ("▇▇▇▇▇▇ ▇▇▇▇▇▇▇") expressly for use therein.
(c) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus, when they
became effective or at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the Securities Act and the rules and the regulations of
the Commission thereunder or the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT") and the rules and regulations of the
Commission thereunder, as applicable, and when read together with the
other information in the Prospectus, at the time the Registration
Statement became effective, at the time the Prospectus was issued and on
the Closing Date, as defined below, did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(d) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Ohio, has the
corporate power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect on the
business, financial position or results of operations of the Company and
its subsidiaries, taken as a whole (a "MATERIAL ADVERSE EFFECT").
(e) Each subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its
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incorporation, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
Material Adverse Effect; all of the issued shares of capital stock or
equity interests of each subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable; the
capital stock or equity interests of each subsidiary owned by the Company,
directly or through subsidiaries, is owned free and clear of all liens,
encumbrances, equities or claims; and the subsidiaries listed on Schedule
II hereto are the only "significant subsidiaries" of the Company (as such
term is defined in Rule 1-02 of Regulation S-X under the Securities Act).
(f) This Agreement has been duly authorized, executed and delivered
by the Company.
(g) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus.
(h) The Common Shares (including the Shares to be sold by the
Selling Shareholder) outstanding have been duly authorized and are validly
issued, fully paid and non-assessable and are listed on the New York Stock
Exchange (the "NYSE").
(i) The Company has the full right, power and authority to enter
into this Agreement. Neither the Company nor any of its subsidiaries is in
violation of its charter or by-laws or in default in the performance or
observance of any obligation, agreement, covenant or condition contained
in any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which it or any of
them may be bound, or to which any of the property or assets of the
Company or any subsidiary is subject except for such defaults that would
not result in a Material Adverse Effect; and the execution and delivery of
this Agreement and the consummation of the transactions contemplated
herein and compliance by the Company with its obligations hereunder have
been duly authorized by the Company and do not and will not, whether with
or without the giving of notice or the passage of time or both conflict
with or constitute a breach of, or default under, or result in the
creation or imposition of any tax, lien, charge or encumbrance upon the
Shares to be sold by the Selling Shareholder or any property or assets of
the Company or any of its subsidiaries pursuant to any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
license, lease 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 may be bound, or to which any of the property or assets of
the Company or any of its subsidiaries is subject, nor will such action
result in any violation of the provisions of the certificate of
incorporation or by-laws of the Company or any of its subsidiaries, or any
applicable treaty, law, statute, rule, regulation, judgment, order, writ
or decree of any government, government instrumentality or court, domestic
or foreign, having jurisdiction over the Company or any of its
subsidiaries or any of its properties.
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(j) No filing with, or consent, approval, authorization, order,
registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign, is necessary or required for the
performance by the Company of its obligations under this Agreement or in
connection with the sale and delivery of the Shares under this Agreement
or the consummation of the transactions contemplated by this Agreement,
except such as may have previously been made or obtained or as may be
required under the Securities Act or the rules and regulations of the
Commission thereunder or state securities or blue sky laws.
(k) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, (i) there has not occurred
any material adverse change, or any development involving a prospective
material adverse change, in the condition, financial or otherwise, or in
the earnings, business or operations of the Company and its subsidiaries,
taken as a whole, from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement), whether or not arising in the ordinary course of business,
(ii) there have been no transactions entered into by the Company or any of
its subsidiaries, other than those in the ordinary course of business,
which are material with respect to the Company and its subsidiaries, taken
as a whole, and (iii) there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital
stock.
(l) There are no legal or governmental proceedings pending or, to
the best of the Company's knowledge, threatened to which the Company or
any of its subsidiaries is a party or to which any of the properties of
the Company or any of its subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus and are not so
described or any statutes, regulations, contracts or other documents that
are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement that
are not described or filed as required.
(m) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or
filed pursuant to Rule 424 under the Securities Act, complied when so
filed in all material respects with the Securities Act and the rules and
regulations of the Commission thereunder.
(n) The Company is not, and after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as
described in the Prospectus will not be, required to register as an
"investment company" as such term is defined in the Investment Company Act
of 1940, as amended.
(o) The Company and its subsidiaries (1) are in compliance with any
and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("ENVIRONMENTAL LAWS"), (2) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (3) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required
permits, licenses or other approvals
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or failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a
Material Adverse Effect.
The Company knows of no costs or liabilities that have arisen under
Environmental Laws (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval, any
related constraints on operating activities and any potential liabilities
to third parties) which would, singly or in the aggregate, have a Material
Adverse Effect.
(p) 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, except as disclosed in the
documents incorporated by reference in the Registration Statement, or the
right to require the Company to include such securities with the Shares
registered pursuant to the Registration Statement.
(q) The Company and its subsidiaries have good and marketable title
to all real properties and all other properties and assets owned by them,
in each case free from liens, encumbrances and defects that would
materially affect the value thereof or materially interfere with the use
made or to be made thereof by them; and the Company and its subsidiaries
hold any leased real or personal property under valid and enforceable
leases with no exceptions that would materially interfere with the use
made or to be made thereof by them.
(r) The Company and its subsidiaries possess adequate and effective
certificates, authorities, permits and licenses issued by appropriate
governmental agencies, regulatory authorizations or bodies (including all
licenses required by the Federal Communications Commission (the "FCC"))
necessary to conduct the business now operated by them and have not
received any notice of proceedings relating to the revocation or
modification of any such certificate, authority, permit or license that,
if determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect, and each
of the Company and its subsidiaries are presently conducting their
respective businesses in substantial compliance with all applicable rules
and regulations of the FCC, and each of them has made all material filings
required under any federal, state, local or other law, regulation or rule
(including any material filings required by the FCC) and has obtained all
material authorizations, consents and approvals from other persons, in
order to conduct its respective business.
(s) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
might have a Material Adverse Effect.
(t) The Company and each member of its Control Group (as defined
below) is in compliance in all material respects with all presently
applicable provisions of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), and the
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regulations and published interpretations thereunder; no "reportable
event" (for which a filing is required with the Pension Benefit Guaranty
Corporation) (as defined in ERISA and the regulations and published
interpretations thereunder) has occurred with respect to any material
"pension plan" (as defined in ERISA and the regulations and published
interpretations thereunder) established or maintained by the Company or
any member of its Control Group; neither the Company nor any member of its
Control Group has incurred nor expects to incur any material liability
under (i) Title IV of ERISA with respect to termination of a "pension
plan" or withdrawal from any multiemployer "pension plan" (as defined in
ERISA and the regulations and published interpretations thereunder) or
(ii) Section 412 or 4971 of the Internal Revenue Code of 1986, as amended
(the "CODE"); and each material "pension plan" established or maintained
by the Company that is intended to be qualified under Section 401(a) of
the Code is so qualified in all material respects and has received a
favorable determination letter as to its qualifications and nothing has
occurred, whether by action or failure to act, which would cause the loss
of such qualification. For purposes of this subsection, "Control Group" is
defined to include any entity which is part of a group which includes the
Company and is treated as a single employer under Section 414 of the Code.
(u) The Company and its subsidiaries own, possess or can acquire on
reasonable terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information and
other intellectual property (collectively, "INTELLECTUAL PROPERTY RIGHTS")
necessary to conduct the business now operated by them, or presently
employed by them, and have not received any notice of infringement of or
conflict with asserted rights of others with respect to any intellectual
property rights that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(v) There are no pending actions, suits or proceedings against or
affecting the Company, any of its subsidiaries or any of their respective
properties that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect, or would materially and adversely affect the ability of
the Company to perform its obligations under this Agreement, or which are
otherwise material in the context of the sale of the Shares; and no such
actions, suits or proceedings are, to the Company's knowledge, threatened
or contemplated.
(w) The accountants who certified the financial statements and
supporting schedules included or incorporated by reference in the
Registration Statement are independent public accountants as required by
the Securities Act and the rules and regulations of the Commission
thereunder.
(x) The financial statements included or incorporated by reference
in the Registration Statement and Prospectus present fairly the financial
position of the Company and its consolidated subsidiaries as of the dates
shown and their results of operations and cash flows for the periods
shown, and such financial statements have been prepared in conformity with
generally accepted accounting principles in the United States applied on a
consistent basis; any schedules included or incorporated by reference in
the Registration Statement present fairly the information required to be
stated therein.
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2. Representations and Warranties of the Selling Shareholder. The Selling
Shareholder represents and warrants to and agrees with each of the Underwriters
that:
(a) The Selling Shareholder is a trust duly formed and validly
existing pursuant to Ohio law.
(b) To the best knowledge of the Selling Shareholder, the
representations and warranties of the Company contained in Section 1
hereof are true and correct. The Selling Shareholder has reviewed and is
familiar with the Registration Statement and the Prospectus with respect
to all information contained therein and with respect to such information
neither the Prospectus nor any amendments or supplements thereto includes
any untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The Selling
Shareholder is not prompted to sell the Shares to be sold by it under this
Agreement by any information concerning the Company or any subsidiary of
the Company which is not set forth in the Prospectus.
(c) This Agreement has been duly authorized, executed and delivered
by the Selling Shareholder.
(d) The Selling Shareholder has the full right, power and authority
to enter into this Agreement and to sell, transfer and deliver the Shares
to be sold by it hereunder. The execution and delivery of this Agreement
and the sale and delivery of the Shares to be sold by it and the
consummation of the transactions contemplated herein and compliance by the
Selling Shareholder with its obligations hereunder have been duly
authorized by the Selling Shareholder and do not and will not, whether
with or without the giving of notice or passage of time or both, conflict
with or constitute a breach of, or default under, or result in the
creation or imposition of any tax, lien, charge or encumbrance upon the
Shares to be sold by the Selling Shareholder or any property or assets of
the Selling Shareholder pursuant to any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, license, lease or other
agreement or instrument to which the Selling Shareholder is a party or by
which the Selling Shareholder may be bound, or to which any of the
property or assets of the Selling Shareholder is subject, nor will such
action result in any violation of the provisions of the trust agreement of
the Selling Shareholder, or any applicable treaty, law, statute, rule,
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over
the Selling Shareholder or any of its properties.
(e) The Selling Shareholder 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
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Shares.
(f) No filing with, or consent, approval, authorization, order,
registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign, is necessary or required for the
performance by the Selling Shareholder of its obligations under this
Agreement or in connection with the sale and delivery of the
7
Shares under this Agreement or the consummation of the transactions
contemplated by this Agreement, except such as may have previously been
made or obtained or as may be required under the Securities Act or the
rules and regulations of the Commission thereunder or state securities or
blue sky laws.
(g) Neither the Selling Shareholder nor any of its affiliates
directly, or indirectly through one or more intermediaries, controls, or
is controlled by, or is under common control with, or has any other
association with (within the meaning of Article I, Section 1(q) of the
By-laws of the National Association of Securities Dealers, Inc.), any
member firm of the National Association of Securities Dealers, Inc.
(h) The Selling Shareholder agrees to deliver to the Underwriters on
or prior to the Closing Date a properly completed and executed United
States Treasury Department Form W-9 (or other applicable form or statement
specified by Treasury Department regulations in lieu thereof).
(i) The Selling Shareholder has, and on the Closing Date will have,
valid title to, or a valid "security entitlement" within the meaning of
Section 8-501 of the New York Uniform Commercial Code (the "UCC") in
respect of, the Shares to be sold by the Selling Shareholder free and
clear of all security interests, claims, liens, equities or other
encumbrances and the legal right and power, and all authorization and
approval required by law, to enter into this Agreement and to sell,
transfer and deliver the Shares to be sold by the Selling Shareholder or a
security entitlement in respect of such Shares.
(j) Upon payment for the Shares to be sold by the Selling
Shareholder pursuant to this Agreement, delivery of the Shares, as
directed by the Underwriters, to Cede & Co. ("CEDE") or such other nominee
as may be designated by the Depository Trust Company ("DTC"), registration
of the Shares in the name of Cede or such other nominee and the crediting
of the Shares on the books of DTC to securities accounts of the
Underwriters (assuming that neither DTC nor any such Underwriter has
notice of any adverse claim (within the meaning of Section 8-105 of the
UCC) to the Shares), (A) DTC shall be a "protected purchaser" of the
Shares within the meaning of Section 8-303 of the UCC, (B) under Section
8-501 of the UCC, the Underwriters will acquire a valid security
entitlement in respect of the Shares and (C) no action based on any
"adverse claim", within the meaning of Section 8-102 of the UCC, to the
Shares may be asserted against the Underwriters with respect to such
security entitlement; for purposes of this representation, the Selling
Shareholder may assume that when such payment, delivery and crediting
occur, (x) the Shares will have been registered in the name of Cede or
another nominee designated by DTC, in each case on the Company's share
registry in accordance with its certificate of incorporation, code of
regulations and applicable law, (y) DTC will be registered as a "clearing
corporation" within the meaning of Section 8-102 of the UCC and (z)
appropriate entries to the accounts of the Underwriters on the records of
DTC will have been made pursuant to the UCC.
3. Agreements to Sell and Purchase. The Selling Shareholder hereby agrees
to sell to the Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not
8
jointly, to purchase from the Selling Shareholder at $75.512 a share (the
"PURCHASE PRICE") the number of Shares set forth in Schedule I hereto opposite
the name of such Underwriter.
The Company hereby agrees that, without the prior written consent of
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated on behalf of the Underwriters, it will not,
during the period ending 90 days after the date of the Prospectus, (i) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any
common shares of the Company or any securities convertible into or exercisable
or exchangeable for common shares of the Company or (ii) enter into any swap or
other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of common shares of the Company, whether any
such transaction described in clause (i) or (ii) above is to be settled by
delivery of common shares of the Company or such other securities, in cash or
otherwise.
The restrictions contained in the preceding paragraph shall not apply to
(A) the Shares to be sold hereunder, (B) transactions by any person other than
the Company or the Selling Shareholder relating to common shares or other
securities of the Company, (C) the grant of options or common shares of the
Company under the Company's stock and incentive plans as in effect on the date
hereof or the issuance of common shares of the Company under the Company's
non-employee director stock plan, (D) the issuance by the Company of common
shares of the Company upon the exercise of an option or a warrant or the
conversion of a security outstanding on the date hereof disclosed in the
Prospectus, or (E) the issuance by the Company of unregistered securities in
connection with acquisitions, which securities will not be registered for resale
before the end of the 90-day period.
The Selling Shareholder hereby agrees that, without the prior written
consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated on behalf of the Underwriters, it
will not, during the period ending 180 days after the date of the Prospectus,
(i) offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, lend, or otherwise transfer or dispose of, directly or
indirectly, any common shares of the Company or any securities convertible into
or exercisable or exchangeable for common shares of the Company or (ii) enter
into any swap or other arrangement that transfers to another, in whole or in
part, any of the economic consequences of ownership of common shares of the
Company, whether any such transaction described in clause (i) or (ii) above is
to be settled by delivery of common shares of the Company or such other
securities, in cash or otherwise.
The restrictions contained in the preceding paragraph shall not apply to
the Shares to be sold hereunder. In addition, the Selling Shareholder agrees
that, without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on behalf of the
Underwriters, it will not, during the period ending 180 days after the date of
the Prospectus, make any demand for, or exercise any right with respect to, the
registration of any Common Shares or any security convertible into or
exercisable or exchangeable for Common Shares.
4. Terms of Public Offering. The Company and the Selling Shareholder are
advised by you that the Underwriters propose to make a public offering of their
respective portions of the Shares as soon after this Agreement has become
effective as in your judgment is advisable. The
9
Company and the Selling Shareholder are further advised by you that the Shares
are to be offered to the public initially at $77.25 a share (the "PUBLIC
OFFERING PRICE").
5. Payment and Delivery. Payment for the Shares to be sold by the Selling
Shareholder shall be made to the Selling Shareholder in Federal or other funds
immediately available in New York City against delivery of such Shares for the
respective accounts of the Underwriters at 10:00 a.m., New York City time, on
April 30, 2003, or at such other time on the same or such other date, not later
than May 7, 2003, as shall be designated in writing by you. The time and date of
such payment are hereinafter referred to as the "CLOSING DATE."
The Shares shall be registered in such names and in such denominations as
you shall request in writing not later than one full business day prior to the
Closing Date. The Shares shall be delivered to you on the Closing Date for the
respective accounts of the Underwriters, with any transfer taxes payable in
connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the Purchase Price therefor.
6. Conditions to the Underwriters' Obligations. The obligations of the
Selling Shareholder to sell the Shares to the Underwriters and the several
obligations of the Underwriters to purchase and pay for the Shares on the
Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading
or of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded any of the
Company's securities by any "nationally recognized statistical
rating organization," as such term is defined for purposes of Rule
436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations
of the Company and its subsidiaries, taken as a whole, from that set
forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement) that, in your
judgment, is material and adverse and that makes it, in your
judgment, impracticable to market the Shares on the terms and in the
manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of
the Company, to the effect set forth in Section 6(a)(i) above and to the
effect that (i) since the date of this Agreement and since the date as of
which information is given in the Prospectus, there has not occurred any
material adverse change in the condition, financial or otherwise, or in
the earnings, business and operations of the Company and its subsidiaries,
taken as a whole, (ii) the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing Date
and (iii) the Company has complied with all of the
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agreements and satisfied all of the conditions on its part to be performed
or satisfied hereunder on or before the Closing Date. The officer signing
and delivering such certificate may rely upon the best of his or her
knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by a trustee or an officer
of the Selling Shareholder, to the effect that (i) the representations and
warranties of the Selling Shareholder contained in this Agreement are true
and correct as of the Closing Date and (ii) the Selling Shareholder has
complied with all of the agreements and satisfied all of the conditions on
its part to be performed or satisfied hereunder on or before the Closing
Date. The trustee or officer signing and delivering such certificate may
rely upon the best of his or her knowledge as to proceedings threatened.
(d) The Underwriters shall have received on the Closing Date an
opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, dated the
Closing Date, to the effect that:
(i) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
State of Ohio, has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus,
and to such counsel's knowledge is duly qualified to transact
business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a Material
Adverse Effect;
(ii) each subsidiary of the Company identified in Schedule II
hereto (each, a "SIGNIFICANT SUBSIDIARY") has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct its
business as described in the Prospectus, and to such counsel's
knowledge is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in
good standing would not have a Material Adverse Effect;
(iii) all of the issued shares of capital stock or equity
interests of each Significant Subsidiary have been duly and validly
authorized and issued, are fully paid and non-assessable; and the
capital stock or equity interests of each subsidiary owned by the
Company, directly or through subsidiaries, is, to the best of such
counsel's knowledge, owned free and clear of all liens,
encumbrances, equities or claims;
(iv) this Agreement has been duly authorized, executed and
delivered by the Company;
11
(v) the authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the
Prospectus;
(vi) the Common Shares (including the Shares to be sold by the
Selling Shareholder) outstanding have been duly authorized and are
validly issued, fully paid and non-assessable;
(vii) the sale of the Shares by the Selling Shareholder is not
subject to statutory preemptive rights or, to the best of such
counsel's knowledge, similar rights of any securityholder of the
Company;
(viii) the Registration Statement, including any Rule 462(b)
Registration Statement, has been declared effective under the
Securities Act; any required filing of the Prospectus pursuant to
Rule 424(b) has been made in the manner and within the time period
required by Rule 424(b); and, to the best of such counsel's
knowledge, no stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration Statement has
been issued under the Securities Act and no proceedings for that
purpose have been instituted or are pending or threatened by the
Commission;
(ix) the Registration Statement, including any Rule 462(b)
Registration Statement and the Rule 430A Information, as applicable,
the Prospectus, excluding the documents incorporated by reference
therein, and each amendment or supplement to the Registration
Statement and Prospectus, excluding the documents incorporated by
reference therein, as of their respective effective or issue dates
(other than the financial statements and financial schedules and
other financial data included therein or omitted therefrom, 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 of the Commission thereunder;
(x) the documents incorporated by reference in the Prospectus
(other than the financial statements and financial schedules and
other financial data included therein or omitted therefrom, as to
which such counsel need express no opinion), when they became
effective or were filed with the Commission, as the case may be,
complied as to form in all material respects with the requirements
of the Exchange Act and the rules and regulations of the Commission
thereunder;
(xi) the form of certificate used to evidence the Common
Shares complies in all material respects with all applicable
statutory requirements, with any applicable requirements of the
charter and code of regulations of the Company and the requirements
of the NYSE;
(xii) to the best of such counsel's knowledge, there is not
pending or threatened any action, suit, proceeding, inquiry or
investigation, to which the Company or any subsidiary is a party, or
to which the property of the Company or any subsidiary is subject,
before or brought by any court or governmental agency
12
or body, domestic or foreign, which might reasonably be expected to
result in a Material Adverse Effect, or which might reasonably be
expected to materially and adversely affect the properties or assets
of the Company and its subsidiaries, taken as a whole, or the
consummation of the transactions contemplated in this Agreement or
the performance by the Company of its obligations thereunder;
(xiii) the information contained or incorporated by reference
in the Prospectus under "Description of Capital Stock" and "Business
- Federal Regulation of Broadcasting" and in the Registration
Statement under Item 15, to the extent that it constitutes matters
of law, summaries of legal matters, the Company's charter and code
of regulations or legal proceedings, or legal conclusions, has been
reviewed by such counsel and is correct in all material respects;
(xiv) to the best of such counsel's knowledge, there are no
statutes or regulations that are required to be described in the
Prospectus that are not described as required;
(xv) all descriptions in the Registration Statement of
contracts and other documents to which the Company or its
subsidiaries are a party are accurate in all material respects; to
the best of such counsel's knowledge, there are no franchises,
contracts, indentures, mortgages, loan agreements, notes, leases or
other instruments required to be described or referred to in the
Prospectus or the Registration Statement or to be filed as exhibits
thereto other than those described or referred to therein or filed
or incorporated by reference as exhibits thereto, and the
descriptions thereof or references thereto are correct in all
material respects;
(xvi) to the best of such counsel's knowledge, neither the
Company nor any subsidiary is in violation of its charter or by-laws
and no default by the Company or any subsidiary exists in the due
performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or
other agreement or instrument known to such counsel to which the
Company or any of its subsidiaries is a party or by which it or any
of them may be bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, except for such
defaults that would not result in a Material Adverse Effect;
(xvii) no filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court
or governmental authority or agency, domestic or foreign (other than
under the Securities Act and the rules and regulations of the
Commission thereunder, which have been obtained, or as may be
required under the securities or blue sky laws of the various
states, as to which such counsel need express no opinion) is
necessary or required in connection with the due authorization,
execution and delivery of this Agreement or for the offering, sale
or delivery of the Shares;
13
(xviii) the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated in
this Agreement and in the Registration Statement (including the sale
of the Shares) and compliance by the Company with its obligations
under this Agreement do not and will not, whether with or without
the giving of notice or lapse of time or both, conflict with or
constitute a breach of, or default under or result in the creation
or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any subsidiary pursuant to any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or any other agreement or instrument, known to such counsel,
to which the Company or any subsidiary is a party or by which it or
any of them may be bound, or to which any of the property or assets
of the Company or any subsidiary is subject (except for such
conflicts, breaches or defaults or liens, charges or encumbrances
that would not have a Material Adverse Effect), nor will such action
result in any violation of the provisions of the charter or by-laws
of the Company or any subsidiary, or any applicable law, statute,
rule, regulation, judgment, order, writ or decree, known to such
counsel, of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any
subsidiary or any of their respective properties, assets or
operations;
(xix) each of the Company and its subsidiaries has obtained
all material licenses required by the FCC for the conduct and
operation of its respective businesses, and such licenses are in
full force and effect. The Company and its subsidiaries are
presently conducting their respective businesses in substantial
compliance with all applicable rules and regulations of the FCC;
(xx) the Company is not, and after giving effect to the
offering and sale of the Shares and the application of the proceeds
thereof as described in the Prospectus will not be, required to
register as an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended; and
(xxi) nothing has come to the attention of such counsel that
causes such counsel to believe that (A) the Registration Statement
or the Prospectus, including the documents incorporated by reference
or deemed to be incorporated by reference therein (except for the
financial statements and financial schedules and other financial and
statistical data included therein, as to which such counsel need not
express any belief), do not comply as to form in all material
respects with the requirements of the Securities Act and the
applicable rules and regulations of the Commission thereunder or the
Exchange Act and the applicable rules and regulations of the
Commission thereunder, as applicable, (B) the Registration Statement
or the Prospectus included therein, including the documents
incorporated by reference or deemed to be incorporated by reference
therein (except for the financial statements and financial schedules
and other financial and statistical data included therein, as to
which such counsel need not express any belief), at the time the
Registration Statement became effective contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or (C)
14
the Prospectus, including the documents incorporated by reference or
deemed to be incorporated by reference therein (except for the
financial statements and financial schedules and other financial and
statistical data included therein, as to which such counsel need not
express any belief), as of its date or as of the Closing Date
contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading.
(e) The Underwriters shall have received on the Closing Date an
opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Selling Shareholder,
dated the Closing Date, to the effect that:
(i) the Selling Shareholder is a trust duly formed and validly
existing pursuant to the laws of the State of Ohio;
(ii) no filing with, or consent, approval, authorization,
license, order, registration, qualification or decree of, any court
or governmental authority or agency, domestic or foreign, (other
than the issuance of the order of the Commission declaring the
Registration Statement effective and such authorizations, approvals
or consents as may be necessary under the state securities or blue
sky laws, as to which such counsel need express no opinion) is
necessary or required to be obtained by such Selling Shareholder for
the performance by such Selling Shareholder of its obligations under
this Agreement or in connection with the offer, sale or delivery of
the Shares;
(iii) this Agreement has been duly authorized, executed and
delivered by or on behalf of the Selling Shareholder;
(iv) the execution, delivery and performance of this Agreement
and the sale and delivery of the Shares and the consummation of the
transaction contemplated in this Agreement and the Registration
Statement and compliance by the Selling Shareholder with its
obligation under this Agreement have been duly authorized by all
necessary action on the part of the Selling Shareholder and do not
and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or
default under or result in the creation or imposition of any tax,
lien, charge or encumbrance upon the Shares or any property or
assets of the Selling Shareholder pursuant to, any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
license, lease or other instrument or agreement known to such
counsel to which the Selling Shareholder is a party or by which it
may be bound, or to which any of the property or assets of the
Selling Shareholder may be subject, nor will such action result in
any violation of the provisions of the trust agreement of the
Selling Shareholder, or any law, administrative regulation, judgment
or order of any governmental agency or body or any administrative or
court decree having jurisdiction over the Selling Shareholder or any
of its properties;
15
(v) to the best of such counsel's knowledge, the Selling
Shareholder has valid title to, or a valid security entitlement in
respect of, the Shares to be sold by the Selling Shareholder free
and clear of all security interests, claims, liens, equities and
other encumbrances, and the Selling Shareholder has the legal right
and power, and all authorization and approval required by law, to
enter into this Agreement and to sell, transfer and deliver the
Shares to be sold by the Selling Shareholder or a security
entitlement in respect of such Shares; and
(vi) upon payment for the Shares to be sold by the Selling
Shareholder pursuant to this Agreement, delivery of the Shares, as
directed by the Underwriters, to Cede or such other nominee as may
be designated by DTC, registration of the Shares in the name of Cede
or such other nominee and the crediting of the Shares on the books
of DTC to securities accounts of the Underwriters (assuming that
neither DTC nor any such Underwriter has notice of any adverse claim
within the meaning of Section 8-105 of the UCC to such Shares), (A)
DTC shall be a "protected purchaser" of such Shares within the
meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the
UCC, the Underwriters will acquire a valid security entitlement in
respect of the Shares and (C) no action based on any "adverse claim"
(within the meaning of Section 8-102 of the UCC) to the Shares may
be asserted against the Underwriters with respect to such security
entitlement; in giving this opinion, counsel for the Selling
Shareholder may assume that when such payment, delivery and
crediting occur, (x) the Shares will have been registered in the
name of Cede or another nominee designated by DTC, in each case on
the Company's share registry in accordance with its certificate of
incorporation, code of regulations and applicable law, (y) DTC will
be registered as a "clearing corporation" within the meaning of
Section 8-102 of the UCC and (z) appropriate entries to the accounts
of the Underwriters on the records of DTC will have been made
pursuant to the UCC.
(f) The Underwriters shall have received on the Closing Date an
opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, dated
the Closing Date, with respect to such matters as you shall reasonably
request.
(g) With respect to Section 6(d)(xxi) above, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
may state that its belief is based upon its participation in the
preparation of the Registration Statement and Prospectus and any
amendments or supplements thereto and review and discussion of the
contents thereof, but are without independent check or verification,
except as specified in its opinion.
(h) The Underwriters shall have received, on each of the date hereof
and the Closing Date, a letter dated the date hereof or the Closing Date,
as the case may be, in form and substance satisfactory to the
Underwriters, from Deloitte & Touche LLP, independent public accountants,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus; provided that the letter
delivered on the Closing Date shall use a "cut-off date" not earlier than
the date hereof.
16
7. Covenants of the Company. In further consideration of the agreements of
the Underwriters herein contained, the Company covenants with each Underwriter
as follows:
(a) To furnish to you, without charge, three signed copies of the
Registration Statement (including exhibits thereto) a conformed copy of
the Registration Statement (without exhibits thereto) and to furnish to
you in New York City, without charge, prior to 10:00 a.m. New York City
time on the business day next succeeding the date of this Agreement and
during the period mentioned in Section 7(c) below, as many copies of the
Prospectus and any supplements and amendments thereto or to the
Registration Statement as you may reasonably request.
(b) Before amending or supplementing the Registration Statement or
the Prospectus, to furnish to you a copy of each such proposed amendment
or supplement and not to file any such proposed amendment or supplement to
which you reasonably object, and to file with the Commission within the
applicable period specified in Rule 424(b) under the Securities Act any
prospectus required to be filed pursuant to such Rule.
(c) If, during such period after the first date of the public
offering of the Shares as in the opinion of counsel for the Underwriters
the Prospectus is required by law to be delivered in connection with sales
by an Underwriter or dealer, any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser, not misleading, or if, in
the opinion of counsel for the Underwriters, it is necessary to amend or
supplement the Prospectus to comply with applicable law, forthwith to
prepare, file with the Commission and furnish, at its own expense, to the
Underwriters and to the dealers (whose names and addresses you will
furnish to the Company) to which Shares may have been sold by you on
behalf of the Underwriters and to any other dealers upon request, either
amendments or supplements to the Prospectus so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or supplemented, will
comply with law.
(d) To endeavor to qualify the Shares for offer and sale under the
securities or blue sky laws of such jurisdictions as you shall reasonably
request.
(e) The Company will timely file such reports pursuant to the
Exchange Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the Securities Act.
(f) The Company, during the period when the Prospectus is required
to be delivered under the Securities Act or the Exchange Act, will file
all documents required to be filed with the Commission pursuant to the
Exchange Act within the time periods required by the Exchange Act and the
rules and regulations of the Commission thereunder.
17
8. Expenses. Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Selling
Shareholder agrees to pay or cause to be paid all expenses incident to the
performance of its obligations under this Agreement, including: (i) the fees,
disbursements and expenses of the Company's counsel, the Company's accountants
and counsel for the Selling Shareholder in connection with the registration and
delivery of the Shares under the Securities Act and all other fees or expenses
in connection with the preparation and filing of the Registration Statement, any
preliminary prospectus, the Prospectus and amendments and supplements to any of
the foregoing, including all printing costs associated therewith, and the
mailing and delivering of copies thereof to the Underwriters and dealers, in the
quantities hereinabove specified, (ii) all costs and expenses related to the
transfer and delivery of the Shares to the Underwriters, including any transfer
or other taxes payable thereon, (iii) the cost of printing or producing any Blue
Sky or Legal Investment memorandum in connection with the offer and sale of the
Shares under state securities or blue sky laws and all expenses in connection
with the qualification of the Shares for offer and sale under state securities
or blue sky laws as provided in Section 7(d) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky or Legal
Investment memorandum, (iv) the cost of printing certificates representing the
Shares, (v) the costs and charges of any transfer agent, registrar or
depositary, (vi) the costs and expenses of the Company relating to investor
presentations on any "road show" undertaken in connection with the marketing of
the offering of the Shares, including, without limitation, expenses associated
with the production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations with the
prior approval of the Company, travel and lodging expenses of the
representatives and officers of the Company and any such consultants, and the
cost of any aircraft chartered in connection with the road show, (vii) the
document production charges and expenses associated with printing this Agreement
and (viii) all other costs and expenses incident to the performance of the
obligations of the Company hereunder for which provision is not otherwise made
in this Section. It is understood, however, that except as provided in this
Section, Section 9 entitled "Indemnity and Contribution", and the last paragraph
of Section 11 below, the Underwriters will pay all of their costs and expenses,
including fees and disbursements of their counsel, stock transfer taxes payable
on resale of any of the Shares by them and any advertising expenses connected
with any offers they may make.
The provisions of this Section shall not supersede or otherwise affect any
agreement that the Company and the Selling Shareholder may otherwise have for
the allocation of such expenses among themselves.
9. Indemnity and Contribution. (a) The Company agrees to indemnify and
hold harmless each Underwriter, each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, and each affiliate of any Underwriter within the
meaning of Rule 405 under the Securities Act, from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus or the Prospectus
(as amended or supplemented if the Company shall have furnished any amendments
or supplements thereto), or caused by any omission or alleged omission to state
18
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter through
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ expressly for use therein.
(b) The Selling Shareholder agrees to indemnify and hold harmless
each Underwriter, the Company, the directors of the Company, the officers
of the Company who sign the Registration Statement, each person, if any,
who controls any Underwriter or the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act and
each affiliate of any Underwriter within the meaning of Rule 405 under the
Securities Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or
any amendment thereof, any preliminary prospectus or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments
or supplements thereto), or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, but only with reference to
information relating to the Selling Shareholder furnished in writing by or
on behalf of the Selling Shareholder expressly for use in the Registration
Statement, any preliminary prospectus, the Prospectus or any amendments or
supplements thereto.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, the Selling Shareholder, the directors of
the Company, the officers of the Company who sign the Registration
Statement and each person, if any, who controls the Company or the Selling
Shareholder within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act from and against any and all losses,
claims, damages and liabilities (including, without limitation, any legal
or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus or the
Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, but
only with reference to information relating to such Underwriter furnished
to the Company in writing by such Underwriter through ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto.
(d) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to Section 9(a), 9(b) or 9(c), such
person (the "INDEMNIFIED PARTY") shall promptly notify the person against
whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing
and the indemnifying party, upon request of the indemnified party, shall
retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified
19
party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any indemnified party
shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless
(i) the indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel or (ii) the named parties to any
such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings
in the same jurisdiction, be liable for (i) the fees and expenses of more
than one separate firm (in addition to any local counsel) for all
Underwriters and all persons, if any, who control any Underwriter within
the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act or who are affiliates of any Underwriter within the
meaning of Rule 405 under the Securities Act, (ii) the fees and expenses
of more than one separate firm (in addition to any local counsel) for the
Company, its directors, its officers who sign the Registration Statement
and each person, if any, who controls the Company within the meaning of
either such Section and (iii) the fees and expenses of more than one
separate firm (in addition to any local counsel) for the Selling
Shareholder and all persons, if any, who control the Selling Shareholder
within the meaning of either such Section, and that all such fees and
expenses shall be reimbursed as they are incurred. In the case of any such
separate firm for the Underwriters and such control persons and affiliates
of any Underwriters, such firm shall be designated in writing by ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated. In the case of any such separate firm for the
Company, and such directors, officers and control persons of the Company,
such firm shall be designated in writing by the Company. The indemnifying
party shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if there
be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and
expenses of counsel as contemplated by the second and third sentences of
this paragraph, the indemnifying party agrees that it shall be liable for
any settlement of any proceeding effected without its written consent if
(i) such settlement is entered into more than 30 days after receipt by
such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been
a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter
of such proceeding.
(e) To the extent the indemnification provided for in Section 9(a),
9(b) or 9(c) is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein,
then each indemnifying party under such
20
paragraph, in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages or liabilities (1) in such
proportion as is appropriate to reflect the relative benefits received by
the indemnifying party or parties on the one hand and the indemnified
party or parties on the other hand from the offering of the Shares or (ii)
if the allocation provided by clause 9(e)(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 9(e)(i) above but also the
relative fault of the indemnifying party or parties on the one hand and of
the indemnified party or parties on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Selling Shareholder on
the one hand and the Underwriters on the other hand in connection with the
offering of the Shares shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Shares (before
deducting expenses) received by the Company and the Selling Shareholder
and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate Public Offering Price of the Shares. The
relative fault of the Company and the Selling Shareholder on the one hand
and the Underwriters on the other hand shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of
a material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company and the Selling
Shareholder or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Underwriters' respective obligations to
contribute pursuant to this Section 9 are several in proportion to the
respective number of Shares they have purchased hereunder, and not joint.
(f) The Company, the Selling Shareholder and the Underwriters agree
that it would not be just or equitable if contribution pursuant to this
Section 9 were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to in Section 9(e). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages and liabilities referred
to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 9, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The remedies provided
for in this Section 9 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law
or in equity.
21
(g) The indemnity and contribution provisions contained in this
Section 9 and the representations, warranties and other statements of the
Company and the Selling Shareholder contained in this Agreement shall
remain operative and in full force and effect regardless of (a) any
termination of this Agreement, (b) any investigation made by or on behalf
of any Underwriter, any person controlling any Underwriter or any
affiliate of any Underwriter, any Selling Shareholder or any person
controlling the Selling Shareholder, or the Company, its officers or
directors or any person controlling the Company and (c) acceptance of and
payment for any of the Shares.
10. Termination. The Underwriters may terminate this Agreement by notice
given by you to the Company, if after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on, or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange, the Nasdaq National Market,
the Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the
Chicago Board of Trade, (ii) trading of any securities of the Company shall have
been suspended on any exchange or in any over-the-counter market, (iii) a
material disruption in securities settlement, payment or clearance services in
the United States shall have occurred, (iv) any moratorium on commercial banking
activities shall have been declared by Federal or New York State authorities or
(v) there shall have occurred any outbreak or escalation of hostilities, or any
change in financial markets or any calamity or crisis that, in your judgment, is
material and adverse and which, singly or together with any other event
specified in this clause (v), makes it, in your judgment, impracticable or
inadvisable to proceed with the offer, sale or delivery of the Shares on the
terms and in the manner contemplated in the Prospectus.
11. Effectiveness; Defaulting Underwriters. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date, either of the Underwriters shall fail or refuse
to purchase Shares that it has agreed to purchase hereunder on such date, and
the aggregate number of Shares which such defaulting Underwriter agreed but
failed or refused to purchase is not more than one-tenth of the aggregate number
of the Shares to be purchased on such date, the other Underwriter shall be
obligated to purchase the Shares which such defaulting Underwriter agreed but
failed or refused to purchase on such date; provided that in no event shall the
number of Shares that either Underwriter has agreed to purchase pursuant to this
Agreement be increased pursuant to this Section 11 by an amount in excess of
one-ninth of such number of Shares without the written consent of such
Underwriter. If, on the Closing Date, either Underwriter shall fail or refuse to
purchase Shares and the aggregate number of Shares with respect to which such
default occurs is more than one-tenth of the aggregate number of Shares to be
purchased, and arrangements satisfactory to you, the Company and the Selling
Shareholder for the purchase of such Shares are not made within 36 hours after
such default, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter, the Company or the Selling Shareholder. In any
such case either you or the Selling Shareholder shall have the right to postpone
the Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and in the Prospectus or
in any other documents or arrangements may be effected. Any action taken under
this paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
22
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Selling Shareholder to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Selling Shareholder shall be unable to perform its
obligations under this Agreement, the Selling Shareholder will reimburse the
Underwriters or such Underwriters as have so terminated this Agreement with
respect to themselves, severally, for all out-of-pocket expenses (including the
fees and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering contemplated
hereunder.
12. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
23
14. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
Very truly yours,
THE ▇.▇. ▇▇▇▇▇▇▇ COMPANY
By: /s/ E. ▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: E. ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
THE ▇▇▇▇▇▇ ▇. SCRIPPS TRUST
By: /s/ ▇▇▇▇▇▇ ▇. Maihaus
--------------------------------
Name: ▇▇▇▇▇▇ ▇. Maihaus
Title: Secretary-Treasurer
Accepted as of the date hereof
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Director
24
SCHEDULE I
NUMBER OF SHARES
UNDERWRITER TO BE PURCHASED
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated ................... 3,500,000
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated ............................ 3,500,000
---------
Total ............................................. 7,000,000
SCHEDULE II
SIGNIFICANT SUBSIDIARIES
Memphis Publishing Company
Scripps Texas Newspapers, ▇.▇.
▇▇▇▇▇▇▇ County Publishing Company
Scripps ▇▇▇▇▇▇ Broadcasting Company
Scripps Networks, Inc.
